EXHIBIT 10.2
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is
made as of the 30th day of April, 2003, between Cumulus Media Inc., a
corporation duly organized and existing under the laws of the state of Delaware
(the "Company"), and U.S. Bank National Association, as Trustee (the
"Trustee").
RECITALS
WHEREAS, the Company and the Trustee are parties to that certain
Indenture, as heretofore supplemented (the "Indenture," with the terms defined
therein being used herein as therein defined unless otherwise defined herein),
dated as of July 1, 1998, pursuant to which the Company issued its 10-3/8%
Senior Subordinated Notes Due 2008 (the "Notes"); and
WHEREAS, Section 9.1 of the Indenture provides that with the consent
of the holders of at least a majority in principal amount of the Notes at the
time outstanding (the "Requisite Consents"), the Company and the Trustee may
amend the Indenture, subject to certain exceptions specified in Section 9.1 of
the Indenture; and
WHEREAS, the Company has obtained the Requisite Consents to amend the
Indenture in certain respects (the "Proposed Amendments"); and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Company;
NOW, THEREFORE, the Company hereby covenants and agrees with the
Trustee for the equal and proportionate benefit of all Holders of the Notes, as
follows:
ARTICLE 1
AMENDMENTS TO CERTAIN PROVISIONS OF INDENTURE
SECTION 1.01. Amendment of Certain Sections of the Indenture. Subject
to Section 3.01 hereof, the Indenture is hereby amended in the following
respects:
(a) The Section headings and text of each of Sections
4.3, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.18,
4.19, and 4.21 of the Indenture are hereby deleted in their entirety and
replaced with the following:
"[Intentionally Deleted by Amendment]"
(b) Section 5.1 of the Indenture is hereby amended by
deleting the semi-colon at the end of clause (ii), and replacing it with a
period, and by deleting all of the remaining text of such Section 5.1.
(c) Section 1.1 of the Indenture is hereby amended as
follows:
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(i) the text of the second sentence of the
definition of "Asset Sale" is amended by
deleting the text of clauses (3) and (9)
and replacing them with the following:
"[Intentionally Deleted by Amendment];"
(ii) the text of the definition of "Credit
Agreement" is amended by deleting the
phrase "in reliance on the exception
provided by clause (b) of the definition of
Permitted Indebtedness set forth in Section
4.9 hereof."
(iii) the text of the definition of "Unrestricted
Subsidiary" is amended by deleting the
phrase "and the Company could incur at
least $1.00 of additional Indebtedness
(excluding Permitted Indebtedness) pursuant
to Section 4.9."
(d) Section 1.2 of the Indenture is hereby amended by
deleting the following terms and section references corresponding to such
terms: Affiliate Transaction, Change of Control Offer, Change of Control
Payment, Change of Control Payment Date, Excess Proceeds, Permitted
Indebtedness, and Restricted Payment.
(e) Section 3.9 of the Indenture is hereby deleted in
its entirety and replaced with the following:
"[Intentionally Deleted by Amendment];"
(f) Section 4.4(b) of the Indenture is hereby amended as
follows:
(i) the text of the first sentence is amended
by deleting the phrase "Section 4.3 above"
and replaced with the phrase:
"TIAss. 314(a)"
(g) Section 4.20 of the Indenture is hereby deleted in
its entirety and replaced with the following:
"The Board of Directors may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such
designation would not cause a Default."
(h) Section 6.1 of the Indenture is hereby amended as
follows:
(i) the text of clause (iii) is amended by
deleting the references to Sections 4.10
and 4.18.
(i) Section 8.3 of the Indenture is hereby amended as
follows:
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(i) the text of the first sentence is amended
by deleting the references to Sections 4.3,
4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.16, 4.17, 4.18, 4.19 and clause
(iv) of Section 5.1.
(ii) the text of the third sentence is amended
by deleting the reference to clause (iv) of
Section 5.1.
(j) Section 9.2 of the Indenture is hereby amended as
follows:
(i) the text of clause (ii) is amended by
deleting the phrase "(except as provided
above in Sections 4.10 and 4.13 hereof)";
(ii) the text of the second sentence is amended
by deleting the phrase "the provisions
contained in Sections 4.10 and 4.13 hereof
or".
(k) Section 11.3 of the Indenture is hereby amended as
follows:
(i) the second sentence is deleted in its
entirety.
SECTION 1.02. Amendment of Certain Sections of the Note. Subject to
Section 3.01 hereof, the Note is hereby amended in the following respects:
(a) Section 7 of the Note is hereby amended as follows:
(i) Section 7(a) is deleted in its entirety and
replaced with the phrase:
"[Intentionally Deleted by Amendment];"
(ii) Section 7(b) is deleted in its entirety and
replaced with the phrase:
"[Intentionally Deleted by Amendment];"
(b) Section 12 of the Note is hereby amended as follows:
(i) the text of clause (iii) is amended by
deleting the references to Sections 4.10
and 4.18.
ARTICLE 2
WAIVERS
SECTION 2.01. Limited Waiver of Compliance with Certain Provisions of
the Indenture. To the extent that any actions taken or to be taken by the
Company in effecting, undertaking and consummating the Offer, the solicitation
and the Proposed Financing, as such
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terms are defined in, and in accordance with the terms set forth in, the
Company's Offer to Purchase and Consent Solicitation Statement, dated April 2,
2003 (the "Statement"), would not comply with or be limited by the provisions
of the Indenture, compliance with such provisions is hereby waived to the
extent so required.
ARTICLE 3
SUNDRY PROVISIONS
SECTION 3.01. Effect of Supplemental Indenture. Upon the execution and
delivery of this Supplemental Indenture by the Company and the Trustee, the
Indenture shall be supplemented in accordance herewith, and this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of Notes heretofore or hereafter authenticated and delivered under the
Indenture shall be bound thereby; provided, however, that Section 1.01 hereof
shall only become operative upon the opening of business on the date the
Company deposits with U.S. Bank National Association, as Depository for the
Offer and the Solicitation, of the amount of money sufficient to pay for all
Notes accepted for purchase pursuant to the Offer.
SECTION 3.02. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
SECTION 3.03. Indenture and Supplemental Indenture Construed Together.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.04. Confirmation and Preservation of Indenture. The
Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
SECTION 3.05. Conflict with Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision
of the Trust Indenture Act that is required under such Act to be part of and
govern any provision of this Supplemental Indenture, the provision of such Act
shall control. If any provision of this Supplemental Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the provision of such Act shall be deemed to apply to the Indenture
as so modified or to be excluded by this Supplemental Indenture, as the case
may be.
SECTION 3.06. Separability Clause. In case any provision in this
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 3.07. Terms Defined in the Indenture. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
SECTION 3.08. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
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SECTION 3.09. Benefits of Supplemental Indenture, etc. Nothing in this
Supplemental Indenture, the Indenture or the Notes, express or implied, shall
give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of Notes, any benefit of
any legal or equitable right, remedy or claim under the Indenture, this
Supplemental Indenture or the Notes.
SECTION 3.10. Successors and Assigns. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 3.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.
SECTION 3.12. Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee, whether or
not elsewhere herein so provided.
SECTION 3.13. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflicts of law principles thereof.
SECTION 3.14. Counterparts. This Supplemental Indenture may be
executed in counterparts, each of which, when so executed, shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
above written.
CUMULUS MEDIA INC.
By:/S/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Executive Vice President and Chief
Financial Officer
Attest:
By:/S/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Secretary
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By:/S/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
Vice President
Attest:
By:/S/
------------------------------
Title:/S/ Vice President
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