TENTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of February 2, 1998, among SFX Broadcasting, Inc. (the "Company"), a Delaware
corporation; KJQY-FM Licensee, Inc., a Delaware corporation; SFX Broadcasting
of Texas (KTCK), Inc., a Delaware corporation; SFX Broadcasting of Texas
(KTCK), Licensee, Inc., a Delaware corporation; SFX Broadcasting of San Diego,
Inc., a Delaware corporation; Xxxxxx Broadcasting Company, a California
corporation; SFX Broadcasting of San Diego Licensee, Inc., a Delaware
corporation; Liberty Broadcasting, Incorporated, a Delaware corporation;
Liberty Broadcasting Group Incorporated, a Delaware corporation; Liberty
Broadcasting of New York Incorporated, a New York corporation; Liberty
Broadcasting of Albany Incorporated, a New York corporation; Liberty
Broadcasting of Maryland II Incorporated, a Maryland corporation; WHJJ, Inc., a
Rhode Island corporation; WHFM, Inc., a New York corporation; WHCN, Inc., a
Connecticut corporation; WHCN-FM, Inc., a Delaware corporation; WSNE, Inc., a
Rhode Island corporation; WSNE-FM, Inc., a Delaware corporation; WMXB, Inc., a
Virginia corporation; WPYX, Inc., a New York corporation; WHJY, Inc., a Rhode
Island corporation; WPOP, Inc., a Connecticut corporation; WGNA, Inc., a New
York corporation; WGNA-FM, Inc., a New York corporation; WGBB, Inc., a New York
corporation; Xxxx-Xxxx Communications, Inc., a Delaware corporation; WTRY,
Inc., a New York corporation; WYSR, Inc., a Connecticut corporation; WBLI,
Inc., a New York corporation; WBLI-FM, Inc., a Delaware corporation; WBAB,
Inc., a New York corporation; SFX Broadcasting of Hartford, Inc., a Delaware
corporation; Multi-Market Radio, Inc., a Delaware corporation; Southern Starr
Broadcasting Group, Inc., a Delaware corporation; Southern Starr of Arkansas,
Inc., an Arkansas corporation; General Communicorp, Inc., a Connecticut
corporation; General Broadcasting of Connecticut, Inc., a Connecticut
corporation; Southern Starr Communications, Inc., a Delaware corporation;
Southern Starr Limited Partnership, a partnership organized in Delaware;
Multi-market Radio of Augusta, Inc., a Delaware Corporation; Multi-market Radio
of Myrtle Beach, Inc., a Delaware corporation; Multi-market Radio of
Northampton, Inc., a Delaware corporation; Multi-market Radio of Hartford,
Inc., a Delaware corporation; Southern Starr Management, Inc., a Delaware
corporation; General Broadcasting of Florida, Inc., a Florida corporation;
General Broadcasting Corp., a Connecticut corporation; Delsener/Xxxxxx
Enterprises, Ltd., a New York corporation; SFX Concerts, Inc. (formerly known
as Delsener/Xxxxxx Enterprises, Inc.), a Delaware corporation; In House
Tickets, Inc., a New York Corporation; Connecticut Concerts Incorporated, a
Connecticut corporation; Ardee Festivals N.J., Inc., a New Jersey corporation;
Beach Concerts, Inc., a New York corporation; Ardee Productions, Ltd., a New
York corporation; Exit 116 Revisited, Inc., a New Jersey corporation; Dumb
Deal, Inc., a New York corporation; Broadway Concerts, Inc., a New York
corporation; SFX Broadcasting of Indiana, Inc., a Delaware corporation; FPI
Concerts, Inc., a Delaware corporation; Connecticut Amphitheater Development
Corporation, a Connecticut corporation; Connecticut Performing Arts, Inc., a
Connecticut corporation; Deer Creek Amphitheater Concerts, Inc., a Delaware
corporation; Great American Music Fest & Production co., a Connecticut
corporation; Irving Plaza Concerts, Inc., a Delaware corporation; Multi-market
