XXXXXXXX BROADCAST GROUP, INC., as Issuer,
and certain of its subsidiaries, as Guarantors
and
FIRST UNION NATIONAL BANK, as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 17, 1997
SENIOR SUBORDINATED DEBT SECURITIES
Supplemental to Indenture dated as of December 17, 1997
FIRST SUPPLEMENTAL INDENTURE, dated as of December 17, 1997 (the
"First Supplemental Indenture" or "this Supplemental Indenture"), among XXXXXXXX
BROADCAST GROUP, INC., a Maryland corporation (the "Company"), CHESAPEAKE
TELEVISION, INC., a Maryland corporation, CHESAPEAKE TELEVISION LICENSEE, INC.,
a Delaware corporation, FSF-TV, INC., a North Carolina corporation, KABB
LICENSEE, INC., a Delaware corporation, KDNL LICENSEE, INC., a Delaware
corporation, KSMO, INC., a Maryland corporation, KSMO LICENSEE, INC., a Delaware
corporation, KUPN LICENSEE, INC., a Maryland corporation, SCI-INDIANA LICENSEE,
INC., a Delaware corporation, SCI-SACRAMENTO LICENSEE, INC., a Delaware
corporation, XXXXXXXX COMMUNICATIONS, INC., a Maryland corporation, XXXXXXXX
RADIO OF ALBUQUERQUE, INC., a Maryland corporation, XXXXXXXX RADIO OF
ALBUQUERQUE LICENSEE, INC., a Delaware corporation, XXXXXXXX RADIO OF BUFFALO,
INC., a Maryland corporation, XXXXXXXX RADIO OF BUFFALO LICENSEE, INC., a
Delaware corporation, XXXXXXXX RADIO OF GREENVILLE, INC., a Maryland
corporation, XXXXXXXX RADIO OF GREENVILLE LICENSEE, INC., a Delaware
corporation, XXXXXXXX RADIO OF LOS ANGELES, INC., a Maryland corporation,
XXXXXXXX RADIO OF LOS ANGELES LICENSEE, INC., a Delaware corporation, XXXXXXXX
RADIO OF MEMPHIS, INC., a Maryland corporation, XXXXXXXX RADIO OF MEMPHIS
LICENSEE, INC., a Delaware corporation, XXXXXXXX RADIO OF NASHVILLE, INC., a
Maryland corporation, XXXXXXXX RADIO OF NASHVILLE LICENSEE, INC., a Delaware
corporation, XXXXXXXX RADIO OF NEW ORLEANS, INC., a Maryland corporation,
XXXXXXXX RADIO OF NEW ORLEANS LICENSEE, INC., a Delaware corporation, XXXXXXXX
RADIO OF ST. LOUIS, INC., a Maryland corporation, XXXXXXXX RADIO OF ST. LOUIS
LICENSEE, INC., a Delaware corporation, XXXXXXXX RADIO OF XXXXXX-XXXXX, INC., a
Maryland corporation, XXXXXXXX RADIO OF XXXXXX-XXXXX LICENSEE, INC., a Delaware
corporation, SUPERIOR COMMUNICATIONS OF KENTUCKY, INC., a Delaware corporation,
SUPERIOR COMMUNICATIONS OF OKLAHOMA, INC., an Oklahoma corporation, SUPERIOR KY
LICENSE CORP., a Delaware corporation, SUPERIOR OK LICENSE CORP., a Delaware
corporation, TUSCALOOSA BROADCASTING INC., a Maryland corporation, WCGV, INC., a
Maryland corporation, WCGV LICENSEE, INC., a Delaware corporation, WDBB, INC., a
Maryland corporation, WLFL, INC., a Maryland corporation, WLFL LICENSEE, INC., a
Delaware corporation, WLOS LICENSEE, INC., a Delaware corporation, WPGH, INC., a
Maryland corporation, WPGH LICENSEE, INC., a Maryland corporation, WSMH, INC., a
Maryland corporation, WSMH LICENSEE, INC., a Delaware corporation, WSTR, INC., a
Maryland corporation, WSTR LICENSEE, INC., a Maryland corporation, WSYX, INC., a
Maryland corporation, WTTE, CHANNEL 28, INC., a Maryland corporation, WTTE,
CHANNEL 28 LICENSEE, INC., a Maryland corporation, WTTO, INC., a Maryland
corporation, WTTO LICENSEE, INC., a Delaware corporation, WTVZ, INC., a Maryland
corporation, WTVZ LICENSEE, INC., a Maryland
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corporation, WYZZ, INC., a Maryland corporation, and WYZZ LICENSEE, INC., a
Delaware corporation, (collectively, the "Guarantors"), and FIRST UNION NATIONAL
BANK, a national banking association organized under the laws of the United
States of America, as trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has executed and delivered an Indenture,
dated as of December 17, 1997 (the "Base Indenture", all capitalized terms used
in this First Supplemental Indenture and not otherwise defined being used as
defined in the Base Indenture), with the Trustee, to provide for the future
issuance of the Company's unsecured subordinated debentures, notes or other
evidence of indebtedness (the "Securities") thereto, to be issued from time to
time in one or more series as might be determined by the Company under the Base
Indenture, as may thereafter be supplemented; and
WHEREAS, pursuant to the terms of the Base Indenture, the
Company desires to provide for the establishment of a new series of its
Securities to be known as its "8 3/4% Senior Subordinated Notes due 2007" (the
"Notes"), the terms, provisions and conditions of such Notes and the form
thereof to be set forth as provided in the Base Indenture as supplemented by
this First Supplemental Indenture; and
WHEREAS, each Guarantor has duly authorized the issuance of a
guarantee (the "Guarantees") of the Notes, of substantially the tenor
hereinafter set forth, and to provide therefor, each Guarantor has duly
authorized the execution and delivery of this First Supplemental Indenture and
the Guarantee; and
WHEREAS, Section 901 of the Base Indenture provides, among
other things, that the Company and the Guarantors, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental to the Base Indenture without the consent of
holders of Securities for, among other things, the purpose of establishing the
forms and terms of securities of any series as permitted by Sections 201 and 301
thereof and to add to, change or eliminate any of the provisions of the Base
Indenture in respect of one or more series of Securities to be issued
thereunder; and
WHEREAS, the entry into this First Supplemental Indenture by
the parties hereto is in all respects authorized by the provisions of the Base
Indenture; and
- 2 -
WHEREAS, all things necessary have been done to make this
First Supplemental Indenture, when executed and delivered by the Company and the
Guarantors, the legal, valid and binding agreement of the Company and the
Guarantors, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
-----------
RELATION TO INDENTURE; GENERAL PROVISIONS
Section 101. Relation to Indenture. This First Supplemental
Indenture constitutes an integral part of the Base Indenture but is effective
only with respect to the Notes issued under the Indenture.
Section 102. General Provisions. For all purposes of this First
Supplemental Indenture:
(a) references herein to the Indenture shall mean the Base
Indenture as supplemented by this First Supplemental Indenture;
(b) a term defined in the Base Indenture has the same meaning
when used in this First Supplemental Indenture unless otherwise defined herein
(in which case the definition set forth herein shall govern);
(c) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(d) the singular includes the plural and vice versa;
(e) headings are for convenience of reference only and do not
affect interpretation;
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(f) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(g) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(h) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(i) all references to $, US$, dollars or United States dollars
shall refer to the lawful currency of the United States of America.
ARTICLE TWO
-----------
AMENDMENT TO THE INDENTURE
Section 201. Definitions. Section 101 of the Indenture is amended
so that the following definitions are amended, restated or added in alphabetical
order:
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
consolidation or Sale and Leaseback Transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (i) any
Equity Interest of any Restricted Subsidiary; (ii) all or substantially all of
the properties and assets of any division or line of business of the Company or
its Restricted Subsidiaries; or (iii) any other properties or assets of the
Company or any Restricted Subsidiary, other than in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" shall not
include any transfer of properties and assets (A) that is governed by Section
801(a), (B) that is by the Company to any Wholly Owned Restricted Subsidiary, or
by any Restricted Subsidiary to the
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Company or any Wholly Owned Restricted Subsidiary in accordance with the terms
of this Indenture or (C) that aggregates not more than $1,000,000 in gross
proceeds.
"Asset Swap" means an Asset Sale by the Company or any Restricted
Subsidiary in exchange for properties or assets that will be used in the
business of the Company and its Restricted Subsidiaries existing on the date of
this Supplemental Indenture or reasonably related thereto.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment by (ii) the sum of all such principal payments.
"Bank Credit Agreement" means the Third Amended and Restated
Credit Agreement, dated as of May 20, 1997, between the Company, the
subsidiaries of the Company identified on the signature pages thereof under the
caption "SUBSIDIARY GUARANTORS," the lenders named therein and The Chase
Manhattan Bank, as agent, as amended and as such agreement may be further
amended, renewed, extended, substituted, refinanced, restructured, replaced,
supplemented or otherwise modified from time to time (including, without
limitation, any successive renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplementations or other modifications of the
foregoing). For all purposes under this Indenture, "Bank Credit Agreement" shall
include any amendments, renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplements or any other modifications that
increase the principal amount of the Indebtedness or the commitments to lend
thereunder and have been made in compliance with Section 1008; provided that,
for purposes of the definition of "Permitted Indebtedness," no such increase may
result in the principal amount of Indebtedness of the Company under the Bank
Credit Agreement exceeding the amount permitted by Section 1008(b)(i).
"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have beneficial ownership of all shares
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 40% of the total outstanding Voting Stock of the Company, provided that the
Permitted Holders "beneficially own" (as so defined) a lesser percentage of such
Voting Stock than such other Person and do not have the right or ability by
voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of the Company; (ii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors
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of the Company (together with any new directors whose election to such Board or
whose nomination for election by the shareholders of the Company, was approved
by a vote of at least 66-2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of such Board of Directors then in office; (iii) the Company
consolidates with or merges with or into any Person or conveys, transfers or
leases all or substantially all of its assets to any Person, or any corporation
consolidates with or merges into or with the Company, in any such event pursuant
to a transaction in which the outstanding Voting Stock of the Company is changed
into or exchanged for cash, securities or other property, other than any such
transaction where the outstanding Voting Stock of the Company is not changed or
exchanged at all (except to the extent necessary to reflect a change in the
jurisdiction of incorporation of the Company) or where (A) the outstanding
Voting Stock of the Company is changed into or exchanged for (x) Voting Stock of
the surviving corporation which is not Disqualified Equity Interests or (y)
cash, securities and other property (other than Equity Interests of the
surviving corporation) in an amount which could be paid by the Company as a
Restricted Payment in accordance with Section 1009 (and such amount shall be
treated as a Restricted Payment subject to the provisions described under
Section 1009) and (B) no "person" or "group" other than Permitted Holders owns
immediately after such transaction, directly or indirectly, more than the
greater of (1) 40% of the total outstanding Voting Stock of the surviving
corporation and (2) the percentage of the outstanding Voting Stock of the
surviving corporation owned, directly or indirectly, by Permitted Holders
immediately after such transaction; or (iv) the Company is liquidated or
dissolved or adopts a plan of liquidation or dissolution other than in a
transaction which complies with the provisions described under Article Eight.
"Consolidated Interest Expense" means, without duplication, for
any period, the sum of (a) the interest expense of the Company and its
Consolidated Restricted Subsidiaries for such period, on a Consolidated basis,
including, without limitation, (i) amortization of debt discount, (ii) the net
cost under interest rate contracts (including amortization of discounts), (iii)
the interest portion of any deferred payment obligation and (iv) accrued
interest, plus (b) the interest component of the Capital Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by the Company during such
period, and all capitalized interest of the Company and its Consolidated
Restricted Subsidiaries, in each case as determined in accordance with GAAP
consistently applied.
"Consolidated Net Income (Loss)" means, for any period, the
Consolidated net income (or loss) of the Company and its Consolidated Restricted
Subsidiaries for such period as determined in accordance with GAAP consistently
applied, adjusted, to the extent included in calculating such net income (or
loss), by excluding, without duplication, (i) all extraordinary gains but not
losses (less all fees and expenses relating thereto), (ii) the portion of net
income (or loss) of the Company and its Consolidated
- 6 -
Restricted Subsidiaries allocable to interests in unconsolidated Persons or
Unrestricted Subsidiaries, except to the extent of the amount of dividends or
distributions actually paid to the Company or its Consolidated Restricted
Subsidiaries by such other Person during such period, (iii) net income (or loss)
of any Person combined with the Company or any of its Restricted Subsidiaries on
a "pooling of interests" basis attributable to any period prior to the date of
combination, (iv) any gain or loss, net of taxes, realized upon the termination
of any employee pension benefit plan, (v) net gains but not losses (less all
fees and expenses relating thereto) in respect of dispositions of assets other
than in the ordinary course of business, or (vi) the net income of any
Restricted Subsidiary to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is not at the time
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
shareholders.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its subsidiaries (other
than any Unrestricted Subsidiaries) if and to the extent the accounts of such
Person and each of its subsidiaries (other than any Unrestricted Subsidiaries)
would normally be consolidated with those of such Person, all in accordance with
GAAP consistently applied. The term "Consolidated" shall have a similar meaning.
"Cumulative Consolidated Interest Expense" means, as of any date
of determination, Consolidated Interest Expense from September 30, 1993 to the
end of the Company's most recently ended full fiscal quarter prior to such date,
taken as a single accounting period.
"Cumulative Operating Cash Flow" means, as of any date of
determination, Operating Cash Flow from September 30, 1993 to the end of the
Company's most recently ended full fiscal quarter prior to such date, taken as a
single accounting period.
