-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Vx+z0ZOIXiMxF+emg5kxI91+UXSYufod1C2jvT1D92wzKZb77oj6UPkkSnf6HiKT HN0bWXjwCSOoLqWKra61eQ== 0001047469-98-011481.txt : 19980326 0001047469-98-011481.hdr.sgml : 19980326 ACCESSION NUMBER: 0001047469-98-011481 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 32 FILED AS OF DATE: 19980325 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BRILL MEDIA CO LLC CENTRAL INDEX KEY: 0001052567 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 522071822 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177 FILM NUMBER: 98573292 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 2 WALL STREET CITY: NEW YORK STATE: NY ZIP: 10005 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BRILL RADIO INC CENTRAL INDEX KEY: 0000320046 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541148743 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-01 FILM NUMBER: 98573293 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O BO 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: PO BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BMC HOLDINGS INC CENTRAL INDEX KEY: 0000882483 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541889308 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-36 FILM NUMBER: 98573294 BUSINESS ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 2453 CITY: RICHMOND STATE: VA ZIP: 23201 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BMC HOLDINGS LLC CENTRAL INDEX KEY: 0001052572 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 522071824 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-02 FILM NUMBER: 98573295 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 2 WALL STREET CITY: NEW YORK STATE: NY ZIP: 10005 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BRILL MEDIA MANAGEMENT INC CENTRAL INDEX KEY: 0001052659 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541877458 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-03 FILM NUMBER: 98573296 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 2 WALL STREET CITY: NEW YORK STATE: NY ZIP: 10005 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BRILL NEWSPAPER INC CENTRAL INDEX KEY: 0001052674 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541170289 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-04 FILM NUMBER: 98573297 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 2453 CITY: RICHMOND STATE: VA ZIP: 23201 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CADILLAC NEWSPAPER INC CENTRAL INDEX KEY: 0001052676 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541170305 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-05 FILM NUMBER: 98573298 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 2453 CITY: RICHMOND STATE: VA ZIP: 23201 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CENTRAL MICHIGAN DISTRIBUTION CO INC CENTRAL INDEX KEY: 0001052679 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 382538162 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-06 FILM NUMBER: 98573299 BUSINESS ADDRESS: STREET 1: P.O. BOX 447 STREET 2: P.O. BOX 447 CITY: MT. PLEASANT STATE: MI ZIP: 48858 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CENTRAL MICHIGAN NEWSPAPERS INC CENTRAL INDEX KEY: 0001052681 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541170307 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-07 FILM NUMBER: 98573300 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILL STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CENTRAL MISSOURI BROADCASTING INC CENTRAL INDEX KEY: 0001052683 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541163979 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-08 FILM NUMBER: 98573301 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CMB II INC CENTRAL INDEX KEY: 0001052685 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 431671356 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-09 FILM NUMBER: 98573302 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CMN ASSOCIATED PUBLICATIONS INC CENTRAL INDEX KEY: 0001052689 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 382438130 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-10 FILM NUMBER: 98573303 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CMN HOLDING INC CENTRAL INDEX KEY: 0001052693 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541170293 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-11 FILM NUMBER: 98573304 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GLADWIN NEWSPAPERS INC CENTRAL INDEX KEY: 0001052697 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541170304 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-12 FILM NUMBER: 98573305 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GRAPH ADS PRINTING INC CENTRAL INDEX KEY: 0001052704 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 382438126 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-13 FILM NUMBER: 98573306 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HURON HOLDINGS LLC CENTRAL INDEX KEY: 0001052707 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 382438126 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-14 FILM NUMBER: 98573307 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HURON NEWSPAPERS LLC CENTRAL INDEX KEY: 0001052711 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541867829 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-15 FILM NUMBER: 98573308 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HURON PS LLC CENTRAL INDEX KEY: 0001052714 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 383372402 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-16 FILM NUMBER: 98573309 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MIDLAND BUYERS GUIDE INC CENTRAL INDEX KEY: 0001052716 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 382438164 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-17 FILM NUMBER: 98573310 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NB II INC CENTRAL INDEX KEY: 0001052717 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 411803205 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-18 FILM NUMBER: 98573311 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NCH II LLC CENTRAL INDEX KEY: 0001052721 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541851918 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-19 FILM NUMBER: 98573312 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NCR II INC CENTRAL INDEX KEY: 0001052725 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 841347311 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-20 FILM NUMBER: 98573313 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NCR III LLC CENTRAL INDEX KEY: 0001052726 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541851920 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-21 FILM NUMBER: 98573314 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHERN COLORADO HOLDINGS LLC CENTRAL INDEX KEY: 0001052728 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541862076 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-22 FILM NUMBER: 98573315 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHERN COLORADO RADIO INC CENTRAL INDEX KEY: 0001052730 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 841091274 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-23 FILM NUMBER: 98573316 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHLAND BROADCASTING LLC CENTRAL INDEX KEY: 0001052731 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 411862832 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-24 FILM NUMBER: 98573317 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHLAND HOLDINGS LLC CENTRAL INDEX KEY: 0001052732 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541838750 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-25 FILM NUMBER: 98573318 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: READING RADIO INC CENTRAL INDEX KEY: 0001052733 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541163978 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-26 FILM NUMBER: 98573319 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ST JOHNS NEWSPAPERS INC CENTRAL INDEX KEY: 0001052735 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 383299223 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-27 FILM NUMBER: 98573320 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRI STATE BROADCASTING INC CENTRAL INDEX KEY: 0001052736 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 351888093 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-28 FILM NUMBER: 98573321 BUSINESS ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: 420 N.W. FIFTH STREET STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CENTRAL MICHIGAN DISTRIBUTION CO LP CENTRAL INDEX KEY: 0001052772 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-29 FILM NUMBER: 98573322 BUSINESS ADDRESS: STREET 1: MEDIA STREET 2: P.O. BOX 447 CITY: MT. PLEASANT STATE: MI ZIP: 48858 BUSINESS PHONE: 8124236200 MAIL ADDRESS: STREET 1: BRILL MEDIA COMPANY STREET 2: P.O. BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ADVERTISERS PS LLC CENTRAL INDEX KEY: 0001056853 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 383393217 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-30 FILM NUMBER: 98573323 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CENTRAL PRINTING SERVICE LLC CENTRAL INDEX KEY: 0001056854 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 383393221 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-31 FILM NUMBER: 98573324 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UPPER MICHIGAN HOLDINGS INC CENTRAL INDEX KEY: 0001056855 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 383393221 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-32 FILM NUMBER: 98573325 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UPPER MICHIGAN HOLDINGS LLC CENTRAL INDEX KEY: 0001056856 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 383393221 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-33 FILM NUMBER: 98573326 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UPPER MICHIGAN MANAGEMENT INC CENTRAL INDEX KEY: 0001056857 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 383393221 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-34 FILM NUMBER: 98573327 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UPPER MICHIGAN NEWSPAPERS LLC CENTRAL INDEX KEY: 0001056858 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 383393221 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-35 FILM NUMBER: 98573328 BUSINESS ADDRESS: STREET 1: BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 BUSINESS PHONE: 8124236200 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HURON HOLDINGS MANAGEMENT INC CENTRAL INDEX KEY: 0001058358 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541889311 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-37 FILM NUMBER: 98573329 BUSINESS ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 2453 CITY: RICHMOND STATE: VA ZIP: 23201 MAIL ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HURON NEWSPAPERS MANAGEMENT INC CENTRAL INDEX KEY: 0001058359 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541889312 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-38 FILM NUMBER: 98573330 BUSINESS ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 2453 CITY: RICHMOND STATE: VA ZIP: 23201 MAIL ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HURON P S MANAGEMENT INC CENTRAL INDEX KEY: 0001058360 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541889314 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-39 FILM NUMBER: 98573331 BUSINESS ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 2453 CITY: RICHMOND STATE: VA ZIP: 23201 MAIL ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHERN COLORADO HOLDINGS MANAGEMENT INC CENTRAL INDEX KEY: 0001058361 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541889315 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-40 FILM NUMBER: 98573332 BUSINESS ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 2453 CITY: RICHMOND STATE: VA ZIP: 23201 MAIL ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHLAND BROADCASTING MANAGEMENT INC CENTRAL INDEX KEY: 0001058362 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541889316 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-41 FILM NUMBER: 98573333 BUSINESS ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 2453 CITY: RICHMOND STATE: VA ZIP: 23201 MAIL ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHLAND HOLDINGS MANAGEMENT INC CENTRAL INDEX KEY: 0001058363 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541889316 STATE OF INCORPORATION: VA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-44177-42 FILM NUMBER: 98573334 BUSINESS ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 2453 CITY: RICHMOND STATE: VA ZIP: 23201 MAIL ADDRESS: STREET 1: C/O BRILL MEDIA CO STREET 2: P O BOX 3353 CITY: EVANSVILLE STATE: IN ZIP: 47732 S-4/A 1 FORM S-4/A AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 25, 1998 REGISTRATION NO. 333-44177 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 2 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ BRILL MEDIA COMPANY, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 52-2071822 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
BRILL MEDIA MANAGEMENT, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1877458 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
ADVERTISERS P.S., LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 7398 38-3393217 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
BMC HOLDINGS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1889308 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
BMC HOLDINGS, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 52-2071824 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
BRILL NEWSPAPERS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1170289 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
BRILL RADIO, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1148743 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
CADILLAC NEWSPAPERS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 54-1170305 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
CENTRAL MICHIGAN DISTRIBUTION CO., INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 38-2438162 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
CENTRAL MICHIGAN DISTRIBUTION CO., L.P. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 7398 62-1356763 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
CENTRAL MICHIGAN NEWSPAPERS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 54-1170307 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
CENTRAL MISSOURI BROADCASTING, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 4830 54-1163979 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
CENTRAL PRINTING SERVICE, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 38-3393221 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
CMB II, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 43-1671356 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
CMN ASSOCIATED PUBLICATIONS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 38-2438130 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
CMN HOLDING, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1170293 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
GLADWIN NEWSPAPERS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 54-1170304 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
GRAPH ADS PRINTING, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 38-2438126 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
HURON HOLDINGS, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1867829 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
HURON HOLDINGS MANAGEMENT, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1889311 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
HURON NEWSPAPERS, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 38-3372402 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
HURON NEWSPAPERS MANAGEMENT, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1889312 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
HURON P.S., LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 7398 38-3372410 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
HURON P.S. MANAGEMENT, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1889314 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
MIDLAND BUYERS GUIDE, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 38-2438164 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NB II, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 41-1803205 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NCH II, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1851918 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NCR II, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 4830 84-1347311 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NCR III, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 4830 54-1851920 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NORTHERN COLORADO HOLDINGS, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1862076 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NORTHERN COLORADO HOLDINGS MANAGEMENT, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1889315 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NORTHERN COLORADO RADIO, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 4830 84-1091274 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NORTHLAND BROADCASTING, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 4830 41-1862832 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NORTHLAND BROADCASTING MANAGEMENT, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1889316 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NORTHLAND HOLDINGS, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1838750 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
NORTHLAND HOLDINGS MANAGEMENT, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1889317 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
READING RADIO, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 4830 54-1163978 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
ST. JOHNS NEWSPAPERS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 38-3299223 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
TRI-STATE BROADCASTING, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 4830 35-1888093 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
UPPER MICHIGAN HOLDINGS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1882775 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
UPPER MICHIGAN HOLDINGS, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1882773 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
UPPER MICHIGAN MANAGEMENT, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 6749 54-1882776 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
UPPER MICHIGAN NEWSPAPERS, LLC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) VIRGINIA 2710 38-3393224 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
420 N.W. FIFTH STREET, EVANSVILLE, INDIANA 47708 (812) 423-6200 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ALAN R. BRILL PRESIDENT AND CHIEF EXECUTIVE OFFICER BRILL MEDIA MANAGEMENT, INC. 420 N.W. FIFTH STREET, EVANSVILLE, INDIANA 47708 (812) 423-6200 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------------ COPIES TO: THOMPSON & MCMULLAN, P.C. CARTER, LEDYARD & MILBURN 100 Shockoe Slip 2 Wall Street Richmond, Virginia 23219 New York, New York 10005 (804) 649-7545 (212) 732-3200 Attention: Charles W. Laughlin Attention: John K. Whelan
------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective. If any of the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. / / ------------------------ THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SUBJECT TO COMPLETION, DATED MARCH 25, 1998 INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. PROSPECTUS BRILL MEDIA COMPANY, LLC [LOGO] BRILL MEDIA MANAGEMENT, INC. OFFER TO EXCHANGE 12% SENIOR NOTES DUE 2007 FOR 12% SERIES B SENIOR NOTES DUE 2007 AND APPRECIATION NOTES DUE 2007 FOR SERIES B APPRECIATION NOTES DUE 2007 THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 1998, UNLESS EXTENDED Brill Media Company, LLC, a Virginia limited liability company ("BMC") and Brill Media Management, Inc., a Virginia corporation (collectively with BMC, the "Issuer"), hereby offers, upon the terms and subject to the conditions set forth in this Prospectus and the accompanying Letters of Transmittal (the "Exchange Offer"), to exchange (i) its 12% Series B Senior Notes due 2007 (the "Exchange Notes") for an equal principal amount of its outstanding 12% Senior Notes due 2007 (the "Original Notes" and collectively with the Exchange Notes, the "Notes"), of which an aggregate of $105,000,000 in principal is outstanding as of the date hereof, and (ii) its Series B Appreciation Notes due 2007 (the "Exchange Appreciation Notes") for an equal principal amount of its outstanding Appreciation Notes due 2007 (the "Original Appreciation Notes" and, collectively with the Exchange Appreciation Notes, the "Appreciation Notes"), of which an aggregate of $3,000,000 in principal is outstanding as of the date hereof. The form and the terms of each of the Exchange Notes and the Exchange Appreciation Notes will be the same as the form and terms of each of the Original Notes and the Original Appreciation Notes, respectively, except that (i) each of the Exchange Notes and the Exchange Appreciation Notes will bear a "Series B" designation and will bear different CUSIP Numbers from the Original Notes and the Original Appreciation Notes, (ii) the Exchange Notes and the Exchange Appreciation Notes will have been registered under the Securities Act of 1933, as amended (the "Securities Act"), and, therefore, will not bear legends restricting their transfer, and (iii) holders of the Exchange Notes and the Exchange Appreciation Notes will not be entitled to certain rights of holders of Notes and Appreciation Notes, respectively, under the Registration Rights Agreements (as defined), which rights will terminate as to holders of the Exchange Notes and Exchange Appreciation Notes upon consummation of the Exchange Offer. Exchange Notes will evidence the same debt as the Original Notes and will be entitled to the benefits of the indenture (the "Indenture") dated as of December 30, 1997 governing the Original Notes and the Exchange Notes. Exchange Appreciation Notes will evidence the same debt as the Original Appreciation Notes and will be entitled to the benefits of the indenture (the "Appreciation Note Indenture") dated as of December 30, 1997 governing the Appreciation Notes and the Exchange Appreciation Notes. The Original Notes and the Original Appreciation Notes are sometimes referred to herein collectively as the "Original Securities." The Exchange Notes and the Exchange Appreciation Notes are sometimes referred to herein collectively as the "Exchange Securities." The Original Securities and the Exchange Securities are sometimes referred to herein collectively as the "Securities." Interest on the Exchange Notes will accrue from and include their issuance date. Additionally, interest on the Exchange Notes will accrue from the last interest payment date on which interest was paid on the Original Notes surrendered in exchange therefor or, if no interest has been paid on the Original Notes, from the date of original issuance of such Original Notes to but not including the issuance date of the Exchange Notes. Accordingly, holders who exchange their Original Notes will receive the same interest payment on the next interest payment date (expected to be June 15, 1998) that they would have received had they not accepted the Exchange Offer. The Notes will bear interest at a rate of 7 1/2% per annum from the date of original issue until December 15, 1999 and at a rate of 12% from and after such date until maturity. Interest on the Notes will be payable in cash semi-annually on June 15 and December 15 of each year, commencing June 15, 1998. The Notes will mature on December 15, 2007. Except as described below, the Issuer may not redeem the Notes prior to December 15, 2002. On or after such date, the Issuer may redeem the Notes, in whole or in part, at any time, at the redemption prices set forth herein, together with accrued and unpaid interest, if any, to the date of redemption. In addition, at any time and from time to time on or prior to December 15, 2000, in the event of the sale by BMC of at least $25.0 million of its equity securities in one or more Public Equity Offerings (as defined), the Issuer may, at its option, use the net proceeds of such sale to redeem up to 25% of the aggregate principal amount of the Notes, at a redemption price equal to 112.0% of the Accreted Value (as defined) of the Notes to be redeemed, together with accrued and unpaid interest, if any, to the date of redemption; PROVIDED, HOWEVER, that after any such redemption the aggregate principal of the Notes outstanding must be at least $79.0 million. The Notes will not be subject to any sinking fund requirement. Upon the occurrence of a Change of Control (as defined), the Issuer will be required to make an offer to repurchase the Notes at a price equal to 101% of the Accreted Value in the case of an offer to purchase occurring prior to December 15, 1999, and thereafter at a purchase price equal to 101% of the principal amount thereof, in each case plus accrued and unpaid interest thereon to the date of repurchase. See "Description of Notes - -- Optional Redemption" and "--Change of Control." The Notes will be senior unsecured obligations of the Issuer. The Notes will rank PARI PASSU with all existing and future senior