Radio of Fayetteville, Inc., a Delaware corporation; Murat Center Concerts,
Inc., a Delaware corporation; NOC, Inc., a Connecticut corporation; Polaris
Amphitheater Concerts, Inc., a Delaware corporation; QN-Corp., Inc., a
Connecticut corporation; SFX Broadcasting of Arizona, Inc., a Delaware
corporation; SFX Broadcasting of California, Inc., a Delaware corporation; SFX
Broadcasting of Connecticut, Inc., a Delaware corporation; SFX Broadcasting of
Connecticut Licensee, Inc., a Delaware corporation; SFX Broadcasting of
Florida,
Inc., a Delaware corporation; SFX Broadcasting of Hartford II, Inc., a Delaware
corporation; SFX Broadcasting of Kansas, Inc., a Delaware corporation; SFX
Broadcasting of Massachusetts, Inc., a Delaware corporation; SFX Broadcasting
of Massachusetts Licensee, Inc., a Delaware corporation; SFX Broadcasting of
New York, Inc., a Delaware corporation; SFX Broadcasting of Pennsylvania, Inc.,
a Delaware corporation; SFX Broadcasting of Rhode Island, Inc., a Delaware
corporation; SFX Broadcasting of the Midwest, Inc., a Delaware corporation; SFX
Broadcasting of Virginia, Inc., a Delaware corporation; SFX Broadcasting of
Wisconsin, Inc., a Delaware corporation; SFX Delaware, Inc., a Delaware
corporation; SFX GP, Inc., a Delaware corporation; SFX Holdings, Inc., a
Delaware corporation; SFX Operating Company of Mississippi, Inc., a Delaware
corporation; SFX Operating Company of North Carolina, Inc., a Delaware
corporation; SFX Operating Company of Tennessee, Inc., a Delaware corporation;
SFX Operating GP, Inc., a Delaware corporation; SFX Performance Marketing,
Inc., a Delaware corporation; SFX Texas Limited Partnership, a partnership
organized in Delaware; SFXAZ Limited Partnership, a partnership organized in
Delaware; SFXBX Limited Partnership, a partnership organized in Delaware; SFXFL
Limited Partnership, a partnership organized in Delaware; SFXIN Limited
Partnership, a partnership organized in Delaware; SFXKS Limited Partnership, a
partnership organized in Delaware; SFXMS Limited Partnership, a partnership
organized in Delaware; SFXNC Limited Partnership, a partnership organized in
Delaware; SFXPA Limited Partnership, a partnership organized in Delaware; SFXSC
Limited Partnership, a partnership organized in Delaware; SFXTN Limited
Partnership, a partnership organized in Delaware; SFXTX Limited Partnership, a
partnership organized in Delaware; SFXWI Limited Partnership, a partnership
organized in Delaware; Sunshine Designs, Inc., a Delaware corporation; Suntex
Acquisitions, Inc., a Delaware corporation; WWYZ, INC., a Connecticut
corporation; Murat Center Concerts, L.P., a Delaware limited partnership;
Sunshine Design, L.P., a Delaware limited partnership; Suntex Acquisition,
L.P., a Delaware limited partnership; Deer Creek Amphitheater Concerts, L.P., a
Delaware limited partnership; Sunshine Concerts, L.L.C., a Delaware limited
liability company; ABS Communications, L.L.C., a Virginia limited liability
company; SFX Indiana Limited Partnership, a Delaware limited partnership; SFX
Radio Network of North Carolina, Inc., a Delaware corporation; Northeast
Ticketing Company, a Connecticut corporation; Southeast Ticketing Company, a
Connecticut corporation; and SFX Entertainment, Inc., a Delaware corporation
(each of the above entities other than the Company, a "Guarantor"), and The
Chase Manhattan Bank (formerly known as Chemical Bank), as trustee under the
indenture referred to below (the "Trustee").