"Debt to Operating Cash Flow Ratio" means, as of any date of
determination, the ratio of (a) the aggregate principal amount of all
outstanding Indebtedness of the Company and its Restricted Subsidiaries as of
such date on a Consolidated basis plus the aggregate liquidation preference or
redemption amount of all Disqualified Equity Interests of the Company (excluding
any such Disqualified Equity Interests held by the Company or a Wholly Owned
Restricted Subsidiary of the Company), to (b) Operating Cash Flow of the Company
and its Restricted Subsidiaries on a Consolidated basis for the four most recent
full fiscal quarters ending immediately prior to such date, determined on a pro
forma basis (and after giving pro forma effect to (i) the incurrence of such
Indebtedness and (if applicable) the application of the net proceeds therefrom,
including to refinance other Indebtedness, as if such Indebtedness was incurred,
and the application of such proceeds occurred, at the beginning of such
four-quarter period; (ii) the
- 7 -
incurrence, repayment or retirement of any other Indebtedness by the Company and
its Restricted Subsidiaries since the first day of such four-quarter period as
if such Indebtedness was incurred, repaid or retired at the beginning of such
four-quarter period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed based upon
the average balance of such Indebtedness at the end of each month during such
four-quarter period); (iii) in the case of Acquired Indebtedness, the related
acquisition, as if such acquisition had occurred at the beginning of such
four-quarter period; and (iv) any acquisition or disposition by the Company and
its Restricted Subsidiaries of any company or any business or any assets out of
the ordinary course of business, or any related repayment of Indebtedness, in
each case since the first day of such four-quarter period, assuming such
acquisition or disposition had been consummated on the first day of such
four-quarter period).
"Disqualified Equity Interests" means any Equity Interests that,
either by their terms or by the terms of any security into which they are
convertible or exchangeable or otherwise, are or upon the happening of an event
or passage of time would be required to be redeemed prior to any Stated Maturity
of the principal of the Notes or are redeemable at the option of the holder
thereof at any time prior to any such Stated Maturity, or are convertible into
or exchangeable for debt securities at any time prior to any such Stated
Maturity at the option of the holder thereof.
"Guarantor" means the Subsidiaries listed as guarantors in this
Indenture or any other guarantor of the Indenture Obligations. On the date
hereof, the Guarantors consist of all of the Company's Subsidiaries other than
Xxxxxx Enterprises, Inc., KDSM, Inc., KDSM Licensee, Inc. and Xxxxxxxx Capital.
"Guarantor Senior Indebtedness" is defined as the principal of,
premium, if any, and interest (including interest accruing after the filing of a
petition initiating any proceeding under any state, federal or foreign
bankruptcy laws whether or not allowable as a claim in such proceeding) on any
Indebtedness of any Guarantor (other than as otherwise provided in this
definition), whether outstanding on the date of this Supplemental Indenture or
thereafter created, incurred or assumed, and whether at any time owing, actually
or contingent, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to any Guarantee. Without limiting the generality of the
foregoing, "Guarantor Senior Indebtedness" shall include (i) the principal of,
premium, if any, and interest (including interest accruing after the filing of a
petition initiating any proceeding under any state, federal or foreign
bankruptcy law whether or not allowable as a claim in such proceeding) and all
other obligations of every nature of any Guarantor from time to time owed to the
lenders (or their agent) under the Bank Credit Agreement; provided, however,
that any Indebtedness under any refinancing, refunding or replacement of the
Bank Credit
- 8 -
Agreement shall not constitute Guarantor Senior Indebtedness to the extent that
the Indebtedness thereunder is by its express terms subordinate to any other
Indebtedness of any Guarantor, (ii) Indebtedness evidenced by any guarantee of
the Founders' Notes and (iii) Indebtedness under Interest Rate Agreements.
Notwithstanding the foregoing, "Guarantor Senior Indebtedness" shall not include
(i) Indebtedness evidenced by the Guarantees, (ii) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of any Guarantor,
(iii) Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code, is without recourse to
any Guarantor, (iv) Indebtedness which is represented by Disqualified Equity
Interests, (v) any liability for foreign, federal, state, local or other taxes
owed or owing by any Guarantor to the extent such liability constitutes
Indebtedness, (vi) Indebtedness of any Guarantor to a Subsidiary or any other
Affiliate of the Company or any of such Affiliate's subsidiaries, (vii)
Indebtedness evidenced by any guarantee of any Subordinated Indebtedness or Pari
Passu Indebtedness, (viii) that portion of any Indebtedness which at the time of
issuance is issued in violation of this Indenture, (ix) Indebtedness owed by any
Guarantor for compensation to employees or for services and (x) any guarantee of
the Minority Note.
"Indenture Obligations" means the obligations of the Company and
any other obligor under this Indenture or under the Notes, including any
Guarantor, to pay principal, premium, if any, and interest when due and payable,
and all other amounts due or to become due under or in connection with this
Indenture, the Notes and the performance of all other obligations to the Trustee
and the Holders under this Indenture and the Notes, according to the terms
hereof and thereof.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and any obligations in
respect of any Hedging Agreements (as defined in the Bank Credit Agreement).
"Local Marketing Agreement" means a local marketing arrangement,
sale agreement, time brokerage agreement, management agreement or similar
arrangement pursuant to which a Person (i) obtains the right to sell at least a
majority of the advertising inventory of a television station on behalf of a
third party, (ii) purchases at least a majority of the air time of a television
station to exhibit programming and sell advertising time, (iii) manages the
selling operations of a television station with respect to at least a majority
of the advertising inventory of such station, (iv) manages the acquisition of
programming for a television station, (v) acts as a program consultant for a
television station, or (vi) manages the operation of a television station
generally.
"Minority Note" means the promissory note, dated December 26,
1986, made by the Company to Xxxxxxxxx X. Xxxxx, B. Xxxxxxx Xxxxxxx and Xxxxxx
X. Xxxxxxxx, as
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representatives, pursuant to a stock purchase agreement, dated December 22,
1986, among the Company, Commercial Radio Institute, Inc., Chesapeake
Television, Inc. and certain individuals.
"Net Cash Proceeds" means (a) with respect to any Asset Sale by
any Person, the proceeds thereof in the form of cash or Temporary Cash
Investments including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for, cash or
Temporary Cash Investments (except to the extent that such obligations are
financed or sold with recourse to the Company or any Restricted Subsidiary) net
of (i) brokerage commissions and other reasonable fees and expenses (including
fees and expenses of counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
payments made to retire Indebtedness where payment of such Indebtedness is
secured by the assets or properties the subject of such Asset Sale, (iv) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale
and (v) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as reflected in
an Officers' Certificate delivered to the Trustee and (b) with respect to any
issuance or sale of Equity Interests, or debt securities or Equity Interests
that have been converted into or exchanged for Equity Interests, as referred to
under Section 1009, the proceeds of such issuance or sale in the form of cash or
Temporary Cash Investments, including payments in respect of deferred payment
obligations when received in the form of, or stock or other assets when disposed
for, cash or Temporary Cash Investments (except to the extent that such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary), net of attorney's fees, accountant's fees and brokerage,
consultation, underwriting and other fees and expenses actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Operating Cash Flow" means, for any period, the Consolidated Net
Income (Loss) of the Company and its Restricted Subsidiaries for such period,
plus (a) extraordinary net losses and net losses on sales of assets outside the
ordinary course of business during such period, to the extent such losses were
deducted in computing Consolidated Net Income (Loss), plus (b) provision for
taxes based on income or profits, to the extent such provision for taxes was
included in computing such Consolidated Net Income (Loss), and any provision for
taxes utilized in computing the net losses under clause (a) hereof, plus (c)
Consolidated Interest Expense of the Company and its Restricted Subsidiaries for
such period, plus (d) depreciation, amortization and all other
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non-cash charges, to the extent such depreciation, amortization and other
non-cash charges were deducted in computing such Consolidated Net Income (Loss)
(including amortization of goodwill and other intangibles, including Film
Contracts and write-downs of Film Contracts, minus (e) any cash payments
contractually required to be made with respect to Film Contracts (to the extent
not previously included in computing such Consolidated Net Income (Loss)).
"Permitted Holders" means as of the date of determination (i) any
of Xxxxx X. Xxxxx, Xxxxxxxxx X. Xxxxx, J. Xxxxxx Xxxxx and Xxxxxx X. Xxxxx; (ii)
family members or the relatives of the Persons described in clause (i); (iii)
any trusts created for the benefit of the Persons described in clause (i), (ii)
or (iv) or any trust for the benefit of any such trust; or (iv) in the event of
the incompetence or death of any of the Persons described in clauses (i) and
(ii), such Person's estate, executor, administrator, committee or other personal
representative or beneficiaries, in each case who at any particular date shall
beneficially own or have the right to acquire, directly or indirectly, Equity
Interests of the Company.
"Permitted Indebtedness" has the meaning specified in Section
1008.
"Permitted Investment" means (i) Investments in any Wholly Owned
Restricted Subsidiary; (ii) Indebtedness of the Company or a Restricted
Subsidiary described under clauses (vi) and (vii) of the definition of Permitted
Indebtedness; (iii) Temporary Cash Investments; (iv) Investments acquired by the
Company or any Restricted Subsidiary in connection with an Asset Sale permitted
under Section 1013 to the extent such Investments are non-cash proceeds as
permitted under such covenant; (v) guarantees of Indebtedness otherwise
permitted by the Indenture; (vi) Investments in existence on the date of this
Supplemental Indenture; (vii) loans up to an aggregate of $1,000,000 outstanding
at any time to employees pursuant to benefits available to the employees of the
Company or any Restricted Subsidiary from time to time in the ordinary course of
business; (viii) any Investments in the Notes; (ix) a Guarantee by any Guarantor
and any other guarantee given by a Guarantor of any Indebtedness of the Company
in accordance with this Indenture; (x) Investments by the Company or any
Restricted Subsidiary in a Person, if as a result of such Investment (I) such
Person becomes a Restricted Subsidiary or (II) such Person is merged,
consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary; and
(xi) other Investments that do not exceed $5,000,000 at any time outstanding.
"Permitted Subsidiary Indebtedness" means:
(i) Indebtedness of any Guarantor under Capital Lease Obligations
incurred in the ordinary course of business; and
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(ii) Indebtedness of any Guarantor (a) issued to finance or
refinance the purchase or construction of any assets of such Guarantor or (b)
secured by a Lien on any assets of such Guarantor where the lender's sole
recourse is to the assets so encumbered, in either case (x) to the extent the
purchase or construction prices for such assets are or should be included in
"property and equipment" in accordance with GAAP and (y) if the purchase or
construction of such assets is not part of any acquisition of a Person or
business unit.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 307 in exchange for a mutilated Note
or in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Equity Interest" , as applied to the Equity Interest
of any Person, means an Equity Interest of any class or classes (however
designated) which is preferred as to the payment of dividends or distributions,
or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such person, over Equity Interests of any other
class of such Person.
"Public Equity Offering" means, with respect to any Person, an
underwritten public offering by such Person of some or all of its Equity
Interests (other than Disqualified Equity Interests), the net proceeds of which
(after deducting any underwriting discounts and commissions) exceed $10,000,000.
"Restricted Payment" has the meaning specified in Section 1009.
"Restricted Subsidiary" means a Subsidiary of the Company other
than an Unrestricted Subsidiary.
"Sale and Leaseback Transaction" means any transaction or series
of related transactions pursuant to which the Company or a Restricted Subsidiary
sells or transfers any property or asset in connection with the leasing, or the
resale against installment payments, of such property or asset to the seller or
transferor.
"Senior Indebtedness" is defined as the principal of, premium, if
any, and interest (including interest accruing after the filing of a petition
initiating any proceeding under any state, federal or foreign bankruptcy law
whether or not allowable as a claim in such proceeding) on any Indebtedness of
the Company (other than as otherwise provided in this definition), whether
outstanding on the date of this Supplemental Indenture or thereafter created,
incurred or assumed, and whether at any time owing, actually or contingent,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that
- 12 -
such Indebtedness shall not be senior in right of payment to the Notes. Without
limiting the generality of the foregoing, "Senior Indebtedness" shall include
the principal of, premium, if any, and interest (including interest accruing
after the filing of a petition initiating any proceeding under any state,
federal or foreign bankruptcy law whether or not allowable as a claim in such
proceeding) and all other obligations of every nature of the Company from time
to time owed to the lenders (or their agent) under the Bank Credit Agreement;
provided, however, that any Indebtedness under any refinancing, refunding or
replacement of the Bank Credit Agreement shall not constitute Senior
Indebtedness to the extent that the Indebtedness thereunder is by its express
terms subordinate to any other Indebtedness of the Company, (ii) Indebtedness
outstanding under the Founders' Notes and (iii) Indebtedness under Interest Rate
Agreements. Notwithstanding the foregoing, "Senior Indebtedness" shall not
include (i) Indebtedness evidenced by the Notes, (ii) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of the Company,
(iii) Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code, is without recourse to
the Company, (iv) Indebtedness which is represented by Disqualified Equity
Interests, (v) any liability for foreign, federal, state, local or other taxes
owed or owing by the Company to the extent such liability constitutes
Indebtedness, (vi) Indebtedness of the Company to a Subsidiary or any other
Affiliate of the Company or any of such Affiliate's subsidiaries, (vii) that
portion of any Indebtedness which at the time of issuance is issued in violation
of this Indenture, (viii) Indebtedness owed by the Company for compensation to
employees or for services and (ix) Indebtedness outstanding under the Minority
Note.
