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EXHIBIT 10.9
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 8, 1999
AMONG
THE XXXXXXXX GROUP, INC., AS ISSUER
THE GUARANTORS NAMED HEREIN
AND
THE BANK OF NEW YORK, AS TRUSTEE
$250,000,000
9% SENIOR SUBORDINATED NOTES DUE JANUARY 15, 2009
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FIRST SUPPLEMENTAL INDENTURE, dated as of April 8, 1999, by and between
The Xxxxxxxx Group, Inc., a Delaware corporation (the "COMPANY"), Xxxxxxxx
Airport Advertising, Inc., a Washington corporation, Xxxxxxxx Communications of
Massachusetts, Inc., a Washington corporation, AK Media Group, Inc., a
Washington corporation, Central NY News, Inc., a Washington corporation, T.C.
Aviation, Inc., an Oregon corporation, and KVOS TV Ltd., a British Columbia,
Canada corporation (collectively, the "GUARANTORS"), and The Bank of New York, a
New York banking corporation, as trustee (the "TRUSTEE").
RECITALS
The Company and the Trustee are parties to a certain Indenture dated as
of December 14, 1998 (the "INDENTURE") relating to up to $250,000,000 aggregate
principal amount of the Company's 9% Senior Subordinated Notes due 2009 (the
"SECURITIES"); and
Under the terms of the Indenture, the Guarantors, the Company and the
Trustee are required under certain circumstances to execute and deliver a
supplemental indenture pursuant to which each Guarantor becomes a guarantor of
the Securities and which evidences such Guarantor's guarantee of the Securities,
such guarantee to be a senior subordinated unsecured obligation of such
Guarantor; and
The Company, the Guarantors, and the Trustee now desire to enter into
this First Supplemental Indenture, which adds to the Indenture a new article,
entitled "Article 12. Guarantees of the Securities," and pursuant to which each
Guarantor will become a guarantor of the Securities in accordance with the terms
of the Indenture and the terms hereof.
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
NOW, THEREFORE, for and in consideration of the promises and covenants
contained in the Indenture and other good and valuable consideration, it is
covenanted and agreed, for the benefit of each other and for the equal and
proportionate benefit of the Holders of the Securities issued under the
Indenture, as follows:
ARTICLE 12.
GUARANTEES OF THE SECURITIES
SECTION 12.01. GUARANTEES.
Subject to the provisions of this Article 12, each Guarantor hereby
jointly and severally unconditionally guarantees to each Holder of a Security
authenticated and made available for delivery by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Securities or the obligations of the Company or any other
Guarantors to the Holders or the Trustee
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hereunder, that: (a) the principal of and interest on the Securities will be
duly and punctually paid in full when due, whether at maturity, by acceleration
or otherwise, and interest on the overdue principal and (to the extent permitted
by law) interest, if any, on the Securities and all other Obligations on the
Securities will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Securities or any of such other Obligations on the
Securities, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at final stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, for whatever reason, each Guarantor will be obligated to pay the
same immediately. An Event of Default under this Indenture or the Securities
shall constitute an event of default under the Guarantees, and shall entitle the
Holders of Securities to accelerate the obligations of the Guarantors hereunder
in the same manner and to the same extent as the obligations of the Company on
the Securities.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularly or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, any release of any other Guarantor,
the recovery of any judgment against the Company, an action to enforce the same,
whether or not a Guarantee is affixed to any particular Security, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each of the Guarantors hereby waives the benefit of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that its Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture and
the Guarantee. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or to any Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
or such Guarantor, any amount paid by the Company or such Guarantor to the
Trustee or such Holder, the Guarantees, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Guarantor further agrees
that, as between it, on the one hand, and the Holders of Securities and the
Trustee, on the other hand, (a) subject to this Article 12, the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 6.02 for
the purposes of the Guarantees, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Section 6.02, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of the
Guarantees.
The Guarantees shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be
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effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities are, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee on
the Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
No stockholder, officer, director, employer or incorporator, past,
present or future, of any Guarantor, as such, shall have any personal liability
under the Guarantees by reason of his, her or its status as such stockholder,
officer, director, employer or incorporator.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantees.
Each Guarantor, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that in no event shall any
Guarantor's obligations under its Guarantee be subject to avoidance under any
applicable fraudulent conveyance or similar law of any relevant jurisdiction.
