Exhibit 4.14.2
EXECUTION COPY
SECOND SUPPLEMENTAL INDENTURE
TO INDENTURE DATED AS OF MAY 18, 2001
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of December 31, 2001, among (i) Radio One of Texas I, LLC, a Delaware limited
liability company ("ROTEX1LLC"), Radio One of Texas II, LLC, a Delaware limited
liability company ("ROTEXI1LLC"), Radio One of Texas, L.P., a Delaware limited
partnership ("ROTEXLP"), Radio One of Indiana, L.P., a Delaware limited
partnership ("ROINDLP"), Radio One of Indiana, LLC, a Delaware limited liability
company ("ROINDLLC"), and Satellite One, L.L.C., a Delaware limited liability
company ("SATONELLC," and together with ROTEX1LLC, ROTEXI1LLC, ROTEXLP, ROINDLP
and ROINDLLC, the "Guaranteeing Subsidiaries", and each a "Guaranteeing
Subsidiary"), each of which Guaranteeing Subsidiaries is either a direct or
indirect subsidiary of Radio One, Inc. (the "Company"), (ii) the Company, (iii)
the other Guarantors (as defined in the Indenture referred to herein) (the
"Existing Guarantors"), and (iv) The Bank of New York (as successor to United
States Trust Company of New York), as trustee under the Indenture referred to
below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Existing Guarantors have heretofore
executed and delivered to the Trustee an indenture, dated as of May 18, 2001,
providing for the issuance of an aggregate principal amount of up to $500.0
million of 8 7/8% Senior Subordinated Notes due 2011 (the "Notes"), and a first
supplemental indenture, dated as of August 10, 2001 (the "First Supplemental
Indenture") (such indenture, as supplemented by the First Supplemental
Indenture, shall hereinafter be referred to as the "Indenture");
WHEREAS, in an effort to optimize its organizational structure, the
Company has caused the following actions to be taken (collectively, the
"Restructuring"):
(i) effective as of December 17, 2001, three of the five recently
formed Guaranteeing Subsidiaries, ROTEXILLC, ROTEXIILLC and
ROTEXLP (collectively, the "New Texas Guaranteeing
Subsidiaries"), issued equity interests to the Company
and/or other New Texas Guaranteeing Subsidiaries as set
forth in Part I of Schedule A attached hereto (the "Texas
Formations").
(ii) effective as of December 31, 2001:
(A) the three remaining recently formed Guaranteeing
Subsidiaries, ROINDLP, ROINLLC and SATONELLC (collectively,
the "Other New Guaranteeing Subsidiaries"), issued equity
interests to the Company, an Existing Guarantor and/or other
Guaranteeing Subsidiaries as set forth in Part II of
Schedule A attached hereto (the "Other Formations," and
together with the Texas Formations, the "Formations");
(B) certain of the Existing Guarantors have merged into the
Company or other Existing Guarantors as set forth on
Schedule B attached hereto (the "Mergers"); and
(C) certain of the Existing Guarantors converted from
corporate form into limited liability company
form as set forth on Schedule C attached hereto
(the "Conversions").
WHEREAS, the Board of Directors of the Company has deemed the
Restructuring to be advisable and in the best interest of the Company, and in
accordance with Section 4.13 of the Indenture, has determined that the
preservation of any right, license or franchise, or the corporate or partnership
existence of any of the Subsidiaries, lost as a result of the Mergers or the
Conversions is no longer desirable in the conduct of the business of the Company
and Subsidiaries, taken as a whole, and that the loss thereof is not adverse in
any material respect to the Holders of the Notes;
WHEREAS, the Indenture provides that under certain circumstances,
including circumstances such as the Formations, each Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to
which such Guaranteeing Subsidiary shall unconditionally guarantee all of the
Company's Obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, each
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary (and,
for purposes of subsection (i) of the Section, each Guaranteeing Subsidiary and
each Existing Guarantor party to the First Supplemental Indenture) hereby agrees
as follows:
(a) Along with all Guarantors named in the Indenture, to
jointly and severally Guarantee to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and
assigns, the Notes or the obligations of the Company hereunder or
thereunder, that:
(i) the principal of and interest, and premium, if
any, on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that
same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately.
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(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes
or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of
a guarantor.
(c) The following is hereby waived: diligence presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever.