"Stated Maturity" when used with respect to any Indebtedness or
any installment of interest thereon, means the date specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness or
such installment of interest is due and payable.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
that at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of the Company, as provided below) and (ii)
any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary if all of
the following conditions apply: (a) such Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness and (b) any Investment in such Subsidiary made as a result of
designating such Subsidiary an Unrestricted Subsidiary shall not violate the
provisions of Section 1019. Any such designation by the Board of Directors of
the Company shall be evidenced to the Trustee by filing with the Trustee a Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing conditions. The
Board of Directors of the Company may designate any Unrestricted Subsidiary as a
Restricted Subsidiary; provided that immediately after
- 13 -
giving effect to such designation, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to the restrictions
under Section 1008. KDSM, Inc., KDSM License, Inc., Xxxxxxxx Capital and Xxxxxx,
Inc. are Unrestricted Subsidiaries.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted
Subsidiary means Indebtedness of such Unrestricted Subsidiary (i) as to which
neither the Company nor any Restricted Subsidiary is directly or indirectly
liable (by virtue of the Company or any such Restricted Subsidiary being the
primary obligor on, guarantor of, or otherwise liable in any respect to, such
Indebtedness), except Guaranteed Debt of the Company or any Restricted
Subsidiary to any Affiliate, in which case (unless the incurrence of such
Guaranteed Debt resulted in a Restricted Payment at the time of incurrence) the
Company shall be deemed to have made a Restricted Payment equal to the principal
amount of any such Indebtedness to the extent guaranteed at the time such
Affiliate is designated an Unrestricted Subsidiary and (ii) which, upon the
occurrence of a default with respect thereto, does not result in, or permit any
holder of any Indebtedness of the Company or any Restricted Subsidiary to
declare, a default on such Indebtedness of the Company or any Restricted
Subsidiary or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all the Equity Interest of which is owned by the Company or another
Wholly Owned Restricted Subsidiary. The Wholly Owned Restricted Subsidiaries of
the Company on the date hereof consist of all of the Company" subsidiaries other
than Xxxxxx Enterprises, Inc., KDSM, Inc. and KDSM License, Inc.
Section 202. Other Definitions. Section 102 of the Indenture is
amended so that the following definitions are added in alphabetical order:
Defined in
Term Section
---- ----------
"Change of Control Offer" 1016
"Change of Control Purchase Date" 1016
"Change of Control Purchase Notice" 1016
"Change of Control Purchase Price" 1016
Section 203. Establishment of Series. There is hereby
established, pursuant to the authority granted under the Base Indenture, a
series of Securities that shall be known and designated as the "8 3/4% Senior
Subordinated Notes due 2007" of the Company. The
- 14 -
Stated Maturity of the Notes shall be December 15, 2007, and the Notes shall
each bear interest at the rate of 8 3/4% from December 17, 1997 or from the most
recent Interest Payment Date to which interest has been paid, as the case may
be, payable on June 15, 1998 and semiannually thereafter on June 15 and December
15 in each year, until the principal thereof is paid or duly provided for.
The aggregate principal amount of Notes which may be
authenticated and delivered is limited to $250,000,000 in principal amount of
Notes, except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section
303, 304, 305, 306, 307, 906, 1013, 1016 or 1108 of the Indenture.
The principal of, premium, if any, and interest on the Notes
shall be payable at the office or agency of the Company maintained for such
purpose; provided, however, that at the option of the Company interest may be
paid by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register. If any of the Notes are held by the
Depositary, payments of interest may be made by wire transfer to the Depositary.
The Trustee is hereby initially designated as the Paying Agent under this
Indenture.
The Notes shall be redeemable as provided in Article Eleven of
the Base Indenture. The terms of redemption are set forth in the form of the
Note as set forth in Section 204 and in Section 210 of this First Supplemental
Indenture.
The Notes shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Twelve of the Indenture.
The obligations of the Company pursuant to the Notes shall be
guaranteed by each and every Guarantor as provided in Article Fourteen of the
Indenture.
The Notes shall be redeemable, at the option of the Holder, upon
a Change of Control as provided in Section 209 of this First Supplemental
Indenture.
At the election of the Company, the entire Indebtedness on the
Notes or certain of the Company's obligations and covenants and certain Events
of Default thereunder may be defeased as provided in Article Four of the
Indenture.
Section 204. Form of Notes.
--------------------------
(a) The form of the face of any Note authenticated and delivered
hereunder shall be substantially as follows:
- 15 -
XXXXXXXX BROADCAST GROUP, INC.
---------------------------
8 3/4% SENIOR SUBORDINATED NOTE DUE 2007
No. ___________________ $_________________
XXXXXXXX BROADCAST GROUP, INC., a Maryland corporation (herein
called the "Company," which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to or registered assigns, the principal sum of United States dollars
($_________) on December 15, 2007, at the office or agency of the Company
referred to below, and to pay interest thereon from December 17, 1997, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on June 15 and December 15, in each year, commencing
June 15, 1998 at the rate of 8 3/4% per annum, in United States dollars, until
the principal hereof is paid or duly provided for.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Note is registered at the close of business on
the Regular Record Date for such interest, which shall be June 1 or December 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid, or duly
provided for, and interest on such defaulted interest at the interest rate borne
by the Notes, to the extent lawful, shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Note is registered at the close of business on a Special Record Date for
the payment of such defaulted interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Notes not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest on
this Note will be made at the office or agency of the Company maintained for
that purpose, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address shall appear on the Note Register. If any of the Notes are held by the
Depositary, payments of interest to the Depositary may be made by wire transfer
to the Depositary. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
- 16 -
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Note is entitled to the benefits of Guarantees by each of
the Guarantors of the punctual payment when due of the Indenture Obligations
made in favor of the Trustee for the benefit of the Holders. Reference is hereby
made to Article Fourteen of the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations under the Guarantees of
each of the Guarantors.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed by the manual or facsimile signature of its authorized officers
and its corporate seal to be affixed or reproduced hereon.
Dated: XXXXXXXX BROADCAST GROUP, INC.
By:
---------------------------
Attest:
------------------------------------
Secretary
(b) The form of the reverse of any Note authenticated and
delivered hereunder shall be substantially as follows:
XXXXXXXX BROADCAST GROUP, INC.
---------------------------
8 3/4% SENIOR SUBORDINATED NOTE DUE 2007
This Note is one of a duly authorized issue of Notes of the
Company designated as its 8 3/4% Senior Subordinated Notes due 2007 (herein
called the "Notes"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $250,000,000, which may be
issued under an indenture between the Company and First Union National Bank, as
trustee (herein called the "Trustee", which includes any successor trustee under
the Indenture), dated as of December 17, 1997, as supplemented by a First
Supplemental Indenture among the Company, the Guarantors and
- 17 -
the Trustee, dated as of December 17, 1997 (such indenture as supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Guarantors, the Trustee and the Holders of the Notes, and of the terms upon
which the Notes and the Guarantees are, and are to be, authenticated and
delivered.
The Indenture contains provisions for defeasance at any time of
(a) the entire Indebtedness on the Notes and (b) certain restrictive covenants
and related Defaults and Events of Default, in each case upon compliance or
noncompliance with certain conditions set forth therein.
The Indebtedness evidenced by the Notes is, to the extent and in
the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, whether
Outstanding on the date of the Indenture or thereafter, and this Note is issued
subject to such provisions. Each Holder of this Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee his attorney-in-fact for such purpose; provided, however, that, subject
to Section 406 of the Indenture, the Indebtedness evidenced by this Note shall
cease to be so subordinate and subject in right of payment upon any defeasance
of this Note referred to in clause (a) or (b) of the preceding paragraph.
The Notes are subject to redemption at any time on or after
December 15, 2002, at the option of the Company, in whole or in part, on not
less than 30 nor more than 60 days' prior notice by first-class mail in amounts
of $1,000 or an integral multiple of $1,000 at the following redemption prices
(expressed as a percentage of the principal amount), if redeemed during the
12-month period beginning December 15 of the years indicated below:
Redemption
Year Price
---- ----------
2002..................... 104.375%
2003..................... 102.917%
2004..................... 101.458%
and thereafter at 100% of the principal amount, in each case together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
right of Holders of record on relevant record dates to receive interest due on
an interest payment date). If less than all of the Notes are to be redeemed, the
Trustee shall select the Notes or portions thereof
- 18 -
to be redeemed pro rata, by lot or by any other method the Trustee shall deem
fair and reasonable.
In addition, at any time on or prior to December 15, 2000, the
Company may redeem up to 25% of the original principal amount of Notes with the
net proceeds of a Public Equity Offering of the Company at 108.75% of the
aggregate principal amount, together with accrued and unpaid interest, if any,
to the Redemption Date (subject to the right of Holders of record on relevant
record dates to receive interest due on an interest payment date). The Trustee
shall select the Notes or portions thereof to be redeemed pro rata, by lot or by
any other method the Trustee shall deem fair and reasonable.
Upon the occurrence of a Change of Control, each Holder may
require the Company to repurchase all or a portion of such Holder's Notes in an
amount of $1,000 or integral multiples of $1,000, at a purchase price in cash
equal to 101% of the principal amount thereof, together with accrued and unpaid
interest, if any, to the date of repurchase.
Under certain circumstances, in the event the Net Cash Proceeds
received by the Company or a Restricted Subsidiary from any Asset Sale, which
proceeds are not used to prepay Senior Indebtedness or invested in properties or
assets used in the businesses of the Company, exceed $5,000,000, the Company
will be required to apply such proceeds to the repayment of the Notes and
certain Indebtedness ranking pari passu to the Notes.
In the case of any redemption of Notes, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Notes of record as of the close of business on the relevant
record date referred to on the face hereof. Notes (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the date of redemption.
In the event of redemption of this Note in part only, a new Note
or Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal amount of all the Notes may be declared due and payable in the manner
and with the effect provided in the Indenture.
If this Note is in certificated form, then as provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Note is registrable on the Note Register of the Company, upon surrender of
this Note for registration of transfer at the office or agency of the Company
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
- 19 -
the Note Registrar duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
If this Note is a Global Note, except as described below, it is
not exchangeable for a Note or Notes in certificated form. The Notes will be
delivered in certificated form if (i) the Depositary ceases to be registered as
a clearing agency under the Exchange Act or is no longer willing or able to
provide securities depository services with respect to the Notes, (ii) the
Company so determines or (iii) there shall have occurred an Event of Default or
an event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default with respect to the Notes represented by such
Global Note and such Event of Default or event continues for a period of 90
days. Upon any such issuance, the Trustee is required to register such
certificated Notes in the name of, and cause the same to be delivered to, such
Person or Persons (or the nominee of any thereof).
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantors and the rights of the Holders under the Indenture and
the Guarantees at any time by the Company, the Guarantors and the Trustee with
the consent of the Holders of a specified percentage in aggregate principal
amount of the Notes at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Company and the Guarantors with
certain provisions of the Indenture and the Guarantees and certain past Defaults
under the Indenture and the Guarantees and their consequences. Any such consent
or waiver by or on behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
any Guarantor or any other obligor upon the Notes (in the event such other
obligor is obligated to make payments in respect of the Notes), which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, place, and rate, and in the coin or
currency, herein prescribed, subject to the subordination provisions of the
Indenture.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like
- 20 -
aggregate principal amount of Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer
or exchange or redemption of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes (subject to provisions with respect to record
dates for the payment of interest), whether or not this Note is overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PRINCIPLES THEREOF).
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
Section 205. Form of Guarantees. The form of Guarantee shall be
set forth on the Notes substantially as follows:
GUARANTEES
For value received, each of the undersigned hereby
unconditionally guarantees, jointly and severally, to the holder of this Note
the payment of principal of, premium, if any, and interest on this Note in the
amounts and at the time when due and interest on the overdue principal and
interest, if any, of this Note, if lawful, and the payment or performance of all
other obligations of the Company under the Indenture or the Notes, to the holder
of this Note and the Trustee, all in accordance with and subject to the terms
and limitations of this Note and Article Fourteen of the Indenture. These
Guarantees will not become effective until the Trustee duly executes the
certificate of authentication on this Note. The Indebtedness evidenced by these
Guarantees is, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of all
Guarantor Senior Indebtedness (as defined in the Indenture), whether Outstanding
on the date of the Indenture or thereafter, and these Guarantees are issued
subject to such provisions.
- 21 -
CHESAPEAKE TELEVISION, INC.
CHESAPEAKE TELEVISION
LICENSEE, INC.
FSF-TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KSMO, INC.
KSMO LICENSEE, INC.
KUPN LICENSEE, INC.
SCI-INDIANA LICENSEE, INC.
SCI-SACRAMENTO LICENSEE, INC.
XXXXXXXX COMMUNICATIONS, INC.
XXXXXXXX RADIO OF ALBUQUERQUE, INC.
XXXXXXXX RADIO OF ALBUQUERQUE
LICENSEE, INC.
XXXXXXXX RADIO OF BUFFALO, INC.
XXXXXXXX RADIO OF BUFFALO LICENSEE, INC.
XXXXXXXX RADIO OF GREENVILLE, INC.
XXXXXXXX RADIO OF GREENVILLE
LICENSEE, INC.
XXXXXXXX RADIO OF LOS ANGELES, INC.
XXXXXXXX RADIO OF LOS ANGELES
LICENSEE, INC.
XXXXXXXX RADIO OF MEMPHIS, INC.
XXXXXXXX RADIO OF MEMPHIS LICENSEE, INC.
XXXXXXXX RADIO OF NASHVILLE, INC.
XXXXXXXX RADIO OF NASHVILLE
LICENSEE, INC.
XXXXXXXX RADIO OF NEW ORLEANS, INC.
XXXXXXXX RADIO OF NEW ORLEANS
LICENSEE, INC.
XXXXXXXX RADIO OF ST. LOUIS, INC.
XXXXXXXX RADIO OF ST. LOUIS LICENSEE, INC.
XXXXXXXX RADIO OF XXXXXX-XXXXX, INC.
- 22 -
XXXXXXXX RADIO OF XXXXXX-XXXXX
LICENSEE, INC.
SUPERIOR COMMUNICATIONS OF
KENTUCKY, INC.
SUPERIOR COMMUNICATIONS OF
OKLAHOMA, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
TUSCALOOSA BROADCASTING INC.
WCGV, INC.
WCGV LICENSEE, INC.
WDBB, INC.
WLFL, INC.
WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WPGH, INC.
WPGH LICENSEE, INC.
WSMH, INC.
WSMH LICENSEE, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WSYX, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTTO LICENSEE, INC.
WTVZ, INC.
WTVZ LICENSEE, INC.
WYZZ, INC.
WYZZ LICENSEE, INC.
Attest By
--------------------- -------------------------
Name: Name:
Title: Title:
- 23 -
Section 206. Denominations. The Notes shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof.