indebtedness of the Issuer and will rank senior in right of payment to any future subordinated indebtedness of the Issuer. The Notes will be unconditionally guaranteed (the "Subsidiary Guarantees"), jointly and severally, by each of the Issuer's subsidiaries on the issue date of the Notes and by each Restricted Subsidiary (as defined) of the Issuer organized or acquired thereafter (collectively the "Subsidiary Guarantors"). The Guarantees will be senior unsecured obligations of the Subsidiary Guarantors and will rank PARI PASSU in right of payment with all other existing and future senior indebtedness of the respective Subsidiary Guarantors and senior in right of payment to all existing and future subordinated indebtedness of the respective Subsidiary Guarantors and may be released upon the occurence of certain events. The Notes and Subsidiary Guarantees will be effectively subordinated in right of payment to any secured debt of the Issuer and the Subsidiary Guarantors to the extent of the assets serving as security therefor. The Indenture permits the Issuer and its Subsidiaries to incur additional indebtedness (including senior indebtedness), subject to certain limitations. As of November 30, 1997, on a pro forma basis after giving effect to the Transactions, the Issuer had no outstanding secured indebtedness to which the Notes would have been effectively subordinated, and the aggregate amount of the Subsidiary Guarantors' outstanding senior secured indebtedness to which the Subsidiary Guarantees would have been effectively subordinated was approximately $4.8 million. See "Description of Notes." Each Appreciation Note will entitle the holder thereof to receive on December 15, 2007 a cash payment of principal and interest in an amount equal to (i) the principal amount thereof plus (ii) the amount by which the Specified Percentage (as defined) of the Value (as defined) of BMC on such date exceeds the principal amount of such Appreciation Note. The Appreciation Notes will be subject to mandatory and optional redemption under certain circumstances. The Appreciation Notes will be senior subordinated obligations of the Issuer. The Appreciation Notes will be subordinated in right of payment to all existing and future Senior Indebtedness (as defined) of the Issuer, including the Notes, and will rank senior in right of payment to any subordinated indebtedness of the Issuer. The Appreciation Notes will be unconditionally guaranteed, jointly and severally, by each of the Subsidiary Guarantors. The Guarantees of the Appreciation Notes will be senior subordinated obligations of the Subsidiary Guarantors and will be subordinated in right of payment to all existing and future Guarantor Senior Indebtedness (as defined) of the respective Subsidiary Guarantor, including the Subsidiaries Guarantees of the Notes. See "Description of the Appreciation Notes." SEE "RISK FACTORS" BEGINNING ON PAGE 24 FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY HOLDERS WHO TENDER THEIR ORIGINAL SECURITIES IN THE EXCHANGE OFFER. ------------------------ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is , 1998. (CONTINUED FROM FRONT COVER) The Issuer will accept for exchange any and all validly tendered Original Securities not withdrawn prior to 5:00 p.m., New York City time, on , 1998, unless extended by the Issuer in its sole discretion (the "Expiration Date"). Tenders of Original Securities may be withdrawn at any time prior to the Expiration Date. The Exchange Offer is not conditioned upon any minimum aggregate principal amount of Original Notes or any minimum aggregate principal amount of Original Appreciation Notes being tendered for exchange. In the event the Issuer terminates the Exchange Offer and does not accept for exchange any Original Securities, the Issuer will promptly return all previously tendered Original Securities to the holders thereof. The Exchange Offer is subject to certain customary conditions. See "The Exchange Offer--Conditions." The Issuer has agreed to pay all expenses incident to the Exchange Offer. The Issuer will not receive any proceeds from the Exchange Offer. The Original Securities were originally issued and sold on December 30, 1997 in transactions (the "Offering") which were not registered under the Securities Act in reliance upon exemptions from the registration requirements of the Securities Act. Accordingly, the Original Securities may not be reoffered, resold or otherwise pledged, hypothecated or transferred in the United States unless registered under the Securities Act or unless an applicable exemption from the registration requirements of the Securities Act is available. The Exchange Securities are being offered hereunder to satisfy the obligations of the Issuer under the Registration Rights Agreements. See "The Exchange Offer--Purpose and Effect of Exchange Offer." Based on no-action letters issued by the staff of the Securities and Exchange Commission (the "Commission") to third parties, the Issuer believes the Exchange Notes and the Exchange Appreciation Notes issued pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by any holder thereof (other than any such holder that is an "affiliate" of the Issuer within the meaning of Rule 405 under the Securities Act), without further registration under the Securities Act and without delivery of a prospectus that satisfies the requirements of Section 10 of the Securities Act, provided that such Exchange Securities are acquired in the ordinary course of such holder's business and that such holder does not intend to participate, and has no arrangement or understanding with any person to participate, in the distribution of such Exchange Securities. Eligible holders wishing to accept the Exchange Offer must represent to the Issuer that such conditions have been met. Each broker-dealer that receives Exchange Securities pursuant to the Exchange Offer in exchange for Securities acquired for its own account as a result of market-making or other trading activities (a "Participating Broker-Dealer") may be a statutory underwriter and must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities. The Letters of Transmittal state that by so acknowledging and by delivering a prospectus, a Participating Broker-Dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a Participating Broker-Dealer in connection with resales of Exchange Securities received in exchange for Original Securities where such Original Securities were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities. The Issuer has agreed that, for a period of 180 days after consummation of the Exchange Offer, it will make this Prospectus available to any Participating Broker-Dealer for use in connection with any such resale. See "Plan of Distribution." Holders of Original Securities whose Original Securities are not tendered and accepted in the Exchange Offer will continue to hold such Original Securities and will be entitled to all the rights and preferences and will be subject to the limitations applicable thereto under the Indenture and the Appreciation Note Indenture, respectively. Following consummation of the Exchange Offer, the holders of Original Securities will continue to be subject to the existing restrictions upon transfer thereof under the Securities Act. There has been no previous public market for the Securities. The Issuer does not intend to list the Exchange Securities on any securities exchange or to seek approval for quotation through any automated quotation system. There can be no assurance that an active market for the Exchange Securities will develop. See "Risk Factors--Lack of Established Trading Market." Moreover, to the extent that Original Securities are tendered and accepted in the Exchange Offer, the trading market for untendered and tendered but unaccepted Original Securities could be adversely affected. The Original Securities were issued as units, each of which was immediately separable into one Original Note and one Original Appreciation Note (the "Units"). The Exchange Notes and Exchange Appreciation Notes are being offered separately, and not as units. By submitting a Letter of Transmittal to tender Original Securities, or by electronically transmitting its acceptance of the Exchange Offer through ATOP (as defined), a holder of Units will request the separation of such Units into their component parts. See "The Exchange Offer--Procedures for Tendering." THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE ISSUER ACCEPT SURRENDERS FOR EXCHANGE FROM, HOLDERS OF ORIGINAL SECURITIES IN ANY JURISDICTION IN WHICH THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION. CERTAIN OF THE MATTERS DISCUSSED UNDER "PROSPECTUS SUMMARY," "RISK FACTORS," "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS," "BUSINESS" AND ELSEWHERE IN THIS PROSPECTUS CONTAIN FORWARD-LOOKING STATEMENTS CONCERNING THE ISSUER'S OPERATIONS, ECONOMIC PERFORMANCE AND FINANCIAL CONDITION, INCLUDING, AMONG OTHER THINGS, THE ISSUER'S BUSINESS STRATEGY. THESE STATEMENTS ARE BASED ON THE ISSUER'S EXPECTATIONS AND ARE SUBJECT TO VARIOUS RISKS AND UNCERTAINTIES. ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED DUE TO A NUMBER OF FACTORS, INCLUDING THOSE IDENTIFIED UNDER "RISK FACTORS" AND ELSEWHERE IN THIS PROSPECTUS. RADIO INDUSTRY DATA Unless otherwise indicated herein, audience ratings and market radio advertising revenues have been obtained from INVESTING IN RADIO, 1997 MARKET REPORT--THIRD EDITION, BIA Publications Inc. ("BIA"). Revenue rankings in the Company's radio markets have been derived by comparing the Company's revenues in each market to the revenues for the Company's competitors (utilizing the estimated revenues for each competing radio station as provided by BIA). Metro rank for the Company's markets have been obtained from ARBITRON, RADIO MARKET REPORT, the Arbitron Company ("Arbitron"). Audience rankings for the Fort Collins/Greeley/Loveland, Colorado market ("Fort Collins") and the Jefferson City/Columbia/Lake of Ozarks, Missouri market ("Jefferson City") have been taken from ARBITRON RADIO CUSTOM SURVEY RADIO AREA REPORT, MAY 1997. No published market revenues or revenue rankings on the Fort Collins and Jefferson City markets are available, and market revenues and revenue ranking in such markets have been estimated by the Company, without the benefit of any independent investigation or confirmation, on the basis of its knowledge of each market and published retail sales statistics. CERTAIN DEFINITIONS Brill Media Company, LLC, a Virginia limited liability company ("BMC"), and its wholly-owned subsidiary, Brill Media Management, Inc., a Virginia corporation ("Media" and, collectively with BMC, the "Issuer"), are the co-issuers of the Securities. Media and BMC, collectively with BMC's direct subsidiary BMC Holdings, LLC, a Virginia limited liability company ("Holdings"), and the direct and indirect subsidiaries of Holdings, are referred to herein as the "Company." Certain management services are provided to the Company by Brill Media Company, L.P., a Virginia limited partnership and an affiliate of the Company ("BMCLP"). Radio station and newspaper affiliates that are managed by the Company pursuant to Managed Affiliates Management Agreements (as defined) are referred to collectively as "Managed Affiliates." See "Business--Structure and Governance," "Certain Transactions" and "Description of Notes--Certain Definitions." The subsidiaries of BMC (the "Subsidiaries") presently include the following entities, all of which are organized under the laws of Virginia: BMC Holdings, Inc.; Holdings; Brill Newspapers, Inc.; Brill Radio Inc.; Advertisers P.S., LLC; Cadillac Newspapers, Inc.; Central Michigan Distribution Co., Inc.; Central Michigan Distribution Co., L.P.; Central Michigan Newspapers, Inc.; Central Missouri Broadcasting, Inc.; Central Printing Service, LLC; CMB II, Inc.; CMN Associated Publications, Inc.; CMN Holding, Inc.; Gladwin Newspapers, Inc.; Graph Ads Printing, Inc.; Huron Holdings, LLC; Huron Holdings Management, Inc.; Huron Newspapers, LLC; Huron Newspapers Management, Inc.; Huron P.S. Management, Inc.; Huron P.S., LLC; Midland Buyer's Guide, Inc.; NB II, Inc.; NCH II, LLC; NCR II, Inc.; NCR III, LLC; Northern Colorado Holdings, LLC; Northern Colorado Holdings Management, Inc.; Northern Colorado Radio, Inc.; Northland Broadcasting, LLC; Northland Broadcasting Management, Inc.; Northland Holdings, LLC; Northland Holdings Management, Inc.; Reading Radio, Inc.; St. Johns Newspapers, Inc.; Tri-State Broadcasting, Inc.; Upper Michigan Holdings, Inc.; Upper Michigan Holdings, LLC; Upper Michigan Management, Inc.; and Upper Michigan Newspapers, LLC. "EBITDA" means operating income before depreciation and amortization expenses. References to "Media Cashflow" refer to EBITDA plus management fees, incentive plan expense, time brokerage agreement fees, acquisition related consulting expense and interest income from loans made by the Company to Managed Affiliates. Management fees payable to BMCLP are subordinated, to the extent provided in the Indenture, to the prior payment of the Issuer's obligations on the Notes. Although Media Cashflow and EBITDA are not measures of performance calculated in accordance with GAAP, management believes that these measures are useful to an investor in evaluating the Company because these measures are widely used in the media industry to evaluate a media company's operating performance. However, Media Cashflow and EBITDA should not be considered in isolation or as substitutes for net ii income, cash flows from operating activities and other income or cash flow statements prepared in accordance with GAAP as measures of liquidity or profitability. "New Credit Facility" means a new senior secured credit facility which may be entered into by the Company in the aggregate principal amount not to exceed $15.0 million, as permitted by the Indenture. No assurances can be given that such New Credit Facility will be extended to the Company by any lender or that it will be made available to the Company on terms acceptable to the Company. The terms local marketing agreement ("LMA"), time brokerage agreement ("Time Brokerage Agreement") and joint sales agreement ("JSA") are referred to in various places in this Prospectus. An LMA or Time Brokerage Agreement refers to an agreement, although it may take various forms, under which one party agrees in consideration of a fee paid to provide, on a cooperative basis, the programming, sales, marketing and similar services for a separately owned radio station located in the same radio market and realize the financial benefit of such activities. A JSA refers to an agreement, similar to an LMA or Time Brokerage Agreement, under which a radio station agrees to provide the sales and marketing services for another station while the owner of such other radio station provides the programming for such other radio station. LMAs, Time Brokerage Agreements and JSAs are more fully described in "Business--Federal Regulation of Radio Broadcasting." The Company generally considers radio "middle markets" to be markets ranked 80 to 200 by Arbitron. The Company considers "middle markets" for purposes of its newspaper operations to be generally comparable to the smaller markets in such range. All references in this Prospectus to "senior" in reference to the Notes or other obligations of the Issuer or a Subsidiary Guarantor means obligations that are not subordinated to other unsecured obligations of the Issuer or such Subsidiary Guarantor but which may be subordinate to secured obligations of the Issuer to the extent of the security therefor. iii PROSPECTUS SUMMARY THE FOLLOWING IS A SUMMARY OF CERTAIN INFORMATION CONTAINED ELSEWHERE IN THIS PROSPECTUS AND IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED INFORMATION AND FINANCIAL STATEMENTS AND THE RELATED NOTES THERETO APPEARING ELSEWHERE HEREIN. INVESTORS SHOULD CAREFULLY CONSIDER THE INFORMATION SET FORTH UNDER "RISK FACTORS" PRIOR TO MAKING A DECISION TO TENDER ANY ORIGINAL SECURITIES IN EXCHANGE FOR EXCHANGE SECURITIES HEREUNDER. THE COMPANY The Company is a diversified media enterprise that acquires, develops, manages, and operates radio stations, newspapers and related businesses in middle markets. The Company presently owns, operates, or manages fifteen radio stations serving five markets located in Pennsylvania, Kentucky/Indiana, Colorado, Minnesota/Wisconsin, and Missouri, including three radio stations located in the Kentucky/Indiana market that are owned by Managed Affiliates (the twelve such stations which are not owned by Managed Affiliates being referred to herein as the "Stations"). The group of Stations and Managed Affiliates' stations operated by the Company in each market holds a first or second ranking in both combined audience ratings and combined revenues, compared to other groups, in such market. In addition, in each of its markets, the Stations and Managed Affiliates' stations individually have at least one of the top two rankings in both audience ratings and revenues. The Company's newspaper businesses (the "Newspapers") operate integrated newspaper publishing, printing and print advertising distribution operations, providing total-market print advertising coverage throughout a seventeen-county area in central Michigan. This operation offers a two-edition daily newspaper, thirteen weekly publications, a web offset printing operation for Newspapers' publications and outside customers, and a private distribution company. The Company, each of its Subsidiaries, BMCLP and the Managed Affiliates are wholly owned directly or indirectly by Alan R. Brill ("Mr. Brill" or the "Stockholder"), who founded the business and began its operations in 1981. For the year ended February 28, 1997, the Company's pro forma combined revenues, net loss and Media Cashflow, excluding the Missouri Properties which are under contract to be sold (see "Recent or Pending Transactions"), were $27.4 million, $8.5 million and $10.2 million, respectively. For the nine months ended November 30, 1997, such pro forma combined revenues, net loss and Media Cashflow were $22.6 million, $5.6 million and $8.7 million, respectively. The financial statements of the Managed Affiliates are not combined with those of the Company. Historically, the Company has focused on media properties located in middle markets, which the Company believes offer greater opportunities than larger markets to build and maintain consistently high market and revenue shares at reasonable costs. The Company believes its markets are generally less competitive than major markets and are characterized by a limited number of direct competitors, local owner/operators that are less sophisticated and have less financial resources, and fewer alternative advertising media. In such markets, the Company is able to target broader demographic groups and to sell its advertising to a wider customer base than in major markets. The Company believes that, relative to larger markets, a higher percentage of revenues in middle markets is derived from local advertising and therefore a correspondingly higher portion of its revenues can be directly generated by its own sales efforts. The Company believes that local advertisers in middle markets often make advertising decisions based primarily on customer relationships and service and advertising results. The Company's primary focus is to provide high-quality customer service with promotional activities that yield results for advertisers and to build and maintain superior local advertiser relationships. The Company's overall operations, including its sales and marketing strategy, long-range planning, and management support services are managed by BMCLP, a limited partnership indirectly owned by Mr. Brill (see "Certain Transactions"). The management support provided by BMCLP has been a key element in the Company's ability to achieve significant increases in Media Cashflow at each of its 1 properties following their acquisition. Each of the Company's properties is managed on a day-to-day basis by an experienced local president/general manager. As of September 30, 1997, the Company had a workforce of approximately 340 full-time and 100 part-time employees, none of whom is unionized. The principal executive offices of the Company are located at 420 N.W. Fifth Street, Evansville, Indiana 47708, and its telephone number is (812) 423-6200. RADIO PROPERTY OVERVIEW In each of its markets, the Company's Stations and the Managed Affiliates' stations as a group hold at least one of the top two rankings in both combined audience ratings and combined revenues. Furthermore, in each of its markets the Company's Stations and the Managed Affiliates' stations individually hold at least one of the top two audience and revenues rankings. Set forth below is a list of the Stations and the Managed Affiliates' stations specifying their broadcasting frequency, Federal Communications Commission ("FCC") class, format, control, market, market rank and group rank by ratings and revenues.
STATION GROUP ARBITRON RANK FCC OWNED/ MARKET -------------------------- STATION FREQUENCY CLASS FORMAT MANAGED MARKET(S) RANK RATINGS REVENUES - ------------- ----------- --------- ----------- ------------ ------------------ ----------- --------- --------------- WIOV-FM 105.1 FM-B Country Owned Lancaster, PA(1) 110 1 1 Reading, PA 130 2 2 WBKR-FM 92.5 FM-C Country Owned Evansville, IN 125(2) 1 1 WKDQ-FM 99.5 FM-C Country Managed(3) and Owensboro/ WSTO-FM 96.1 FM-C Adult Hits Managed(3) Henderson, KY WOMI-AM 1490 AM-C News/Talk Owned WVJS-AM 1420 AM-B News/Talk Managed(3) KTRR-FM 102.5 FM-C2 Adult Hits Managed(4) Fort Collins/ 135 1 1 KUAD-FM 99.1 FM-C1 Country Owned Greeley/ Loveland, CO KKCB-FM 105.1 FM-C1 Country Owned Duluth, MN/ 207 1 1 KLDJ-FM 101.7 FM-C2 Oldies Owned Superior, WI WEBC-AM 560 AM-B News/Talk Owned KATI-FM 94.3 FM-C2 Country Owned(5) Jefferson City/ NR(6) 2 2 KTXY-FM 106.9 FM-C Adult Hits Owned(5) Columbia/ KLIK-AM 950 AM-B Country Owned(5) Lake of the Ozarks, MO
- -------------------------- (1) WIOV-FM serves both Lancaster and Reading. The Company also owns and operates WIOV-AM, an AM-C station in Reading. Ratings and revenues ranks for WIOV-FM include WIOV-AM. (2) The Company estimates that on a combined basis the Evansville/Owensboro/Henderson market would have an Arbitron rank of 125 based on separate rankings of 151 and 255 for Evansville and Owensboro, respectively. (3) WKDQ-FM, WSTO-FM and WVJS-AM are owned by Managed Affiliates. (4) The Company manages KTRR-FM pursuant to a Time Brokerage Agreement pending completion of its acquisition. (5) Missouri Properties are under contract for sale. See "Recent or Pending Transactions." Accordingly, the pro forma financial statements presented herein do not include the operating results of such stations. (6) The Jefferson City/Columbia/Lake of the Ozarks, Missouri market is not ranked by Arbitron. Columbia separately is ranked 237 by Arbitron, and KTXY-FM is the top-rated station by audience ranking in such market. 2 LANCASTER AND READING, PENNSYLVANIA, which the Company estimates combined would have an Arbitron rank of 60, are served by WIOV-FM and WIOV-AM. WIOV-FM programs a Country music format and consistently is one of the region's top rated stations. WIOV-FM is the top-ranked radio station based on combined revenues in the Lancaster market. WIOV-AM serves the Reading market with a News/Talk format. EVANSVILLE, INDIANA, AND OWENSBORO/HENDERSON, KENTUCKY, which the Company estimates combined would have an Arbitron rank of 125, are served by WBKR-FM and WOMI-AM. These stations broadcast to the Tri-State area of southwestern Indiana, southern Illinois, and western Kentucky, which the Company believes is undergoing significant economic expansion. WBKR-FM is the region's most powerful and most listened to radio station. The five stations operated by the Company (including the Managed Affiliates' stations, WKDQ-FM, WSTO-FM and WVJS-AM) rank first in the market in terms of both their combined revenues and their combined ratings, and individually hold three of the top four audience and revenues rankings in the market. FORT COLLINS/GREELEY/LOVELAND, COLORADO, which has recently been designated as a market by Arbitron and is ranked 135, is served by KUAD-FM and KTRR-FM. KUAD-FM is northern Colorado's leading radio station in terms of audience ratings and advertising revenues, and in the nineteen months since the Company began operating it pursuant to a Time Brokerage Agreement, KTRR-FM has established a significant presence in the market. These Stations primarily serve Larimer and Weld counties in northern Colorado, which comprise a distinct market approximately 65 miles north of Denver. The Company believes that radio advertising in the area is significantly underutilized by potential advertisers based on national norms. The Stations focus on the Fort Collins/Greeley/Loveland "triangle," and reach a listener base that the Company believes is well-educated, has significant disposable income, and is served locally by few other radio stations. DULUTH, MINNESOTA AND SUPERIOR, WISCONSIN, which have a combined Arbitron rank of 207, are served by KKCB-FM, KLDJ-FM and WEBC-AM, which the Company believes is the premier combination of radio stations in this market based on revenues and audience ratings. KKCB-FM, which operates a Country format, is the highest-rated station in its market. JEFFERSON CITY/COLUMBIA/LAKE OF THE OZARKS, MISSOURI, is served by KATI-FM, KTXY-FM and KLIK-AM. These stations are currently under contract for sale and pending closing are being operated by the purchaser under the terms of a Time Brokerage Agreement. See "Recent or Pending Transactions." 3 PUBLICATIONS OVERVIEW Set forth below is a list of the Newspaper publications specifying the location and circulation of each.