(d) This Subsidiary Guarantee shall not be discharged except
by complete performance of the obligations contained in the Notes and
the Indenture, and the Guaranteeing Subsidiary accepts all obligations
of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any Custodian,
Trustee, liquidator or other similar official acting in relation to
either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article
6 of the Indenture for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any declaration of acceleration of such obligations
as provided in Article 6 of the Indenture, such obligations (whether or
not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Subsidiary Guarantee.
(h) The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
(i) Notwithstanding anything to the contrary contained herein,
pursuant to Section 11.02 of the Indenture, the Obligations of each
Guaranteeing Subsidiary created hereunder (and the Obligations of each
Existing Guarantor under the First Supplemental Indenture created
thereunder) shall be junior and subordinate to the Senior Guarantee of
such Guarantor on the same basis as the Notes are junior and
subordinate to Senior Debt of the Company.
(j) Pursuant to Section 11.03 of the Indenture, after giving
effect to any maximum amount and any other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such
other Guarantor under Article 11 of the Indenture, this new Subsidiary
Guarantee shall be limited to the maximum amount permissible such that
the obligations of such
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Guarantor under this Subsidiary Guarantee will not constitute a
fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees to
execute the Subsidiary Guarantee as provided by Section 11.04 of the Indenture
and Exhibit E thereto and to recognize that the Subsidiary Guarantees shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARY mAY CONSOLIDATE, eTC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiary may not consolidate with or
merge with or into (whether or not such Guarantor is the surviving
Person) another corporation, Person or entity whether or not affiliated
with such Guarantor unless:
(i) subject to Sections 11.05 and 11.06 of the
Indenture, the Person formed by or surviving any such
consolidation or merger (if other than a Guarantor or the
Company) unconditionally assumes all the obligations of such
Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the
Notes, the Indenture and the Subsidiary Guarantee on the terms
set forth herein or therein; and
(ii) immediately after giving effect to such
transaction, no Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Subsidiary Guarantee
endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of the Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been
named herein as a Guarantor. Such successor corporation thereupon may
cause to be signed any or all of the Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee.
All the Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under the Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with the
terms of the Indenture as though all of such Subsidiary Guarantees had
been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 and Section 11.06
of Article 11 of the Indenture, and notwithstanding clauses (a) and (b)
above, nothing contained in the Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise,
or a sale or other disposition of all to the capital stock of any
Guarantor, in each case to a Person that is not (either before or after
giving effect to such transaction) a Restricted Subsidiary of the
Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of
the capital stock of
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such Guarantor) or the corporation acquiring the property (in the event
of a sale or other disposition of all or substantially all of the
assets of such Guarantor) will be released and relieved of any
obligations under its Subsidiary Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of the Indenture, including without
limitation Section 4.10 of the Indenture. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel to
the effect that such sale or other disposition was made by the Company
in accordance with the provisions of the Indenture, including without
limitation Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Subsidiary Guarantee.
(b) Any Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of
any Guarantor under the Indenture as provided in Article 10 of the
Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Subsidiary Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
7. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. SUBMISSION TO JURISDICTION; SERVICE OF PROCESS; WAIVER OF JURY TRIAL. Each
party hereto hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State Court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Supplemental Indenture, the Notes, the
Subsidiary Guarantees or the transactions contemplated hereby and thereby. Each
party hereto irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Process in
any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the State of New York. Without limiting the
foregoing, the parties agree that service of process upon such party at the
address referred to in Section 13.02 of the Indenture, together with written
notice of such service to such party, shall be deemed effective service of
process upon such party. Each of the parties hereto irrevocably waives any and
all rights to trial by jury in any legal proceeding arising out of or relating
to this Supplemental Indenture, the Notes, the Subsidiary Guarantees or the
transactions contemplated hereby and thereby.
9. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
10. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
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11. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
RADIO ONE OF TEXAS, LP
By: RADIO ONE OF TEXAS I, LLC,
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Title: President and Chief Executive Officer
RADIO ONE OF INDIANA, LP
By: RADIO ONE, INC.
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Title: President and Chief Executive Officer
RADIO ONE OF TEXAS I, LLC
RADIO ONE OF TEXAS II, LLC
RADIO ONE OF INDIANA, LLC
SATELLITE ONE, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Title: President and Chief Executive Officer
RADIO ONE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Title: President and Chief Executive Officer
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RADIO ONE LICENSES, LLC
(FORMERLY RADIO ONE LICENSES, INC.)
▇▇▇▇ BROADCASTING COMPANY
RADIO ONE OF DETROIT, LLC
(FORMERLY RADIO ONE OF DETROIT, INC.)