Section 207. Remedies. Sections 501 and 502 of the Base Indenture
are hereby replaced with the following for purposes of the Notes only:
" Section 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events which has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be occasioned by the provisions of
Article Twelve or be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on
any Note (including any Penalty Interest) when it becomes due and payable, and
such default shall continue for a period of 30 days;
(b) there shall be a default in the payment of the principal of
(or premium, if any, on) any Note at its Maturity (upon acceleration, optional
or mandatory redemption, required repurchase or otherwise);
(c) (i) there shall be a default in the performance, or breach,
of any covenant or agreement of the Company or any Guarantor under this
Indenture (other than a default in the performance or breach of a covenant or
agreement which is specifically dealt with in clause (a) or (b) or in clause
(ii), (iii) or (iv) of this clause (c)) and such default or breach shall
continue for a period of 30 days after written notice has been given, by
certified mail, (1) to the Company by the Trustee or (z) to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding Notes; (ii) there shall be a default in the performance or breach of
the provisions of Article Eight; (iii) the Company shall have failed to make or
consummate an Offer in accordance with the provisions of Section 1013; or (iv)
the Company shall have failed to make or consummate a Change of Control Offer in
accordance with the provisions of Section 1016;
(d) one or more defaults shall have occurred under any
agreements, indentures or instruments under which the Company, any Guarantor or
any Restricted Subsidiary then has outstanding Indebtedness in excess of
$5,000,000 in the aggregate
- 24 -
and, if not already matured at its final maturity in accordance with its terms,
such Indebtedness shall have been accelerated;
(e) any Guarantee shall for any reason cease t o be, or be
asserted in writing by any Guarantor or the Company not to be, in full force and
effect, and enforceable in accordance with its terms, except to the extent
contemplated by this Indenture and any such Guarantee;
(f) one or more judgments, orders or decrees for the payment of
money in excess of $5,000,000 either individually or in the aggregate (net of
amounts covered by insurance, bond, surety or similar instrument), shall be
entered against the Company, any Guarantors, or any Restricted Subsidiary or any
of their respective properties and shall not be discharged and either (a) any
creditor shall have commenced an enforcement proceeding upon such judgment,
order or decree or (b) there shall have been a period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason of an
appeal or otherwise, shall not be in effect;
(g) any holder or holders of at least $5,000,000 in aggregate
principal amount of Indebtedness of the Company, any Guarantors, or any
Restricted Subsidiary after a default under such Indebtedness shall notify the
Trustee of the intended sale or disposition of any assets of the Company, any
Guarantors or any Restricted Subsidiary that have been pledged to or for the
benefit of such holder or holders to secure such Indebtedness or shall commence
proceedings, or take any action (including by way of set-off), to retain in
satisfaction of such Indebtedness or to collect on, seize, dispose of or apply
in satisfaction of Indebtedness, assets of the Company or any Restricted
Subsidiary (including funds on deposit or held pursuant to lock-box and other
similar arrangements);
(h) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company, any
Guarantor or any Restricted Subsidiary in an involuntary case or proceeding
under any applicable Bankruptcy Law or (ii) a decree or order adjudging the
Company, any Guarantor or any Restricted Subsidiary bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company, any Guarantor or any Restricted Subsidiary under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company, any Guarantor
or any Restricted Subsidiary or of any substantial part of their respective
properties, or ordering the winding up or liquidation of their affairs, and any
such decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(i) (i) the Company, any Guarantor or any Restricted Subsidiary
commences a voluntary case or proceeding under any applicable Bankruptcy Law or
any other case or proceeding to be adjudicated bankrupt or insolvent, (ii) the
Company, any
- 25 -
Guarantor or any Restricted Subsidiary consents to the entry of a decree or
order for relief in respect of the Company, any Guarantor or such Restricted
Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy
Law or to the commencement of any bankruptcy or insolvency case or proceeding
against it, (iii) the Company, any Guarantor or any Restricted Subsidiary files
a petition or answer or consent seeking reorganization or relief under any
applicable federal or state law, (iv) the Company, any Guarantor or any
Restricted Subsidiary (1) consents to the filing of such petition or the
appointment of, or taking possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company, any
Guarantor or such Restricted Subsidiary or of any substantial part of its
respective properties, (2) makes an assignment for the benefit of creditors or
(3) admits in writing its inability to pay its debts generally as they become
due, or (v) the Company, any Guarantor or any Restricted Subsidiary takes any
corporate action authorizing any such actions in this paragraph (i).
The Company shall deliver to the Trustee within five days after
the occurrence thereof, written notice, in the form of an Officers' Certificate,
of any Default, its status and what action the Company is taking or proposes to
take with respect thereto. Unless the Corporate Trust Office of the Trustee has
received written notice of an Event of Default of the nature described in this
Section, the Trustee shall not be deemed to have knowledge of such Event of
Default for the purposes of Article Five or for any other purpose.
Section 502. Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
If an Event of Default (other than an Event of Default specified
in Sections 501(h) and (i)), shall occur and be continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Notes
Outstanding may, and the Trustee at the request of the Holders of not less than
25% in aggregate principal amount of the Notes Outstanding shall, declare all
unpaid principal of, premium, if any, and accrued interest on all the Notes to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders of the Notes); provided that so long as the
Bank Credit Agreement is in effect, such declaration shall not become effective
until the earlier of (a) five Business Days after receipt of such notice of
acceleration from the Holders or the Trustee by the agent under the Bank Credit
Agreement or (b) acceleration of the Indebtedness under the Bank Credit
Agreement. Thereupon the Trustee may, at its discretion, proceed to protect and
enforce the rights of the Holders of the Notes by appropriate judicial
proceeding. If an Event of Default specified in clause (h) or (i) of Section 501
occurs and is continuing, then all the Notes shall ipso facto become and be
immediately due and payable, in an amount equal to the principal amount of the
Notes, together with accrued and unpaid interest, if any, to the date the Notes
become due and payable, without any declaration or other act on the part of the
Trustee or any Holder.
- 26 -
The Trustee or, if notice of acceleration is given by the Holders, the Holders
shall give notice to the agent under the Bank Credit Agreement of any such
acceleration.
At any time after such declaration of acceleration has been made
but before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in aggregate principal amount of the Notes Outstanding, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee under
this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel,
(ii) all overdue interest on all Notes,
(iii) the principal of and premium, if any, on any
Notes which have become due otherwise than by such
declaration of acceleration and interest thereon at a rate
borne by the Notes, and
(iv) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
the Notes; and
(b) all Events of Default, other than the non-payment of
principal of the Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon provided in Section 513."
Section 208. Supplemental Indentures. Sections 901 and 902 of the
Base Indenture are hereby replaced with the following for purposes of the Notes
only:
"Section 901. Supplemental Indentures and Agreements without
-----------------------------------------------------------------
Consent of Holders.
-------------------
Without the consent of any Holders, the Company and the
Guarantors, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental hereto
or agreements or other
- 27 -
instruments with respect to any Guarantee, in form and substance satisfactory to
the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company,
any Guarantor or any other obligor upon the Notes, and the assumption by any
such successor of the covenants of the Company or such Guarantor or obligor
herein and in the Notes and in any Guarantee, in each case in compliance with
the provisions of this Indenture;
(b) to add to the covenants of the Company, any Guarantor or any
other obligor upon the Notes for the benefit of the Holders, or to surrender any
right or power herein conferred upon the Company, any Guarantor or any other
obligor upon the Notes, as applicable, herein, in the Notes or in any Guarantee;
(c)to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein or
in any Guarantee, or to make any other provisions with respect to matters or
questions arising under this Indenture, the Notes or any Guarantee; provided
that, in each case, such provisions shall not adversely affect the interests of
the Holders;
(d) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to add a Guarantor pursuant to the requirements of Section
1014;
(f) to evidence and provide the acceptance of the appointment of
a successor trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Indenture Obligations, in any
property or assets, including any which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to the
Trustee pursuant to this Indenture or otherwise; or
(h) to provide for uncertificated Notes in place of or in
addition to certificated Notes.
Section 902. Supplemental Indentures and Agreements with Consent
----------------------------------------------------
of Holders.
-----------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes, by Act of said Holders
delivered to the Company, each Guarantor, and the Trustee, the Company, and each
Guarantor (if a party thereto) when authorized by a Board Resolution, and the
Trustee may enter into an
- 28 -
indenture or indentures supplemental hereto or agreements or other instruments
with respect to any Guarantee in form and substance satisfactory to the Trustee
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture, the Notes or any
Guarantee; provided, however, that no such supplemental indenture, agreement or
instrument shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon the redemption thereof,
or change the coin or currency in which the principal of any Notes or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date) (other than the
provisions of Section 1013);
(b) amend, change or modify the obligation of the Company to
make and consummate an Offer with respect to any Asset Sale or Asset Sales in
accordance with Section 1013 or the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 1016, including amending, changing or modifying any
definitions with respect thereto;
(c) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver or
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture or with respect
to any Guarantee;
(d) modify any of the provisions of this Section or Sections 513
or 1022, except to increase the percentage in principal amount of the
Outstanding Notes, the consent of whose Holders is required for any such actions
or to provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Note affected thereby;
(e) except as otherwise permitted under Article Eight, consent
to the assignment or transfer by the Company or any Guarantor of any of its
rights and obligations under this Indenture; or
(f) amend or modify any of the provisions of this Indenture
relating to the subordination of the Notes or any Guarantee in any manner
adverse to the Holders of the Notes or any Guarantee;
- 29 -
provided, further that no such modification or amendment may without the consent
of the holders of 66-2/3% of the outstanding Notes affected thereby, amend,
change or modify the obligation of the Company to make and consummate an Offer
with respect to any Asset Sale or Asset Sales in accordance with Section 1013,
including amending, changing or modifying any definitions with respect thereto.
Upon the written request of the Company and each Guarantor,
accompanied by a copy of a Board Resolution authorizing the execution of any
such supplemental indenture or Guarantee, and upon the filing with the Trustee
of evidence of the consent of Holders as aforesaid, the Trustee shall, subject
to Section 903, join with the Company and each Guarantor in the execution of
such supplemental indenture or Guarantee.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture or
Guarantee or agreement or instrument relating to any Guarantee, but it shall be
sufficient if such Act shall approve the substance thereof."
Section 209. Covenants.
---------
(a) Section 1005 of the Base Indenture is hereby replaced with
the following for purposes of the Notes only:
"Section 1005. Payment of Taxes and Other Claims.
----------------------------------
The Company will pay or discharge or cause to be paid or
discharged, on or before the date the same shall become due and payable, (a) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any Subsidiary shown to be due on any return of the Company or any Subsidiary
or otherwise assessed or upon the income, profits or property of the Company or
any Subsidiary if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Company or any
Guarantor to perform its obligations hereunder and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, would by law become a Lien upon
the property of the Company or any Subsidiary, except for any Lien permitted to
be incurred under Section 1012 if failure to pay or discharge the same could
reasonably be expected to have a material adverse effect on the ability of the
Company or any Guarantor to perform its obligations hereunder; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and in respect of which
appropriate reserves (in the good faith judgment of management of the
- 30 -
Company) are being maintained in accordance with generally accepted accounting
principles consistently applied."
(b) Sections 1008 and 1009 of the Base Indenture are hereby
renumbered as Sections 1021 and 1022, respectively, and Sections 1010 through
1020 as follows are added to the Base Indenture, for purposes of the Notes only:
"Section 1008. Limitation on Indebtedness.
--------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, create, incur, assume or directly or indirectly guarantee or in
any other manner become directly or indirectly liable for ("incur") any
Indebtedness (including Acquired Indebtedness), except that the Company may
incur Indebtedness and a Guarantor may incur Permitted Subsidiary Indebtedness
if, in each case, the Debt to Operating Cash Flow Ratio of the Company and its
Restricted Subsidiaries at the time of the incurrence of such Indebtedness,
after giving pro forma effect thereto, is 7:1 or less.
(b) The foregoing limitation will not apply to the incurrence of
any of the following (collectively, "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Bank Credit
Agreement in an aggregate principal amount at any one time outstanding not to
exceed $50,000,000 under any revolving credit facility thereunder;
(ii) Indebtedness of the Company pursuant to the Notes and
Indebtedness of any Guarantor pursuant to a Guarantee;
(iii) Indebtedness of any Guarantor consisting of a guarantee
of the Company's Indebtedness under the Bank Credit Agreement;
(iv) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the date of this Supplemental Indenture and listed on Schedule I
hereto;
(v) Indebtedness of the Company owing to a Restricted
Subsidiary; provided that any Indebtedness of the Company owing to a Restricted
Subsidiary that is not a Guarantor is made pursuant to an intercompany note in
the form attached to this Supplemental Indenture as Exhibit A and is
subordinated in right of payment from and after such time as the Notes shall
become due and payable (whether at Stated Maturity, acceleration or otherwise)
to the payment and performance of the Company's obligations under the Notes;
provided, further, that any disposition, pledge or transfer of any such
Indebtedness to a Person (other than a disposition, pledge or transfer to a
Wholly Owned Restricted Subsidiary or a pledge to or for the benefit of the
lenders under the Bank Credit Agreement) shall be deemed to be an incurrence of
such Indebtedness by the obligor not permitted by this clause (v);
- 31 -
(vi) Indebtedness of a Wholly Owned Restricted Subsidiary
owing to the Company or another Wholly Owned Restricted Subsidiary; provided
that, with respect to Indebtedness owing to a Wholly Owned Subsidiary that is
not a Guarantor, (1) any such Indebtedness is made pursuant to an intercompany
note in the form attached to this Indenture as Exhibit A and (2) any such
Indebtedness shall be subordinated in right of payment from and after such time
as the obligations under the Guarantee by such Wholly Owned Restricted
Subsidiary shall become due and payable to the payment and performance of such
Wholly Owned Restricted Subsidiary's obligations under its Guarantee; provided,
further, that (1) any disposition, pledge or transfer of any such Indebtedness
to a Person (other than a disposition, pledge or transfer to the Company or a
Wholly Owned Restricted Subsidiary or pledge to or for the benefit of the
lenders under the Bank Credit Agreement) shall be deemed to be an incurrence of
such Indebtedness by the obligor not permitted by this clause (vi) and (2) any
transaction pursuant to which any Wholly Owned Restricted Subsidiary, which has
Indebtedness owing to the Company or any other Wholly Owned Restricted
Subsidiary, ceases to be a Wholly Owned Restricted Subsidiary shall be deemed to
be the incurrence of Indebtedness by such Wholly Owned Restricted Subsidiary
that is not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in
accordance with the provisions of Section 1014;
(viii) obligations of the Company entered into in the ordinary
course of business pursuant to Interest Rate Agreements designed to protect the
Company against fluctuations in interest rates in respect of Indebtedness of the
Company, as long as such obligations at the time incurred do not exceed the
aggregate principal amount of such Indebtedness then outstanding or in good
faith anticipated to be outstanding within 90 days of such incurrence;
(ix) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any Indebtedness
described in clauses (ii), (iii), (iv) and (v) above, including any successive
refinancings so long as the aggregate principal amount of Indebtedness
represented thereby is not increased by such refinancing plus the lesser of (I)
the stated amount of any premium, interest or other payment required to be paid
in connection with such a refinancing pursuant to the terms of the Indebtedness
being refinanced or (II) the amount of premium, interest or other payment
actually paid at such time to refinance the Indebtedness, plus, in either case,
the amount of expenses of the Company incurred in connection with such
refinancing and, in the case of Pari Passu or Subordinated Indebtedness, such
refinancing does not reduce the Average Life to Stated Maturity or the Stated
Maturity of such Indebtedness; and
(x) Indebtedness of the Company in addition to that described
in clauses (i) through (ix) above, and any renewals, extensions, substitutions,
refinancings, or
replacements of such Indebtedness, so long as the aggregate principal amount of
all such Indebtedness shall not exceed $25,000,000.