NEWSPAPER LOCATION CIRCULATION - ------------------------------------------------- ------------------- ----------- MORNING SUN...................................... Mt. Pleasant, MI 12,700 MT. PLEASANT BUYERS GUIDE........................ Mt. Pleasant, MI 28,400 CLARE COUNTY BUYERS GUIDE........................ Clare, MI 13,000 ALMA REMINDER.................................... Alma, MI 20,600 CADILLAC BUYERS GUIDE............................ Cadillac, MI 21,700 CARSON CITY REMINDER............................. Carson City, MI 11,000 EDMORE ADVERTISER................................ Edmore, MI 17,500 HEMLOCK SHOPPERS GUIDE........................... Hemlock, MI 12,500 GLADWIN BUYERS GUIDE............................. Gladwin, MI 16,800 ISABELLA COUNTY HERALD........................... Mt. Pleasant, MI 16,200 MIDLAND BUYERS GUIDE............................. Midland, MI 28,000 ST. JOHNS REMINDER............................... St. Johns, MI 16,200 THE NORTHEASTERN SHOPPER (NORTH EDITION)................................ Tawas City, MI 24,400 THE NORTHEASTERN SHOPPER (SOUTH EDITION)................................ Tawas City, MI 15,600 ----------- Total Circulation 254,600 ----------- -----------
The Newspapers serve a seventeen county area of small communities in central Michigan, where there are few other newspapers, no local television stations, and few radio stations. The Company has central offices and production facilities in Mt. Pleasant, Michigan and leads the central Michigan market in media billings. The Company's daily newspaper, the MORNING SUN, has a paid subscription base of 12,700 readers and is the only daily newspaper published in Gratiot, Isabella and southern Clare counties. The Company's weekly newspaper and twelve weekly shopping guides are delivered free to more than 240,000 households in the central Michigan area. The Company's multiple products and private delivery system permit advertisers to buy customized advertising coverage for the portion of the local market that best reaches their potential customers. The Company also publishes numerous niche publications such as vacation guides and a monthly business report. The Newspapers have a widely diversified base of advertising and printing customers and during the year ended February 28, 1997 no one customer represented more than 2% of the Company's revenues. STRUCTURE AND GOVERNANCE In anticipation of the Offering, the ownership of the Stations and Newspapers was restructured to preserve certain historical tax benefits while permitting Mr. Brill the flexibility required to continue growing the business through acquisitions. Set forth below is a chart outlining the ownership of the Company and its principal affiliates. Certain intermediate entities have been omitted. [The chart, which is on file with the Issuer, shows that Mr. Brill is the sole ultimate owner of (i) BMCLP, (ii) the Managed Affiliates, (iii) the Subsidiaries (indirectly through BMC and Holdings) and (iv) Media (indirectly through BMC).] 4 The Exchange Securities will be issued jointly by Brill Media Company, LLC, a Virginia limited liability company ("BMC"), and its wholly-owned subsidiary, Brill Media Management, Inc., a Virginia corporation ("Media"; collectively with BMC, the "Issuer"). BMC through Subsidiaries indirectly owns radio and newspaper properties, including those previously identified. The historical financial statements of The Radio and Newspaper Businesses of Alan R. Brill included elsewhere in this Prospectus include the financial position and results of operations of the radio and newspaper Subsidiaries on a combined basis. Each Subsidiary is wholly-owned directly or indirectly by BMC. The Managed Affiliates are not subsidiaries of the Company, but are managed by the Company pursuant to Managed Affiliates Management Agreements. As of the date of this Prospectus, the Managed Affiliates operate radio stations WKDQ-FM, WSTO-FM and WVJS-AM in Evansville, Indiana and Owensboro/Henderson, Kentucky, which were acquired by Mr. Brill in 1997. While subject to a Managed Affiliate Management Agreement, funds may be advanced from time to time to these and future Managed Affiliates by the Company or its Subsidiaries in the form of unsecured loans ("Managed Affiliate Notes") subject to certain limitations. See "Description of Notes--Limitations on Affiliate Transactions." Local general managers operate the Stations and Newspapers on a day-to-day basis. Other management services, including benefit plan administration, risk management, finance, tax management, and strategic planning and operations oversight are provided to the Subsidiaries and the affiliates by BMCLP, which is owned indirectly by Mr. Brill. The fees charged by BMCLP are established on a contractual basis and, as set forth more fully under "Certain Transactions," such fees are payable to the extent set forth in the Description of the Notes. BUSINESS STRENGTHS MIDDLE MARKET FOCUS. The Company operates media businesses in middle markets which generally are less competitive than larger markets and are characterized by a limited number of direct competitors, local owner/operators which are less sophisticated and have less financial resources, and fewer alternative media. The Company believes that in its markets the majority of its revenues are directly generated by its own sales efforts. STRONG AND GROWING MARKET SHARE. In each of its radio markets the Company's Stations or the Managed Affiliates' stations hold at least one of the top two rankings in both audience ratings and revenues. The Company believes that it is the leading advertising provider in its newspaper markets. The Company believes the Stations and Newspapers have strong community support and work to build and maintain strong middle market franchises. SUCCESSFUL ACQUISITION HISTORY. Mr. Brill has a history of identifying acquisition opportunities, initiating negotiations to buy such properties and developing creative structures by which to meet the requirements of the sellers of such properties. Mr. Brill and the management team have successfully developed acquired radio stations and newspapers and have improved Media Cashflow at each of the Company's properties following their acquisition. CONSISTENT MEDIA CASHFLOWS. The Company's Subsidiaries have a history of consistent media cashflows. The Company's Subsidiaries generated Media Cashflow margins (on a combined basis) of approximately 24%, 26%, and 30% for the one-year periods ended February 28, 1995, February 29, 1996, and February 28, 1997, respectively, and 39% for the nine-month period ended November 30, 1997. The Company believes that its Media Cashflow will continue to be strong and will enable the Company to continue its acquisition strategy. Furthermore, the Company's continuing operations currently require relatively small capital expenditures. 5 EXPERIENCED AND COMMITTED MANAGEMENT TEAM. The Company's senior management team, provided by BMCLP, is highly experienced in the radio and newspaper industries. BMCLP has experienced little management turnover, and BMCLP's four senior operating executives have an average of 22 years each of experience in the media industry and have worked together since 1988. The Company has a decentralized management structure in which general managers make the key local operating decisions for each station or newspaper with support from BMCLP management. STRONG LOCAL ADVERTISER RELATIONSHIPS. Historically, the Company has created and maintained relationships directly with local advertisers in its markets, which enable the Company to respond immediately and creatively to meet customer needs. The Company believes that its marketing approach and customer relationships enable the Stations to generate greater revenues and margins than comparably ranked stations in their markets and enable the Newspapers to increase revenues and margins. To further strengthen its relationships with advertisers, the Company also offers and markets its ability to create customer traffic through on-site events staged at, and broadcast from, an advertiser's business. ACQUISITION STRATEGY The Company seeks to acquire underperforming middle market media businesses whose acquisition costs are low relative to potential revenues and cashflow. The Company focuses on developing significant long-term franchises in middle markets. The Company then seeks to improve revenues and cashflow, using its particular promotional, marketing, sales, programming and editorial approaches. The Company targets businesses that it believes operate in underdeveloped market segments with a low level of competition and a strong economic base, as well as stations with competitive technical facilities and businesses that are located in areas deemed desirable for relocation in terms of personnel recruitment. The Company believes that its acquisition strategy, properly implemented, has a number of specific benefits, including (i) diversification of revenues and cashflow across a broader base of industries, properties and markets, (ii) geographic clustering which has allowed improved cashflow margins through the consolidation of facilities, centralized newsgathering, cross-selling of advertising, elimination of redundant expenses, (iii) improved access to consultants and other industry resources, (iv) greater appeal to qualified industry management talent and (v) efficiencies from economies of scale. OPERATING STRATEGY In order to appeal to advertising customers and maximize the revenues and cashflow of its properties, the Company's strategy is as follows: MARKETING PARTNERSHIPS. The Company believes that advertisers in its markets are attracted and retained through value-added customer services. While the Company seeks and achieves audience ratings and circulation as a means of attracting advertisers, its operations are distinguished by a particular emphasis on soliciting advertisers directly. The Company believes that in many middle markets the decision to advertise on a given radio station or in a given newspaper is driven in large measure by direct customer relationships and the level of customer success with past advertising programs and the marketing and sales effectiveness of the station or newspaper staff. The Company believes that building and solidifying marketing partnerships with advertisers and retaining such customers through effective results and high quality customer service are significant factors in maintaining leading revenue shares in its markets. OWNERSHIP OF STRONG MEDIA GROUPS. In each of its markets, the Company seeks to maintain and enhance its position as a market leader through its ownership of groups of stations or publications. Its ownership of groups of stations and publications allows the Company a variety of sales opportunities and customer demographics. By strategically coordinating customized programming, publishing, promotional, 6 and selling strategies among a group of local stations or newspapers, the Company attempts to reach a wide range of demographic groups that appeal to advertisers. The Company believes that its wide range of advertising options permits it to offer pricing choices to suit customer needs and strengthen advertiser relationships. AGGRESSIVE SALES AND MARKETING. The Company seeks to maximize its share of local advertising revenues in each of its markets by implementing and maintaining strong direct sales and marketing programs. The Company tends to maintain separate sales forces for each of its Stations or Newspapers. The Company's Stations strive to maximize revenues by managing the on-air inventory of advertising time and adjusting prices based on local market conditions. Through its marketing efforts, the Company provides advertisers with an effective means of reaching a targeted demographic group. To further strengthen its relationships with radio advertisers, the Company also offers and markets its ability to create customer traffic through on-site events staged at, and broadcast from, an advertiser's place of business and promotions in which listeners are encouraged to participate by visiting such place of business. EXPERIENCED LOCAL MANAGEMENT. The Company believes that each of its Stations and Newspapers is primarily a local business and that much of its success is the result of the efforts of local management and staff. Accordingly, the Company decentralizes its operations. Each of the Company's local media groups is managed by a team of experienced managers who understand the trends, demographics, and competitive opportunities of the particular market. Local managers are responsible for developing annual operating budgets, and a major portion of their compensation is linked to performance against operating targets. BMCLP approves each station or newspaper group's annual operating budgets and imposes strict financial reporting requirements to track performance and monitor operating trends. The Company seeks and motivates managers who thrive on the challenges presented by such autonomy. Its success in finding and developing such managers has enabled the Company to compete successfully in each of its local markets. CENTRALIZED SUPPORT AND OVERSIGHT. The Company believes that its ability to utilize existing senior management and sales resources of its media groups enhances the growth potential of both acquired start-up and underperforming properties. Additionally, this support reduces the risks associated with undertaking new means of improving performance, such as launching new formats. Furthermore, the Company seeks to achieve substantial cost savings through the consolidation of facilities, management and administrative personnel and human resources, as well as through the reduction of redundant expenses. BMCLP personnel regularly visit the Stations and Newspapers to review performance, assist local management with their programming, editorial, sales, recruiting and training efforts, and to develop and verify overall operating and marketing strategies, including cost management, designed to improve cashflow. These visits enable the Company to remain aware of developments in each Station's and Newspaper's market and to control and monitor costs while providing useful input to each local manager. COMMUNITY INVOLVEMENT. The Company believes that its marketing, sales and promotion efforts create direct relationships with its advertisers and audiences, making its Stations and Newspapers significant participants in the middle markets they serve. Each of the Company's Newspapers and Stations participates in numerous community programs, fund-raisers and activities that benefit a wide variety of organizations and produce revenues for the Company. RECENT OR PENDING TRANSACTIONS The Offering, together with the transactions briefly described below, collectively comprise the "Transactions" as referred to in this Prospectus. The Company's Subsidiaries, Central Missouri Broadcasting, Inc. and CMB II, Inc. (collectively the "Missouri Properties") have entered into agreements for the sale of substantially all of the assets of the Missouri Properties for a net cash purchase price of approximately $7.4 million, plus assumed liabilities of 7 $256,000. The net book value of the assets is approximately $1.8 million at November 30, 1997. The Company expects to record a pre-tax gain of approximately $5.5 million after expenses. Pursuant to the terms of a Time Brokerage Agreement ("TBA") which provides for monthly payments of $50,000 to the Missouri Properties, the purchaser is providing operating and management services to the Missouri Properties pending closing of the purchase. Closing of the sale and purchase is expected to occur immediately upon the FCC granting requisite approval for transfer of the broadcast licenses associated with these Stations. Applications for transfer of the broadcast licenses of the Missouri Properties have been filed with the FCC by the purchasers. A local market competitor has objected to the transfer of the licenses and on December 12, 1997, filed with the FCC a Petition to Deny the license transfers and to terminate the Time Brokerage Agreement. No action has been taken on the Petition to Deny by the FCC, and the Company believes that even if the Petition to Deny were granted, the consequences would not be material to the Company. The Attorney General of the State of Missouri on January 9, 1998 filed a civil investigative demand on the Company to provide documents in order to consider whether the proposed transaction would violate federal or Missouri antitrust laws. The Company has complied with the demand. The Company's Subsidiary, NCR II Inc., presently provides management and programming services to radio station KTRR-FM in Loveland, Colorado pursuant to a Time Brokerage Agreement with Onyx Broadcasting, Inc., has executed an option to purchase substantially all of the assets of KTRR-FM for a purchase price of $2.0 million, and will enter into a covenant not to compete with the sellers, with a stated consideration of $500,000, payable over its five year term. It is expected that closing of the purchase of KTRR-FM will occur shortly after execution of a definitive asset purchase agreement for this transaction and required approval for transfer of the broadcast licenses by the FCC. Certain of the Subsidiaries and other affiliates were indebted under the terms of certain senior secured obligations guaranteed by Mr. Brill and payable to AMRESCO Funding Corporation ("Amresco") and Goldman Sachs Credit Partners L.P. ("Goldman Sachs"). These obligations were paid, along with accrued interest thereon and the applicable prepayment premium of $2.8 million, from the proceeds of the Offering as reflected in the pro forma combined financial statements contained in this Prospectus. On October 1, 1997 two of the Company's newspaper Subsidiaries acquired the assets of Huron Postal Service, Inc. ("Huron") and Northeastern Printers, Inc. ("Northeastern"), newspapers located on the coast of Lake Huron, Michigan for total consideration of $2.8 million. The Company loaned approximately $900,000 of the proceeds of the Offering to Managed Affiliates and received in return therefor Managed Affiliate Notes which are unsecured, mature on January 1, 2001 and bear interest at a rate of 12% per annum. Such amounts are in addition to the $15.4 million already loaned by the Company to the Managed Affiliates at November 30, 1997. The proceeds of such loans were used by the Managed Affiliates to purchase property, equipment, and intangibles and to provide working capital for operations. It is anticipated that similar relationships may be initiated with other affiliates in the future. No transaction may cause the aggregate principal amount of Managed Affiliate Notes then outstanding to exceed $20.0 million unless: (i) the Board of Directors, including a majority of the disinterested members of the Board, determines that the terms of the transaction are no less favorable than those that could be obtained at the time of such transaction in arms-length dealings with a person who is not an "Affiliate"; (ii) the Issuer obtains a written opinion of an independent investment bank of nationally recognized standing that the transaction is fair to the Issuer from a financial point of view; and (iii) the Issuer at the time of the transaction is able to make a "Restricted Payment" in an amount equal to such excess amount (as such terms are defined herein). On February 24, 1998 the Company completed the asset acquisition of certain newspaper, printing and distribution operations located in northern Michigan. Total consideration amounted to approximately $8.5 million and included cash of $5.5 million and seller notes of $3.0 million. In addition, the Company entered into a non-compete agreement totaling approximately $365,000. 8 The financial statements and pro forma impacts of this acquisition are expected to be included in a future filing on Form 8-K by the Company and accordingly are not included in the pro forma financial information included herein or in the definition of Transactions. In conjunction with such acquisition, the Company formed six new wholly-owned subsidiaries of Holdings, all of which are Subsidiary Guarantors of the Securities. 9 THE EXCHANGE OFFER CERTAIN CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN HAVE THE MEANINGS GIVEN THEM IN "DESCRIPTION OF NOTES--CERTAIN DEFINITIONS." ISSUER............................ Brill Media Company, LLC and Brill Media Management, Inc., as co-issuers. REGISTRATION RIGHTS AGREEMENT..... The Original Securities were originally sold by the Issuer on December 30, 1997 in transactions exempt from the registration requirements of the Securities Act. The $3,000,000 aggregate principal amount of Original Appreciation Notes and $105,000,000 aggregate principal amount of the Original Notes were sold to NatWest Capital Markets Limited (the "Initial Purchaser") pursuant to a Purchase Agreement dated as of December 22, 1997 by and among the Issuer, the Subsidiary Guarantors and the Initial Purchaser (the "Purchase Agreement"). The Initial Purchaser subsequently sold such Original Securities. The Issuer, the Subsidiary Guarantors and the Initial Purchaser entered into a Registration Rights Agreement dated December 30, 1997 (the "Note Registration Rights Agreement") and an Appreciation Note Registration Rights Agreement dated December 30, 1997 (the "Appreciation Note Registration Rights Agreement" and, together with the Note Registration Rights Agreement, the "Registration Rights Agreements"), which grant the holders of the Original Securities certain exchange and registration rights. The Exchange Offer is intended to satisfy such rights. The holders of the Exchange Securities are not entitled to any exchange or registration rights with respect to the Exchange Securities. See "Notes Exchange Offer and Registration Rights" and "Appreciation Notes Exchange Offer and Registration Rights." THE EXCHANGE OFFER................ The Issuer and the Subsidiary Guarantors are offering to exchange (i) an equal principal amount of Exchange Notes for each such principal amount of Original Notes that are properly tendered and accepted and (ii) an equal principal amount of Exchange Appreciation Notes for each such principal amount of Original Appreciation Notes that are properly tendered and accepted. The Issuer will issue Exchange Securities on or promptly after the Expiration Date. As of the date hereof, there is $105,000,000 aggregate principal amount of Original Notes outstanding and there is $3,000,000 aggregate principal amount of Original Appreciation Notes outstanding. The Exchange Offer is not conditioned upon any minimum aggregate principal amount of Original Notes or any minimum aggregate principal amount of Original Appreciation Notes being tendered for exchange. Based on no-action letters issued by the staff of the Commission to third parties, the Issuer believes the Exchange Notes and the Exchange Appreciation Notes issued pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by any holder thereof (other than any such
10 holder that is an "affiliate" of the Company within the meaning of Rule 405 under the Securities Act) without further registration under the Securities Act and without delivery of a prospectus that satisfies the requirements of Section 10 of the Securities Act, provided that such Exchange Securities are acquired in the ordinary course of such holder's business and that such holder does not intend to participate, and has no arrangement or understanding with any person to participate, in the distribution of such Exchange Securities. Each Participating Broker-Dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer in exchange for Original Securities where such Original Securities were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities may be a statutory underwriter and must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. The Letters of Transmittal state that by so acknowledging and by delivering a prospectus, a Participating Broker-Dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by Participating Broker-Dealers in connection with such resales of Exchange Securities. The Issuer has agreed that, for a period of 180 days after consummation of the Exchange Offer, it will make this Prospectus available to any Participating Broker-Dealer for use in connection with any such resale. See "The Exchange Offer." Any holder who tenders in the Exchange Offer with the intention to participate, or for the purpose of participating, in a distribution of the Exchange Securities should not rely on the position of the staff of the Commission communicated in no-action letters and, in the absence of an exception therefrom, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. Failure to comply with such requirements in such instance may result in such holder incurring liability under the Securities Act for which the holder is not indemnified by the Issuer. The Original Securities were issued as units, each of which was immediately separable into one Original Note and one Original Appreciation Note (the "Units"). The Exchange Notes and Exchange Appreciation Notes are being offered separately, and not as units. By submitting a Letter of Transmittal to tender Original Securities, or by electronically transmitting its acceptance of the Exchange Offer through ATOP (as defined), a holder of Units will request the separation of such Units into their component parts. See "The Exchange Offer--Procedures for Tendering."
11 EXPIRATION DATE................... The Exchange Offer will expire at 5:00 p.m., New York City time, on , 1998, unless the Exchange Offer is extended by the Issuer in its reasonable discretion, in which case the term "Expiration Date" shall mean the latest date and time to which the Exchange Offer is extended. ACCRUED INTEREST ON THE EXCHANGE NOTES........................... Interest on the Exchange Notes will accrue from and include their issuance date. Additionally, interest on the Exchange Notes will accrue from the last interest payment date on which interest was paid on the Original Notes surrendered in exchange therefor or, if no interest has been paid on the Original Notes, from the date of original issuance of such Original Notes to but not including the issuance date of the Exchange Notes. Accordingly, holders who exchange their Original Notes will receive the same interest payment on the next interest payment date (expected to be June 15, 1998) that they would have received had they not accepted the Exchange Offer. CONDITIONS TO THE EXCHANGE OFFER........................... The Exchange Offer is subject to certain customary conditions. See "The Exchange Offer--Conditions." The Issuer reserves the right to terminate or amend the Exchange Offer at any time prior to the Expiration Date upon the occurrence of any such conditions. PROCEDURES FOR TENDERING ORIGINAL SECURITIES...................... Each participant (a "DTC Participant") in the Depository Trust Company ("DTC") holding Original Securities through DTC must (i) electronically transmit its acceptance to DTC through the DTC Automated Tender Offer Program ("ATOP"), for which the transaction will be eligible, and DTC will then edit and verify the acceptance, execute a book-entry delivery to the Exchange Agent's account at DTC and send an Agent's Message (as defined herein) to the Exchange Agent for its acceptance, or (ii) comply with the guaranteed delivery procedures set forth in this Prospectus and in the Letter of Transmittal. By tendering through ATOP, DTC Participants will expressly acknowledge receipt of the accompanying Letter of Transmittal and agree to be bound by its terms and the Company will be able to enforce such agreement against such DTC participants. See "The Exchange Offer--Procedures for Tendering--Original Securities held through DTC," and "--Guaranteed Delivery Procedures-- Original Securities held through DTC." Each holder of Original Securities wishing to accept the Exchange Offer must complete, sign and date the respective Letter of Transmittal, or a facsimile thereof, in accordance with the instructions contained herein and therein, and mail or otherwise deliver such Letter of Transmittal, or such facsimile, together with the Original Securities and any other required documentation to the Exchange Agent at the address set forth herein. A separate Letter of Transmittal is required for the tender of Original Notes and Original Appreciation Notes. Original Securities may be physically delivered, but
12 physical delivery is not required if a confirmation of a book-entry transfer of such Original Securities to the Exchange Agent's account at The Depository Trust Company is delivered in a timely fashion. By executing a Letter of Transmittal, each holder will represent to the Issuer that, among other things, the Exchange Securities acquired pursuant to the Exchange Offer are being obtained in the ordinary course of business of the person receiving such Exchange Securities, whether or not such person is the holder, that neither the holder nor any such other person is engaged in, or intends to engage in, or has an arrangement or understanding with any person to participate in, the distribution of such Exchange Securities and that neither the holder nor any such person is an "affiliate," as defined under Rule 405 of the Securities Act, of the Issuer. Each Participating Broker-Dealer that receives Exchange Securities for its own account in exchange for Original Securities where such Original Securities were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. See "The Exchange Offer--Purpose and Effect of the Exchange Offer" and "Plan of Distribution." SPECIAL PROCEDURES FOR BENEFICIAL OWNER........................... Any beneficial owner whose Original Securities are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact such registered holder promptly and instruct such registered holder to tender on such beneficial owner's behalf. If such beneficial owner wishes to tender on such owner's own behalf, such owner must, prior to completing and executing a Letter of Transmittal and delivering its Original Securities, either make appropriate arrangements to register ownership of the Original Securities in such owner's name or obtain a properly completed bond power for both the Original Notes and Original Appreciation Notes from the registered holder. The Transfer of registered ownership may take considerable time and may not be completed prior to the Expiration Date and if the beneficial owner has not instructed the record owner to tender its Original Securities, the beneficial owner will be unable to participate in the Exchange Offer and thereafter will have no registration rights. See "The Exchange Offer--Procedures for Tendering." GUARANTEED DELIVERY PROCEDURES.... DTC Participants holding Original Securities through DTC who wish to cause their Original Securities to be tendered, but who cannot transmit their acceptances through ATOP prior to the Expiration Date, may effect a tender in accordance with the procedures set forth in this Prospectus and in the Letters of Transmittal. See "Exchange Offer--Guaranteed Delivery Procedures." Holders of Original Securities who wish to tender their Original Securities and whose Original Securities are not immediately available or who cannot deliver their Original Securities,
13 the Letters of Transmittal or any other documents required by the Letters of Transmittal to the Exchange Agent prior to the Expiration Date, must tender their Original Securities according to the guaranteed delivery procedures set forth in "The Exchange Offer--Guaranteed Delivery Procedures." ACCEPTANCE OF THE ORIGINAL SECURITIES AND DELIVERY OF THE EXCHANGE SECURITIES...................... Subject to the satisfaction of the conditions to the Exchange Offer, the Issuer will accept for exchange any and all Original Securities which are properly tendered in the Exchange Offer prior to the Expiration Date. The Exchange Securities issued pursuant to the Exchange Offer will be delivered on the earliest practicable date following the Expiration Date. See "The Exchange Offer--Terms of the Exchange Offer." WITHDRAWAL RIGHTS................. Tenders of Original Securities may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date. See "The Exchange Offer--Withdrawal of Tenders." EFFECT ON HOLDERS OF THE SECURITIES...................... Following consummation of the Exchange Offer, holders of the Original Securities eligible to participate in the Exchange Offer but who do not tender their Original Securities will not have further exchange rights and such Original Securities will continue to be subject to certain restrictions on transfer. To the extent that Original Securities are tendered and accepted in the Exchange Offer, the liquidity of untendered Original Securities could be adversely affected. CONSEQUENCES OF FAILURE TO EXCHANGE........................ The Original Securities that are not exchanged pursuant to the Exchange Offer will remain restricted securities. Accordingly, such Original Securities may be resold only (i) to the Issuer, (ii) pursuant to Rule 144A or Rule 144 under the Securities Act or pursuant to another exemption under the Securities Act, (iii) outside the United States to a foreign person pursuant to the requirements of Rule 904 under the Securities Act or (iv) pursuant to an effective registration statement under the Securities Act. See "The Exchange Offer--Consequences of Failure to Exchange." SHELF REGISTRATION STATEMENT...... In the event that (i) applicable law or interpretations of the staff of the Commission do not permit the Company to effect the Exchange Offer, (ii) for any other reason the Exchange Offer is not consummated on or before June 26, 1998, (iii) under certain circumstances upon the request of the Initial Purchaser or (iv) any holder of Original Securities (other than the Initial Purchaser) is not able to make the representations set forth in the Letters of Transmittal and described above, the Issuer will, at its expense, register the Original Securities with a shelf registration statement and use its best efforts to cause it to be declared effective by the Commission. The Company has agreed to maintain the effectiveness of any such shelf registration statement for, under certain circumstances, a maximum of two years, to
14 cover resales of the Original Securities held by any such holders. See "The Exchange Offer--Purpose and Effect of the Exchange Offer." EXCHANGE AGENT.................... The United States Trust Company of New York is serving as the Exchange Agent in connection with the Exchange Offer. See "The Exchange Offer--Exchange Agent." THE NOTES GENERAL........................... The Exchange Offer applies to $105 million aggregate principal amount of the Original Notes. The form and terms of the Exchange Notes will be the same as the form and terms of the Original Notes except that (i) the Exchange Notes will bear a "Series B" designation and a different CUSIP Number from the Notes, (ii) the Exchange Notes will have been registered under the Securities Act and, therefore, will not bear legends restricting the transfer thereof and (iii) holders of the Exchange Notes will not be entitled to certain rights of holders of Original Notes under the Note Registration Rights Agreement which rights will terminate as to holders of the Exchange Notes upon consummation of the Exchange Offer. The Exchange Notes will evidence the same debt as the Original Notes, will be entitled to the benefits of the Indenture and will be treated as a single class thereunder with the Original Notes. See "Description of Notes." SECURITIES OFFERED................ $105 million principal amount of 12% Series B Senior Notes due 2007 (the "Exchange Notes"). INTEREST RATE..................... The Notes will bear cash interest at a rate of 7 1/2% per annum on their principal amount until December 15, 1999, and at a rate of 12% per annum on their principal amount from and after such date until maturity. MATURITY.......................... December 15, 2007. INTEREST PAYMENT DATES............ June 15 and December 15 of each year, commencing on June 15, 1998. RANKING........................... The Notes are senior unsecured obligations of the Issuer. The Notes rank PARI PASSU in right of payment with all existing and future senior indebtedness of the Issuer and rank senior in right of payment to any subordinated indebtedness of the Issuer. The Notes (and the Subsidiary Guarantees) are effectively subordinated in right of payment to any secured debt of the Issuer and the Subsidiary Guarantors to the extent of the assets serving as security therefor. As of November 30, 1997, on a pro forma basis after giving effect to the Transactions, the Issuer had no outstanding secured indebtedness to which the Notes would have been effectively subordinated, and the aggregate amount of the Subsidiary Guarantors' outstanding senior secured indebtedness to which the Subsidiary Guarantees would have been effectively subordinated was approximately $4.8 million. See "Description of Notes--Ranking" and "--Subordination."
