EXHIBIT 4.8
SECOND SUPPLEMENTAL INDENTURE
This Supplemental Indenture (this "Supplemental Indenture"), dated as
of September 18, 2002, by and among Ziff Xxxxx Media Inc., a Delaware
corporation (the "Company") Ziff Xxxxx Holdings Inc., a Delaware corporation and
indirect parent of the Company, Ziff Xxxxx Intermediate Holdings Inc., a
Delaware corporation and direct parent of the Company (collectively with Ziff
Xxxxx Holdings Inc., the "Guaranteeing Parties"), the other Guarantors (as
defined in the Indenture referred to herein) and Deutsche Bank Trust Company
Americas, as trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of July 21, 2000, providing for
the initial issuance of an aggregate principal amount of up to $250 million in
aggregate principal amount of 12% Senior Subordinated Notes due 2010 (the
"Notes"), which Indenture was first supplemented by that certain First
Supplemental Indenture, dated as of August 12, 2002;
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Parties shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Parties shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Parties and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
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shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Parties hereby agree as
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follows:
(i) Along with all Guarantors named in the Indenture, to jointly
and severally Guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Notes or
the obligations of the Company hereunder or thereunder,
that:
(A) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by
acceleration, redemption or
otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the
Trustee hereunder or thereunder 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 Notes or any of such other obligations, that
same will be promptly paid in full when due or
performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration
or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for
whatever reason, the Guarantors shall be jointly and
severally obligated to pay the same immediately.
(ii) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability
of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the
Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or
defense of a guarantor.
(iii) The following is hereby waived: 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.
(iv) This Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and
the Indenture or pursuant to Section 6 hereof.
(v) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any
custodian, Trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder,
this Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect.
(vi) The Guaranteeing Parties shall not be entitled to any right
of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(vii) As between the Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided
in Article 6 of the Indenture for the purposes of this
Guarantee, notwithstanding any stay, injunction or other
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prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided
in Article 6 of the Indenture, such obligations (whether or
not due and payable) shall forthwith become due and payable
by the Guarantors for the purpose of this Guarantee.
(viii) 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 Guarantee. (i) Pursuant to Section 11.03 of the
Indenture, after giving effect to any maximum amount and any
other contingent and fixed liabilities that are relevant
under any applicable Bankruptcy or fraudulent conveyance
laws (including, without limitation, all Senior Indebtedness
of such Guarantor), and after giving effect to any
collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under
Article 11 of the Indenture shall result in the obligations
of such Guarantor under its Guarantee not constituting a
fraudulent transfer or conveyance.
3. Subordination. The Obligations of the Guaranteeing Parties under its
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Guarantee pursuant to this Supplemental Indenture shall be junior and
subordinated to the Senior Indebtedness of the Guaranteeing Parties on
the same basis as the Notes are junior and subordinated to the Senior
Indebtedness of the Company. For the purposes of the foregoing
sentence, the Trustee and the Holders shall have the right to receive
and/or retain payments by the Guaranteeing Parties only at such time as
they may receive and/or retain payments in respect of the Notes
pursuant to the Indenture, including Article 10 thereof.
4. Execution and Delivery. Each Guaranteeing Party agrees that the
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Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
5. Guaranteeing Parties May Consolidate, Etc. on Certain Terms.
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(i) The Guaranteeing Parties may not consolidate with or merge
with or into (whether or not such Guarantor is the surviving
Person) another corporation, Person or entity whether or not
affiliated with such Guarantor unless:
(A) subject to Section 11.05 of the Indenture, the Person
formed by or surviving any such consolidation or merger
(if other than a Guarantor or the Company) shall be a
corporation organized and validly existing under the
laws of the United States or any state thereof or the
District of Columbia, and unconditionally assumes all
the obligations of such Guarantor, pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the
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Trustee, under the Notes, the Indenture and the
Guarantee on the terms set forth herein or therein;
(B) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(C) the company would be permitted, immediately after
giving effect to such transaction, to incur at least
$1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.09 of the
Indenture.
(ii) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person,
by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the
Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the
Indenture to be performed by the Guarantor, such successor
Person shall succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a
Guarantor. Such successor Person thereupon may cause to be
signed any or all of the Guarantees to be endorsed upon all
of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects
have the same legal rank and benefit under the Indenture as
the Guarantees theretofore and thereafter issued in
accordance with the terms of the Indenture as though all of
such Guarantees had been issued at the date of the execution
hereof.
(iii) Except as set forth in Articles 4 and 5 of the Indenture,
and notwithstanding clause(i)(C) above, nothing contained in
the Indenture or in any of the Notes 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.
6. Releases. In the event of a sale or other disposition of all of the
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assets of any Guarantor, by way of merger, consolidation or otherwise,
or a sale or other disposition of all of the capital stock of any
Guarantor, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of
the capital stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released
and relieved of any obligations under its Guarantee; provided that the
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Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Indenture, including
without limitation Section 4.10 of the Indenture. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by
the Company in accordance with the applicable provisions of the
Indenture, including without limitation Section 4.10 of
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the Indenture, the Trustee shall execute any documents reasonably
required in order to evidence the release of any Guarantor from its
obligations under its Guarantee.
Any Guarantor not released from its obligations under its
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under the Indenture
as provided in Article 11 of the Indenture.
7. No Recourse Against Others. No past, present or future director,
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officer, employee, incorporator, stockholder or agent of any
Guaranteeing Party, as such, shall have any liability for any
obligations of the Company or any Guaranteeing Party under the Notes,
any Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
8. New York Law to Govern. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
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GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY.
9. Counterparts. The parties may sign any number of copies of this
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Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
10. Effect of Headings. The Section headings herein are for convenience
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only and shall not affect the construction hereof.
11. The Trustee. The Trustee shall not be responsible in any manner
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whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made solely by the Guaranteeing
Parties and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: September 18, 2002
Ziff Xxxxx Holdings Inc.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Operating Officer
Ziff Xxxxx Intermediate Holdings Inc.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
Deutsche Bank Trust Company Americas, as
Trustee
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: Authorized Signatory
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