Section 1009. Limitation on Restricted Payments. (a)The Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly:
(i) declare or pay any dividend on, or make any distribution
to holders of, any of the Company's Equity Interests (other than dividends or
distributions payable solely in its Qualified Equity Interests);
(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any Equity Interest of the Company or any
Affiliate thereof (except Equity Interests held by the Company or a Wholly Owned
Restricted Subsidiary);
(iii) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any scheduled principal
payment, sinking fund or maturity, any Subordinated Indebtedness;
(iv) declare or pay any dividend or distribution on any Equity
Interests of any Subsidiary to any Person (other than the Company or any of its
Wholly Owned Restricted Subsidiaries);
(v) incur, create or assume any guarantee of Indebtedness of
any Affiliate (other than a Wholly Owned Restricted Subsidiary of the Company);
or
(vi) make any Investment in any Person (other than any
Permitted Investments)
(any of the foregoing payments described in clauses (i) through (vi), other than
any such action that is a Permitted Payment, collectively, "Restricted
Payments") unless after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, as determined by the
Board of Directors of the Company, whose determination shall be conclusive and
evidenced by a Board Resolution), (1) no Default or Event of Default shall have
occurred and be continuing and such Restricted Payment shall not be an event
which is, or after notice or lapse of time or both, would be, an "event of
default" under the terms of any Indebtedness of the Company or its Restricted
Subsidiaries; and (2) the aggregate amount of all such Restricted Payments
declared or made after the date of this Supplemental Indenture does not exceed
the sum of:
(A) an amount equal to the Company's Cumulative
Operating Cash Flow less 1.4 times the Company's Cumulative Consolidated
Interest Expense;
- 33 -
(B) the aggregate Net Cash Proceeds received after
December 9, 1993 by the Company
from capital contributions (other than from a Subsidiary) or from the issuance
or sale (other than to any of its Subsidiaries) of its Qualified Equity
Interests (except, in each case, to the extent such proceeds are used to
purchase, redeem or otherwise retire Equity Interests or Subordinated
Indebtedness as set forth below); and
(C) to the extent that any Investment constituting a
Restricted Payment (including an Investment in an Unrestricted Subsidiary) that
was made after the date of the Supplemental Indenture is sold or is otherwise
liquidated or repaid, 100% of the amount (to the extent not included in
Cumulative Operating Cash Flow) equal to the Net Cash Proceeds or Fair Market
Value of marketable securities received with respect to such Investment (less
the cost of the disposition of such Investment and net of taxes).
(b) Notwithstanding the foregoing, and in the case of clauses
(ii) through (v) below, so long as there is no Default or Event of Default
continuing, the foregoing provisions shall not prohibit the following actions
(clauses (i) through (v) being referred to as "Permitted Payments"):
(i) the payment of any dividend within 60 days after the date
of declaration thereof, if at such date of declaration such payment would be
permitted by the provisions of paragraph (a) of this Section and such payment
shall be deemed to have been paid on such date of declaration for purposes of
the calculation required by paragraph (a) of this Section;
(ii) any transaction with an officer or director of the
Company entered into in the ordinary course of business (including compensation
or employee benefit arrangements with any officer or director of the Company);
(iii) the repurchase, redemption, or other acquisition or
retirement of any Equity Interests of the Company in exchange for (including any
such exchange pursuant to the exercise of a conversion right or privilege in
connection therewith cash is paid in lieu of the issuance of fractional shares
or scrip), or out of the Net Cash Proceeds of, a substantially concurrent issue
and sale for cash (other than to a Subsidiary) of other Qualified Equity
Interests of the Company; provided that the Net Cash Proceeds from the issuance
of such Qualified Equity Interests are excluded from clause (2)(B) of paragraph
(a) of this Section;
(iv) any repurchase, redemption, defeasance, retirement,
refinancing or acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or out of the net proceeds of, a substantially
concurrent issuance and sale for cash (other than to any Subsidiary of the
Company) of any Qualified Equity Interests of the Company, provided that the Net
Cash Proceeds from the issuance of such Qualified Equity Interests are excluded
from clause (2)(B) of paragraph (a) of this Section; and
- 34 -
(v) the repurchase, redemption, defeasance, retirement,
refinancing or acquisition for value or payment of principal of any Subordinated
Indebtedness (other than Disqualified Equity Interests) (a "refinancing")
through the issuance of new Subordinated Indebtedness of the Company, as the
case may be, provided that any such new Indebtedness (1) shall be in a principal
amount that does not exceed the principal amount so refinanced or, if such
Subordinated Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration or acceleration thereof, then
such lesser amount as of the date of determination), plus the lesser of (I) the
stated amount of any premium, interest or other payment required to be paid in
connection with such a refinancing pursuant to the terms of the Indebtedness
being refinanced or (II) the amount of premium, interest or other payment
actually paid at such time to refinance the Indebtedness, plus, in either case,
the amount of expenses of the Company incurred in connection with such
refinancing; (2) has an Average Life to Stated Maturity greater than the
remaining Average Life to Stated Maturity of the Notes; (3) has a Stated
Maturity for its final scheduled principal payment later than the Stated
Maturity for the final scheduled principal payment of the Notes; and (4) is
expressly subordinated in right of payment to the Notes at least to the same
extent as the Indebtedness to be refinanced.
Section 1010. Limitation on Transactions with Affiliates.
--------------------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate of the Company (other than the Company or a Wholly Owned Restricted
Subsidiary) unless (a) such transaction or series of transactions is in writing
on terms that are no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than would be available in a comparable
transaction in arm's-length dealings with an unrelated third party and (b) (i)
with respect to any transaction or series of transactions involving aggregate
payments in excess of $1,000,000, the Company delivers an Officers' Certificate
to the Trustee certifying that such transaction or series of related
transactions complies with clause (a) above and such transaction or series of
related transactions has been approved by a majority of the members of the Board
of Directors of the Company (and approved by a majority of Independent Directors
or, in the event there is only one Independent Director, by such Independent
Director) and (ii) with respect to any transaction or series of transactions
involving aggregate payments in excess of $5,000,000, an opinion as to the
fairness to the Company or such Restricted Subsidiary from a financial point of
view issued by an investment banking or appraisal firm of national standing.
Notwithstanding the foregoing, this provision will not apply to (A) any
transaction with an officer or director of the Company entered into in the
ordinary course of business (including compensation or employee benefit
arrangements with any officer or director of the Company), (B) any transaction
entered into by the Company or one of its Wholly Owned Restricted
- 35-
Subsidiaries with a Wholly Owned Restricted Subsidiary of the Company, and (C)
transactions in existence on the date of this Supplemental Indenture.
- 36 -
Section 1011. Limitation on Senior Subordinated Indebtedness.
----------------------------------------------
The Company shall not, and shall not permit any Guarantor to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise in
any manner become directly or indirectly liable for or with respect to or
otherwise permit to exist any Indebtedness that is subordinate in right of
payment to any Indebtedness of the Company or such Guarantor, as the case may
be, unless such Indebtedness is also pari passu with the Notes or the Guarantee
of such Guarantor, or subordinate in right of payment to the Notes or such
Guarantee to at least the same extent as the Notes or such Guarantee are
subordinate in right of payment to Senior Indebtedness or Guarantor Senior
Indebtedness, as the case may be, as set forth in this Indenture.
Section 1012. Limitation on Liens.
--------------------
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, affirm or suffer to exist
any Lien of any kind upon any of its property or assets (including any
intercompany notes), now owned or acquired after the date of this Supplemental
Indenture, or any income or profits therefrom, except if the Notes are directly
secured equally and ratably with (or prior to in the case of Liens with respect
to Subordinated Indebtedness) the obligation or liability secured by such Lien,
excluding, however, from the operation of the foregoing any of the following:
(a) any Lien existing as of the date of this Supplemental
Indenture and listed on Schedule II hereto;
(b) any Lien arising by reason of (i) any judgment, decree or
order of any court, so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been duly initiated for the review
of such judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have expired;
(ii) taxes not yet delinquent or which are being contested in good faith; (iii)
security for payment of workers' compensation or other insurance; (iv) good
faith deposits in connection with tenders, leases, contracts (other than
contracts for the payment of money); (v) zoning restrictions, easements,
licenses, reservations, provisions, covenants, conditions, waivers, restrictions
on the use of property or minor irregularities of title (and with respect to
leasehold interests, mortgages, obligations, liens and other encumbrances
incurred, created, assumed or permitted to exist and arising by, through or
under a landlord or owner of the leased property, with or without consent of the
lessee), none of which materially impairs the use of any parcel of property
material to the operation of the business of the Company or any Subsidiary or
the value of such property for the purpose of such business; (vi) deposits to
secure public or statutory obligations, or in lieu of surety or appeal bonds;
(vii) surveys, exceptions, title defects, encumbrances, reservations of, or
rights of others for, rights of way, sewers, electric lines, telegraph or
telephone lines and other similar purposes or
- 37 -
zoning or other restrictions as to the use of real property not interfering with
the ordinary conduct of the business of the Company or any of its Subsidiaries;
or (viii) operation of law in favor of mechanics, materialmen, laborers,
employees or suppliers, incurred in the ordinary course of business for sums
which are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection thereof;
(c) any Lien now or hereafter existing on property of the
Company or any of its Restricted Subsidiaries securing Senior Indebtedness or
Guarantor Senior Indebtedness, in each case which Indebtedness is permitted
under the provisions of Section 1008 and provided that the provisions of Section
1014 are complied with;
(d) any Lien securing Acquired Indebtedness created prior to
(and not created in connection with or in contemplation of) the incurrence of
such Indebtedness by the Company or any Subsidiary, in each case which
Indebtedness is permitted under the provisions of Section 1008; provided that
any such Lien only extends to the assets that were subject to such Lien securing
such Acquired Indebtedness prior to the related transaction by the Company or
its Subsidiaries;
(e) any Lien securing Permitted Subsidiary Indebtedness; and
(f) any extension, renewal, refinancing or replacement, in whole
or in part, of any Lien described in the foregoing clauses (a) through (e) so
long as the amount of security is not increased thereby.
Section 1013. Limitation on Sale of Assets.
----------------------------
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale
unless (i) at least 80% of the consideration from such Asset Sale (exclusive of
assumed Senior Indebtedness to which the Company and its Restricted Subsidiaries
have received a full and unconditional release from such liability in connection
with such Asset Sale) is received in cash and (ii) the Company or such
Restricted Subsidiary receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value of the shares or assets sold (other than in
the case of an involuntary Asset Sale, as determined by the Board of Directors
of the Company and evidenced in a Board Resolution or in connection with an
Asset Swap, the Fair Market Value as determined in writing by a nationally
recognized investment banking or appraisal firm); provided, however that, in the
event that the Company or any Restricted Subsidiary engages in an Asset Sale
with any third party and receives in consideration therefor, or simultaneously
with such Asset Sale enters into, a Local Marketing Agreement with such third
party or any affiliate thereof, the Fair Market Value of such Local Marketing
Agreement (as determined in writing by a nationally recognized investment
banking or appraisal firm) shall be deemed cash and considered when
- 38 -
determining whether such Asset Sale complies with the foregoing clauses (i) and
(ii). Notwithstanding the foregoing, clause (i) of the preceding sentence shall
not be applicable to any Asset Swap.