15 GUARANTEES........................ The Notes are unconditionally guaranteed, jointly and severally, by each of the Subsidiary Guarantors. The Subsidiary Guarantees are senior unsecured obligations of the Subsidiary Guarantors and rank PARI PASSU in right of payment with all other existing and future senior indebtedness of the respective Subsidiary Guarantors and senior in right of payment to all existing and future subordinated indebtedness of the respective Subsidiary Guarantors and may be released upon the occurrence of certain events. The Subsidiary Guarantees are effectively subordinated to any secured debt of the Subsidiary Guarantors to the extent of the assets serving as security therefor. See "Description of Notes--Ranking" and "--Subsidiary Guarantees." OPTIONAL REDEMPTION............... Except as described below and under "Change of Control," the Issuer may not redeem the Notes prior to December 15, 2002. On or after such date, the Issuer may redeem the Notes, in whole or in part, at any time at the redemption prices set forth herein, together with accrued and unpaid interest, if any, to the date of redemption. In addition, in the event of the sale by the Issuer prior to December 15, 2000, of its Capital Stock (other than Disqualified Stock) in one or more Public Equity Offerings the net cash proceeds of which are at least $25.0 million in the aggregate, the Issuer may, at its option, use the net cash proceeds of such sale or sales of Capital Stock to redeem up to 25% of the aggregate principal amount of the Notes at a redemption price in the case of a redemption date prior to December 15, 1999, equal to 112% of the Accreted Value (as defined) of the Notes to be redeemed, together with accrued and unpaid interest, if any, to the date of redemption and for any redemption date on or after December 15, 1999, at a redemption price equal to 112% of the principal amount thereof plus accrued interest thereon, if any, to the date of redemption, PROVIDED, HOWEVER that after any such redemption the aggregate principal of the Notes outstanding must equal at least $79 million. See "Description of Notes--Optional Redemption." CHANGE OF CONTROL................. Upon the occurrence of a Change of Control, each holder will have the right to require the Issuer to repurchase all or any part of such holder's Notes, in the case of a repurchase date prior to December 15, 1999, at a purchase price in cash equal to 101% of the Accreted Value thereof plus any accrued and unpaid interest, if any, to the date of repurchase and for any repurchase date on or after December 15, 1999, at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of repurchase. See "Description of Notes--Optional Redemption" and "--Change of Control." RESTRICTIVE COVENANTS............. The indenture under which the Original Notes were issued and the Exchange Notes will be issued (the "Indenture") contains certain covenants that, among other things, will limit (i) the incurrence of additional indebtedness by the Company,
16 (ii) distributions and withdrawals of the capital of the Company and the redemption of certain subordinated obligations of the Company, (iii) investments, (iv) sales of assets and subsidiary stock, (v) transactions with affiliates and (vi) consolidations, mergers and transfers of all or substantially all the assets of the Company. The Indenture also contains certain restrictions on distributions by Subsidiaries. However, all of these limitations and prohibitions are subject to a number of important qualifications and exceptions. See "Description of Notes--Certain Covenants." ORIGINAL ISSUE DISCOUNT........... The Notes were considered to be issued with original issue discount ("OID") for United States federal income tax purposes. As a result, a U.S. Holder (defined in "Certain United States Federal Income Tax Consequences") generally will be required to include OID in gross income for United States federal income tax purposes as it accrues, in advance of the receipt of cash attributable to such income. See "Certain United States Federal Income Tax Consequences."
THE APPRECIATION NOTES GENERAL........................... The Exchange Offer applies to $3 million aggregate principal amount of the Original Appreciation Notes. The form and terms of the Exchange Appreciation Notes are the same as the form and terms of the Original Appreciation Notes except that (i) the Exchange Appreciation Notes will bear a "Series B" designation and a different CUSIP Number from the Original Appreciation Notes, (ii) the Exchange Appreciation Notes will have been registered under the Securities Act and, therefore, will not bear legends restricting the transfer thereof and (iii) holders of Exchange Appreciation Notes will not be entitled to certain rights of holders of Original Appreciation Notes under the Appreciation Note Registration Rights Agreement which rights will terminate as to holders of the Exchange Appreciation Notes upon consummation of the Exchange Offer. See "Description of the Appreciation Notes." SECURITIES OFFERED................ $3 million principal amount of Series B Appreciation Notes due 2007 (the "Exchange Appreciation Notes"). Each Appreciation Note will entitle the holder thereof to receive on the Maturity Date (as defined) a cash payment of principal and interest in the amount equal to the greater of (i) the principal amount thereof or (ii) the Specified Percentage (as defined) of the Value (as defined) of BMC on the Maturity Date. The "Value" of BMC on the Maturity Date means an amount equal to the sum of (i) 12 times Media Cashflow (as defined) for the then most recent four fiscal quarters for which financial statements of BMC are available plus (ii) the cash and cash equivalents of BMC and its Subsidiaries on the Maturity Date, less the aggregate amount of Indebtedness (as defined) of BMC and its Subsidiaries on a consolidated basis outstanding on the Maturity Date.
17 "Specified Percentage" of an Appreciation Note with a principal amount of $28.57 means 0.0000004761904761%, so that holders of all Appreciation Notes will be entitled to receive, in the aggregate, 5% of the Value of BMC. MATURITY DATE..................... December 15, 2007. RANKING........................... The Appreciation Notes are senior subordinated obligations of the Issuer. The Appreciation Notes are subordinated in right of payment to all existing and future Senior Indebtedness (as defined) of the Issuer, including the Notes, and rank senior in right of payment to any subordinated indebtedness of the Issuer. See "Description of Appreciation Notes--Ranking and Subordi- nation." GUARANTEES........................ The Appreciation Notes are unconditionally guaranteed, jointly and severally, by each of the Subsidiary Guarantors. The guarantees of the Appreciation Notes are senior subordinated obligations of the Subsidiary Guarantors and are subordinated in right of payment to all existing and future Guarantor Senior Indebtedness (as defined) of the respective Subsidiary Guarantor, including the Subsidiary Guarantees of the Notes, and senior in right of payment to all existing and future subordinated indebtedness of the respective Subsidiary Guarantor and may be released upon the occurrence of certain events. See "Description of Appreciation Notes--Ranking and Subordination" and "--Subsidiary Guarantees." MANDATORY REDEMPTION AT THE OPTION OF THE HOLDERS UPON THE OCCUR- RENCE OF A SPECIFIED EVENT...... The Appreciation Notes will be redeemable, at the option of the holders, upon the occurrence of (a) an Initial Public Offering (as defined), (b) a Sale of the Company (as defined), or (c) the liquidation of the Issuers in each case at the redemption price (the "Specified Event Redemption Price") equal to (i) in the case of a redemption with respect to an Initial Public Offering, the product of the imputed value of BMC, as established by the price at which membership interests in BMC (the "Membership Interests") are sold in such Initial Public Offering (less underwriting discounts and commissions, if any), multiplied by the Specified Percentage of the Appreciation Note being redeemed, (ii) in the case of a Sale of the Company covering assets (as defined in clause (i) of the definition thereof) the amount equal to the Specified Percentage of the Appreciation Note being redeemed of the sum of the aggregate fair market value of all consideration received by the Issuer and its Subsidiaries, net of any debt repaid therewith, net of ordinary and customary transaction expenses of the related transfer and the fair market value of BMC as determined after giving effect to such sale, (iii) in the case of a redemption with respect to a Sale of the Company concerning securities (as defined in clause (ii) of the definition thereof), the product of the imputed value of BMC, as established by the price at which Membership Interests are sold in
18 such Sale of the Company, or in the transaction which resulted in such Sale of the Company, multiplied by the Specified Percentage of the Appreciation Note being redeemed, and (iv) in the case of a redemption with respect to a liquidation of the Issuer, an amount equal to the greater of (A) the fair market value of the distribution received by Membership Interests, multiplied by the Specified Percentage of the Appreciation Note being redeemed and (B) the Pro Rata Percentage (as defined) of such Appreciation Note of $3.0 million. See "Description of the Appreciation Notes--Mandatory Redemption at the Option of the Holders upon the Occurrence of Certain Events." MANDATORY REDEMPTION AT THE OPTION OF THE HOLDERS ON SPECIFIED DATE............................ In addition, if an Initial Public Offering has not occurred on or before a date set forth below, the holders may require the Issuer to redeem its Appreciation Notes at a redemption price equal to the Pro Rata Percentage of such Appreciation Note of the amount set forth below opposite such date:
REDEMPTION DATE AMOUNT ---------------- --------------- June 30, 2003.. $ 24.0 million June 30, 2004.. $ 20.0 million June 30, 2005.. $ 13.0 million
If a holder so elects the Issuer shall redeem the relevant Appreciation Notes no later than the 90th day after the relevant redemption date. See "Description of the Appreciation Notes-- Mandatory Redemption at the Option of Holders on Specified Dates." OPTIONAL REDEMPTION............... The Issuer may not redeem the Appreciation Notes prior to June 15, 1999. Thereafter, if an Initial Public Offering has not occurred on or before a date set forth below, the Issuer may redeem the Appreciation Notes (in whole but not in part) on any date set forth below at a redemption price equal to the Pro Rata Percentage of each Appreciation Note of the amount the price set forth below opposite such date. See "Description of the Appreciation Notes--Optional Redemption."
REDEMPTION DATE AMOUNT ---------------- ---------------- June 15, 1999.. $ 3.0 million June 15, 2000.. $ 8.3 million June 15, 2001.. $ 12.8 million June 15, 2002.. $ 18.0 million June 15, 2003.. $ 24.0 million June 15, 2004 $ 31.0 million June 15, 2005.. $ 39.0 million June 15, 2006.. $ 48.0 million June 15, 2007.. $ 58.0 million
19 ORIGINAL ISSUE DISCOUNT........... The Appreciation Notes were considered to be issued with original issue discount ("OID") for United States federal income tax purposes. As a result, a U.S. Holder (defined in "Certain United States Federal Income Tax Consequences") generally will be required to include OID in gross income for United States federal income tax purposes as it accrues, in advance of the receipt of cash attributable to such income. See "Certain United States Federal Income Tax Consequences."
20 PRO FORMA MEDIA CASHFLOW AND OTHER DATA The following pro forma Media Cashflow and Other Data give effect to the Transactions as if they had been completed as of March 1, 1996 for results of operations data or on November 30, 1997 for balance sheet data. The information presented may not be indicative of the actual results had the Transactions occurred on such dates, and there can be no assurance that the Company will be able to achieve such results in the future. The pro forma Media Cashflow and Other Data presented below should be read in conjunction with the information contained in the combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill, "Pro Forma Financial Information" and "Management's Discussion and Analysis of Financial Condition and Results of Operations."
PRO FORMA ---------------------------------- (DOLLARS IN THOUSANDS) ---------------------------------- YEAR ENDED FEBRUARY 28, NINE MONTHS ENDED 1997 NOVEMBER 30, 1997 --------------- ----------------- Net loss................................................. $ 8,457 $ 5,629 Media Cashflow (a)....................................... 10,226 8,734 EBITDA (a)............................................... 5,771 5,204 Net interest expense (b)................................. 12,721 9,551 Net cash interest expense (c)............................ 7,362 5,532 Net debt (d)............................................. 79,981 79,981 Ratio of Media Cashflow to net interest expense.......... 0.80x 0.91x Ratio of Media Cashflow to net cash interest expense..... 1.39x 1.58x Ratio of net debt to Media Cashflow...................... 7.82x 6.87(e)x
(a) "EBITDA" is defined as operating income before depreciation and amortization expenses. "Media Cashflow" is defined as EBITDA plus management fees, incentive plan expense, time brokerage agreement fees, acquisition related consulting expense and interest income from loans made by the Company to Managed Affiliates. Management fees payable to BMCLP are subordinated, to the extent provided in the Indenture, to the prior payment of the Issuer's obligations on the Notes. Although Media Cashflow and EBITDA are not measures of performance calculated in accordance with GAAP, management believes that these measures are useful to an investor in evaluating the Company because these measures are widely used in the media industry to evaluate a media company's operating performance. However, Media Cashflow and EBITDA should not be considered in isolation or as substitutes for net income, cash flows from operating activities and other income or cash flow statements prepared in accordance with GAAP as measures of liquidity or profitability. (b) Reflects interest expense on the Notes and Appreciation Notes and on other debt and capitalized leases. Net interest expense excludes $555,000 and $413,000 in non-cash amortization of deferred financing fees for the year ended February 28, 1997 and the nine months ended November 30, 1997, respectively. Net interest expense is also net of expected interest income, calculated at 5.5% on excess proceeds from the Transactions estimated to be $22.4 million at November 30, 1997, of $1,232,000 and $924,000 for the year ended February 28, 1997 and the nine months ended November 30, 1997, respectively. (c) Reflects interest expense on the Notes and Appreciation Notes and on other debt and capitalized leases. Net cash interest expense excludes $555,000 and $413,000 in non-cash amortization of deferred financing fees for the year ended February 28, 1997 and nine months ended November 30, 1997, respectively and also excludes interest accrued at the effective rate of 12.2%, which is in excess of the current pay rate of 7.5% in each of years one and two by $4,960,000 ($3,720,000 for nine months) and excludes interest on the Appreciation Notes accreted at 17% totaling $399,000 for the year ended February 28, 1997 ($299,000 for nine months). Net cash interest expense is also net of expected interest income, calculated at 5.5% on excess proceeds from the Transactions estimated to be $22.4 million at November 30, 1997, of $1,232,000 and $924,000 for the year ended February 28, 1997 and the nine months ended November 30, 1997, respectively. (d) Net debt includes total debt less the incentive plan liability and less cash and cash equivalents, all as of November 30, 1997, as significant portions of the cash and cash equivalents are held for future acquisitions. (e) For purposes of this ratio the Media Cashflow for the nine months ended November 30, 1997 has been annualized. No assurance can be provided that such results will be achieved. 21 SUMMARY COMBINED FINANCIAL DATA The summary combined financial data presented below should be read in conjunction with the combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill and notes thereto included elsewhere in this Prospectus and "Management's Discussion and Analysis of Financial Condition and Results of Operations." The summary combined financial data (except for the other financial and operating data) of The Radio and Newspaper Businesses of Alan R. Brill (i) as of and for the years ended February 28, 1993 and 1994 have been derived from schedules which primarily include information from the separate audited combined financial statements of The Broadcasting Businesses of Alan R. Brill and the separate audited consolidated financial statements of Central Michigan Newspapers, Inc., (ii) as of and for the years ended February 28, 1995, February 29, 1996 and February 28, 1997 have been derived from the audited combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill and (iii) as of and for the nine months ended November 30, 1996 and 1997 have been derived from the unaudited condensed combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill. The summary pro forma data presented below should be read in conjunction with the information contained in the historical financial statements included elsewhere herein and "Pro Forma Financial Information."