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RECITALS OF THE COMPANY AND THE GUARANTORS
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee an indenture, dated as of May 31, 1996, as amended by
supplemental indentures, dated as of November 25, 1996, January 10, 1997,
January 13, 1997, January 29, 1997, May 15, 1997, July 8, 1997, October 9,
1997, October 10, 1997 and January 23, 1998 (collectively, the "Indenture"),
providing for the issuance of an aggregate principal amount of $450,000,000 of
10 3/4% Senior Subordinated Notes due 2006 (the "Notes");
WHEREAS, Sections 2.09 and 9.02 of the Indenture provide
that, except with respect to certain specified provisions of the Indenture, the
Indenture may be amended or supplemented with the consent of the Holders of a
majority in principal amount of the then outstanding Notes, other than Notes
owned by the Company, by any Guarantor or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any Guarantor;
WHEREAS, the Company and the Guarantors wish to supplement
the Indenture to change certain provisions of the Indenture as set forth below,
and the Holders of a majority of the aggregate principal amount of the
outstanding Notes as of January 6, 1998, excluding Notes owned by the Company,
by any Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any Guarantor, have consented to the execution of this Tenth Supplemental
Indenture pursuant to the consent solicitation made by the Company pursuant to
that certain Consent Solicitation Statement, dated January 7, 1998, relating to
the Notes, as supplemented by Supplement No. 1 thereto dated January 28, 1998
(the "Consent Solicitation Statement"); and
WHEREAS, the Company and the Guarantors hereby covenant and
represent that all things necessary have been done to make this Supplemental
Indenture a legal, valid and binding agreement of the Company and the
Guarantors in accordance with the terms hereof and of the Indenture.
NOW THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, it is hereby agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Capitalized Terms.
Capitalized terms used herein and not otherwise defined herein are
used with the respective meanings ascribed to such terms in the Indenture.
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SECTION 102. Operative Time.
The amendments to provisions of the Indenture provided for in this
Tenth Supplemental Indenture shall become operative and shall bind the parties
hereto when the Company notifies the Trustee that the Operative Time (as such
term is defined in the Consent Solicitation Statement) has occurred.
SECTION 103. Incorporation of Supplemental Indenture into Indenture.
This Tenth Supplemental Indenture is executed by the Company, the
Guarantors and the Trustee pursuant to the provisions of Section 9.02 of the
Indenture, and the terms and conditions hereof shall be deemed to be part of
the Indenture for all purposes at and as of the Operative Time. The Indenture,
as amended and supplemented by this Tenth Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.
SECTION 104. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 105. Governing Law.
The internal law of the State of New York shall govern and be used to
construe this Tenth Supplemental Indenture.
SECTION 106. Counterparts.
This Tenth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
SECTION 107. Recitals.
The recitals contained herein shall be taken as the statements of the
Company and the Guarantors, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Tenth Supplemental Indenture.
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ARTICLE TWO
AMENDMENTS TO PROVISIONS OF INDENTURE
SECTION 201. Definitions.
(a) The following new terms are hereby added to Section 1.01 of the
Indenture and inserted in alphabetical order in Section 1.01:
"Acquisition Agreements" means the acquisition agreements relating to
the Pending Acquisitions (as defined in the Consent Solicitation Statement of
the Company dated January 7, 1998, as supplemented by Supplement No 1. thereto
dated January 28, 1998) as they may be amended from time to time and all
transactions and agreements specifically contemplated thereby or by instruments
referred to therein.
"Class A Common Stock" means the Company's Class A Common Stock, par
value $.01 per share.
"Class B Common Stock" means the Company's Class B Common Stock, par
value $.01 per share.
"Consent Solicitations" means the consent solicitations of the Company
made pursuant to the Consent Solicitation Statements dated January 7, 1998, as
supplemented by Supplements No. 1 thereto dated January 28, 1998, to the
holders of the Notes and the holders of the Company's 125/8% Series E
Cumulative Exchangeable Preferred Stock due October 31, 2006 and the related
Information Statement.
"Entertainment Companies" means SFX Entertainment and any and all of
its direct and indirect Subsidiaries.
"Xxxxxxx Repurchase" means the redemption by the Company of up to
250,838 shares of Class A Common Stock for $33.00 per share, pursuant to the
Agreement of Merger, dated February 12, 1997, by and among the Company, NOC
Acquisition Corp., CAPCO Acquisition Corp., QN Acquisition Corp., Nederlander
of Connecticut, Inc., Connecticut Amphitheater Development Corporation, QN
Corp., Connecticut Performing Arts, Inc. and Connecticut Performing Arts
Partners and the stockholders of Nederlander of Connecticut, Inc., Connecticut
Amphitheater Development Corporation and QN Corp. listed on the signature page
thereto.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
August 24, 1997, as it may be amended from time to time, among the Company, SBI
Holding Corporation and SBI Radio Acquisition Corporation and all transactions
and agreements specifically contemplated thereby or by instruments referred to
therein.