Therefore, in the event that the Guarantees would, but for this sentence, be
subject to avoidance, then the liability of the Guarantors under the Guarantees
shall be reduced to the extent necessary such that such Guarantees shall not be
subject to avoidance under the applicable fraudulent conveyance or similar law.
Subject to the preceding limitation on liability, the Guarantee of each
Guarantor constitutes a guarantee of payment in full when due and not merely
guarantee of collectibility.
SECTION 12.02. EXECUTION AND DELIVERY OF THE GUARANTEES.
To further evidence the Guarantees set forth in Section 12.01, each
Guarantor hereby agrees that a notation of such Guarantees, substantially in the
form included in Exhibit F hereto, shall be endorsed on each Security
authenticated and made available for delivery by the Trustee. The validity and
enforceability of any Guarantee shall not be affected by the fact that it is not
affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 12.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee authenticates such
Security or at any time thereafter, such Guarantor's Guarantee of such Security
shall be valid nevertheless.
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The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 12.03. ADDITIONAL GUARANTORS.
Any Person may become a Guarantor by executing and delivering to the
Trustee (a) a supplemental indenture, in form and substance satisfactory to the
Trustee, which subjects such Person to the provisions of this Indenture as a
Guarantor, and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and constitutes
the legal, valid, binding and enforceable obligation of such Person (subject to
such customary exceptions concerning fraudulent conveyance laws, creditors'
rights and equitable principles as may be acceptable to the Trustee in its
discretion).
SECTION 12.04. LIMITATION OF GUARANTORS' LIABILITY.
The obligations of each Guarantor are limited to the maximum amount as
will after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees under the Credit
Agreement) and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to Section 12.06, result in the
obligations of such Guarantor under the Guarantees not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law. Each Guarantor
that makes a payment or distribution under the Guarantees shall be entitled to a
contribution from each other Guarantor in a pro rata amount based on the
Adjusted Net Assets of each Guarantor.
SECTION 12.05. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor or shall prevent any sale or conveyance of the
property of a Guarantor, as an entirety or substantially as an entirety, to the
Company or another Guarantor. Upon any such consolidation, merger, sale or
conveyance, the Guarantee given by such Guarantor shall no longer have any force
or effect.
(b) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Guarantor with or into a Person
(provided such Person is a corporation, partnership or trust) other than the
Company or another Guarantor or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to any
such Person (whether or not an Affiliate of the Guarantor). Upon the sale or
disposition of a Guarantor (or all or substantially all of its assets) to a
Person which is not a Subsidiary of the Company, which is otherwise in
compliance with this Indenture (including Section 4.16), such Guarantor shall be
deemed
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released from all its obligations under this Indenture and its Guarantee and
such Guarantee shall terminate; provided that any such termination shall occur
only to the extent that all obligations of such Guarantor under the Credit
Agreement, and all its guarantees of, and under all of its pledges of assets or
other security interests which secure, Indebtedness of the Company shall also
terminate upon such release, sale or transfer.
(c) The Trustee shall, at the Company's expense, deliver an appropriate
instrument evidencing such release upon receipt of a request by the Company
accompanied by an Officers' Certificate certifying as to the compliance with
this Section 12.05. Any Guarantor not so released remains liable for the full
amount of principal and interest on the Securities as provided in this Article
12.
SECTION 12.06. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter alia, that in the event any payment or
distribution is made by any Guarantor (a "FUNDING GUARANTOR") under the
Guarantees, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company
obligations with respect to the Securities or any other Guarantor's obligations
with respect to the Guarantees; provided that such Funding Guarantor's
contribution right with respect to any such Guarantor shall be subordinated in
right of payment to such Guarantor's Guarantor Senior Debt on the same basis as
its Guarantee is subordinated to Guarantor Senior Debt pursuant to this Article
12.
SECTION 12.07. WAIVER OF SUBROGATION.
Each Guarantor hereby irrevocably waives any claim or other rights which
it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under the Guarantees and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration or indemnification, and any
right to participate in any claim or remedy of any Holder of Securities against
the Company, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without limitation , the right
to take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the Securities shall not have been paid
in full, such amount shall have been deemed to have been paid to such Guarantor
for the benefit of, and held in trust for the benefit of, the Holders of the
Securities, and shall, subject to the provisions of this Article 12, forthwith
be paid to the Trustee for the benefit of such Holders to be credited and
applied upon the Securities, whether matured or unmatured, in accordance with
the terms of this Indenture. Each Guarantor acknowledges that it will receive
direct or indirect benefits from the financing arrangements contemplated by this
Indenture and that
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the waiver set forth in this Section 12.07 is knowingly made in contemplation of
such benefits.