HISTORICAL ------------------------------------------------------------ NINE MONTHS ENDED FISCAL YEAR ENDED FEBRUARY 28 OR 29 NOVEMBER ------------------------------------------------ 30, 1993 1994 1995 1996 1997 1996 -------- -------- -------- -------- -------- ---------- (DOLLARS IN THOUSANDS) STATEMENT OF OPERATIONS DATA: Revenues: Radio..................... $ 9,764 $ 10,961 $ 12,650 $ 13,096 $ 13,596 $ 10,483 Newspapers................ 10,877 10,499 10,537 12,217 13,440 10,458 -------- -------- -------- -------- -------- ---------- Total revenues........ 20,641 21,460 23,187 25,313 27,036 20,941 Operating expenses: Operating departments..... 16,644 16,352 17,530 18,640 19,043 14,641 Incentive plan............ 25 176 634 1,467 628 471 Other..................... -- -- -- 37 86 17 Management fees........... 897 1,521 1,679 1,833 1,945 1,502 Depreciation and amortization............ 1,306 1,277 1,111 1,312 1,395 1,022 -------- -------- -------- -------- -------- ---------- Total operating expenses.............. 18,872 19,326 20,954 23,289 23,097 17,653 -------- -------- -------- -------- -------- ---------- Operating income............ 1,769 2,134 2,233 2,024 3,939 3,288 Other income (expense): Interest expense, net..... (4,484) (4,645) (5,842) (7,130) (7,432) (5,565) Other, net................ (148) 3,463 (144) (80) 1,007 1,018 -------- -------- -------- -------- -------- ---------- Total other income (expense)........... (4,632) (1,182) (5,986) (7,210) (6,425) (4,547) -------- -------- -------- -------- -------- ---------- Income (loss) before income taxes and extraordinary item...................... (2,863) 952 (3,753) (5,186) (2,486) (1,259) Income tax provision (benefit)................. 112 168 68 (39) 286 121 -------- -------- -------- -------- -------- ---------- Income (loss) before extraordinary item........ (2,975) 784 (3,821) (5,147) (2,772) (1,380) Extraordinary item (b)...... -- 245 -- 6,915 -- -- -------- -------- -------- -------- -------- ---------- Net income (loss)........... $ (2,975) $ 1,029 $ (3,821) $ 1,768 $ (2,772) $ (1,380) -------- -------- -------- -------- -------- ---------- -------- -------- -------- -------- -------- ---------- OTHER FINANCIAL AND OPERATING DATA: Media Cashflow (c).......... $ 3,997 $ 5,108 $ 5,657 $ 6,673 $ 7,993 $ 6,300 EBITDA (c).................. 3,075 3,411 3,344 3,336 5,334 4,310 Capital expenditures excluding acquisitions.... 410 833 974 977 1,269 543 Net interest expense (d).... Net cash interest expense (e)............... Net debt (f)................ Ratio of Media Cashflow to net interest expense...... Ratio of Media Cashflow to net cash interest expense................... Ratio of net debt to Media Cashflow.................. Ratio of earnings to fixed charges (h)............... -- 1.20x -- -- -- -- PRO FORMA ------------------------- NINE NINE MONTHS MONTHS ENDED YEAR ENDED NOVEMBER ENDED NOVEMBER 30, FEBRUARY 28, 30, 1997 1997 (A) 1997 (A) ---------- ------------ ---------- STATEMENT OF OPERATIONS DATA Revenues: Radio..................... $ 11,854 $ 11,644 $10,210 Newspapers................ 11,121 15,771 12,373 ---------- ------------ ---------- Total revenues........ 22,975 27,415 22,583 Operating expenses: Operating departments..... 15,685 19,147 15,317 Incentive plan............ 545 628 545 Other..................... 217 -- -- Management fees........... 1,598 1,869 1,517 Depreciation and amortization............ 1,298 1,358 1,259 ---------- ------------ ---------- Total operating expenses.............. 19,343 23,002 18,638 ---------- ------------ ---------- Operating income............ 3,632 4,413 3,945 Other income (expense): Interest expense, net..... (6,519) (12,550) (9,420) Other, net................ (51) (48) (42) ---------- ------------ ---------- Total other income (expense)........... (6,570) (12,598) (9,462) ---------- ------------ ---------- Income (loss) before income taxes and extraordinary item...................... (2,938) (8,185) (5,517) Income tax provision (benefit)................. 103 272 112 ---------- ------------ ---------- Income (loss) before extraordinary item........ (3,041) (8,457) (5,629) Extraordinary item (b)...... -- -- -- ---------- ------------ ---------- Net income (loss)........... $ (3,041) $ (8,457) $(5,629) ---------- ------------ ---------- ---------- ------------ ---------- OTHER FINANCIAL AND OPERATING DATA: Media Cashflow (c).......... $ 8,510 $ 10,226 $ 8,734 EBITDA (c).................. 4,930 5,771 5,204 Capital expenditures excluding acquisitions.... 610 1,336 601 Net interest expense (d).... 12,721 9,551 Net cash interest expense (e)............... 7,362 5,532 Net debt (f)................ 79,981 79,981 Ratio of Media Cashflow to net interest expense...... 0.80x 0.91x Ratio of Media Cashflow to net cash interest expense................... 1.39x 1.58x Ratio of net debt to Media Cashflow.................. 7.82x 6.87x (g) Ratio of earnings to fixed charges (h)............... -- -- --
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PRO FORMA HISTORICAL ------------- ----------------------------------------------------------------------------------- AS OF AS OF AS OF AS OF FEBRUARY 28 OR 29 NOVEMBER 30, NOVEMBER 30, NOVEMBER 30, ----------------------------------------------------- ------------- ------------- ------------- 1993 1994 1995 1996 1997 1996 1997 1997 (A) --------- --------- --------- --------- --------- ------------- ------------- ------------- (DOLLARS IN THOUSANDS) STATEMENT OF FINANCIAL POSITION DATA: Cash and cash equivalents.......... $ 104 $ 202 $ 550 $ 2,075 $ 775 $ 567 $ 109 $ 22,639 Working capital (deficit)............ (3,469) (1,881) (334) 2,398 1,014 2,227 1,859 24,486 Intangible assets...... 4,103 5,219 5,099 7,374 7,583 7,547 12,174 17,415 Total assets........... 16,454 21,938 21,784 26,011 26,442 27,674 41,675 69,091 Total debt including due to affiliates (i).................. 49,796 55,160 58,715 61,636 50,475 49,782 81,106 107,320 Net capital deficiency (j).................. (37,153) (36,302) (40,123) (38,354) (26,610) (27,838) (41,858) (40,526)
- ------------------------ (a) The pro forma statement of operations and other financial and operating data for the year ended February 28, 1997 and for the nine months ended November 30, 1997 give effect to the Transactions as if they occurred March 1, 1996. The pro forma statement of financial position data give effect to the Transactions as if they had occurred on November 30, 1997. See "Pro Forma Financial Information." (b) The extraordinary item in fiscal 1996 reflects an adjustment of accrued interest in the amount of $7.0 million related to subordinated debt for which contingent interest had been accrued at the maximum rate but was reduced at maturity pursuant to terms of an alternative valuation formula, as defined in the agreement. The gain was offset by the write-off of certain previously deferred financing fees of $131,000. (c) "EBITDA" is defined as operating income before depreciation and amortization expenses. "Media Cashflow" is defined as EBITDA plus management fees, incentive plan expense, time brokerage agreement fees, acquisition related consulting expense and interest income from loans made by the Company to Managed Affiliates. Management fees payable to BMCLP are subordinated, to the extent provided in the Indenture, to the prior payment of the Issuer's obligations on the Notes. Although Media Cashflow and EBITDA are not measures of performance calculated in accordance with GAAP, management believes that these measures are useful to an investor in evaluating the Company because these measures are widely used in the media industry to evaluate a media company's operating performance. However, Media Cashflow and EBITDA should not be considered in isolation or as substitutes for net income, cash flows from operating activities and other income or cash flow statements prepared in accordance with GAAP as measures of liquidity or profitability. (d) Reflects interest expense on the Notes and Appreciation Notes and on other debt and capitalized leases. Net interest expense excludes $555,000 and $413,000 in non-cash amortization of deferred financing fees for the year ended February 28, 1997 and the nine months ended November 30, 1997, respectively. Net interest expense is also net of expected interest income, calculated at 5.5% on excess proceeds from the Transactions estimated to be $22.4 million at November 30, 1997, of $1,232,000 and $924,000 for the year ended February 28, 1997 and the nine months ended November 30, 1997, respectively. (e) Reflects interest expense on the Notes and Appreciation Notes and on other debt and capitalized leases. Net cash interest expense excludes $555,000 and $413,000 in non-cash amortization of deferred financing fees for the year ended February 28, 1997 and nine months ended November 30, 1997, respectively and also excludes interest accrued at the effective rate of 12.2%, which is in excess of the current pay rate of 7.5% in each of years one and two by $4,960,000 ($3,720,000 for nine months) and excludes interest on the Appreciation Notes accreted at 17% totaling $399,000 for the year ended February 28, 1997 ($299,000 for nine months). Net cash interest expense is also net of expected interest income, calculated at 5.5% on excess proceeds from the Transactions estimated to be $22.4 million at November 30, 1997, of $1,232,000 and $924,000 for the year ended February 28, 1997 and nine months ended November 30, 1997, respectively. (f) Net debt includes total debt less the incentive plan liability and less cash and cash equivalents, all as of November 30, 1997, as significant portions of the cash and cash equivalents are held for future acquisitions. (g) For purposes of this ratio the Media Cashflow for the nine months ended November 30, 1997 has been annualized. No assurance can be provided that such results will be achieved. (h) For purposes of this calculation, earnings are defined as income (loss) before income taxes and extraordinary item and fixed charges. Fixed charges are the sum of (i) interest costs (including the interest portion of operating leases) and (ii) amortization of deferred financing costs. Earnings were inadequate to cover fixed charges by approximately $2,863,000, $3,753,000, $5,186,000, $2,486,000, $1,259,000, $2,938,000, $8,185,000 and $5,517,000 for the historical fiscal years 1993, 1995, 1996, 1997, the historical nine months ended November 30, 1996 and 1997, the pro forma year ended February 28, 1997 and the pro forma nine months ended November 30, 1997, respectively. (i) Total debt including due to affiliates includes the senior note, obligations under capital leases, unsecured and subordinated obligations, debt due to affiliates and, on a pro forma basis, the Notes and Appreciation Notes. (j) The net capital deficiency as of November 30, 1997 and the pro forma net capital deficiency as of November 30, 1997 reflect the declaration and payment of distributions in the amount of $12.2 million, $8.0 million in cash and $4.2 million for purposes of satisfaction of affiliate notes receivable. 23 RISK FACTORS Investors should carefully examine this entire Prospectus and should give particular attention to the risk factors set forth below in evaluating whether to tender their Original Securities for Exchange Securities in the Exchange Offer. COMPANY STRUCTURE BMC is a holding company with no business operations of its own. Media, a wholly owned Subsidiary of BMC, is BMC's manager and, with BMC, co-issuer of the Securities (collectively, the "Issuer"). BMC has lent the proceeds received by it from the Offering to Holdings in exchange for Holdings' unsecured promissory note (the "Holdings' Note"). BMC's only material assets are the Holdings' Note and its ownership of all membership interests of BMC Holdings, LLC ("Holdings"), a Subsidiary that directly and indirectly owns substantially all equity and membership interests in all of the other Subsidiaries. Accordingly, BMC will be dependent upon the earnings and cashflows of, and dividends and distributions from, its direct and indirect Subsidiaries to pay its expenses, meet its obligations and pay interest and principal on the Securities. There can be no assurance that these Subsidiaries will generate earnings and cashflows sufficient to pay dividends or distribute funds to BMC that will enable it to pay its expenses and meet its obligations to pay interest and principal on the Securities. Subject to applicable restrictions in the Indenture or the proposed New Credit Facility, acting pursuant to a revolving credit agreement (the "Revolving Credit Agreement") entered into by and among Holdings as lender and Holdings' Subsidiaries as borrowers thereunder, from time to time Holdings will lend and relend available funds to such Subsidiaries, in exchange for the Subsidiaries' unsecured promissory note (the "Subsidiaries' Note") payable to Holdings. From time to time Holdings and the Subsidiaries also will lend and relend available funds to the Managed Affiliates in exchange for the Managed Affiliates' unsecured notes. See "Description of Notes." SUBSTANTIAL LEVERAGE; ABILITY TO SERVICE INDEBTEDNESS; NET LOSSES As of November 30, 1997, after giving effect to the Transactions on a pro forma basis, the Company had outstanding approximately $107 million of long term obligations. See "Capitalization." Holdings is a holding company with no business operations of its own, and the Newspapers' and Stations' operations are conducted through the Subsidiaries. The Subsidiaries are not required to make capital or other contributions to BMC or Holdings, and BMC's expected revenues and assets will consist almost entirely of interest, principal, and dividend or other payments or distributions to be received by BMC from the Subsidiaries through their payments to Holdings on the Subsidiaries' Note and Holdings' payments to BMC on the Holdings' Note. Media is a new corporation with negligible assets and no material sources of income and will be only an accommodation maker on the Securities, and BMC will be expected to pay all obligations on the Securities and to reimburse Media for any amounts it may pay on the Securities. BMC's ability to pay interest on the Securities when due and to satisfy its other obligations ultimately depends, therefore, in large part upon the future operating performance of the Subsidiaries, which ability necessarily will be affected by prevailing economic conditions, which in turn will depend upon and be affected by financial, business, market, technological, competitive, and other conditions, developments, pressures, and factors, many of which are and will continue to be beyond their knowledge or control. BMC, Holdings, and the Subsidiaries are and will be highly leveraged, and many of their competitors are believed to operate with much less leverage and to have significantly greater operating and financial flexibility and resources. The Company and its Subsidiaries are organized under the laws of the Commonwealth of Virginia. In addition to restrictions contained in agreements to which they are parties, due to restrictions imposed by applicable law on the payment of dividends or other distributions on capital stock (in the case of corporations) or membership interests (in the case of limited liability companies), a corporation or limited liability company may not make a distribution or dividend, if, after giving effect to such dividend or distribution, the corporation or limited liability company, as applicable, would not be able to pay its debts 24 as they become due in the usual course of business or if the corporation's or limited liability company's total assets would then be less than the sum of its then total liabilities. In making such a determination of the ability of a corporation or limited liability company to make a dividend or distribution, applicable Virginia law permits the board of directors (in the case of a corporation) or the manager (in the case of a limited liability company) to base its determination in part on its determination of a then fair valuation of the entity's assets. There can be no assurance that any such dividends or distributions to BMC or Holdings will be allowed. While net income or loss may not be considered a meaningful measure of performance for media properties, in the past, depreciation, amortization, and interest charges have contributed significantly to periodic net losses suffered by the Subsidiaries, and it is expected that such net losses will continue in the future. On a combined basis, the Company and its predecessors reported a net loss in three of their last five fiscal years. In the fiscal year ended February 28, 1997, the Company and its predecessors reported a net loss of $2.8 million. While the Company expects that the Subsidiaries' cashflow will improve, the Company nonetheless expects that the Subsidiaries will continue to incur substantial net losses. There can be no assurance that the Subsidiaries will not continue to generate further net losses in the future, which ultimately could have a material, adverse effect on the Issuer's ability to pay interest or principal on the Securities when due. Media has nominal assets and no operations, and all representations as to Media's solvency are based upon the assumption that BMC will hold Media harmless from any claims asserted against Media on the Securities. The future of the Company and its Subsidiaries involves a high degree of risk. DEPENDENCE ON SUBSIDIARIES' OPERATING RESULTS; EFFECTIVE SUBORDINATION While Holdings' Subsidiaries are obligated to pay principal and interest on the Subsidiaries' Note, as and to the extent therein provided, Holdings' Subsidiaries are legally distinct from Holdings and the Issuer, and none of the Subsidiaries has or has now undertaken any obligation, direct, indirect, contingent, or otherwise, to pay to holders of the Securities any amounts due thereon or to secure payment thereof, or to make any funds available to the Issuer or Holdings for any such purpose other than as may be required under each Subsidiary's guarantees of the Securities. Additionally, since the Subsidiaries own all operating assets of the Newspapers and Stations, the rights of holders of the Securities effectively will be subordinate and inferior to the rights of the secured creditors of each of the Subsidiaries to the extent of such Subsidiary's assets. Current levels of the Subsidiaries' operating results may not result in dividend, distribution, or debt service payments to BMC or Holdings in amounts sufficient, from that source alone, to meet all of BMC's expenses and debt service requirements on the Securities, and the Subsidiaries may need to achieve future increases in their operating results if BMC is to repay the Securities or its other obligations when due. There can be no assurance that the Subsidiaries can achieve such necessary increases or can sustain historical rates of growth in revenues and operating results. If the Company is unable to service its obligations in the ordinary course, inevitably it will be forced to adopt alternative financial or operating strategies, which may include using its working capital, reducing or delaying capital expenditures, selling assets, restructuring or refinancing obligations, or seeking equity capital. There can be no assurance that the Company can effect any of these strategies on satisfactory terms, if at all. RANKING OF THE SECURITIES AND THE SUBSIDIARY GUARANTEES, ABILITY TO INCUR ADDITIONAL SECURED DEBT; PRIORITY OF LIEN CREDITORS The Notes are senior unsecured obligations of the Issuer and rank junior to all secured indebtedness of the Issuer to the extent of the assets serving as security therefor. As senior unsecured obligations of the Issuer, the Notes rank PARI PASSU in right of payment with all other existing and future senior unsecured indebtedness of the Issuer. Under the terms of the Indenture and the Appreciation Note Indenture, the 25 Company is permitted, upon the satisfaction of certain conditions, to incur secured indebtedness. The rights of holders of the Notes as against the Company's assets will be subordinate and inferior to all existing and future liens or secured indebtedness or other secured obligations of the Company or any Subsidiary, including any secured indebtedness under the proposed New Credit Facility, the rights of judgment or other secured or lien creditors as against the assets of the Company or any Subsidiary, and any prior, secured, or judgment liens against the Company's assets, or any part thereof. In certain circumstances, provisions of applicable secured indebtedness effectively could prohibit or prevent either or both of (a) the Subsidiaries making debt service or other payments to Holdings on the Subsidiaries' Note or (b) Holdings making debt service or other payments to BMC on the Holdings' Note, and, as a result, the Issuer might have insufficient funds available to make required payments due to holders of the Notes. The Subsidiary Guarantors have unconditionally guaranteed the payment of principal and interest on the Notes when due. The Subsidiary Guarantees rank PARI PASSU with all existing and future senior indebtedness of the Issuer and the Subsidiary Guarantors. The Subsidiary Guarantees are unsecured and thus, in effect, would rank junior to any secured indebtedness of the Subsidiary Guarantors. Upon completion of the Transactions, the Subsidiary Guarantors will have approximately $4.8 million in aggregate principal amount of secured indebtedness outstanding. The Indenture permits the Issuer and its Subsidiaries (including the Subsidiary Guarantors) to incur additional secured debt under certain circumstances. Some or all of such additional indebtedness may rank PARI PASSU with the Subsidiary Guarantees, and the holders of such indebtedness may have a claim to assets of a Subsidiary Guarantor superior to that of the holders of the Notes because such additional indebtedness is secured by liens on assets of such Subsidiary Guarantor. Although there are certain limitations on the ability of the Subsidiary Guarantors to secure such debt, the incurrence of such additional debt might adversely affect the Subsidiary Guarantors' ability to meet their obligations under the Subsidiary Guarantees. See "Description of the Notes--Subsidiary Guarantees." Consequently, in the event of dissolution, liquidation or reorganization of, or similar proceeding relating to, any Subsidiary Guarantor, such Subsidiary Guarantor's secured lenders would be entitled to receive payment to the extent of the value of their collateral or in full, whichever is less, prior to any payment in respect of such Subsidiary Guarantee. The Appreciation Notes are unsecured, subordinated obligations of the Issuer and are subordinated in right of payment to all existing and future Senior Indebtedness of the Issuer. Similarly, the Indebtedness evidenced by the Guarantees of the Appreciation Notes by the Subsidiary Guarantors is subordinated to the prior payment in full of all existing and future Guarantor Senior Indebtedness (as defined under "Description of Appreciation Notes"). As of November 30, 1997, after giving effect to the Offering and the use of proceeds therefrom, the Issuer and the Subsidiary Guarantors would have had approximately $99.3 million of Senior Indebtedness outstanding. The Issuer and the Subsidiary Guarantors can also incur additional Senior Indebtedness under the terms of the Appreciation Notes. In the event of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding with respect to the Issuer and the Subsidiary Guarantors, assets of the Issuer and the Subsidiary Guarantors will be available to pay obligations on the Appreciation Notes only after all Senior Indebtedness has been paid in full, and there can be no assurance that there will be sufficient assets to pay amounts due on all or any of the Appreciation Notes. See "Description of Appreciation Notes--Ranking and Subordination" and "--Subsidiary Guarantees." In the event of bankruptcy, liquidation, dissolution and winding up, or reorganization of the Company, the assets of the Company will be available to pay obligations on the Notes or the Appreciation Notes only after all secured indebtedness of the Company (or effectively any indebtedness of its Subsidiaries) has been paid in full, and there may not be sufficient assets then remaining to pay amounts due on any or all Notes or Appreciation Notes then outstanding. Also, in any bankruptcy proceeding the rights of the holders of the Notes or the Appreciation Notes as against the Company's assets are subject to being equitably subordinated to the rights of other creditors. In like fashion, the rights of BMC on the Holdings' Note and of Holdings on the Subsidiaries' Note effectively will be subordinate and inferior to the rights of all holders of secured indebtedness of the Company. Secured indebtedness may be incurred by the Company from time to time in an aggregate amount up to $15.0 million under the proposed New Credit Facility, subject to 26 certain restrictions, and may be secured by substantially all of the Company's assets. In addition, the Company may incur additional indebtedness in accordance with the terms of the Notes and the Indenture, the proceeds of which indebtedness may or may not benefit the Company's future operating results. See "Description of Notes--Certain Covenants--Limitations on Indebtedness." FRAUDULENT CONVEYANCE The incurrence and servicing by the Issuer of the obligations evidenced by the Notes and the Appreciation Notes, the Issuer's and Holdings' use of the proceeds of the Offering, Holdings' incurrence and servicing of obligations to BMC on Holdings' Note, and the Subsidiaries' incurrence and servicing of obligations to Holdings on the Subsidiaries' Note, each may be subject to review under applicable federal and state fraudulent or voluntary conveyance laws and similar laws and statutes enacted for the protection of creditors, and such laws and statutes may be utilized by a court to subordinate or avoid such obligations, payments, and transfers in favor of other existing or future creditors of the Company. If a court or other tribunal were to find (a) that when any of the Notes, the Appreciation Notes, Holdings' Note, or the Subsidiaries' Note (collectively and individually, the "Obligations"), as the case may be, were entered into or issued, or (b) that when any advance or any payment of principal or interest was made on any of them, that Media, the Company, or any Subsidiary taking such action then was acting (i) with the intent of hindering, delaying, or defrauding such actor's current or future creditors or (ii) that (x) such entity received less than reasonably equivalent value or fair consideration for taking such actions, making any such advance, transfer, or payment, or issuing such indebtedness, or for issuing or paying interest or principal on any of the Obligations, and that (y) Media, the Company or its Subsidiary or Subsidiaries, as then applicable, then either (1) was insolvent or was rendered insolvent by reason of such actions, (2) was engaged, or was about to engage, in a business or transaction for which its assets constituted unreasonably small capital or (3) intended to incur or believed that it would incur debts beyond its ability to pay as such debts matured (as all of the foregoing terms are defined in or interpreted under relevant fraudulent or voluntary conveyance or bankruptcy laws or statutes), such court could, among other things, declare void, voidable, or avoid one or more of such payments, advances, transfers, or indebtednesses, or the Obligations, or any one or more of them, or subordinate, avoid, or postpone the enforcement thereof, in whole or in part, in favor of other creditors. The measure of insolvency for purposes of the foregoing considerations will vary depending upon the laws being applied. Generally, however, any one of Media, the Company or its Subsidiaries would be considered insolvent if, at the relevant time, either (a) the fair market value of its assets was less than the amount required to pay the probable liability on its total existing debts and liabilities (including contingent liabilities) as they became absolute and matured or (b) that it was incurring debt beyond its ability to pay at maturity. As described above, a court could, therefore, declare void, avoid, or subordinate or postpone payment or enforcement of the Obligations, or any of them, to the prior satisfaction of other obligations or other creditors, the satisfaction of which obligations or creditors may be beyond the capacity of the Company. As to these transactions, Media, the Company and the Subsidiaries believe that at all relevant times each was and will be (a) neither insolvent nor rendered insolvent thereby, (b) in possession of sufficient capital to pay its debts as the same mature or become due and to operate its business effectively, and (c) incurring debt within its ability to pay as it matures in the ordinary course. In reaching the foregoing conclusions, the Company has relied upon analyses of financial and other information currently available to it and upon internal projections and estimated values and amounts of assets and liabilities of the Company and its Subsidiaries (including any applicable rights of contribution, or indemnification as between them). There can be no assurance, however, that such conclusions and assumptions are correct or that a court or other tribunal passing on such questions would reach the same results. In addition, the Guarantees of the Notes and the Appreciation Notes by the Subsidiary Guarantors may be subject to review under relevant federal and state fraudulent conveyance and similar statues in a 27 bankruptcy or reorganization case or a lawsuit by or on behalf of creditors of any of the Subsidiary Guarantors. In such a case, the analysis set forth above would generally apply, except that such Guarantees could also be subject to the claim that, since such Guarantees were incurred for the benefit of the Issuer (and only indirectly for the benefit of the Subsidiary Guarantors), the obligations of the Subsidiary Guarantors thereunder were incurred for less than reasonably equivalent value or fair consideration. A court could avoid a Subsidiary Guarantor's obligation under its Guarantees, subordinate such Guarantee to other indebtedness of a Subsidiary Guarantor or take other action detrimental to the holders of the Notes and/or the Appreciation Notes. To the extent any Guarantee of a Subsidiary Guarantor was avoided as a fraudulent conveyance, limited as described above, or held unenforceable for any other reason, holders of the Notes and the Appreciation Notes would, to such extent, cease to have a claim in respect of such Subsidiary Guarantee and, to such such extent, would be creditors solely of the Issuer and any Subsidiary Guarantor whose Guarantee was not avoided, limited or held unenforceable. In such event, the claims of the holders of the Notes and the Appreciation Notes against the issuer of an avoided, limited or unenforceable Guarantee would be subject to the prior payment of all liabilities of such Subsidiary Guarantor. There can be no assurance that, after providing for all prior claims, there would be sufficient assets to satisfy the claims of the holders of Notes and/or the Appreciation Notes. ABILITY TO EXECUTE ACQUISITION STRATEGY Historically, the Company has achieved significant growth through acquisitions. In order for the Company to achieve needed future growth in revenues and earnings and to replace the revenues and earnings of properties that may be sold by one or more of the Subsidiaries from time to time, additional acquisitions may be necessary. Meeting this need for acquisitions will depend upon several factors, including the continued availability of suitable financing and the ability to identify and acquire businesses on a cost-effective basis, as well as the Company's ability effectively to integrate acquired personnel, operations, products, and technologies, to retain and motivate key personnel, and to retain the goodwill and customers of acquired properties. There can be no assurance that the Company can or will successfully acquire and integrate future operations. In connection with future acquisition opportunities, the Company, or one or more of its Subsidiaries, may need to incur additional indebtedness or issue additional equity or debt instruments. There can be no assurance that debt or equity financing for such acquisitions will be available on acceptable terms, or that the Company will be able to identify or consummate any new acquisitions. If and when achieved, new acquisitions may adversely affect near-term operating results due to increased capital requirements, transitional management and operating adjustments, increased interest costs associated with acquisition debt, and other factors. Any future acquisitions may be highly-leveraged, and such acquisitions well may increase the Company's overall leveraged position. Any failure to make necessary acquisitions, or the making of unsuccessful acquisitions, could have a material, adverse effect on the future financial condition and operating results of the Company and each of its Subsidiaries. To date, the Company's principal investments and acquisitions have been confined to acquiring newspaper publishing, printing, and radio broadcasting properties and related businesses as sole owners in middle markets. See "Business." RESTRICTIVE DEBT COVENANTS; PROPOSED NEW CREDIT FACILITY It is expected that the proposed New Credit Facility, if and when put in place, will contain certain restrictive covenants that, among other things, may limit the Company's ability to incur additional indebtedness, create liens, or make investments and capital expenditures. The proposed New Credit Facility also may require that the Company comply with certain financial ratios and tests requiring that the Company achieve certain financial and operating results. The Company's ability to meet such financial ratios and tests may be affected by events beyond its control, and there can be no assurance that such ratios 28 and tests will be met. In the event of such a failure or a default under the proposed New Credit Facility, the lenders thereunder may terminate their lending commitments and may declare any indebtedness then existing under the proposed New Credit Facility to be immediately due and payable, which could result in a default on the Notes. As a result of the priority and security to be afforded to others under the proposed New Credit Facility, to prior liens