SECOND SUPPLEMENTAL INDENTURE
EXHIBIT 4.5
Execution Copy
SECOND SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of April 26, 2004, among Emmis Communications Corporation, an Indiana corporation (the “Company”), and The Bank of Nova Scotia Company of New York, a New York trust company, as trustee (the “Trustee”).
have no effect and the Indenture shall be deemed to be amended so that it reads the same as it did immediately prior to the date hereof.
The Indenture is hereby amended as follows:
(a) Section 1.01 is hereby amended as follows:
(i) The definitions of “Acquired Debt,” “Asset Sale,” “Attributable Debt,” “Beneficial Owner,” “Cash Equivalents,” “Change of Control,” “Consolidated EBITDA,” “Consolidated Indebtedness,” “Consolidated Net Income,” “Consolidated Net Worth,” “Continuing Directors”, “Debenture Exchange Date,” “Dividend Payment Date,” “Domestic Restricted Subsidiary,” “Escrow Account,” “Escrow Agreement,” “Exchange Indenture,” “Existing Indebtedness,” “Fixed Changes,” “Investments,” “Leverage Ratio,” “Marketable Securities,” “Moody’s,” “Net Income,” “Net Proceeds,” “New Exchange Debentures,” “Obligations,” “Offering,” “Permitted Business,” “Permitted Investments,” “Permitted Joint Ventures,” “Permitted Liens,” “Permitted Refinancing Indebtedness,” “Principals, “ “Productive Assets,” “Related Party,” “Restricted Investment,” “S&P,” “Senior Subordinated Notes Indenture,” “Stated Maturity,” “Weighed Average Life to Maturity,” and “Wholly Owned Restricted Subsidiary” are hereby deleted in their entirety.
(ii) the definition of “Disqualified Stock” is hereby amended by deleting in its entirety the following text: “unless such repurchase or redemption complies with Section 4.07 of this Indenture.”
(iii) The last paragraph of the definition of “Unrestricted Subsidiary” is hereby amended to read as follows:
“Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such |
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Unrestricted Subsidiary and such designation shall only be permitted if no Default would occur or be in existence following such designation.” |
(b) Section 1.02 is hereby amended by deleting the following terms in their entirety: “Affiliate Transaction,” “Change of Control Offer,” “Change of Control Payment,” “Change of Control Payment Date,” “Excess Proceeds,” “incur,” “Permitted Debt” and “Restricted Payment”.
(c) Section 4.03 is hereby amended to read as follows:
“The Company shall at any time comply with TIA § 314(a).”
(d) The text of Sections 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 of the Indenture is hereby deleted in its entirety and these Sections shall be of no further force and effect and the words "[INTENTIONALLY DELETED]” shall be inserted, in each case, in place of the deleted text.
(e) Section 5.01 is hereby amended to read as follows:
“The Company may not consolidate or merge with or into (whether or not Company is the surviving corporation), or sell, assign, transfer, lease, convey, or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless: |
(1) | the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia; and | |||
(2) | the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee. |
Notwithstanding the foregoing, the Company may consummate the Escrow Corp. Merger or the Reorganization, or merge with an Affiliate incorporated for the purpose of reincorporating the Company in another jurisdiction and/or for the purpose of forming a holding company. | ||||
This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and any of its Wholly Owned Restricted Subsidiaries.” |
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(f) Section 6.01 is hereby amended by deleting the text of clauses (c), (d), (e) and (f) and by replacing such text with the words “[INTENTIONALLY DELETED]”.
(g) Section 8.04 is hereby amended by deleting the text of clause (c) and by replacing such text with the words “[INTENTIONALLY DELETED]”.
4. Governing Law. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.
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EMMIS COMMUNICATIONS CORPORATION |
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By: | /s/ J. Xxxxx Xxxxxxx | |||
Name: | J. Xxxxx Xxxxxxx | |||
Title: | Vice President and Associate General Counsel | |||
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee |
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By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Trust Officer | |||
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