SECTION 12.08. GUARANTEE OBLIGATIONS SUBORDINATED TO GUARANTOR SENIOR DEBT.
Each Guarantor covenants and agrees, and the Trustee and each Holder of
the Securities, by its acceptance thereof, likewise covenants and agrees, that
all Guarantees shall be issued subject to the provisions of this Article 12; and
the Trustee and each Person holding any Guarantee, whether upon original issue
or upon transfer, assignment or exchange thereof, accepts and agrees that the
payment of all Obligations on the Securities pursuant to the Guarantees (except
for the payment of fees and expenses of the Trustee under Section 7.07) made by
or on behalf of such Guarantor shall, to the extent and in the manner herein set
forth, be subordinated and junior in right of payment to the prior payment in
full in cash or Cash Equivalents (or such payment shall be duly provided for to
the satisfaction of the holders of the Guarantor Senior Debt of any Guarantor)
of all existing and future Obligations on the Guarantor Senior Debt of such
Guarantor; that the subordination is for the benefit of, and shall be
enforceable directly by the holders of Guarantor Senior Debt of any Guarantor
and that each holder of Guarantor Senior Debt of any Guarantor whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Guarantor Senior Debt of any Guarantor in reliance upon
the covenants and provisions contained in this Indenture and the Guarantees.
This Section 12.08 and the following Sections 12.09 through 12.22 of
this Article 12 shall constitute a continuing offer to all Persons who, in
reliance upon such provisions, become holders of, or continue to hold, Guarantor
Senior Debt of any Guarantor and, to the extent set forth in this Section 12.09,
holders of Designated Guarantor Senior Debt; and such provisions are made for
the benefit of the holders of Guarantor Senior Debt of each Guarantor and, to
the extent set forth in Section 12.09, holders of Designated Guarantor Senior
Debt; and such holders (to such extent) are made obligees hereunder and they or
each of them may enforce such provisions.
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SECTION 12.09. NO PAYMENT ON GUARANTEES IN CERTAIN CIRCUMSTANCES.
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on or any other amounts owing with respect to any
Guarantor Senior Debt, no payment of any kind or character (except for
guarantees of Permitted Securities on the same basis as the Guarantees) shall be
made by any Guarantor or any other Person on behalf of such Guarantor with
respect to any Obligations on the Securities or under the Guarantees or to
acquire any of the Securities for cash or property or otherwise. In addition, if
any other event of default occurs and is continuing (or if such an event of
default would occur upon any payment with respect to the Securities or would
arise upon the passage of time as a result of such payment) with respect to an
Designated Guarantor Senior Debt (as such event of default is defined in the
instrument creating or evidencing such Designated Guarantor Senior Debt) and
such event of default permits the holders of such Designated Guarantor Senior
Debt then outstanding to accelerate the maturity thereof and if the
Representative for the respective issue of Designated Guarantor Senior Debt
gives a Default Notice to the Company, the Guarantors and the Trustee, then,
unless and until all events of default have been cured or waived or have ceased
to exist or the Company, the Guarantors and the Trustee receive notice from the
Representative for the respective issue of Designated Guarantor Senior Debt
terminating the Blockage Period, neither the Guarantors nor any other Person on
behalf of the Guarantors shall make any payment of any kind or character (except
for guarantees of Permitted Securities on the same basis as the Guarantees) with
respect to any Obligations of a Guarantor on the Securities or under the
Guarantees or to acquire any of the Securities for cash or property or
otherwise. Notwithstanding anything herein to the contrary, in no event will a
Blockage Period extend beyond 180 days from the date the payment on the
Securities was due and only one such Blockage Period may be commenced within any
360 consecutive days. For all purposes of this Section 12.09(a), no event of
default which existed or was continuing on the date of the commencement of any
Blockage Period with respect to the Designated Guarantor Senior Debt initiating
such Blockage Period shall be, or be made, the basis for the commencement of a
second Blockage Period by the Representative of such Designated Guarantor Senior
Debt, whether or not within a period of 360 consecutive days, unless such event
of default shall have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants for a period commencing after the date of
commencement of such Blockage Period that in either case, would give rise to an
event of default pursuant to any provision under which an event of default
previously existed or was continuing shall constitute a new event of default for
this purpose).