(b) If all or a portion of the Net Cash Proceeds of any Asset
Sale are not required to be applied to repay permanently any Senior Indebtedness
then outstanding as required by the terms thereof, or the Company determines not
to apply such Net Cash Proceeds to the permanent prepayment of such Senior
Indebtedness or if no such Senior Indebtedness is then outstanding, then the
Company may, within 12 months of the Asset Sale, invest the Net Cash Proceeds in
properties and assets that (as determined by the Board of Directors) replace the
properties and assets that were the subject of the Asset Sale or in properties
and assets that will be used in the businesses of the Company or its Restricted
Subsidiaries existing on the date of this Supplemental Indenture or reasonably
related thereto. The amount of such Net Cash Proceeds neither used to
permanently repay or prepay Senior Indebtedness nor used or invested as set
forth in this paragraph constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals
$5,000,000 or more, the Company shall apply the Excess Proceeds to the repayment
of the Notes and any Pari Passu Indebtedness required to be repurchased under
the instrument governing such Pari Passu Indebtedness as follows: (i) the
Company shall make an offer to purchase (an "Offer") from all Holders of the
Notes in accordance with the procedures set forth in this Indenture in the
maximum principal amount (expressed as a multiple of $1,000) of Notes that may
be purchased out of an amount (the "Note Amount") equal to the product of such
Excess Proceeds multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Notes, and the denominator of which is the
sum of the outstanding principal amount of the Notes and such Pari Passu
Indebtedness (subject to proration in the event such amount is less than the
aggregate Offered Price of all Notes tendered) and (ii) to the extent required
by such Pari Passu Indebtedness to permanently reduce the principal amount of
such Pari Passu Indebtedness, the Company shall make an offer to purchase or
otherwise repurchase or redeem Pari Passu Indebtedness (a "Pari Passu Offer") in
an amount (the "Pari Passu Debt Amount") equal to the excess of the Excess
Proceeds over the Note Amount; provided that in no event shall the Pari Passu
Debt Amount exceed the principal amount of such Pari Passu Indebtedness plus the
amount of any premium required to be paid to repurchase such Pari Passu
Indebtedness. The offer price shall be payable in cash in an amount equal to
100% of the principal amount of the Notes plus accrued and unpaid interest, if
any, to the date (the "Offer Date") such Offer is consummated (the "Offered
Price"), in accordance with the procedures set forth in this Indenture. To the
extent that the aggregate Offered Price of the Notes tendered pursuant to the
Offer is less than the Note Amount relating thereto or the aggregate amount of
Pari Passu Indebtedness that is purchased is less than the Pari Passu Debt
Amount (the amount of such shortfall, if any, constituting a "Deficiency"), the
- 39 -
Company shall use such Deficiency in the business of the Company and its
Restricted Subsidiaries. Upon completion of the purchase of all the Notes
tendered pursuant to an Offer and repurchase of the Pari Passu Indebtedness
pursuant to a Pari Passu Offer, the amount of Excess Proceeds, if any, shall be
reset at zero.
(d) Whenever the Excess Proceeds received by the Company exceed
$5,000,000, such Excess Proceeds shall be set aside by the Company in a separate
account pending (i) deposit with the depositary or a Paying Agent of the amount
required to purchase the Notes or Pari Passu Indebtedness tendered in an Offer
or a Pari Passu Offer, (ii) delivery by the Company of the Offered Price to the
Holders of the Notes or Pari Passu Indebtedness tendered in an Offer or a Pari
Passu Offer and (iii) application, as set forth above, of Excess Proceeds in the
business of the Company and its Restricted Subsidiaries. Such Excess Proceeds
may be invested in Temporary Cash Investments, provided that the maturity date
of any such investment made after the amount of Excess Proceeds exceeds
$5,000,000 shall not be later than the Offer Date. The Company shall be entitled
to any interest or dividends accrued, earned or paid on such Temporary Cash
Investments, provided that the Company shall not withdraw such interest from the
separate account if an Event of Default has occurred and is continuing.
(e) If the Company becomes obligated to make an Offer pursuant
to clause (c) above, the Notes shall be purchased by the Company, at the option
of the Holder thereof, in whole or in part in integral multiples of $1,000, on a
date that is not earlier than 45 days and not later than 60 days from the date
the notice is given to Holders, or such later date as may be necessary for the
Company to comply with the requirements under the Exchange Act, subject to
proration in the event the Note Amount is less than the aggregate Offered Price
of all Notes tendered.
(f) The Company shall comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with an Offer.
(g) The Company shall not, and shall not permit any Restricted
Subsidiary to, create or permit to exist or become effective any restriction
(other than restrictions existing under (i) Indebtedness as in effect on the
date of this Supplemental Indenture and listed on Schedule I hereto as such
Indebtedness may be refinanced from time to time, provided that such
restrictions are no less favorable to the Holders of Notes than those existing
on the date of this Supplemental Indenture or (ii) any Senior Indebtedness and
any Guarantor Senior Indebtedness) that would materially impair the ability of
the Company to make an Offer to purchase the Notes or, if such Offer is made, to
pay for the Notes tendered for purchase.
(h) Subject to paragraph (f) above, within 30 days after the
date on which the amount of Excess Proceeds equals or exceeds $5,000,000, the
Company shall
- 40 -
send or cause to be sent by first-class mail, postage prepaid, to the Trustee
and to each Holder of the Notes, at his address appearing in the Note Register,
a notice stating or including:
(1) that the Holder has the right to require the
Company to repurchase, subject to proration, such Holder's Notes
at the Offered Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in order to
have its Notes purchased in accordance with paragraph (c) of this
Section; and
(4) (i) the most recently filed Annual Report on Form
10-K (including audited consolidated financial statements) of the
Company, the most recent subsequently filed Quarterly Report on
Form 10-Q and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report, other than Current Reports
describing Asset Sales otherwise described in the offering
materials (or corresponding successor reports)(or in the event
the Company is not required to prepare any of the foregoing
Forms, the comparable information required pursuant to Section
1020), (ii) a description of material developments in the
Company's business subsequent to the date of the latest of such
Reports, (iii) if material, appropriate pro forma financial
information, and (iv) such other information, if any, concerning
the business of the Company which the Company in good faith
believes will enable such Holders to make an informed investment
decision.
(i) Holders electing to have Notes purchased hereunder will be
required to surrender such Notes at the address specified in the notice at least
three Business Days prior to the Offer Date. Holders will be entitled to
withdraw their election to have their Notes purchased pursuant to this Section
1013 if the Company receives, not later than three Business Days prior to the
Offer Date, a telegram, telex, facsimile transmission or letter setting forth
(1) the name of the Holder, (2) the certificate number of the Note in respect of
which such notice of withdrawal is being submitted, (3) the principal amount of
the Note (which shall be $1,000 or an integral multiple thereof) delivered for
purchase by the Holder as to which his election is to be withdrawn, (4) a
statement that such Holder is withdrawing his election to have such principal
amount of such Note purchased, and (5) the principal amount, if any, of such
Note (which shall be $1,000 or an integral multiple thereof) that remains
subject to the original notice of the Offer and that has been or will be
delivered for purchase by the Company.
(j) The Company shall (i) not later than the Offer Date, accept
for payment Notes or portions thereof tendered pursuant to the Offer, (ii) not
later than 10:00 a.m. (New York City time) on the Offer Date, deposit with the
Trustee or with a Paying
- 42 -
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in same day funds (or
New York Clearing House funds if such deposit is made prior to the Offer Date)
sufficient to pay the aggregate Offered Price of all the Notes or portions
thereof which are to be purchased on that date and (iii) not later than the
Offer Date, deliver to the Paying Agent (if other than the Company) an Officers'
Certificate stating the Notes or portions thereof accepted for payment by the
Company.
Subject to applicable escheat laws, as provided in the Notes, the
Trustee and the Paying Agent shall return to the Company any cash that remains
unclaimed, together with interest, if any, thereon, held by them for the payment
of the Offered Price; provided, however, that (x) to the extent that the
aggregate amount of cash deposited by the Company with the Trustee in respect of
an Offer exceeds the aggregate Offered Price of the Notes or portions thereof to
be purchased, the Trustee shall hold such excess for the Company and (y) unless
otherwise directed by the Company in writing, promptly after the Business Day
following the Offer Date the Trustee shall return any such excess to the Company
together with interest or dividends, if any, thereon.
(k) Notes to be purchased shall, on the Offer Date, become due
and payable at the Offered Price and from and after such date (unless the
Company shall default in the payment of the Offered Price) such Notes shall
cease to bear interest. Such Offered Price shall be paid to such Holder promptly
following the later of the Offer Date and the time of delivery of such Note to
the relevant Paying Agent at the office of such Paying Agent by the Holder
thereof in the manner required. Upon surrender of any such Note for purchase in
accordance with the foregoing provisions, such Note shall be paid by the Company
at the Offered Price; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Offer Date shall be payable to the Holders
of such Notes, or one or more Predecessor Notes, registered as such on the
relevant Regular Record Dates according to the terms and the provisions of
Section 309; provided, further, that Notes to be purchased are subject to
proration in the event the Excess Proceeds are less than the aggregate Offered
Price of all Notes tendered for purchase, with such adjustments as may be
appropriate by the Trustee so that only Notes in denominations of $1,000 or
integral multiples thereof, shall be purchased. If any Note tendered for
purchase shall not be so paid upon surrender thereof by deposit of funds with
the Trustee or a Paying Agent in accordance with paragraph (j) above, the
principal thereof shall, until paid, bear interest from the Offer Date at the
rate borne by such Note. Any Note that is to be purchased only in part shall be
surrendered to a Paying Agent at the office of such Paying Agent (with, if the
Company, the Note Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the Note
Registrar or the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Note, without
service charge,
- 42 -
one or more new Notes of any authorized denomination as requested by such Holder
in an aggregate principal amount equal to, and in exchange for, the portion of
the principal amount of the Note so surrendered that is not purchased.
Section 1014. Limitation on Issuances of Guarantees of and
-------------------------------------------------
Pledges for Indebtedness.
------------------------
(a) The Company shall not permit any Restricted Subsidiary,
other than the Guarantors, directly or indirectly, to secure the payment of any
Senior Indebtedness of the Company and the Company will not, and will not permit
any Restricted Subsidiary to, pledge any intercompany notes representing
obligations of any Restricted Subsidiary (other than the Guarantors) to secure
the payment of any Senior Indebtedness unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a guarantee of payment of the Notes by such Restricted Subsidiary,
which guarantee shall be on the same terms as the guarantee of the Senior
Indebtedness (if a guarantee of Senior Indebtedness is granted by any such
Restricted Subsidiary) except that the guarantee of the Notes need not be
secured and shall be subordinated to the claims against such Restricted
Subsidiary in respect of Senior Indebtedness to the same extent as the Notes are
subordinated to Senior Indebtedness of the Company under this Indenture.
(b) The Company shall not permit any Restricted Subsidiary,
other than the Guarantors, directly or indirectly, to guarantee, assume or in
any other manner become liable with respect to any Indebtedness of the Company
(other than guarantees in existence on the date of the Supplemental Indenture)
unless such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for a guarantee of the Notes
on the same terms as the guarantee of such Indebtedness except that if the Notes
are subordinated in right of payment to such Indebtedness, the guarantee under
the supplemental indenture shall be subordinated to the guarantee of such
Indebtedness to the same extent as the Notes are subordinated to such
Indebtedness under this Indenture.
(c) Each guarantee created pursuant to the provisions described
in the foregoing paragraph is referred to as a "Guarantee" and the issuer of
each such Guarantee is referred to as a "Guarantor." Notwithstanding the
foregoing, any Guarantee by a Restricted Subsidiary of the Notes shall provide
by its terms that it shall be automatically and unconditionally released and
discharged upon (i) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's Equity Interest in, or all or
substantially all the assets of, such Restricted Subsidiary, which is in
compliance with this Indenture or (ii) (with respect to any Guarantees created
after the date of this Supplemental Indenture) the release by the holders of the
Indebtedness of the Company described in clauses (a) and (b) above of their
security interest or their guarantee by such Restricted Subsidiary (including
any deemed release upon payment in full of all
- 43 -
obligations under such Indebtedness), at a time when (A) no other Indebtedness
of the Company has been secured or guaranteed by such Restricted Subsidiary, as
the case may be, or (B) the holders of all such other Indebtedness which is
secured or guaranteed by such Restricted Subsidiary also release their security
interest in, or guarantee by, such Restricted Subsidiary (including any deemed
release upon payment in full of all obligations under such Indebtedness).
Section 1015. Restriction on Transfer of Assets.
---------------------------------
The Company and the Guarantors shall not sell, convey, transfer
or otherwise dispose of their respective assets or property to any of the
Company's Restricted Subsidiaries (other than any Guarantor), except for sales,
conveyances, transfers or other dispositions made in the ordinary course of
business and except for capital contributions to any Restricted Subsidiary, the
only material assets of which are broadcast licenses. For purposes of this
provision, any sale, conveyance, transfer, lease or other disposition of
property or assets, having a Fair Market Value in excess of (a) $1,000,000 for
any sale, conveyance, transfer, lease or disposition or series of related sales,
conveyances, transfers, leases and dispositions and (b) $5,000,000 in the
aggregate for all such sales, conveyances, transfers, leases or dispositions in
any fiscal year of the Company shall not be considered "in the ordinary course
of business."
Section 1016. Purchase of Notes upon a Change of Control.
------------------------------------------
(a) If a Change of Control shall occur at any time, then each
Holder of Notes shall have the right to require that the Company purchase such
Holder's Notes in whole or in part in integral multiples of $1,000, at a
purchase price (the "Change of Control Purchase Price") in cash in an amount
equal to 101% of the principal amount of such Notes, plus accrued and unpaid
interest, if any, to the date of purchase (the "Change of Control Purchase
Date"), pursuant to the offer described in subsection (c) of this Section (the
"Change of Control Offer") and in accordance with the procedures set forth in
Subsections (b), (c), (d) and (e) of this Section.