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"SBI Merger" means a merger of SBI Radio Acquisition Corporation into
the Company pursuant to the Merger Agreement.
"SFX Entertainment" means SFX Entertainment, Inc., a subsidiary of the
Company, incorporated in Delaware, to which the Company will contribute cash
and all of the capital stock of SFX Concerts, Inc. (formerly known as
Delsener/Xxxxxx Enterprises, Inc.) that the Company directly or indirectly
owns.
"Spin-Off" means the distribution of SFX Entertainment common stock
pro rata to the holders of Class A Common Stock and Class B Common Stock (and
the transfer to an escrow account for delivery to the holders of certain
warrants to receive Class A Common Stock) or other disposition pursuant to, or
as permitted by, the Merger Agreement of all of the capital stock and assets of
the Entertainment Companies.
"Spin-Off Transactions" means the Spin-Off, the Pending Acquisitions
and the Merger Agreement as it relates to the transactions described or
referred to under the "Proposed Amendments" and "Spin-Off" sections of the
Consent Solicitation Statement of the Company dated January 7, 1998, as
supplemented by Supplement No. 1 thereto dated January 28, 1998, sent to
Holders of the Notes relating to this Indenture.
(b) The definition of "Consolidated Cash Flow" contained in Section
1.01 is hereby amended to read in its entirety as follows:
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i) an
amount equal to any extraordinary loss plus any net loss realized in connection
with an Asset Sale by such Person or any of its Subsidiaries during such period
(to the extent such losses were deducted in computing such Consolidated Net
Income), plus (ii) provision for taxes based on income or profits of such
Person and its Subsidiaries for such period, to the extent that such provision
for taxes was included in computing such Consolidated Net Income, plus (iii)
Consolidated Interest Expense of such Person for such period, to the extent any
such Consolidated Interest Expense was deducted in computing such Consolidated
Net Income, plus (iv) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash charges
(excluding any such non-cash charge to the extent that it represents an accrual
of or reserve for cash charges in any future period) of such Person and its
Subsidiaries for such period to the extent that such depreciation, amortization
and other non-cash charges were deducted in computing such Consolidated Net
Income, plus (v) the Specified Charges (as defined in the Company's Consent
Solicitation Statement dated January 7, 1998, as supplemented by Supplement No.
1 thereto dated January 28, 1998 relating to the Indenture), plus (vi) to the
extent that such Consolidated Net Income was reduced thereby (a) amortization
of the expenses incurred in connection with the Consulting, Non-Compete and
Termination Agreement among the Company, SBI Holding Corporation and Xxxxxx
F.X. Sillerman dated as of August 24, 1997, (b) consent fees and expenses
directly related to the Consent Solicitations, (c) legal and other expenses
associated with pending or threatened litigation in connection with the SBI
Merger and (d)
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other unusual and nonrecurring charges paid or accrued in 1997 or 1998
(including, but not limited to, legal, accounting, investment banking,
severance and termination fees) relating to the SBI Merger, the Spin-Off, the
Pending Acquisitions or transactions related thereto; provided that the
aggregate amount of charges that may be added to Consolidated Net Income
pursuant to this clause (d) to determine Consolidated Cash Flow for any four
quarter period will not exceed $13.5 million (net of expenses reimbursed or
paid by SFX Entertainment) less (vii) all non-cash items increasing
Consolidated Net Income for such period (excluding any such non-cash income to
the extent it represents an accrual of cash income in any future period), in
each case, on a consolidated basis and determined in accordance with GAAP.
The definition of "Subsidiary" contained in Section 1.01 is hereby
amended to read in its entirety as follows:
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Voting Stock thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination
thereof); however, with respect to the Company, "Subsidiary" does not include
the Entertainment Companies.
SECTION 202. Covenants.