(b) In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any Holder of a Guarantee when such payment is
prohibited by Section 12.09(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Guarantor
Senior Debt (pro rata to such holders on the basis of the respective amounts of
Guarantor Senior Debt held by such holders) or their respective Representatives,
as their respective interests may appear. The Trustee shall be
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entitled to rely on information regarding amounts then due and owing on the
Guarantor Senior Debt, if any, received from the holders of Guarantor Senior
Debt (or their Representatives) or, if such information is not received from
such holders or their Representatives, from the Company or the Guarantors and
only amounts included in the information provided to the Trustee shall be paid
to the holders of Guarantor Senior Debt.
Nothing contained in this Article 12 shall limit the right of the
Trustee or the Holders of Securities to any action to accelerate the maturity of
the Securities pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; provided that all Guarantor Senior Debt thereafter due or declared to
be due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment with respect to Obligations on the
Guarantees.
SECTION 12.10. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets of any Guarantor of any
kind or character, whether in cash, property or securities, to creditors upon
any liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshalling of assets of any Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or other similar proceeding
relating to any Guarantor or its property, whether voluntary or involuntary, all
Obligations due or to become due upon ail Guarantor Senior Debt shall first be
paid in full in cash or Cash Equivalents, or such payment duly provided for to
the satisfaction of the holders of the Guarantor Senior Debt, before any payment
or distribution of any kind or character is made on account of any Obligations
of a Guarantor on the Guarantees, or for the acquisition of any of the
Securities for cash or property or otherwise. Upon any such dissolution,
winding-up, liquidation, reorganization, receivership or similar proceeding, any
payment, or distribution of assets of any Guarantor of any kind or character,
whether in cash, property or securities, to which the Holders of the Guarantees
or the Trustee under this Indenture would be entitled, except for the provisions
hereof, shall be paid by the Guarantors or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Guarantees or by the Trustee under this
Indenture if received by them, directly to the holders of Guarantor Senior Debt
(pro rata to such holders on the basis of the respective amounts of Guarantor
Senior Debt held by such holders) or their respective Representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Guarantor
Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of Guarantor Senior Debt remaining unpaid until all
such Guarantor Senior Debt has been paid in full in cash or Cash Equivalents
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of Guarantor Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt (whether by or on
behalf of a Guarantor, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to a receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under
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any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the Guarantor
Senior Debt or part thereof originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of a Guarantor of any kind or character, whether in cash,
property or securities, shall be received by any Holder when such payment or
distribution is prohibited by Section 12.10(a), such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Guarantor Senior Debt (pro rata to such holders on the basis
of the respective amount of Guarantor Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Guarantor Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of
Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has
been paid in full in cash or Cash Equivalents, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Guarantor Senior Debt.
(d) The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution of
any Guarantor following the conveyance or transfer of all or substantially all
of its assets to another corporation upon the terms and conditions provided in
Section 12.05 as if the Guarantor were the Company and as long as permitted
under the terms of the Guarantor Senior Debt shall not be deemed a dissolution,
winding up, liquidation or reorganization for the purposes of this Section 12.10
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, assume such Guarantor's obligations hereunder in
accordance with Section 12.05 as if the Guarantor were the Company.
SECTION 12.11. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article 12 or elsewhere in this Indenture
shall prevent (i) a Guarantor, except under the conditions described in Sections
12.08 and 12.09, from making payments at any time for the purpose of making
payments of principal of and interest on the Securities, or from depositing with
the Trustee any moneys for such payments, or (ii) in the absence of actual
knowledge by the Trustee that a given payment would be prohibited by Sections
12.08 and 12.09, the application by the Trustee of any moneys deposited with it
for the purpose of making such payments of principal on, and interest on, the
Securities to the Holders entitled thereto unless, at least one Business Day
prior to the date upon which such payment would otherwise become due and
Payable, the Trustee shall have actually received the written notice provided
for in Section 12.09(a) or in Section 12.16. The Guarantor shall give prompt
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of any Guarantor.
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SECTION 12.12. SUBROGATION.