RADIO ONE OF ATLANTA, LLC
(FORMERLY RADIO ONE OF ATLANTA, INC.)
ROA LICENSES, LLC
(FORMERLY ROA LICENSES, INC.)
RADIO ONE OF CHARLOTTE, LLC,
RADIO ONE OF AUGUSTA, LLC
(FORMERLY RADIO ONE OF AUGUSTA, INC.)
CHARLOTTE BROADCASTING, LLC
(FORMERLY ▇▇▇▇▇ BROADCASTING OF CHARLOTTE, INC.)
RADIO ONE OF NORTH CAROLINA, LLC
(FORMERLY RADIO ONE OF NORTH CAROLINA, INC.)
RADIO ONE OF BOSTON, INC.
RADIO ONE OF BOSTON LICENSES, LLC
(FORMERLY RADIO ONE OF BOSTON LICENSES, INC.)
BLUE CHIP MERGER SUBSIDIARY, INC.
BLUE CHIP BROADCAST COMPANY
BLUE CHIP BROADCASTING, LTD.
BLUE CHIP BROADCASTING LICENSES, LTD.
BLUE CHIP BROADCASTING LICENSES II, LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Title: President and Chief Executive Officer
THE BANK OF NEW YORK
as Trustee
By: /s/ Authorized Signer
---------------------------------------
Authorized Signer
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Schedule A
----------
SCHEDULE OF FORMATIONS
----------------------
PART I: The Texas Formations
The recently formed New Texas Guaranteeing Subsidiaries have had the
below-listed equity ownership at all times since December 17, 2001.
Guaranteeing Subsidiary Ownership Interest
---------------------------------------------------------- --------------------------------------------------------
Radio One of Texas I, LLC 100% of Units held by Radio One, Inc.
Radio One of Texas II, LLC 100% of Units held by Radio One, Inc.
Radio One of Texas, LP 1% of partnership interest held by Radio One of Texas
I, LLC, its general partner
99% of partnership interest held by Radio One of Texas
II, LLC, its limited partner
PART II: The Other Formations
The recently formed Other New Guaranteeing Subsidiaries have the
below-listed equity ownership effective as of December 31, 2001.
Guaranteeing Subsidiary Ownership Interest
---------------------------------------------------------- --------------------------------------------------------
Radio One of Indiana, LLC 100% of Units held by Radio One of Indiana, L.P.
Radio One of Indiana, L.P. 99% of partnership interest held by Radio One, Inc.,
its general partner
1% of partnership held by Radio One of Texas II, LLC,
its limited partner
Satellite One, L.L.C. 100% of Units held by Radio One, Inc.
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Schedule B
----------
SCHEDULE OF MERGERS
-------------------
The below-listed Existing Guarantors were merged into the Company or
other Existing Guarantors effective as of December 31, 2001.
Merged Existing Guarantor Entity into which Existing Guarantor was Merged
------------------------------------------------------ -----------------------------------------------------------
WYCB Acquisition Corporation Radio One, Inc.
Broadcast Holdings, Inc. Radio One Licenses, Inc. (*)
Allur-Detroit, Inc. ▇▇▇▇ Broadcasting Company
Allur Licenses, Inc. Radio One of Detroit, Inc. (*)
Dogwood Communications, Inc. Radio One of Atlanta, Inc. (*)
Dogwood Licenses, Inc. ROA Licenses, Inc. (*)
* Entity to be converted into a limited liability company immediately
following the merger (see Schedule C - Schedule of Conversions)
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Schedule C
----------
SCHEDULE OF CONVERSIONS
-----------------------
The below-listed entities converted from corporate form to limited
liability company effective as of December 31, 2001.
Pre-conversion Entity Post-Conversion Entity
---------------------------------------------------------- -------------------------------------------------------
Radio One Licenses, Inc. Radio One Licenses, LLC
Radio One of Detroit, Inc. Radio One of Detroit, LLC
Radio One of Atlanta, Inc. Radio One of Atlanta, LLC
ROA Licenses, Inc. ROA Licenses, LLC
Radio One of Augusta, Inc. Radio One of Augusta, LLC
▇▇▇▇▇ Broadcasting of Charlotte, Inc. Charlotte Broadcasting, LLC
Radio One of North Carolina, Inc. Radio One of North Carolina, LLC
Radio One of Boston Licenses, Inc. Radio One of Boston Licenses, LLC
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