of secured creditors, and to prior rights of the Subsidiaries' creditors by reason of effective subordination as described above, in such circumstances there can be no assurance that the Issuer then would have sufficient assets remaining and available to pay indebtedness then outstanding under the Securities. Any refinancing of the proposed New Credit Facility is likely to contain similar restrictive covenants. See "Description of Notes--Restrictions on Indebtedness." DEPENDENCE ON KEY PERSONNEL; CONTROL BY MR. BRILL The Company's businesses depend to a significant extent upon the efforts, abilities, and expertise of Mr. Brill, Donald C. TenBarge, Alan L. Beck, and Clifton E. Forrest. The loss of any of these executives of BMCLP potentially would have an adverse effect on the Company. Moreover, Mr. Brill owns and controls the Company, and such control may have the effect of discouraging transactions involving a potential change of control of the Company. Neither BMCLP, the Issuer, Holdings nor any of the Subsidiaries has any long-term employment contract with Mr. Brill or any other executive officer. Mr. Brill has procured key man insurance on his life in the face amount of $5.0 million for the Company's benefit. CHANGE OF CONTROL Upon the occurrence of a Change of Control as defined in the Indenture, each holder of a Note may seek to require the Issuer to repurchase all or a portion of such holder's Notes. If a Change of Control were to occur, there can be no assurance that the Issuer would then have sufficient financial resources (or would be able to arrange financing) to pay the repurchase price for all Notes tendered by holders thereof. Further, the Indenture's provisions may not afford protection to holders of Notes in the event of a highly leveraged transaction, reorganization, debt restructuring, merger, or similar transaction involving the Company that ultimately may adversely affect holders of the Notes, even though such a transaction may not have resulted in a Change of Control as such. In addition, terms of the proposed New Credit Facility may limit the Issuer's ability to purchase any Notes and also may identify certain events that would constitute a Change of Control, as well as certain other events with respect to the Company that would constitute an event of default under any New Credit Facility. Any future credit or other agreements relating to other Indebtedness to which the Company, or any of them, may become a party may contain similar restrictions and provisions. See "Description of Notes." In the event a Change of Control occurs at a time when the Issuer is contractually prohibited from purchasing Notes, the Issuer could seek consent for the Issuer to purchase Notes, or could attempt to refinance any borrowings containing such prohibitions. If the Issuer does not obtain such consent or effect such a refinancing, the Issuer could remain prohibited from purchasing Notes. In such case, the Issuer's failure to purchase tendered Notes would constitute an Event of Default under the Indenture, which may, in turn, constitute a default under the terms of other indebtedness that the Issuer may have entered into from time to time, including secured indebtedness. LACK OF ESTABLISHED TRADING MARKET There has not been any public market for the Original Securities. The Exchange Securities will constitute a new issue of securities with no established trading market. The Issuer does not intend to list the Exchange Securities on any securities exchange or to seek their admission to trading in any automated quotation system. The Initial Purchaser has advised the Issuer that it currently intends to make a market in the Exchange Securities, but it is not obligated to do so and may discontinue such market-making at any time without notice. In addition, such market-making activity will be subject to the limits imposed by the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and may be limited during the Exchange Offer and at certain other times. Accordingly, no assurance can be given that 29 an active public or other market will develop for the Exchange Securities or as to the liquidity of the trading market for the Exchange Securities. If a trading market does not develop or is not maintained, holders of the Exchange Securities may experience difficulty in reselling the Exchange Securities or may be unable to sell them at all. If a market for the Exchange Securities develops, any such market may be discontinued at any time. If a public trading market develops for the Exchange Securities, future trading prices of the Exchange Securities will depend on many factors, including, among other things, prevailing interest rates, the Issuer's operating results and the market for similar securities. Depending on prevailing interest rates, the market for similar securities and other factors, including the financial condition of the Issuer, the Exchange Securities may trade at a discount from their principal amount. FAILURE TO FOLLOW EXCHANGE OFFER PROCEDURES; CONSEQUENCES OF FAILURE TO EXCHANGE Issuance of the Exchange Securities in exchange for the Original Securities pursuant to the Exchange Offer will be made only after a timely receipt by the Issuer of such Original Securities, properly completed and duly executed Letters of Transmittal and all other required documents. Therefore, holders of the Original Securities desiring to tender such Original Securities in exchange for Exchange Securities should allow sufficient time to ensure timely delivery. The Issuer is under no duty to give notification of defects or irregularities with respect to the tenders of Original Securities for exchange. Original Securities that are not tendered or are tendered but not accepted will, following consummation of the Exchange Offer, continue to be subject to the existing restrictions upon transfer thereof and, upon consummation of the Exchange Offer, certain registration rights under the Registration Rights Agreements will terminate. In addition, any holder of Original Securities who tenders in the Exchange Offer for the purpose of participating in a distribution of the Exchange Securities may be deemed to have received restricted securities and, if so, will be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transactions. Each holder of the Original Securities (other than certain specified holders) who wishes to exchange the Original Securities for Exchange Securities in the Exchange Offer will be required to represent in the Letters of Transmittal that (i) it is not an affiliate of the Issuer, (ii) the Exchange Securities to be received by it are being acquired in the ordinary course of its business and (iii) at the time of commencement of the Exchange Offer, it has no arrangement with any person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. Each Participating Broker-Dealer that receives Exchange Securities for its own account in exchange for Original Securities, where such Original Securities were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. See "Plan of Distribution." To the extent that Original Securities are tendered and accepted in the Exchange Offer, the trading market for untendered and tendered but unaccepted Original Securities could be adversely affected. See "The Exchange Offer." ORIGINAL ISSUE DISCOUNT The Exchange Securities will be considered to be issued with original issue discount (the difference between the stated redemption price at maturity of a debt instrument and the issue price of such debt instrument) for United States federal income tax purposes. The Original Notes had original issue discount of approximately $10.5 million and the Original Appreciation Notes had original issue discount of approximately $651,000, both as of December 30, 1997. Original issue discount will accrue from the issue date of the Exchange Securities and generally will be includable as interest income in the U.S. Holder's (defined in "Certain United States Federal Income Tax Consequences") gross income for United States federal income tax purposes in advance of the cash payments to which the income is attributable. For a more detailed discussion of the United States federal income tax consequences to the holders of the purchase, ownership and disposition of the Exchange Securities, see "Certain United States Federal Income Tax Consequences." 30 If a bankruptcy case is commenced by or against the Company under the United States Bankruptcy Code (the "Bankruptcy Code") after the issuance of the Exchange Securities, the claim of a holder of any of the Exchange Securities with respect to the principal amount thereof may be limited to an amount equal to the sum of (i) the initial offering price allocable to such debt instrument and (ii) the portion of original issue discount which is not deemed to constitute "unmatured interest" for purposes of the Bankruptcy Code. Any original issue discount that was not amortized as of any such bankruptcy filing would constitute "unmatured interest." GOVERNMENTAL REGULATIONS The radio broadcasting industry is subject to extensive and changing regulation. Among other things, the Communications Act of 1934, as amended (the "Communications Act"), and rules, regulations, and policies of the Federal Communication Commission (the "FCC") require FCC consent to assignments of FCC licenses or transfers of control of FCC licensees. Each of the Stations operates pursuant to one or more licenses issued by the FCC, which expire at different times. Each licensee may apply to renew applicable licenses prior to their expiration. Third parties may challenge these applications or file competing applications by filing petitions with the FCC seeking to deny the renewal application. The FCC must grant the renewal application if it determines that during the preceding license term: (i) the station served the public interest, convenience and necessity; (ii) the licensee has committed no serious violation of the Communications Act or the FCC's rules; and (iii) there have been no other violations of the Act or such rules which taken together would indicate a pattern of abuse. If a substantial and material question of fact concerning a renewal application is raised by the FCC or other interested parties, or if for any reason the FCC cannot determine on the basis of the application and related pleadings that renewal would serve the public interest, convenience and necessity, the FCC will hold an evidentiary hearing on the application. If the FCC denies the renewal application upon conclusion of the hearing, third parties may then file applications for a license to operate those facilities. In determining whether to renew a station license, the FCC may not consider whether the public interest, convenience, and necessity would be better served by the grant of a license to a party other than the renewal applicant. In connection with the Company's proposed sale of the Missouri Properties, a competitor of the purchaser has filed a Petition to Deny the FCC's approval of the requisite transfer of the broadcast licenses of the Missouri Properties. The Company cannot now predict the outcome of such petition with any certainty. See "Recent or Pending Transactions." There have been a number of petitions to deny and competing applications filed with respect to broadcast license renewal applications. In the vast majority of cases, the FCC has renewed incumbent operators' station licenses. Such a filing presently is pending against station KUAD-FM located in Windsor, Colorado, which is owned and operated by Northern Colorado Radio, Inc., one of the Subsidiaries, which filing the Company believes is without a significant basis. Although the Company believes that this and the Stations' other licenses will be renewed, there can be no assurance that this will occur. The Company is aware that the U.S. Federal Trade Commission (the "FTC") and the Antitrust Division of the U.S. Department of Justice (the "DOJ"), which evaluate transactions to determine whether those transactions should be challenged under the federal antitrust laws, have been increasingly active recently in their review of radio station acquisitions, particularly where an operator proposes to acquire additional stations in its existing markets. For an acquisition meeting certain size thresholds, the Hart-Scott-Rodino Act (the "HSR Act") and the rules promulgated thereunder require the parties to file Notification and Report Forms with the FTC and the DOJ and to observe specified waiting period requirements before consummating the acquisition. During the initial 30 day period after the filing, the agencies decide which of them will investigate the transaction. If the investigating agency determines that the transaction does not raise significant antitrust issues, then it will either terminate the waiting period or allow it to expire after the initial 30 days. On the 31 other hand, if the agency determines that the transaction requires a more detailed investigation, then prior to or at the conclusion of the initial 30 day period, it will issue a formal request for additional information ("Second Request"). The issuance of a Second Request extends the waiting period until the twentieth calendar day after the date of substantial compliance by all parties to the acquisition. Thereafter, such waiting period may only be extended by court order or with the consent of the parties. In practice, complying with a Second Request can take a significant amount of time. In addition, if the investigating agency raises substantive issues in connection with a proposed transaction, then the parties frequently engage in lengthy discussions or negotiations with the investigating agency concerning possible means of addressing those issues, including but not limited to persuading the agency that the proposed acquisition would not violate the antitrust laws, restructuring the proposed acquisition, divestiture of other assets of one or more parties, or abandonment of the transaction. Such discussions and negotiations can be time consuming, and the parties may agree to delay consummation of the acquisition during their pendency. At any time before or after the consummation of a proposed acquisition, the FTC or the DOJ could take such action under the antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the acquisition or seeking divestiture of the business acquired or other assets of the acquiring company. Acquisitions that are not required to be reported under the HSR Act may be investigated by the FTC or the DOJ under the antitrust laws before or after consummation. In addition, private parties may under certain circumstances bring legal action to challenge an acquisition under the antitrust laws. As part of its increased scrutiny of radio station acquisitions, the DOJ has stated publicly that it believes that LMAs, JSAs and other similar agreements customarily entered into in connection with radio station transfers prior to the expiration of the waiting period under the HSR Act could violate the HSR Act because they may constitute acquisitions or joint ventures subject to the filing and waiting period provisions of the HSR Act. If the Company should grow in size, whether through acquisitions or otherwise, it will become increasingly vulnerable to scrutiny under various antitrust and similar regulatory laws administered by various federal and state authorities, laws and regulations in which considerations of absolute or relative size or market share may be relevant if not controlling. Such laws and regulations are quite complex and subject to amendment and to frequent variations in interpretation or enforcement. The radio broadcast industry has been subject to increased scrutiny by the Antitrust Division of the DOJ. As a result of such increased scrutiny, the Company could experience delays, increased costs, and compelled changes in connection with future transactions. If it were to be determined that one or more of the Company or its Subsidiaries had violated or were violating one or more of such laws or regulations, in addition to liability for resulting damages, any affected entity could face potential regulatory or court-ordered divestiture of one or more properties. Any such result could have a material, adverse effect upon the Company. See "Business--Federal Regulation of Radio Broadcasting--Federal Antitrust Considerations." CHANGES IN THE RADIO BROADCASTING INDUSTRY The profitability of the Stations is subject to various factors that influence the radio broadcasting industry as a whole. The Stations may be affected by changes in audience taste, priorities of advertisers, new laws and governmental regulations and policies, changes in broadcast technical requirements, proposals to limit the tax deductibility of expenses incurred by advertisers, changes in the willingness of financial institutions and other lenders to finance radio station acquisitions and operations, and the development of competitive technologies. The Company cannot predict which, if any, of these factors might have a significant impact on the radio broadcasting industry in the future, nor can it predict what impact, if any, the occurrence of these events might have on the Company or on the Subsidiaries' operations. 32 ECONOMIC CONDITIONS; SEASONALITY Radio broadcasting is a highly competitive business, and the Stations operate in highly competitive markets. Their financial success in each market depends, to a significant degree, upon audience characteristics and ratings, signal strength, each operator's share of the overall radio sales within its geographic market, the number and economic strength of other stations in the market, the economic health of the market, in particular its retailers, and the popularity and audience ratings of each competitor in the market. Any material adverse change in one or more of these conditions in a particular market ultimately could have a material effect on the Company's resulting revenues and cashflow. There can be no assurance that the Stations will be able to maintain or increase their current audience ratings or revenues. During a general economic recession or downturn, advertising expenditures tend to decline. In addition, because substantial portions of the Stations' or Newspapers' revenues are derived from local advertisers, operating results in individual geographic markets could be adversely affected by short or long-term local or regional economic downturns. See "Business." Seasonal revenue fluctuations also are common in the newspaper and radio broadcasting industries, caused by localized fluctuations in advertising expenditures. Accordingly, the Stations' and Newspapers' quarterly operating results have fluctuated in the past and will fluctuate in the future as a result of various factors, including seasonal demands of retailers and the timing and size of advertising purchases. Generally, in each calendar year the lowest level of advertising revenues occurs in the first quarter and the highest levels occur in the second and fourth quarters. COMPETITION; NEW TECHNOLOGIES; PROPOSED REGULATIONS The Stations and Newspapers compete for audience share and advertising revenues with other newspapers, magazines, direct mail, free shoppers, outdoor advertising, other FM and AM radio stations, television and cable television stations, and other media present within their respective markets. Radio broadcasting and newspaper distribution also are exposed to competition from developing media technologies, such as the delivery of audio programming through cable television or telephone wires, the introduction of digital radio broadcasting, which may provide a medium for the delivery by satellite or terrestrial means of multiple audio programming formats to local and national audiences, the increasing development and use of direct mail advertising, the growth of wireless communications and fiber optic delivery systems, the development of televised shopping programs, the potential for televised "newspapers," and the increasing growth of the internet. The Stations and Newspapers also may encounter competition from future, unforeseen developments in technology that subsequently may be commercialized, and at all times they will face potential, additional competition from new or expanding market entrants. The Company cannot predict what effect, if any, these or other new technologies or competitors may have on the Company. See "Business--Competition." From time to time, the Congress and the FCC have considered, and in the future may consider and adopt, new or revised laws, regulations, and policies regarding a wide variety of matters that, directly or indirectly, could affect the operation, ownership, and profitability of the Stations, result in the loss of audience share and advertising revenues for the Stations, or affect the Company's ability to acquire additional radio stations or to finance such acquisitions. Such matters include: proposals to impose spectrum use or other fees on FCC licensees; the FCC's equal employment opportunity rules and matters relating to political broadcasting; technical and frequency allocation matters; proposals to restrict or prohibit the advertising of beer, wine, and other alcoholic beverages on radio; changes in the FCC's cross-interest, multiple ownership, and cross-ownership policies; changes to broadcast technical requirements; proposals to allow telephone or cable television companies to deliver audio and video programming to the home through existing phone lines; proposals to limit the tax deductibility of advertising expenses by advertisers; and proposals to auction the right to use the radio broadcast spectrum to the highest bidder, instead of granting FCC licenses and subsequent license renewals without such bidding. 33 On April 2, 1997, the FCC awarded two licenses for the provision of satellite digital audio radio services ("DARS"). Under rules adopted for this service, licensees must begin construction of their space stations within one year, begin operating within four years, and be operating their entire system within six years. The Company cannot predict whether the service will be subscription or advertiser supported. Digital technology also may be used in the future by terrestrial radio broadcast stations either on existing or alternate broadcasting frequencies, and the FCC has stated that it will consider making changes to its rules to permit AM and FM radio stations to offer digital sound following industry analysis of technical standards. In addition, the FCC has authorized an additional 100 kHz of bandwidth for the AM band and, on March 17, 1997, adopted an allotment plan for the expanded band that identified the 88 AM radio stations selected to move into the band. At the end of a five-year transition period, those licensees will be required to return to the FCC either the license for their existing AM band station or the license for the expanded AM band station. The Company cannot predict whether any proposed changes will be adopted or what other matters might be considered in the future, nor can it judge in advance what impact, if any, the implementation of any of these proposals or changes might have on the Company. The foregoing brief description does not purport to be comprehensive and reference should be made to the Communications Act, the FCC's rules, and the public notices and rulings of the FCC for further information concerning the nature and extent of federal regulation of radio broadcast stations. COST OF NEWSPRINT Newsprint represents the Newspapers' single largest raw material expense and is one of the Newspapers' most significant operating costs. Newsprint costs are cyclical and vary widely from period to period. For example, newsprint costs increased approximately 40% per metric ton in late 1994 and 1995 on an industry-wide basis. Newsprint costs decreased significantly, however, in the second half of 1996. Future increases in the price of newsprint may have an adverse effect on the Newspapers' operating results. The Newspapers have no effective ability to hedge their exposure to such price fluctuations. POTENTIAL CONFLICTS OF INTEREST BMCLP will provide management services to certain of the Subsidiaries, and Holdings will provide loans to the Subsidiaries. In addition, BMCLP may provide such services to other affiliates, and Holdings or the Subsidiaries are expected to provide loans to the Managed Affiliates. Mr. Brill owns and controls, directly or indirectly, all of such entities, which also may enter into other contractual relationships from time to time. Such relationships may present a conflict between Mr. Brill's interests, as the ultimate owner of all parties to such relationships, and the interest of the holders of the Securities. The Indenture includes certain provisions that are intended to prevent unfair transactions between the Issuer and affiliates. See "Certain Transactions" and "Description of Notes--Certain Covenants--Limitation on Affiliate Transactions." BMCLP, which provides management services, including benefit plan administration, risk management, finance and tax management services and strategic planning and operations oversight, is owned by Mr. Brill, directly or indirectly, and provides similar services to other entities owned by Mr. Brill. The fees charged by BMCLP are established on a contractual basis, as set forth more fully under "Certain Transactions," and are payable to the extent set forth in the "Description of Notes." BMCLP charged the Company approximately $1.6 million and $1.9 million for the nine months ended November 30, 1997 and year ended February 28, 1997, respectively, for such services. Any failure by BMCLP (and its management team) to continue providing such services to the Company or the diversion of BMCLP's efforts to other businesses of Mr. Brill could have a material adverse effect upon the Company. In addition, from time to time certain of the Subsidiaries will enter into management agreements (the "Managed Affiliate Management Agreements") with certain affiliates of the Company. The Company 34 charged the Managed Affiliates $180,000 and $40,000 for the nine months ended November 30, 1997 and year ended February 28, 1997, respectively, for such services. Such Managed Affiliates also will issue Managed Affiliate Notes payable to certain of the Subsidiaries. As of November 30, 1997, the Company had loaned $15.4 million to the Managed Affiliates. Total interest income earned by the Company on these loans totalled $1,220,225 and $3,606 for the nine months ended November 30, 1997 and year ended February 28, 1997, respectively. The aggregate amount of the Managed Affiliate Notes may not exceed $20 million unless the Issuer first obtains a written opinion of an independent investment bank of recognized national standing that such transaction is fair to the issuer from a financial point of view. See "Description of Notes--Certain Covenants--Limitation on Affiliate Transactions." Any default in payment of one or more of the Managed Affiliate Notes or under any Managed Affiliate Management Agreement could have a material adverse effect on the Company. The Company is subject to provisions of Virginia law that restrict transactions between the Company and its directors and officers, but the Company does not additionally have a conflicts policy. FORWARD-LOOKING STATEMENTS The forward-looking statements contained in this Prospectus are subject to certain risks and uncertainties. Such statements are based on the Company's and its Subsidiaries' past experience and what they believe to be reasonable assumptions. Past experience does not necessarily accurately foretell future events. Also, such statements are based upon the underlying fundamental assumptions that business, economic, and regulatory conditions over the foreseeable future will remain relatively stable. There can be no assurance that this will occur or that actual results will not differ materially and adversely from those suggested by or inherent in such forward-looking statements as a result of various factors, including, but not limited to: risks associated with acquisitions and expansions of operations, unforeseen inability to obtain or retain competent personnel, intense competition, unaccounted-for variations in national or local markets, unpredictable market or regulatory developments, unforeseen or unaccounted-for economic changes, unexpected management mistakes or failures, unexpected variations in operating results or technological changes, unforeseen cash or capital shortages or requirements, unforeseen and unexpected uninsured torts or breaches of contract, and uncertainties as to the nature and extent of future governmental regulation. Such forward-looking statements are not statements of fact but of the Company's and Issuer's opinions as to future events, opinions held, in their view, with a reasonable degree of certainty based upon assumptions and information then available to them, assumptions that, while considered by the Company to be reasonable, are inherently subject to significant business, economic, competitive, and regulatory uncertainty and contingencies that are subject to change and beyond control of the Company. Such forward-looking statements may prove to have been materially incorrect when made and may not properly have reflected all variables that may turn out to have been material, including unexpected material deviations in assumed general economic trends, events, or components. Inevitably, certain of these expectations will not materialize or will prove to have been materially unfounded, and unanticipated events may materially and adversely affect actual results. The Company's actual results of operations in future years undoubtedly will vary from that inherent in such statements, and such variations may be negative or positive and well may be material. See "Management's Discussion and Analysis of Financial Condition and Results of Operations." It is vital that all forward-looking statements be understood and considered only in context with all other information contained in this Prospectus and that such statements not be considered in isolation or taken out of context. While the Company believes such statements have a reasonable basis, these statements may prove to have been materially incorrect when made and in no way are they, or are they to be taken as, predictions or forecasts of future results. 35 USE OF PROCEEDS The Exchange Offer is intended to satisfy certain of the Issuer's obligations under the Registration Rights Agreements. The Issuer will not receive any cash proceeds from the issuance of the Exchange Securities in the Exchange Offer. The net proceeds to the Issuer from the issuance of $105,000,000 aggregate principal amount of the Original Notes and $3,000,000 aggregate principal amount of the Original Appreciation Notes, and the sale of the Missouri Properties, and the uses of such proceeds on a pro forma basis as of November 30, 1997 are summarized below:
(DOLLARS IN THOUSANDS) ----------- Source of Funds: Proceeds from issuance of Original Securities....................................................... $ 96,810 Proceeds from sale of Missouri Properties (a)....................................................... 6,366 Available cash on hand.............................................................................. 109 ----------- $ 103,285 ----------- ----------- Uses of Funds: Repayment of existing senior note and related fees and expenses (b)................................. $ 73,704 Loans to Managed Affiliates (b)..................................................................... 893 Payment for acquisition of KTRR-FM.................................................................. 549 Fees and expenses related to the issuance of Original Securities (c)................................ 5,500 Cash available for operations and acquisitions (d).................................................. 22,639 ----------- $ 103,285 ----------- -----------
- ------------------------ (a) Applications for transfer of the broadcast licenses of the Missouri Properties have been filed with the FCC by the buyers. A local market competitor has objected to the transfer of the licenses and on December 12, 1997, filed with the FCC a Petition to Deny the license transfers and to terminate the Time Brokerage Agreement. No action has been taken on the Petition to Deny by the FCC, and the Company believes that, even if the Petition to Deny were granted, the consequences to the Company would not be material. (b) Certain of the Subsidiaries and other affiliates were indebted, as co-obligors, under the terms of certain senior secured obligations payable to Amresco and Goldman Sachs. The senior note bore interest at 10% payable monthly and additional interest at 7.5% due upon final maturity of the senior note. Proceeds from the senior note originally executed in February, 1996 (approximately $40 million) were used to refinance then existing indebtedness which was owed to unaffiliated lenders. Subsequent borrowings under the senior note were used to loan funds to the Managed Affiliates, pay dividends to the Stockholder (see "Certain Transactions") and for general corporate and working capital purposes. As of November 30, 1997, the Company had loaned $15.4 million of the proceeds of such obligations to the Managed Affiliates. The proceeds of such loans were used by the Managed Affiliates to purchase property, equipment and intangibles and to provide working capital for operations. On a pro forma basis as of November 30, 1997, the Company used $73.7 million of the proceeds of the Offering to repay such obligations to Amresco and Goldman Sachs, including the $2.8 million prepayment penalty, and amended the terms of its loans to the Managed Affiliates to provide for an interest rate of 12.0% per annum. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." (c) Includes Initial Purchaser's fee ($4.2 million), legal, accounting, printing and other costs associated with the issuance of the Original Securities. (d) Represents cash available on a pro forma basis as of November 30, 1997. 36 CAPITALIZATION The following table sets forth the capitalization of the Company as of November 30, 1997 (a) on a historical basis, and (b) on a pro forma basis to give effect to the Transactions as if the Transactions had been consummated on November 30, 1997. This table should be read in conjunction with the Pro Forma Financial Statements and notes thereto and the separate historical combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill and notes thereto included elsewhere in this Offering Memorandum.