Subject to the payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt, the Holders of the Guarantees shall be subrogated to the
rights of the holders of Guarantor Senior Debt to receive payments or
distributions of cash, property or securities of a Guarantor applicable to the
Guarantor Senior Debt until the Securities shall be paid in full; and, for the
purposes of such subrogation, no such payments or distributions to the holders
of the Guarantor Senior Debt by or on behalf of any Guarantor or by or on behalf
of the holders of the Guarantees by virtue of this Article 12 which otherwise
would have been made to such holders shall, as between such Guarantor and the
holders of the Guarantees, be deemed to be a payment by such Guarantor to or on
account of the Guarantor Senior Debt.
SECTION 12.13. GUARANTEE PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The subordination provisions of this Article 12 are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Guarantor Senior Debt of each
Guarantor and, to the extent set forth in Section 12.09, holders of Designated
Guarantor Senior Debt on the other hand. Nothing contained in this Article 12 or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among each Guarantor, its creditors other than holders of its
Guarantor Senior Debt and the Holders of the Securities, the obligation of such
Guarantor, which is absolute and unconditional, to make payments to the Holders
in respect of its obligations under its Guarantee as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against such Guarantor of the Holders of the Securities and
creditors of such Guarantor other than the holders of the Guarantor Senior Debt
of such Guarantor; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
the subordination provisions of this Article 12 of the holders of Guarantor
Senior Debt of the Guarantors hereunder and, to the extent set forth in Section
12.09, holders of Designated Guarantor Senior Debt on the other hand (1) in any
case, proceeding, dissolution, liquidation or other winding-up, assignment for
the benefit of creditors or other marshalling of assets and liabilities of the
Guarantor referred to in Section 12.10, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the conditions specified
in Section 12.09, to prevent any parent prohibited by such Section or enforce
their rights pursuant to Section 12.09(c).
The failure by any Guarantor to make a payment in respect of its
obligations under this Guarantee by reason of any provision of this Article 12
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
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SECTION 12.14. TRUSTEE TO EFFECTUATE SUBORDINATION OF OBLIGATIONS UNDER THE
GUARANTEE.
Each Holder of a Security by its acceptance of such Security authorizes
and expressly directs the Trustee to take on behalf of such Holder of Securities
such action as may be necessary or appropriate to effectuate as between the
holders of Guarantor Senior Debt and Holders of Guarantees, the subordination
provided in this Article 12, and appoints the Trustee its attorney-in-fact to
act for it and on its behalf for such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of any guarantor (whether
in bankruptcy, insolvency, receivership, reorganization or similar proceedings
or upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of such Guarantor, the filing of a claim
for the unpaid balance of its Guarantees and accrued interest in the form
required in those proceedings.
SECTION 12.15. NO WAIVER OF GUARANTEE SUBORDINATION PROVISIONS.
No right of any present or future holder of any Guarantor Senior Debt of
any Guarantor to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or any Guarantor or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by the Company or any Guarantor with
the terms of this Indenture, regardless of any knowledge thereof any such holder
may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Debt of any Guarantor may, at any time and from
time to time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Securities and without
impairing or releasing the subordination provided in this Article 12 or the
obligations hereunder of the Holders of the Guarantees to the holders of such
Guarantor Senior Debt, do any one or more of the following:(1) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Guarantor Senior Debt or any Senior Debt as to which such Guarantor
Senior Debt relates, or otherwise amend or supplement in any manner such
Guarantor Senior Debt or any Senior Debt to which such Guarantor Senior Debt
relates; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Guarantor Senior Debt or any
Senior Debt as to which such Guarantor Senior Debt relates; (3) release any
person liable in any manner for the collection or payment of such Guarantor
Senior Debt or any Senior Debt as to which such Guarantor Senior Debt relates;
and (4) exercise or refrain from exercising any rights against such Guarantor
and any other Person.
SECTION 12.16. GUARANTORS TO GIVE NOTICE TO TRUSTEE.
The Company and each Guarantor shall give prompt written notice to the
Trustee of any fact known to such Guarantor the making of any payment to or by
the Trustee in
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respect of the Securities pursuant to the provisions of this Article 12.
Notwithstanding the subordination provisions of this Article 12 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any default or event of default with respect to any Guarantor
Senior Debt or of any other facts which would prohibit the making of any payment
to or by the Trustee unless and until the Trustee shall have received notice in
writing from the Company, such Guarantor or from a holder of Guarantor Senior
Debt or a Representative therefor, and, prior to the receipt of any such written
notice, the Trustee shall be entitled to assume (in the absence of actual
knowledge to the contrary) that no such facts exist. In the event that the
Trustee determines in good faith that any evidence is required with respect to
the right of any Person as a holder of Guarantor Senior Debt of any Guarantor to
participate in any payment or distribution pursuant to this Article 12, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Guarantor Senior Debt of each
Guarantor held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article 12, and if such evidence is not
furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 12.17. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT
REGARDING DISSOLUTION, ETC., OF GUARANTORS.