(a) Section 4.07 of the Indenture is hereby amended to read in
its entirety as follows:
SECTION 4.07 RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly: (i) declare or pay any dividend or make any other
payment or distribution on account of the Company's Equity Interests
(including, without limitation, any payment in connection with any merger or
consolidation involving the Company) or to the direct or indirect holders of
the Company's Equity Interests in their capacity as such (other than dividends
or distributions payable in Capital Stock (other than Disqualified Stock) of
the Company); (ii) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of the Company or any direct or indirect parent of the
Company; (iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to
the Notes, except at final maturity; or (iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv)
above being collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
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(b) the Company would, at that time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness (other than
Permitted Debt) pursuant to the Debt to Cash Flow Ratio test set forth in the
first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments declared or made after the date hereof (other than
Restricted Payments permitted by clauses (2), (4), (6), (11), (12) or (13) of
the following paragraph) shall not exceed, at the date of determination, the
sum of (1) an amount equal to the Company's Consolidated Cash Flow from the
date hereof to the end of the Company's most recently ended full fiscal quarter
for which internal financial statements are available, taken as a single
accounting period, less the product of 1.4 times the Company's Consolidated
Interest Expense from the date hereof to the end of the Company's most recently
ended full fiscal quarter, for which internal financial statements are
available, taken as a single accounting period, plus (2) an amount equal to the
net cash proceeds received by the Company from the issue or sale of Equity
Interests (other than (i) in the Preferred Stock Offering, (ii) sales of
Disqualified Stock and (iii) Equity Interests sold to any of the Company's
Subsidiaries) or of debt securities or Disqualified Stock (other than the
Series D Preferred Stock) of the Company that have been converted into such
Equity Interests plus (3) to the extent that any Restricted Investment that was
made after the date hereof is sold for cash or otherwise liquidated or repaid
for cash, the lesser of (A) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any) and (B) the
initial amount of such Restricted Investment.
If no Default or Event of Default shall have occurred and be
continuing immediately as a result thereof, the foregoing provisions shall not
prohibit: (1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions hereof; (2) the redemption, repurchase, retirement
or other acquisition of any Equity Interests of the Company in exchange for, or
out of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of other Equity Interests of the Company (other than
any Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (c)(2) of the preceding paragraph;
(3) cash payments made in respect of fractional shares of Capital Stock not to
exceed $100,000 in the aggregate in any fiscal year; (4) the issuance of the
Exchange Notes in exchange for the Series D Preferred Stock; provided that such
issuance is permitted by Section 4.09 hereof; (5) in the event that the Company
elects to issue the Exchange Notes in exchange for the Series D Preferred
Stock, cash payments made in lieu of the issuance of Exchange Notes having a
face amount less than $50 and any cash payments representing accrued and unpaid
liquidated damages and dividends in respect thereof, not to exceed $100,000 in
the aggregate in any fiscal year; (6) the defeasance, redemption or repurchase
of subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Debt or the substantially concurrent sale (other than to
a Subsidiary of the Company) of Equity Interests of the Company (other than
Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (c)(2) of the preceding paragraph;
(7) the payment of dividends on the Series
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D Preferred Stock in accordance with the terms thereof as in effect on the date
hereof; (8) the redemption by the Company of its Series B Preferred Stock in
accordance with the terms thereof as in effect on the date hereof; provided
that payments made by the Company to redeem the Series B Preferred Stock shall
not exceed $1.0 million in any fiscal year or $2.0 million in the aggregate
since the date hereof; (9) the redemption by the Company of its Series C
Preferred Stock in accordance with the terms thereof as in effect on the date
hereof in connection with the Dallas Disposition; (10) payments made by the
Company to SCMC for facilities maintenance and other services and
reimbursements pursuant to the Shared Facilities Agreement in accordance with
the terms thereof as in effect on the date hereof; (11) payments by the Company
pursuant to the Management Termination Agreements in accordance with the terms
thereof as in effect on the date hereof; (12) the Spin-Off Transactions and
(13) the Xxxxxxx Repurchase.
The amount of all Restricted Payments (other than cash) shall be the
Fair Market Value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) on the date of the
Restricted Payment of the asset(s) or securities proposed to be transferred by
the Company or such Subsidiary, as the case may be, pursuant to the Restricted
Payment. Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this covenant were computed, which calculations may be
based upon the Company's latest available financial statements.