(b) Within 30 days following any Change of Control, the Company
shall notify the Trustee thereof and give written notice (a "Change of Control
Purchase Notice") of such Change of Control to each Holder by first-class mail,
postage prepaid, at his address appearing in the Note Register stating or
including:
(1) that a Change of Control has occurred, the date
of such event, and that such Holder has the right to require the
Company to repurchase such Holder's Notes at the Change of
Control Purchase Price;
(2) the circumstances and relevant facts regarding
such Change of Control (including but not limited to information
with respect to pro forma
- 44 -
historical income, cash flow and capitalization after giving
effect to such Change of Control);
(3) (i) the most recently filed Annual Report on Form
10-K (including audited consolidated financial statements) of the
Company, the most recent subsequently filed Quarterly Report on
Form 10-Q, as applicable, and any Current Report on Form 8-K of
the Company filed subsequent to such Quarterly Report (or in the
event the Company is not required to prepare any of the foregoing
Forms, the comparable information required to be prepared by the
Company and any Guarantor pursuant to Section 1020), (ii) a
description of material developments in the Company's business
subsequent to the date of the latest of such reports and (iii)
such other information, if any, concerning the business of the
Company which the Company in good faith believes will enable such
Holders to make an informed investment decision;
(4) that the Change of Control Offer is being made
pursuant to this Section 1016(a) and that all Notes properly
tendered pursuant to the Change of Control Offer will be accepted
for payment at the Change of Control Purchase Price;
(5) the Change of Control Purchase Date which shall
be a Business Day no earlier than 30 days nor later than 60 days
from the date such notice is mailed, or such later date as is
necessary to comply with requirements under the Exchange Act;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent and
the offices or agencies referred to in Section 1002;
(8) that Notes must be surrendered on or prior to the
Change of Control Purchase Date to the Paying Agent at the office
of the Paying Agent or to an office or agency referred to in
Section 1002 to collect payment;
(9) that the Change of Control Purchase Price for any
Note which has been properly tendered and not withdrawn will be
paid promptly following the Change of Control Offer Purchase
Date;
(10) the procedures for withdrawing a tender of Notes
and Change of Control Purchase Notice;
(11) that any Note not tendered will continue to
accrue interest; and
- 45 -
(12) that, unless the Company defaults in the payment
of the Change of Control Purchase Price, any Note accepted for
payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of Notes,
the Holder of the Note in respect of which such proper tender was made shall
(unless the tender of such Note is properly withdrawn) thereafter be entitled to
receive solely the Change of Control Purchase Price with respect to such Note.
Upon surrender of any such Note for purchase in accordance with the foregoing
provisions, such Note shall be paid by the Company at the Change of Control
Purchase Price; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Change of Control Purchase Date shall be payable
to the Holders of such Notes, or one or more Predecessor Notes, registered as
such on the relevant Regular Record Dates according to the terms and the
provisions of Section 309. If any Note tendered for purchase shall not be so
paid upon surrender thereof, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Change of Control Purchase
Date at the rate borne by such Note. Holders electing to have Notes purchased
will be required to surrender such Notes to the Paying Agent at the address
specified in the Change of Control Purchase Notice at least two Business Days
prior to the Change of Control Purchase Date. Any Note that is to be purchased
only in part shall be surrendered to a Paying Agent at the office of such Paying
Agent (with, if the Company, the Note Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Note Registrar or the Trustee, as the case may be, duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Note, without service charge, one or more new Notes of any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control
Purchase Date, accept for payment Notes or portions thereof tendered pursuant to
the Change of Control Offer, (ii) not later than 11:00 a.m. (New York City time)
on the Change of Control Purchase Date, deposit with the Paying Agent an amount
of cash sufficient to pay the aggregate Change of Control Purchase Price of all
the Notes or portions thereof which are to be purchased as of the Change of
Control Purchase Date and (iii) not later than the Change of Control Purchase
Date, deliver to the Paying Agent an Officers' Certificate stating the Notes or
portions thereof accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to Holders of Notes so accepted payment in an amount
equal to the Change of Control Purchase Price of the Notes purchased from each
such Holder, and the Company shall execute and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Note equal in principal
amount to any
- 46 -
unpurchased portion of the Note surrendered. Any Notes not so accepted shall be
promptly mailed or delivered by the Paying Agent at the Company's expense to the
Holder thereof. The Company will publicly announce the results of the Change of
Control Offer on the Change of Control Purchase Date. For purposes of this
Section 1016, the Company shall choose a Paying Agent which shall not be the
Company.
(e) A Change of Control Purchase Notice may be withdrawn before
or after delivery by the Holder to the Paying Agent at the office of the Paying
Agent of the Note to which such Change of Control Purchase Notice relates, by
means of a written notice of withdrawal delivered by the Holder to the Paying
Agent at the office of the Paying Agent or to the office or agency referred to
in Section 1002 to which the related Change of Control Purchase Notice was
delivered not later than three Business Days prior to the Change of Control
Purchase Date specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of
which such notice of withdrawal is being submitted;
(3) the principal amount of the Note (which shall be
$1,000 or an integral multiple thereof) delivered for purchase by
the Holder as to which such notice of withdrawal is being
submitted; and
(4) the principal amount, if any, of such Note (which
shall be $1,000 or an integral multiple thereof) that remains
subject to the original Change of Control Purchase Notice and
that has been or will be delivered for purchase by the Company.
(f) Subject to applicable escheat laws, as provided in the Notes,
the Trustee and the Paying Agent shall return to the Company any cash that
remains unclaimed, together with interest or dividends, if any, thereon, held by
them for the payment of the Change of Control Purchase Price; provided, however,
that (x) to the extent that the aggregate amount of cash deposited by the
Company pursuant to clause (ii) of paragraph (d) above exceeds the aggregate
Change of Control Purchase Price of the Notes or portions thereof to be
purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the Business
Day following the Change of Control Purchase Date the Trustee shall return any
such excess to the Company together with interest, if any, thereon.
(g) The Company shall comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with a Change of Control Offer.
- 47 -
Section 1017. Limitation on Subsidiary Equity Interests.
-----------------------------------------
The Company shall not permit any Restricted Subsidiary of the
Company to issue any Equity Interests, except for (a) Equity Interests issued to
and held by the Company or a Wholly Owned Restricted Subsidiary, and (b) Equity
Interests issued by a Person prior to the time (A) such Person becomes a
Restricted Subsidiary, (B) such Person merges with or into a Restricted
Subsidiary or (C) a Restricted Subsidiary merges with or into such Person;
provided that such Equity Interests were not issued or incurred by such Person
in anticipation of the type of transaction contemplated by subclause (A), (B) or
(C).
Section 1018. Limitation on Dividends and Other Payment
-----------------------------------------------
Restrictions Affecting Subsidiaries.
-----------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary of the Company to (i) pay dividends or make any other
distribution on its Equity Interests, (ii) pay any Indebtedness owed to the
Company or a Restricted Subsidiary of the Company, (iii) make any Investment in
the Company or a Restricted Subsidiary of the Company or (iv) transfer any of
its properties or assets to the Company or any Restricted Subsidiary, except (a)
any encumbrance or restriction pursuant to an agreement in effect on the date of
this Supplemental Indenture and listed on Schedule III hereto; (b) any
encumbrance or restriction, with respect to a Restricted Subsidiary that is not
a Subsidiary of the Company on the date of this Supplemental Indenture, in
existence at the time such Person becomes a Restricted Subsidiary of the Company
and not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary; (c) any encumbrance or restriction existing
under any agreement that extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the foregoing clauses (a) and
(b), or in this clause (c), provided that the terms and conditions of any such
encumbrances or restrictions are not materially less favorable to the Holders of
the Notes than those under or pursuant to the agreement evidencing the
Indebtedness so extended, renewed, refinanced or replaced or are not more
restrictive than those set forth in this Indenture; and (d) any encumbrance or
restriction created pursuant to an asset sale agreement, stock sale agreement or
similar instrument pursuant to which an Asset Sale permitted under Section 1013
is to be consummated, so long as such restriction or encumbrance shall be
effective only for a period from the execution and delivery of such agreement or
instrument through a termination date not later than 270 days after such
execution and delivery.
Section 1019. Limitation on Unrestricted Subsidiaries.
---------------------------------------
- 48 -
The Company shall not make, and shall not permit any of its
Restricted Subsidiaries to make, any Investments in Unrestricted Subsidiaries
if, at the time thereof, the aggregate amount of such Investments would exceed
the amount of Restricted Payments then permitted to be made pursuant to Section
1009. Any Investments in Unrestricted Subsidiaries permitted to be made pursuant
to this covenant (i) will be treated as the payment of a Restricted Payment in
calculating the amount of Restricted Payments made by the Company and (ii) may
be made in cash or property.
Section 1020. Provision of Financial Statements.
---------------------------------
Whether or not the Company is subject to Section 13(a) or 15(d)
of the Exchange Act, the Company shall, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to such Sections 13(a) or 15(d) if the Company were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the
Note Register, without cost to such Holders and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to such Sections
and (y) if filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder at the Company's cost."
Section 210. Redemption of Notes. In accordance with Article
Eleven of the Indenture, the following sets forth the terms and conditions on
which the Notes may be redeemed:
"Section 1101. Rights of Redemption.
--------------------
(a) The Notes may be redeemable, at the Company's option, in
whole or from time to time in part, at any time on or after December 15, 2002,
upon not less than 30 nor more than 60 days' prior notice by first class mail to
each Holder of Notes to be redeemed at its address appearing in the Note
Register and prior to Maturity at the following redemption prices ("Redemption
Prices"), expressed as percentages of the principal amount, plus accrued
interest to the dated fixed for such redemption (the "Redemption Date"), subject
to the right of Holders of record on the relevant Regular Record Date to
- 49 -
receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date. If less than all of the Notes are to be redeemed, the Trustee
shall select the Notes or portions thereof to be redeemed pro rata, by lot or by
any other method the Trustee shall deem fair and reasonable.
(b) If redeemed during the twelve-month period beginning December
15, in the year indicated, the Redemption Price shall be:
Redemption
Year Price
---- ----------
2002.......................... 104.375%
2003.......................... 102.917%
2004.......................... 101.458%
and thereafter at 100% of the principal amount, in each case together with
accrued and unpaid interest, if any, to the redemption date (subject to the
right of the holders of record on relevant record dates to receive interest due
on an interest payment date).
(c) In addition, at any time on or prior to December 15, 2000,
the Company may redeem up to 25% of the original principal amount of Notes with
the net proceeds of a Public Equity Offering of the Company at 108.75% of the
aggregate principal amount, together with accrued and unpaid interest, if any,
to the Redemption Date (subject to the right of Holders of record on relevant
record dates to receive interest due on an interest payment date)."
Section 211. Release of Guarantees. The second paragraph of
Section 1414 of the Base Indenture is hereby replaced with the following for
purposes of the Notes only:
"This Guarantee shall terminate with respect to each Guarantor
and shall be automatically and unconditionally released and discharged as
provided in Section 1014(c)."
ARTICLE THREE
-------------
MISCELLANEOUS
-------------
- 50 -
Section 301. Continued Effectiveness of Indenture. Except as
amended hereby, the Indenture shall continue in full force and effect.
Section 302. Purpose. The purpose of this First Supplemental
Indenture is to effect the amendments set forth herein. Each of the Company and
the Guarantors represents and warrants that all the conditions and requirements
necessary to make this First Supplemental Indenture, when duly executed and
delivered, a valid and binding agreement in accordance with its terms and for
the purposes herein expressed, have been performed and fulfilled.
Section 303. Rights of Trustee. The Trustee executes this First
Supplemental Indenture only on the condition that it shall have and enjoy with
respect thereto all of the rights, duties, and immunities as set forth in the
Indenture.
Section 304. Successors and Assigns. All covenants and agreements
in this First Supplemental Indenture by the Company and the Guarantors shall
bind their respective successors and assigns, whether or not so expressed.
Section 305. Separability Clause. In case any provision in this
First Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 306. Benefits of First Supplemental Indenture. Nothing in
this First Supplemental Indenture or in the related Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders of Notes of any series created on or
after the date hereof, any benefit or any legal or equitable right, remedy or
claim under this First Supplemental Indenture.
Section 307. Governing Law. This First Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said state.
- 51 -
Section 308. Counterparts. This First 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
one and the same instrument.
Section 309. Effect of Headings and Table of Contents. The
Article and Section headings are for convenience only and shall not affect the
construction hereof.
- 52 -
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
XXXXXXXX BROADCAST GROUP, INC.,
as Issuer
CHESAPEAKE TELEVISION, INC.
CHESAPEAKE TELEVISION LICENSEE, INC.
FSF-TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KSMO, INC.
KSMO LICENSEE, INC.
KUPN LICENSEE, INC.
SCI-INDIANA LICENSEE, INC.
SCI-SACRAMENTO LICENSEE, INC.
XXXXXXXX COMMUNICATIONS, INC.
XXXXXXXX RADIO OF ALBUQUERQUE, INC.
XXXXXXXX RADIO OF ALBUQUERQUE LICENSEE, INC.
XXXXXXXX RADIO OF BUFFALO, INC.
XXXXXXXX RADIO OF BUFFALO LICENSEE, INC.
XXXXXXXX RADIO OF GREENVILLE, INC.
XXXXXXXX RADIO OF GREENVILLE LICENSEE, INC.
XXXXXXXX RADIO OF LOS ANGELES, INC.
XXXXXXXX RADIO OF LOS ANGELES LICENSEE, INC.
XXXXXXXX RADIO OF MEMPHIS, INC.
XXXXXXXX RADIO OF MEMPHIS LICENSEE, INC.
XXXXXXXX RADIO OF NASHVILLE, INC.
XXXXXXXX RADIO OF NASHVILLE LICENSEE, INC.
XXXXXXXX RADIO OF NEW ORLEANS, INC.
XXXXXXXX RADIO OF NEW ORLEANS LICENSEE, INC.
- 53 -
XXXXXXXX RADIO OF ST. LOUIS, INC.
XXXXXXXX RADIO OF ST. LOUIS LICENSEE, INC.
XXXXXXXX RADIO OF XXXXXX-XXXXX, INC.
XXXXXXXX RADIO OF XXXXXX-XXXXX LICENSEE, INC.
SUPERIOR COMMUNICATIONS OF KENTUCKY, INC.
SUPERIOR COMMUNICATIONS OF OKLAHOMA, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
TUSCALOOSA BROADCASTING INC.
WCGV, INC.
WCGV LICENSEE, INC.
WDBB, INC.
WLFL, INC.
WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WPGH, INC.
WPGH LICENSEE, INC.
WSMH, INC.
WSMH LICENSEE, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WSYX, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTTO LICENSEE, INC.
WTVZ, INC.
- 54 -
WTVZ LICENSEE, INC.
WYZZ, INC.