Upon an payment or distribution of assets of a Guarantor referred to in
this Article 12, the Trustee, subject to the provisions of Article 7 hereof, and
the Holders shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such bankruptcy, liquidation,
reorganization, dissolution or winding-up proceeding are pending or, upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, delivered to the Trustee or
to the Holders of the Guarantees, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of
Guarantor Senior Debt of such Guarantor and other Indebtedness of such
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other acts pertinent thereto or to this Article 12.
SECTION 12.18. RIGHTS OF TRUSTEE AS A HOLDER OF GUARANTOR SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHT.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 12 with respect to any Guarantor Senior Debt of
any Guarantor which may at any time be held by the Trustee, to the same extent
as any other holder of such Guarantor Senior Debt, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article 12 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
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SECTION 12.19. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article 12 shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article 6 or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article 12 of the holders, from time to time, of Guarantor Senior Debt of
the Guarantors.
SECTION 12.20. TRUSTEE'S RELATION TO GUARANTOR SENIOR DEBT.
The Trustee and any agent of the Guarantor or the Trustee shall be
entitled to all the rights set forth in this Article 12 with respect to any
Guarantor Senior Debt which may at any time be held by it in its individual or
any other capacity to the same extent as any other holder of the Guarantor
Senior Debt and nothing in this Indenture shall deprive the Trustee or any such
agent of any of its rights as such holder and shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other person cash, property or
securities to which any holders of Guarantor Senior Debt shall be entitled by
virtue of this Article 12 or otherwise.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform or to observe only such of its duties, covenants,
responsibilities and obligations as are specifically set forth in this Article
12, and no implied covenants or obligations with respect to the holders of
Guarantor Senior Debt shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary or other duty to the holders of
Guarantor Senior Debt.
Whenever a distribution is to be made or a notice given to holders or
owners of Guarantor Senior Debt, the distribution may be made and the notice may
be given to their Representative, if any.
SECTION 12.21. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
GUARANTORS OR HOLDERS OF GUARANTOR SENIOR DEBT.
No right of any present or future holders of any Guarantor Senior Debt
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Guarantors or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Guarantors with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Securities and without
impairing or releasing the subordination provided in this
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Article 12 or the obligations hereunder of the Holders of the Securities to the
holders of the Guarantor Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Guarantor Senior Debt, or otherwise amend or supplement in
any manner Guarantor Senior Debt, or any instrument evidencing the same or any
agreement under which Guarantor Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Guarantor Senior Debt; (iii) release any Person liable in any manner
for the payment or collection of Guarantor Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Guarantors and any other Person.
SECTION 12.22. THIS ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article 12 will not be
construed as preventing the occurrence of an Event of Default.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed by its duly authorized officers as of the date first above written.
THE COMPANY
THE XXXXXXXX GROUP, INC.
By:
----------------------------------------
Xxxxx X. Xxxxxxxx
Senior Vice President and Chief
Information Officer, Assistant
Secretary and Controller
THE GUARANTORS
XXXXXXXX AIRPORT
ADVERTISING, INC.
By:
----------------------------------------
Xxxxx X. Xxxxxxxx
Assistant Secretary
(signatures continued)
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XXXXXXXX COMMUNICATIONS OF
MASSACHUSETTS, INC.
By:
----------------------------------------
Xxxxx X. Xxxxxxxx
Assistant Secretary
AK MEDIA GROUP, INC.
By:
----------------------------------------
Xxxxx X. Xxxxxxxx
Assistant Secretary
CENTRAL NEW YORK NEWS, INC.
By:
----------------------------------------
Xxxxx X. Xxxxxxxx
Assistant Secretary
KVOS TV, LTD.
By:
----------------------------------------
Xxxxx X. Xxxxxxxx
Assistant Secretary
T.C. AVIATION, INC.
By:
----------------------------------------
Xxxxx X. Xxxxxxxx
Assistant Secretary
(signatures continued)
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THE TRUSTEE
THE BANK OF NEW YORK
By:
----------------------------------------
Title:
--------------------------------------
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