AS OF NOVEMBER 30, 1997 ----------------------- ACTUAL PRO FORMA ---------- ----------- (DOLLARS IN THOUSANDS) Cash and cash equivalents................................................................. $ 109 $ 22,639 ---------- ----------- ---------- ----------- 12% Senior notes due 2007................................................................. $ -- $ 94,461 Senior notes (a).......................................................................... 70,904 -- Other senior secured obligations.......................................................... 1,311 2,356 Mortgages and purchase money.............................................................. 1,049 876 Obligations under capital leases.......................................................... 868 506 Subordinated secured obligations.......................................................... 1,055 1,055 Appreciation Notes........................................................................ -- 2,349 Unsecured obligations..................................................................... 1,219 1,017 Incentive plan liability.................................................................. 4,700 4,700 ---------- ----------- Total long-term debt (including current maturities)................................... 81,106 107,320 Capital................................................................................... 8 7 Additional paid in capital................................................................ 1,793 1,793 Accumulated deficit....................................................................... (43,659) (42,326) ---------- ----------- Net capital deficiency (b)............................................................ (41,858) (40,526) ---------- ----------- Total capitalization.................................................................. $ 39,248 $ 66,794 ---------- ----------- ---------- -----------
(a) Interest only payable monthly at the rate of 10% per annum, due September 30, 1999. Additional interest accrues at the rate of 7.5% per annum, due September 30, 1999. (b) The net capital deficiency as of November 30, 1997 and the pro forma net capital deficiency as of November 30, 1997, reflect the declaration and payment of distributions in the amount of $12.2 million, $8.0 million in cash and $4.2 million for purposes of satisfaction of affiliate notes receivable. 37 PRO FORMA FINANCIAL INFORMATION The following unaudited pro forma condensed combined balance sheet of the Company gives effect to the Transactions as if they had occurred on November 30, 1997. The following unaudited condensed combined statements of operations for the year ended February 28, 1997 and the nine months ended November 30, 1997 give effect to the Transactions as if they had occurred March 1, 1996. The acquisitions which comprise part of the Transactions will be accounted for using the purchase method of accounting. The total cost of such acquisitions will be allocated to the tangible and intangible assets acquired and liabilities assumed based upon their respective fair values. The allocation of the respective purchase prices of such acquisitions included in the pro forma financial information is preliminary and is subject to revisions when additional information concerning certain asset valuations is obtained and such revisions could be material. The pro forma adjustments are based on available information and certain assumptions that the Company believes are reasonable under the circumstances. The pro forma financial information should be read in conjunction with the separate historical combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill, and related notes thereto, included elsewhere in this Prospectus. The unaudited pro forma condensed combined financial statements are presented for illustrative purposes only, and do not purport to be indicative of the results that actually would have been obtained had the Transactions occurred as of the assumed dates and for the periods presented, and are not intended to be a projection of future results or trends. 38 UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS YEAR ENDED FEBRUARY 28, 1997
ACQUISITIONS AND DISPOSITIONS-- COMPANY-- HISTORICAL PRO FORMA COMBINED PRO HISTORICAL (A) ADJUSTMENTS FORMA ------------ ------------ ------------ -------------- STATEMENT OF OPERATIONS DATA: Revenues: Broadcasting............................... $ 13,555,820 $(2,151,413) $ -- $ 11,404,407 Newspaper.................................. 13,440,395 2,330,070 -- 15,770,465 Management fees............................ 40,000 -- 200,000(k) 240,000 ------------ ------------ ------------ -------------- Total revenues........................... 27,036,215 178,657 200,000 27,414,872 Operating expenses: Operating departments...................... 19,042,885 317,397 (213,372)(g) 19,146,910 Incentive plan............................. 627,966 -- -- 627,966 Management fees............................ 1,944,699 (192,047) 116,504(e) 1,869,156 Time brokerage agreement fee, net.......... (54,500) 82,500 (28,000)(f) -- Consulting................................. 140,992 (22,992) (118,000)(f) -- Depreciation............................... 1,025,543 (180,082) (26,615)(h) 818,846 Amortization............................... 369,484 (83,929) 253,928(i) 539,483 ------------ ------------ ------------ -------------- Total operating expenses................. 23,097,069 (79,153) (15,555) 23,002,361 ------------ ------------ ------------ -------------- Operating income............................. 3,939,146 257,810 215,555 4,412,511 Other income (expense): Interest--Managed Affiliates............... -- -- 1,957,915(d) 1,957,915 Interest--stockholder and affiliates, net...................................... 246,909 133,937 (380,846)(l) -- Interest--other, net....................... (7,190,504) 961,656 (7,724,607)(b)(c)(j) (13,953,455) Amortization of deferred financing costs... (488,712) 76,348 (142,540)(b)(c) (554,904) Gain on sale of assets, net................ 1,076,181 (1,067,360) -- 8,821 Other, net................................. (68,689) 13,095 -- (55,594) ------------ ------------ ------------ -------------- Total other income (expense)............. (6,424,815) 117,676 (6,290,078) (12,597,217) ------------ ------------ ------------ -------------- Loss before income taxes..................... (2,485,669) 375,486 (6,074,523) (8,184,706) Income tax provision......................... 286,504 (14,300) -- 272,204 ------------ ------------ ------------ -------------- Net loss..................................... $ (2,772,173) $ 389,786 $ (6,074,523) $ (8,456,910) ------------ ------------ ------------ -------------- ------------ ------------ ------------ --------------
See Accompanying Notes to Unaudited Pro Forma Condensed Combined Statement of Operations 39 NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS YEAR ENDED FEBRUARY 28, 1997 (a) To reflect the inclusion of the results of operations of Clinton Distribution, Inc. ("Clinton") (acquisitions closed July, 1996) and Huron Postal Service, Inc. ("Huron") and Northeastern Printers, Inc. ("Northeastern") (acquisitions closed October, 1997) in the period prior to their respective acquisitions and combination with the Company. To reflect the elimination of the results of operations of radio stations KQWB-FM and KQFN-AM located in Fargo, North Dakota and Moorhead, Minnesota (sale closed August, 1996). To reflect the elimination of the results of operations of Central Missouri Broadcasting, Inc. and CMB II, Inc. in the period prior to their respective sales and dissolution with the Company. Applications for transfer of the broadcast licenses of the Missouri Properties have been filed with the FCC by the buyers. A local market competitor has objected to the transfer of the licenses and on December 12, 1997, filed with the FCC a Petition to Deny the license transfers and to terminate the Time Brokerage Agreement. No action has been taken on the Petition to Deny by the FCC and the Company believes that even if the Petition to Deny were granted, the consequences would not be material to the Company. The Attorney General of the State of Missouri on January 9, 1998 filed a civil investigative demand on the Company to provide documents in order to consider whether the proposed transaction would violate federal or Missouri antitrust laws. The Company has complied with the demand. (b) To reflect the elimination of interest expense in the amount of $5,891,548 and deferred financing amortization of $407,460 relating to the existing senior notes. (c) To reflect interest expense of $12,834,872 (at 12.2% assumed effective rate) associated with the Notes and $399,283 (at 17% assumed effective rate) associated with the Appreciation Notes and deferred financing amortization of $550,000. (d) To reflect a $16.3 million loan made during fiscal 1998 and related interest income at the assumed effective rate of 12% of $1,957,915 related to the Managed Affiliates (WSTO-FM, WVJS-AM and WKDQ-FM). (e) To reflect the additional management fee expense calculated at 5% of revenues in the period prior to the acquisition and combination with the Company for Clinton, Huron and Northeastern. (f) To reflect the elimination of time brokerage and consulting expenses recorded in operations for KTRR-FM prior to the acquisition and combination with the Company. (g) To reflect the elimination of operating expenses which represent prior owners' compensation and benefits totalling $213,372 of Huron and Northeastern prior to acquisition and combination with the Company. (h) To reflect depreciation expense for purchase accounting allocations made for the acquisitions based on preliminary allocations of consideration as follows:
KTRR-FM HURON AND NORTHEASTERN ------------------------- ------------------------ ALLOCATED PRO FORMA ALLOCATED PRO FORMA COST DEPRECIATION COST DEPRECIATION ----------- ------------ ---------- ------------ Property and equipment......................................... $ -- $ -- $ 275,000 $ 19,000 ----------- ---------- ----------- ---------- Less depreciation reported..................................... -- 45,615 ------------ ------------ Pro forma adjustment........................................... $ -- $ (26,615) ------------ ------------ ------------ ------------
40 NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS (CONTINUED) YEAR ENDED FEBRUARY 28, 1997 (i) To reflect amortization expense for purchase accounting allocations made for the acquisitions based on preliminary allocations of consideration as follows:
KTRR-FM HURON AND NORTHEASTERN -------------------------- -------------------------- ALLOCATED PRO FORMA ALLOCATED PRO FORMA COST AMORTIZATION COST AMORTIZATION ------------ ------------ ------------ ------------ FCC licenses and/or goodwill............................. $ 2,000,000 $ 50,000 $ 1,339,037 $ 33,476 Noncompete agreements.................................... 179,850 35,970 672,411 134,482 ------------ ------------ ------------ ------------ $ 2,179,850 85,970 $ 2,011,448 167,958 ------------ ------------ ------------ ------------ Less amortization reported............................... -- -- ------------ ------------ Pro forma adjustment..................................... $ 85,970 $ 167,958 ------------ ------------ ------------ ------------
(j) To reflect interest expense for Huron and Northeastern in the amount of $214,000 and KTRR-FM in the amount of $168,000 related to debt incurred to finance their respective acquisitions. (k) To reflect income from the Managed Affiliates Management Agreements with the Managed Affiliates prior to their respective effective dates of December 1, 1996 for the WSTO-FM and WVJS-AM stations and February 1, 1997 for the WKDQ-FM station. (l) To reflect the elimination of interest income from affiliate notes receivable satisfied through distributions to the Stockholder. 41 UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS NINE MONTHS ENDED NOVEMBER 30, 1997
ACQUISITIONS AND DISPOSITIONS-- COMPANY-- HISTORICAL PRO FORMA COMBINED HISTORICAL (A) ADJUSTMENTS PRO FORMA ------------ ------------ ------------ -------------- STATEMENT OF OPERATIONS DATA: Revenues: Broadcasting............................... $ 11,674,292 $(1,643,944) $ -- $ 10,030,348 Newspaper.................................. 11,120,715 1,251,816 -- 12,372,531 Management fees............................ 180,000 -- -- 180,000 ------------ ------------ ------------ -------------- Total revenues........................... 22,975,007 (392,128) -- 22,582,879 Operating expenses: Operating departments...................... 15,685,093 (247,440) (120,625)(g) 15,317,028 Incentive plan............................. 545,000 -- -- 545,000 Management fees............................ 1,598,431 (143,695) 62,591(e) 1,517,327 Time brokerage agreement fee, net.......... 36,000 -- (36,000)(f) -- Consulting................................. 180,994 (14,994) (166,000)(f) -- Depreciation............................... 772,720 (134,268) (5,367)(h) 633,085 Amortization............................... 525,165 (61,838) 162,454(i) 625,781 ------------ ------------ ------------ -------------- Total operating expenses................. 19,343,403 (602,235) (102,947) 18,638,221 ------------ ------------ ------------ -------------- Operating income............................. 3,631,604 210,107 102,947 3,944,658 Other income (expense): Interest--Managed Affiliates............... 1,220,225 -- 248,212(d) 1,468,437 Interest--stockholder and affiliates, net...................................... 193,318 93,391 (286,709)(k) -- Interest--other, net....................... (7,450,455) 879,928 (3,904,853)(b)(c)(j) (10,475,380) Amortization of deferred financing costs... (481,824) 81,388 (12,064)(b)(c) (412,500) Loss on sale of assets, net................ (6,592) -- -- (6,592) Other, net................................. (44,808) 9,238 -- (35,570) ------------ ------------ ------------ -------------- Total other income (expense)............. (6,570,136) 1,063,945 (3,955,414) (9,461,605) ------------ ------------ ------------ -------------- Loss before income taxes..................... (2,938,532) 1,274,052 (3,852,467) (5,516,947) Income tax provision......................... 102,750 9,275 -- 112,025 ------------ ------------ ------------ -------------- Net loss..................................... $ (3,041,282) $ 1,264,777 $ (3,852,467) $ (5,628,972) ------------ ------------ ------------ -------------- ------------ ------------ ------------ --------------
See Accompanying Notes to Unaudited Pro Forma Condensed Combined Statement of Operations 42 NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS NINE MONTHS ENDED NOVEMBER 30, 1997 (a) To reflect the inclusion of the results of operations of Huron and Northeastern in the period prior to their respective acquisitions and combination with the Company (acquisition closed October, 1997). To reflect the elimination of the results of operations of Central Missouri Broadcasting, Inc. and CMB II, Inc. in the period prior to their sale and dissolution with the Company. Applications for transfer of the broadcast licenses of the Missouri Properties have been filed with the FCC by the buyers. A local market competitor has objected to the transfer of the licenses and on December 12, 1997, filed with the FCC a Petition to Deny the license transfers and to terminate the Time Brokerage Agreements. No action has been taken on the Petition to Deny by the FCC, and the Company believes that, even if the Petition to Deny were granted, the consequences to the Company would not be material. The Attorney General of the State of Missouri on January 9, 1998 filed a civil investigative demand on the Company to provide documents in order to consider whether the proposed transaction would violate federal or Missouri antitrust laws. The Company has complied with the demand. (b) To reflect the elimination of interest expense in the amount of $6,271,597 and deferred financing amortization of $400,436 related to the existing senior notes. (c) To reflect interest expense of $9,626,154 (at 12.2% assumed effective rate) associated with the Notes and $299,463 (at 17% assumed effective rate) associated with the Appreciation Notes and deferred financing amortization of $412,500. (d) To reflect a $16.3 million loan made during fiscal 1998 and additional related interest income at the assumed effective rate of 12% of $248,212 related to the Managed Affiliates (WSTO-FM, WVJS-AM and WKDQ-FM). (e) To reflect the additional management fee expense calculated at 5% of revenues in the period prior to the acquisition and combination with the Company for Huron and Northeastern. (f) To reflect the elimination of time brokerage and consulting expenses recorded in operations for KTRR-FM prior to the acquisition and combination with the Company. (g) To reflect the elimination of operating expenses which represent prior owners' compensation and benefits totalling $120,625 of Huron and Northeastern prior to acquisition and combination with the Company. (h) To reflect depreciation expense for purchase accounting allocations made for the acquisitions based on preliminary allocations of consideration as follows:
KTRR-FM HURON AND NORTHEASTERN ---------------------------- -------------------------- ALLOCATED PRO FORMA ALLOCATED PRO FORMA COST DEPRECIATION COST DEPRECIATION ----------- --------------- ------------ ------------ Property and equipment....................................... $ -- $ -- $ 275,000 $ 11,083 ----- ------------ ----- ------------ Less depreciation reported................................... -- 16,450 ----- ------------ Pro forma adjustment......................................... $ -- $ (5,367) ----- ------------ ----- ------------
43 NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS (CONTINUED) NINE MONTHS ENDED NOVEMBER 30, 1997 (i) To reflect amortization expense for purchase accounting allocations made for the acquisitions based on preliminary allocations of consideration as follows:
KTRR-FM HURON AND NORTHEASTERN -------------------------- -------------------------- ALLOCATED PRO FORMA ALLOCATED PRO FORMA COST AMORTIZATION COST AMORTIZATION ------------ ------------ ------------ ------------ FCC licenses and/or goodwill............................. $2,000,000 $ 37,500 $1,339,037 $ 19,528 Noncompete agreements.................................... 179,850 26,978 672,411 78,448 ------------ ------------ ------------ ------------ $2,179,850 64,478 $2,011,448 97,976 ------------ ------------ ------------ ------------ Less amortization reported............................... -- -- ------------ ------------ Pro forma adjustment..................................... $ 64,478 $ 97,976 ------------ ------------ ------------ ------------
(j) To reflect interest expense for Huron and Northeastern in the amount of $124,833 and KTRR-FM in the amount of $126,000 related to debt incurred to finance their respective acquisitions. (k) To reflect the elimination of the interest income from affiliate notes receivable satisfied through distributions to the Stockholder. 44 UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET AS OF NOVEMBER 30, 1997
ACQUISITIONS AND COMPANY-- DISPOSITIONS-- PRO FORMA COMBINED HISTORICAL HISTORICAL(A) ADJUSTMENTS PRO FORMA ------------ ------------ ------------ -------------- ASSETS Current assets: Cash and cash equivalents.................. $ 109,155 $ 5,816,205 $16,713,211(b)(c)(d) $ 22,638,571 Accounts receivable, net of allowance for doubtful accounts........................ 4,026,176 (186,874) -- 3,839,302 Inventories................................ 483,374 -- -- 483,374 Other current assets....................... 412,553 (75,727) -- 336,826 ------------ ------------ ------------ -------------- Total current assets................... 5,031,258 5,553,604 16,713,211 27,298,073 Notes receivable from Managed Affiliates..... 15,423,339 -- 892,623(d) 16,315,962 Property and equipment....................... 17,383,715 (2,613,302) -- 14,770,413 Less accumulated depreciation................ (8,561,054) 1,844,659 -- (6,716,395) ------------ ------------ ------------ -------------- Net property and equipment............. 8,822,661 (768,643) -- 8,054,018 Goodwill and FCC licenses, net............... 6,670,508 1,253,221 -- 7,923,729 Covenants not to compete, net................ 3,650,786 99,960 -- 3,750,746 Other assets, net............................ 1,852,769 (150,790) 4,038,133(b)(c) 5,740,112 Other long term assets....................... 223,349 (214,672) -- 8,677 ------------ ------------ ------------ -------------- 12,397,412 987,719 4,038,133 17,423,264 ------------ ------------ ------------ -------------- Total assets................................. $ 41,674,670 $ 5,772,680 $21,643,967 $ 69,091,317 ------------ ------------ ------------ -------------- ------------ ------------ ------------ -------------- LIABILITIES AND NET CAPITAL DEFICIENCY Current liabilities: Short term notes........................... $ 500,000 $ -- $ -- $ 500,000 Due to affiliates.......................... 110,245 (2,845) -- 107,400 Accounts payable........................... 1,199,183 (112,287) -- 1,086,896 Other accrued expenses..................... 617,254 (13,692) -- 603,562 Current maturities of long-term obligations.............................. 745,855 (232,031) -- 513,824 ------------ ------------ ------------ -------------- Total current liabilities.............. 3,172,537 (360,855) -- 2,811,682 Long-term obligations: Senior notes............................... 70,904,166 -- 23,557,110(b)(c) 94,461,276 Secured seller obligations................. 1,311,138 1,045,217 -- 2,356,355 Mortgages and purchase money............... 1,048,712 (173,174) -- 875,538 Obligations under capital leases........... 868,267 (362,095) -- 506,172 Secured subordinated obligations........... 1,055,050 -- -- 1,055,050 Appreciation Notes......................... -- -- 2,348,724 2,348,724 Unsecured obligations...................... 1,218,900 (202,515) -- 1,016,385 Incentive plan liability................... 4,700,000 -- -- 4,700,000 Less current maturities of long-term obligations.............................. (745,855) 232,031 -- (513,824) ------------ ------------ ------------ -------------- 80,360,378 539,464 25,905,834 106,805,676 Capital deficiency: Capital.................................... 7,770 (1,100) -- 6,670 Additional paid-in capital................. 1,792,852 -- -- 1,792,852 Accumulated deficit........................ (43,658,867) 5,595,171 (4,261,867)(b) (42,325,563) ------------ ------------ ------------ -------------- Net capital deficiency................. (41,858,245) 5,594,071 (4,261,867) (40,526,041) ------------ ------------ ------------ -------------- $ 41,674,670 $ 5,772,680 $21,643,967 $ 69,091,317 ------------ ------------ ------------ -------------- ------------ ------------ ------------ --------------