(b) Section 4.11 of the Indenture is hereby amended to read in its
entirety as follows:
SECTION 4.11 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries
to, make any payment to, or sell, lease, transfer or otherwise dispose of any
of its properties or assets to, or purchase any property or assets from, or
enter into or make or amend any contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "Affiliate Transaction"), unless (i) such Affiliate Transaction
is on terms that are no less favorable to the Company or the relevant
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Subsidiary with an unrelated Person and (ii) the Company
delivers to the Trustee (a) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration in excess
of $1.0 million, a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies with
clause (i) above and that such Affiliate Transaction has been approved by a
majority of the members of the Board of Directors that are disinterested as to
such Affiliate Transaction and (b) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $5.0 million, an opinion as to the fairness to the Holders of Notes
of such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing; provided
that (1) transactions between or among the Company and/or its Wholly Owned
Subsidiaries, (2) the MMR Merger and transactions and agreements specifically
contemplated by the Agreement and Plan of Merger among the Company, SFX Merger
Company and MMR as in effect on the date hereof that are disclosed in the
Offering Memorandum
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under the caption "Agreements Relating to the Acquisitions and Dispositions,"
(3) the redemption or repurchase of the Existing MMR Indebtedness, (4)
transactions and agreements specifically contemplated by the Termination and
Assignment Agreement between the Company and SCMC as in effect on the date
hereof, (5) payments required by the terms of the joint lease among the
Company, SCMC and the landlord thereunder for the Company's corporate
headquarters located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and any
agreements directly related thereto, in each case, as the same are in effect on
the date hereof, (6) Restricted Payments and Permitted Investments that are
permitted by Section 4.07 hereof, (7) the transactions and agreements
specifically contemplated by the Merger Agreement, the Acquisition Agreements
or by instruments referred to in any such agreements and (8) any Spin-Off
Transaction, in each case, shall not be deemed to be Affiliate Transactions.
(c) Section 4.15 of the Indenture is hereby amended to read in its
entirety as follows:
SECTION 4.15 ADDITIONAL SUBSIDIARY GUARANTEES.
If, after the date hereof, the Company or any Guarantor, except any
Entertainment Company, shall acquire another Person which becomes a Subsidiary,
then the Company will cause such Subsidiary to (A) execute and deliver to the
Trustee a supplemental indenture substantially in the form of Exhibit D hereto
pursuant to which such Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Notes on the terms set forth in such
supplemental indenture and (B) deliver to the Trustee an Opinion of Counsel
reasonably satisfactory to the Trustee that such supplemental indenture has
been duly executed and delivered by such Subsidiary. Immediately prior to any
incurrence by SFX Entertainment of Indebtedness pursuant to the Financing, each
Guarantor that is SFX Entertainment or is owned directly or indirectly by SFX
Entertainment will be forever released from its Guarantee of the Company's
obligations under the Notes.
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IN WITNESS WHEREOF, the parties hereto have executed this
Tenth Supplemental Indenture as of the date first above written.
The Chase Manhattan Bank,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Vice President
SFX Broadcasting, Inc.
KJQY-FM Licensee, Inc.
SFX Broadcasting of Texas (KTCK) Licensee, Inc.
SFX Broadcasting of San Diego, Inc.
Xxxxxx Broadcasting Company
SFX Broadcasting of San Diego Licensee, Inc.
Liberty Broadcasting, Incorporated
Liberty Broadcasting Group Incorporated
Liberty Broadcasting of New York Incorporated
Liberty Broadcasting of Albany Incorporated
Liberty Broadcasting of Maryland II Incorporated
WHJJ, Inc.
WHFM, Inc.
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WHCN, Inc.
WHCN-FM, Inc.
WSNE, Inc.
WSNE-FM, Inc.
WMXB, Inc.
WPYX, Inc.
WHJY, Inc.
WPOP, Inc.
WGNA, Inc.
WGNA-FM, Inc.
WGBB, Inc.
Xxxx-Xxxx Communications, Inc.
WTRY, Inc.
WYSR, Inc.
W.B.L.I., Inc.
WBLI-FM, Inc.
WBAB, Inc.
SFX Broadcasting of Hartford, Inc.
Multi-Market Radio, Inc.
Southern Starr Broadcasting Group, Inc.
Southern Starr of Arkansas, Inc.
General Communicorp, Inc.
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General Broadcasting of Connecticut, Inc.
Southern Starr Communications, Inc.
Southern Starr Limited Partnership
Multi-Market Radio of Augusta, Inc.
Multi-Market Radio of Myrtle Beach, Inc.
Multi-Market Radio of Northampton, Inc.