WYZZ LICENSEE, INC.,
as Guarantors
Attest By:
-------------------------- -------------------------------
Name: Name:
Title: Title:
FIRST UNION NATIONAL BANK,
as Trustee
By:
-------------------------------
Name:
Title:
- 55 -
STATE OF ___________________________)
) ss.:
COUNTY OF __________________________)
On the 17th day of December, 1997, before me personally came
____________________________, to me known, who, being by me duly sworn, did
depose and say that he resides at _____________________________; that he is of
Xxxxxxxx Broadcast Group, Inc. and ________________________________ of each of
Chesapeake Television, Inc., WTTE, Channel 28, Inc., WPGH, Inc., WTTO, Inc.,
WCGV, Inc., Chesapeake Television Licensee, Inc., FSF-TV, Inc., KABB Licensee,
Inc., KDNL Licensee, Inc., KSMO, Inc., KSMO Licensee, Inc., KUPN Licensee, Inc.,
SCI-Indiana Licensee, Inc., SCI-Sacramento Licensee, Inc., Xxxxxxxx
Communications, Inc., Xxxxxxxx Radio of Albuquerque, Inc., Xxxxxxxx Radio of
Albuquerque Licensee, Inc., Xxxxxxxx Radio of Buffalo, Inc., Xxxxxxxx Radio of
Buffalo Licensee, Inc., Xxxxxxxx Radio of Greenville, Inc., Xxxxxxxx Radio of
Greenville Licensee, Inc., Xxxxxxxx Radio of Los Angeles, Inc., Xxxxxxxx Radio
of Los Angeles Licensee, Inc., Xxxxxxxx Radio of Memphis, Inc., Xxxxxxxx Radio
of Memphis Licensee, Inc., Xxxxxxxx Radio of Nashville, Inc., Xxxxxxxx Radio of
Nashville Licensee, Inc., Xxxxxxxx Radio of New Orleans, Inc., Xxxxxxxx Radio of
New Orleans Licensee, Inc., Xxxxxxxx Radio of St. Louis, Inc., Xxxxxxxx Radio of
St. Louis Licensee, Inc., Xxxxxxxx Radio of Xxxxxx-Xxxxx, Inc., Xxxxxxxx Radio
of Xxxxxx-Xxxxx Licensee, Inc., Superior Communications of Kentucky, Inc.,
Superior Communications of Oklahoma, Inc., Superior KY License Corp., Superior
OK License Corp., Tuscaloosa Broadcasting Inc., WCGV, Inc., WCGV Licensee, Inc.,
WDBB, Inc., WLFL, Inc., WLFL Licensee, Inc., WLOS Licensee, Inc., WPGH, Inc.,
WPGH Licensee, Inc., WSMH, Inc., WSMH Licensee, Inc., WSTR, Inc., WSTR Licensee,
Inc., WSYX, Inc., WTTE, Channel 28, Inc., WTTE, Channel 28 Licensee, Inc., WTTO,
Inc., WTTO Licensee, Inc., WTVZ, Inc., WTVZ Licensee, Inc., WYZZ, Inc., and WYZZ
Licensee, Inc., the corporations described in and which executed the foregoing
instrument; and that he signed his name thereto pursuant to authority of the
Boards of Directors of such corporations.
(NOTARIAL
SEAL)
-------------------------------
STATE OF ___________________________)
) ss.:
COUNTY OF __________________________)
On the 17th day of December, 1997, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he resides at _____________________; that he is an authorized
officer of First Union National Bank, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of such
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like authority.
(NOTARIAL
SEAL)
------------------------------
SCHEDULE I
EXISTING INDEBTEDNESS OF XXXXXXXX BROADCAST GROUP, INC.
AND ITS RESTRICTED SUBSIDIARIES
1. Term Note, dated September 30, 1990, between Xxxxxxxx Broadcast Group, Inc.
(as borrower) and Xxxxxx X. Xxxxx (as lender).
2. Term Note, dated September 30, 1990, between Xxxxxxxx Broadcast Group, Inc.
(as borrower) and Xxxxxxx X. Xxxxx (as lender).
3. Promissory Note, dated December 26, 1986, between Xxxxxxxx Broadcast Group,
Inc. (as borrower) and Xxxxxxxxx X. Xxxxx, B. Xxxxxxx Xxxxxxx and Xxxxxx X.
Xxxxxxxx (as representatives for the lenders).
4. Mortgage, dated April 8, 1981, between Xxxxxxxx Broadcast Group, Inc. (as
borrower) and Xxxxx Xxxxx, as Trustee for Penn Montier Realty Company (as
lender), expiring in March 1996, for the property located at 000 Xxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxx, deeded to WPGH, Inc. on November 4, 1993.
5. Mortgage, dated September 30, 1981, between Xxxxxxxx Broadcast Group, Inc.
(as borrower) and Lafayette Life Insurance Company, expiring in October
1996, for the property located at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx,
deeded to WPGH, Inc. on November 4, 1993.
6. Lease Agreement, dated January 1, 1991, between Chesapeake Television, Inc.
(as lessee) and Xxxxxx Investment Group, Inc. (as lessor), for space
located at 0000-0000 X. 00xx Xxxxxx, Xxxxxxxxx, XX.
7. Lease Agreement, dated April 2, 1987, between Chesapeake Television, Inc.
(as lessee) and Xxxxxxxxxx Communications, Inc. (as lessor), for space
located on the primary Baltimore broadcasting tower at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX.
8. Lease Agreement, dated March 16, 1988, between Chesapeake Television, Inc.
(as lessee) and Xxxxxxxxxx Communications, Inc. (as lessor), for space
located on the back-up Baltimore broadcasting tower at 0000 X. Xxxxxxx
Xxxx, Xxxxxxxxx, XX.
9. Lease Agreement, dated September 23, 1993, between WPGH, Inc. (as lessee)
and Gerstell Development Limited Partnership (as lessor), for tower and
building space located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX.
10. Guaranty of Payment Agreement, dated October 15, 1993, by and between the
Company and Maryland National Bank, relating to Gerstell Development
Limited Partnership Loan from Maryland National Bank.
11. Indenture, dated as of December 9, 1993, as amended, among Xxxxxxxx
Broadcast Group, Inc. (as borrower), the Guarantors named therein (as
guarantors), and First Union National Bank (as trustee).
12. Option Agreement, dated as of December 16, 1994, between The Xxxxx Brothers
and Chase Manhattan bank (National Association), which Option Agreement was
assigned by The Xxxxx Brothers to the Company on June 12, 1993.
13. Indenture, dated as of August 28, 1995, as amended, among Xxxxxxxx
Broadcast Group, Inc. (as borrower), the Guarantors named therein, (as
guarantors), and United States Trust Company of New York (as trustee).
14. Third Amended and Restated Credit Agreement, dated as of May 20, 1997,
between Xxxxxxxx Broadcast Group, Inc. (as borrower), various subsidiaries
of Xxxxxxxx Broadcast Group, Inc. party thereto (as guarantors), various
lenders (as lenders) and The Chase Manhattan Bank (as agent), as amended.
15. Indenture, dated as of July 2, 1997, as amended, among Xxxxxxxx Broadcast
Group, Inc. (as borrower), the Guarantors named therein, (as guarantors),
and First Union National Bank (as trustee).
[UPDATE]
SCHEDULE II
EXISTING LIENS
1. Bank Credit Agreement.
2. Term Note dated September 30, 1990, between Xxxxxxxx Broadcast Group, Inc.
(as borrower) and Xxxxxx X. Xxxxx (as lender).
3. Term Note dated September 30, 1990, between Xxxxxxxx Broadcast Group, Inc.
(as borrower) and Xxxxxxx X. Xxxxx (as lender).
[UPDATE]
SCHEDULE III
EXISTING ENCUMBRANCES AND RESTRICTIONS
Notes
1. Encumbrances and restrictions under the Bank Credit Agreement, Founders'
Notes and Minority Note as in effect on the date hereof.
2. Indenture, dated as of December 9, 1993, as amended, among Xxxxxxxx
Broadcast Group, Inc. (as borrower), the Guarantors named therein (as
guarantors), and First Union National Bank (as trustee).
3. Indenture, dated as of August 28, 1995, as amended, among Xxxxxxxx
Broadcast Group, Inc. (as borrower), the Guarantors named therein, (as
guarantors), and United States Trust Company of New York (as trustee).
4. Indenture, dated as of July 2, 1997, as amended, among Xxxxxxxx Broadcast
Group, Inc. (as borrower), the Guarantors named therein, (as guarantors),
and First Union National Bank (as trustee).
5. The restrictions, if any, contained in the terms of the Company's Series B
Convertible Preferred Stock, par value $.01 per share.
6. The restrictions, if any, contained in the terms of the Company's Series C
Preferred Stock, par value $.01 per share.
7. The restrictions, if any, contained in the terms of the Company's Series D
Convertible Exchangeable Preferred Stock, par value $.01 per share.
[UPDATE]
EXHIBIT A
INTERCOMPANY NOTE
-----------------
__________ __, 1997
Evidences of all loans or advances ("Loans") hereunder shall be
reflected on the grid attached hereto. FOR VALUE RECEIVED, _____________, a
__________ corporation (the "Maker"), HEREBY PROMISES TO PAY ON DEMAND to the
order of ______________ (the "Holder") the principal sum of the aggregate unpaid
principal amount of all Loans (plus accrued interest thereon) at any time and
from time to time made hereunder to which has not been previously paid.
All capitalized terms used herein that are defined in, or by
reference in, the Indenture between Xxxxxxxx Broadcast Group, Inc., a Maryland
corporation (the "Company") and First Union National Bank, as trustee (the
"Trustee"), dated as of December __, 1997, as supplemented by the First
Supplemental Indenture between the Company, the guarantors party thereto and the
Trustee (the "Indenture"), have the meanings assigned to such terms therein, or
by reference therein, unless otherwise defined.
ARTICLE I
TERMS OF INTERCOMPANY NOTE
Section 1.01 Note Forgivable. Unless the Maker of the Loan
hereunder is either of the Company or any Guarantor, the Holder may not forgive
any amounts owing under this intercompany note.
Section 1.02 Interest; Prepayment. (a) The interest rate
("Interest Rate") on the Loans shall be a rate per annum reflected on the grid
attached hereto.
(b) The interest, if any, payable on each of the Loans shall
accrue from the date such Loan is made and, subject to Section 2.01, shall be
payable upon demand of the Holder.
(c) If the principal or accrued interest, if any, of the Loans is
not paid on the date demand is made, interest on the unpaid principal and
interest will accrue at a rate equal to the Interest Rate, if any, plus 100
basis points per annum from maturity until the principal and interest on such
Loans are fully paid.
(d) Subject to Section 2.01, any amounts hereunder may be prepaid
at any time by the Maker.
Section 1.03. Subordination. All loans made to either of the
Company or any Guarantor shall be subordinated in right of payment to the
payment and performance of the obligations of the Company and any Subsidiary
under the Indenture, the Notes, the Guarantees or any other Indebtedness ranking
senior to or pari passu with the Notes, or any Guarantors, including, without
limitation, any Indebtedness incurred under the Bank Credit Agreement; provided
that with respect to a Subsidiary in any specific instance, such Subsidiary is
also an obligor under the Indenture, the Notes, a Guarantee or such other senior
or pari passu Indebtedness, as the case may be, whether as a borrower, guarantor
or pledgor of collateral.
ARTICLE II
EVENTS OF DEFAULT
Section 2.01. Events of Default. If after the date of issuance of
this Loan (i) an Event of Default has occurred under the Indenture, (ii) an
"Event of Default" (as defined) has occurred under the Bank Credit Agreement, or
any refinancing of the Bank Credit Agreement or (iii) an "event of default" (as
defined) on any other Indebtedness of the Company or any Guarantor then (x) in
the event of the Maker is not either one of the Company or a Guarantor, all
amounts owing under the Loans hereunder shall be immediately due and payable to
the Holder, and (y) in the event the Maker is either the Company or, the amounts
owing under the Loans hereunder shall not be due and payable, the amounts owing
under the Loans hereunder shall not be due and payable; provided, however, that
if such Event of Default or event of default has been waived, cured or
rescinded, such amounts shall no longer be due and payable in the case of clause
(x), and such amounts may be payable in the case of clause (y). If the Holder is
a Subsidiary, then the Holder hereby agrees that if it receives any payments or
distributions on any Loan from the Company or a Guarantor which is not payable
pursuant to clause (y) of the prior sentence after any Event of Default or event
or default described in clauses (i), (ii) or (iii) above has occurred, is
continuing and has not been waived, cured or rescinded, it will pay over and
deliver forthwith to the Company or such Guarantor, as the case may be, all such
payments and distributions.
ARTICLE III
MISCELLANEOUS
Section 3.01 Amendments, Etc. No amendment or waiver of any
provision of this intercompany note, or consent to depart herefrom is permitted
at any time for any reason, except with the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Notes.
Section 3.02 Assignment. No party to this Agreement may assign,
in whole or in part, any of its rights and obligations under this intercompany
note, except to its legal successor in interest.
Section 3.03 Third Party Beneficiaries. The holders of the Notes
or any other Indebtedness ranking pari passu with or senior to, the Notes or any
Guarantees, including without limitation, any Indebtedness incurred under the
Bank Credit Agreement, shall be third party beneficiaries to this intercompany
note and shall have the right to enforce this intercompany note against the
Company or any of their Subsidiaries.
Section 3.04 Headings. Article and Section headings in this
intercompany note are included for convenience of reference only and shall not
constitute a part of this intercompany note for any other purpose.
Section 3.05 Entire Agreement. This intercompany note sets forth
the entire agreement or the parties with respect to its subject matter and
supersedes all previous understandings, written or oral, in respect thereof.
Section 3.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 3.07 Waivers. The Maker hereby waives presentment, demand
for payment, notice of protest and all other demands and notices in connection
with the delivery, acceptance, performance or enforcement hereof.
By:
-----------------------------
BORROWINGS, MATURITIES, AND PAYMENTS OF PRINCIPAL
-------------------------------------------------
Amount of Maturity of Amount Principal Unpaid Principal
Borrowing/ Borrowing/ Paid or Prepaid Balance Notation
Date Principal Principal --------------- ---------------- Made by
---- --------- --------- ------