Multi-Market Radio of Hartford , Inc.
Ardee Festivals N.J., Inc.
Ardee Productions, Ltd.
Beach Concerts, Inc.
Broadway Concerts, Inc.
Connecticut Concerts Incorporated
Delsener/Xxxxxx Enterprises, Ltd.
SFX Concerts, Inc. (formerly known as
Delsener/Xxxxxx Enterprises, Inc.)
Dumb Deal, Inc.
Exit 116 Revisited, Inc.
In House Tickets, Inc.
SFX Broadcasting of Indiana, Inc.
FPI Concerts, Inc.
Connecticut Amphitheater Development Corporation
Connecticut Performing Arts, Inc.
Great American Music Fest & Production Co.
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Multi-Market Radio of Fayetteville, Inc.
NOC, Inc.
QN-Corp.
SFX Broadcasting of Arizona, Inc.
SFX Broadcasting of California, Inc.
SFX Broadcasting of Connecticut, Inc.
SFX Broadcasting of Connecticut Licensee, Inc.
SFX Broadcasting of Florida, Inc.
SFX Broadcasting of Hartford II, Inc.
SFX Broadcasting of Kansas, Inc.
SFX Broadcasting of Massachusetts, Inc.
SFX Broadcasting of Massachusetts Licensee, Inc.
SFX Broadcasting of New York, Inc.
SFX Broadcasting of Pennsylvania, Inc.
SFX Broadcasting of Rhode Island, Inc.
SFX Broadcasting of Virginia, Inc.
SFX Broadcasting of Wisconsin, Inc.
SFX Delaware, Inc.
SFX GP, Inc.
SFX Holdings, Inc.
SFX Operating Company of Mississippi, Inc.
SFX Operating Company of North Carolina, Inc.
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SFX Operating Company of Tennessee, Inc.
SFX Operating GP, Inc.
SFX Performance Marketing, Inc.
SFX Texas Limited Partnership
By: SFX Operating GP, Inc., as General Partner
SFXAZ Limited Partnership
By: SFX GP, Inc., as General Partner
SFXBX Limited Partnership
By: SFX GP, Inc., as General Partner
SFXFL Limited Partnership
By: SFX GP, Inc., as General Partner
SFXIN Limited Partnership
By: SFX GP, Inc., as General Partner
SFXKS Limited Partnership
By: SFX GP, Inc., as General Partner
SFXMS Limited Partnership
By: SFX GP, Inc., as General Partner
SFXNC Limited Partnership
By: SFX GP, Inc., as General Partner
SFXPA Limited Partnership
By: SFX GP, Inc., as General Partner
SFXSC Limited Partnership
By: SFX GP, Inc., as General Partner
SFXTN Limited Partnership
By: SFX GP, Inc., as General Partner
SFXTX Limited Partnership
By: SFX GP, Inc., as General Partner
SFXWI Limited Partnership
By: SFX GP, Inc., as General Partner
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WWYZ, Inc.
Murat Center Concerts, L.P.
By: Murat Center Concerts, Inc., as General
Partner
Sunshine Design, L.P.
By: Sunshine Design, Inc., as General Partner
Suntex Acquisition, L.P.
By: Suntex Acquisition, Inc., as General Partner
Deer Creek Amphitheater Concerts, L.P.
By: Deer Creek Amphitheater Concerts, Inc., as
General Partner
Sunshine Concerts, L.L.C.
By: SFX Broadcasting of the Midwest, Inc.,
Authorized Member
ABS Communications, L.L.C.
By: SFX Broadcasting, Inc., Authorized Member
SFX Indiana Limited Partnership
SFX Broadcasting of Indiana, Inc. as General
Partner
SFX Radio Network of North Carolina, Inc.
Northeast Ticketing Company
Southeast Ticketing Company
SFX Entertainment, Inc.
Deer Creek Ampitheater Concerts, Inc.
Suntex Acquisitions, Inc.
Murat Center Concerts, Inc.
Polaris Amphitheater Concerts, Inc.
SFX Broadcasting of the Midwest, Inc.
Sunshine Designs, Inc.
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By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
Irving Plaza Concerts, Inc.
By: /s/ Xxxx Xxxxxx
------------------
Name: Xxxx Xxxxxx
Title: President
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