See Accompanying Notes to Unaudited Pro Forma Condensed Combined Balance Sheet 45 NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET AS OF NOVEMBER 30, 1997 (a) To reflect the purchase of assets of KTRR-FM for $2 million and the sale of all of the operating assets of Central Missouri Broadcasting, Inc. and CMB II, Inc. for a net cash price of $7,419,000 and assumed liabilities of $256,000. The $2 million purchase price of KTRR-FM will be allocated to goodwill and FCC licenses. The acquisition will be financed with cash of $750,000 ($200,000 already on deposit) and a $1,250,000 note payable to the seller. The Company will also enter into a 5 year $500,000 covenant not to compete. In connection with the sale of the Missouri Properties, the Company will repay approximately $1.1 million of long-term debt. The pretax gain on the sale is expected to be approximately $5.5 million, net of related expenses. Applications for transfer of the broadcast licenses of the Missouri Properties have been filed with the FCC by the buyers. A local market competitor has objected to the transfer of the licenses and on December 12, 1997, filed with the FCC a Petition to Deny the license transfers and to terminate the TBA. No action has been taken on the Petition to Deny by the FCC, and the Company believes that, even if the Petition to Deny were granted, the consequences to the Company would not be material. The Attorney General of the State of Missouri on January 9, 1998 filed a civil investigative demand on the Company to provide documents in order to consider whether the proposed transaction would violate federal or Missouri antitrust laws. The Company has complied with the demand. (b) To reflect payment of the senior note in the amount of $70,904,166, related prepayment penalty of $2,800,000 and corresponding write-off of net book value of deferred financing costs of $1,461,867. (c) To reflect proceeds from the Notes and Appreciation Notes of $96,810,000 net of $5,500,000 to be applied towards deferred financing costs. The Appreciation Notes have been valued at an estimated fair value of $2,348,724 based on an assumed 17% discount rate and $3,000,000 payout on the first call date of June 15, 1999. (d) To reflect an additional loan of $892,623 to the Managed Affiliates (WSTO-FM, WVJS-AM, and WKDQ-FM). CASH TRANSACTIONS - ----------------------------------------------------------------------------------- Payment of senior note............................................... $(70,904,166) (see b) Payment of senior note--prepayment penalty........................... (2,800,000) (see b) Net proceeds from the Notes and Appreciation Notes................... 91,310,000 (see c) Loans to Managed Affiliates.......................................... (892,623) (see d) ------------ $ 16,713,211 ------------ ------------ ACCUMULATED DEFICIT TRANSACTIONS - ---------------------------------------------------------------------------------------------- Senior note--prepayment penalty...................................... $ 2,800,000 (see b) Write-off of deferred financing costs................................ 1,461,867 (see b) ------------ $ 4,261,867 ------------ ------------
46 SELECTED COMBINED FINANCIAL DATA The selected combined financial data presented below should be read in conjunction with the combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill and notes thereto included elsewhere in this Prospectus and "Management's Discussion and Analysis of Financial Condition and Results of Operations." The selected combined financial data (except for the other financial and operating data) of The Radio and Newspaper Businesses of Alan R. Brill (i) as of and for the years ended February 28, 1993 and 1994 have been derived from schedules which primarily include information from the separate audited combined financial statements of The Broadcasting Businesses of Alan R. Brill and the separate audited consolidated financial statements of Central Michigan Newspapers, Inc., (ii) as of and for the years ended February 28, 1995, February 29, 1996 and February 28, 1997 have been derived from the audited combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill and (iii) as of and for the nine months ended November 30, 1996 and 1997 have been derived from the unaudited condensed combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill. The selected pro forma data presented below should be read in conjunction with the information contained in the historical financial statements included elsewhere herein and "Pro Forma Financial Information."
HISTORICAL PRO FORMA --------------------------------------------------------------------------------- ------------ NINE MONTHS NINE MONTHS YEAR FISCAL YEAR ENDED FEBRUARY 28 OR 29 ENDED ENDED ENDED ----------------------------------------------------- NOVEMBER 30, NOVEMBER 30, FEBRUARY 28, 1993 1994 1995 1996 1997 1996 1997 1997 (A) --------- --------- --------- --------- --------- ------------ ------------ ------------ (DOLLARS IN THOUSANDS) STATEMENT OF OPERATIONS DATA: Revenues: Radio....................... $ 9,764 $ 10,961 $ 12,650 $ 13,096 $ 13,596 $ 10,483 $ 11,854 $ 11,644 Newspapers.................. 10,877 10,499 10,537 12,217 13,440 10,458 11,121 15,771 --------- --------- --------- --------- --------- ------------ ------------ ------------ Total revenues.......... 20,641 21,460 23,187 25,313 27,036 20,941 22,975 27,415 Operating expenses: Operating departments....... 16,644 16,352 17,530 18,640 19,043 14,641 15,685 19,147 Incentive plan.............. 25 176 634 1,467 628 471 545 628 Other....................... -- -- -- 37 86 17 217 -- Management fees............. 897 1,521 1,679 1,833 1,945 1,502 1,598 1,869 Depreciation and amortization.............. 1,306 1,277 1,111 1,312 1,395 1,022 1,298 1,358 --------- --------- --------- --------- --------- ------------ ------------ ------------ Total operating expenses.............. 18,872 19,326 20,954 23,289 23,097 17,653 19,343 23,002 --------- --------- --------- --------- --------- ------------ ------------ ------------ Operating income.............. 1,769 2,134 2,233 2,024 3,939 3,288 3,632 4,413 Other income (expense): Interest expense, net......... (4,484) (4,645) (5,842) (7,130) (7,432) (5,565) (6,519) (12,550) Other, net.................... (148) 3,463 (144) (80) 1,007 1,018 (51) (48) --------- --------- --------- --------- --------- ------------ ------------ ------------ Total other income (expense)............. (4,632) (1,182) (5,986) (7,210) (6,425) (4,547) (6,570) (12,598) --------- --------- --------- --------- --------- ------------ ------------ ------------ Income (loss) before income taxes and extraordinary item........................ (2,863) 952 (3,753) (5,186) (2,486) (1,259) (2,938) (8,185) Income tax provision (benefit)................... 112 168 68 (39) 286 121 103 272 --------- --------- --------- --------- --------- ------------ ------------ ------------ Income (loss) before extraordinary item.......... (2,975) 784 (3,821) (5,147) (2,772) (1,380) (3,041) (8,457) Extraordinary item (b)........ -- 245 -- 6,915 -- -- -- -- --------- --------- --------- --------- --------- ------------ ------------ ------------ Net income (loss)............. $ (2,975) $ 1,029 $ (3,821) $ 1,768 $ (2,772) $ (1,380) $ (3,041) $ (8,457) --------- --------- --------- --------- --------- ------------ ------------ ------------ --------- --------- --------- --------- --------- ------------ ------------ ------------ OTHER FINANCIAL AND OPERATING DATA: Net cash provided by (used in) Operating activities........ $ 810 $ 79 $ 920 $ 37 $ (513) $ (1,500) $ 654 $ na Investing activities........ (363) (3,377) (120) (1,167) 59 940 (15,035) na Financing activities........ 59 3,377 (452) 2,654 (845) (948) 13,715 na Cash dividends declared....... 60 500 -- -- 520 -- 12,215 na Media Cashflow (c)............ 3,997 5,108 5,657 6,673 7,993 6,300 8,510 10,226 EBITDA (c).................... 3,075 3,411 3,344 3,336 5,334 4,310 4,930 5,771 Capital expenditures excluding acquisitions................ 410 833 974 977 1,269 543 610 1,336 Net interest expense (d)...... 12,721 Net cash interest expense (e)................. 7,362 Net debt (f).................. 79,981 Ratio of Media Cashflow to net interest expense............ 0.80x Ratio of Media Cashflow to net cash interest expense....... 1.39x Ratio of net debt to Media Cashflow (f)................ 7.82x Ratio of earnings to fixed charges (h)................. -- 1.20x -- -- -- -- -- -- NINE MONTHS ENDED NOVEMBER 30, 1997 (A) ------------- STATEMENT OF OPERATIONS DATA: Revenues: Radio....................... $ 10,210 Newspapers.................. 12,373 ------------- Total revenues.......... 22,583 Operating expenses: Operating departments....... 15,317 Incentive plan.............. 545 Other....................... -- Management fees............. 1,517 Depreciation and amortization.............. 1,259 ------------- Total operating expenses.............. 18,638 ------------- Operating income.............. 3,945 Other income (expense): Interest expense, net......... (9,420) Other, net.................... (42) ------------- Total other income (expense)............. (9,462) ------------- Income (loss) before income taxes and extraordinary item........................ (5,517) Income tax provision (benefit)................... 112 ------------- Income (loss) before extraordinary item.......... (5,629) Extraordinary item (b)........ ------------- Net income (loss)............. $ (5,629) ------------- ------------- OTHER FINANCIAL AND OPERATING DATA: Net cash provided by (used in) Operating activities........ $ na Investing activities........ na Financing activities........ na Cash dividends declared....... na Media Cashflow (c)............ 8,734 EBITDA (c).................... 5,204 Capital expenditures excluding acquisitions................ 601 Net interest expense (d)...... 9,551 Net cash interest expense (e)................. 5,532 Net debt (f).................. 79,981 Ratio of Media Cashflow to net interest expense............ 0.91x Ratio of Media Cashflow to net cash interest expense....... 1.58x Ratio of net debt to Media Cashflow (f)................ 6.87x(g) Ratio of earnings to fixed charges (h)................. --
47
PRO FORMA ------------- AS OF AS OF AS OF AS OF FEBRUARY 28 OR 29 NOVEMBER 30, NOVEMBER 30, NOVEMBER 30, ----------------------------------------------------- ------------- ------------- ------------- 1993 1994 1995 1996 1997 1996 1997 1997 (A) --------- --------- --------- --------- --------- ------------- ------------- ------------- (DOLLARS IN THOUSANDS) STATEMENT OF FINANCIAL POSITION DATA: Cash and cash equivalents....... $ 104 $ 202 $ 550 $ 2,075 $ 775 $ 567 109 $ 22,639 Working capital (deficit)....... (3,469) (1,881) (334) 2,398 1,014 2,227 1,859 24,486 Intangible assets............... 4,103 5,219 5,099 7,374 7,583 7,547 12,174 17,415 Total assets.................... 16,454 21,938 21,784 26,011 26,442 27,674 41,675 69,091 Total debt including due to affiliates (i)................ 49,796 55,160 58,715 61,636 50,475 49,782 81,106 107,320 Net capital deficiency (j)...... (37,153) (36,302) (40,123) (38,354) (26,610) (27,838) (41,858) (40,526)
- ------------------------ (a) The pro forma statement of operations and other financial and operating data for the year ended February 28, 1997 and for the nine months ended November 30, 1997 give effect to the Transactions as if they occurred March 1, 1996. The pro forma statement of financial position data give effect to the Transactions as if they had occurred on November 30, 1997. See "Pro Forma Financial Information." (b) The extraordinary item in fiscal 1996 reflects an adjustment of accrued interest in the amount of $7.0 million related to subordinated debt for which contingent interest had been accrued at the maximum rate but was reduced at maturity pursuant to terms of an alternative valuation formula, as defined in the agreement. The gain was offset by the write-off of certain previously deferred financing fees of $131,000. (c) "EBITDA" is defined as operating income before depreciation and amortization expenses. "Media Cashflow" is defined as EBITDA plus management fees, incentive plan expense, time brokerage agreement fees, acquisition related consulting expense and interest income from loans made by the Company to Managed Affiliates. Management fees payable to BMCLP are subordinated, to the extent provided in the Indenture, to the prior payment of the Issuer's obligations on the Notes. Although Media Cashflow and EBITDA are not measures of performance calculated in accordance with GAAP, management believes that these measures are useful to an investor in evaluating the Company because these measures are widely used in the media industry to evaluate a media company's operating performance. However, Media Cashflow and EBITDA should not be considered in isolation or as substitutes for net income, cash flows from operating activities and other income or cash flow statements prepared in accordance with GAAP as measures of liquidity or profitability. In addition, "EBITDA" and "Media Cashflow" as determined by the Company may not be comparable to related or similar measures as reported by other companies and do not represent funds available for discretionary use. (d) Reflects interest expense on the Notes and Appreciation Notes and on other debt and capitalized leases. Net interest expense excludes $555,000 and $413,000 in non-cash amortization of deferred financing fees for the year ended February 28, 1997 and the nine months ended November 30, 1997, respectively. Net interest expense is also net of expected interest income, calculated at 5.5% on excess proceeds from the Transactions estimated to be $22.4 million at November 30, 1997, of $1,232,000 and $924,000 for the year ended February 28, 1997 and the nine months ended November 30, 1997, respectively. (e) Reflects interest expense on the Notes and Appreciation Notes and on other debt and capitalized leases. Net cash interest expense excludes $555,000 and $413,000 in non-cash amortization of deferred financing fees for the year ended February 28, 1997 and nine months ended November 30, 1997, respectively and also excludes interest accrued at the effective rate of 12.2%, which is in excess of the current pay rate of 7.5% in each of years one and two by $4,960,000 ($3,720,000 for nine months) and excludes interest on the Appreciation Notes accreted at 17% totaling $399,000 for the year ended February 28, 1997 ($299,000 for nine months). Net cash interest expense is also net of expected interest income, calculated at 5.5% on excess proceeds from the Transactions estimated to be $22.4 million at November 30, 1997, of $1,232,000 and $924,000 for the year ended February 28, 1997 and nine months ended November 30, 1997, respectively. (f) Net debt includes total debt less the incentive plan liability and less cash and cash equivalents, all as of November 30, 1997, as significant portions of the cash and cash equivalents are held for future acquisitions. (g) For purposes of this ratio the Media Cashflow for the nine months ended November 30, 1997 has been annualized. No assurance can be provided that such results will be achieved. (h) For purposes of this calculation, earnings are defined as income (loss) before income taxes and extraordinary item and fixed charges. Fixed charges are the sum of (i) interest costs (including the interest portion of operating leases) and (ii) amortization of deferred financing costs. Earnings were inadequate to cover fixed charges by approximately $2,863,000, $3,753,000, $5,186,000, $2,486,000, $1,259,000, $2,938,000, $8,185,000 and $5,517,000 for the historical fiscal years 1993, 1995, 1996, 1997, the historical nine months ended November 30, 1996 and 1997, the pro forma year ended February 28, 1997 and the pro forma nine months ended November 30, 1997, respectively. (i) Total debt including due to affiliates includes the senior note, obligations under capital leases, unsecured and subordinated obligations, debt due to affiliates and, on a pro forma basis, the Notes and Appreciation Notes. (j) The net capital deficiency as of November 30, 1997 and the pro forma net capital deficiency as of November 30, 1997 reflect the declaration and payment of distributions in the amount of $12.2 million, $8.0 million in cash and $4.2 million for purposes of satisfaction of affiliate notes receivable. 48 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS GENERAL The following discussion and analysis of the financial condition and results of operations of the Company should be read in conjunction with the combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill and notes thereto included elsewhere in this Prospectus. This Prospectus contains forward-looking statements, including statements regarding, among other items, (i) the realization of the Company's business strategy, (ii) the sufficiency of cashflow to fund the Company's debt service requirements and working capital needs and (iii) anticipated trends in the radio broadcasting and newspaper industries. Forward-looking statements are typically identified by the words "believe," "expect," "anticipate," "intend," "estimate" and similar expressions. These forward-looking statements are subject to a number of risks and uncertainties, many of which are beyond the Company's control. Actual results could differ materially from those contemplated by these forward-looking statements as a result of factors including those described herein. In light of these risks and uncertainties, there can be no assurance that the results and events contemplated by the forward-looking information contained in this Prospectus will in fact transpire. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of their dates. The Company undertakes no obligation to update or revise any forward-looking statements. See "Risk Factors." BMC was organized in 1997 to be an Issuer of the Notes and to own numerous companies (C-corporations, S-corporations, limited partnerships and limited liability companies) that were previously owned separately by Mr. Brill. The Subsidiaries include various radio, newspaper and related businesses. The Stations own and operate FM and AM radio stations in Pennsylvania, Colorado, Indiana/Kentucky, Minnesota/Wisconsin, and Missouri. The Newspapers own and operate a daily and numerous weekly publications in Michigan along with printing and advertising distribution businesses. The historical financial statements of The Radio and Newspaper Businesses of Alan R. Brill included elsewhere in this Prospectus include the financial position and results of operations of the Subsidiaries on a combined basis. The Stations' revenues are derived primarily from advertising revenues. In general, each Station receives revenues for advertising sold for placement within the Station's programming. Advertising is sold in time increments and is priced primarily based on a Station's program's popularity within the demographic group an advertiser desires to reach, as well as quality of service provided to the customer, creativity in marketing the client's products and services, the personal relationship between the Station's account executive and the client, and the client's view of the popularity of the Station among its target customer base. In addition, advertising rates are affected by the number of advertisers competing for available time, the size and demographic make-up of the markets served by the Stations and the availability of alternative advertising media in the market area. Rates are highest during the most desirable listening hours, with corresponding reductions during other hours. During the year ended February 28, 1997, over 90% of the Stations' revenues were generated from local advertising, which is sold primarily by a Station's sales staff. The remainder of the advertising revenues represent national advertising and network compensation payments. In addition to any commissions paid to its sales staff, the Stations generally pay commissions to advertising agencies on local and national advertising and to sales representation firms on national advertising. The advertising revenues of a Station generally are highest in the second and fourth calendar quarters of each year, due in part to increases in consumer advertising in the spring and retail advertising in the period leading up to and including the holiday season. During the year ended February 28, 1997, no single customer in any of the Stations' markets provided more than 2% of the Company's revenues. In the broadcasting industry, radio stations often utilize trade (or barter) agreements to exchange advertising time for goods or services (such as other media advertising, travel or lodging), in lieu of cash. In 49 order to preserve most of its on-air inventory for cash advertising, the Company generally enters into trade agreements only if the goods or services bartered to the Company will be used in the Company's business. The Company has minimized its use of trade agreements and has sold over 90% of its advertising time for cash for the year ended February 28, 1997. In addition, it is the Company's general policy not to pre-empt advertising spots paid for in cash with advertising spots paid for in trade. Each Station's financial results depend on a number of factors, including the general strength of the local and national economies, population growth, the ability to provide popular programming, local market and regional competition, the relative efficiency of radio broadcasting compared to other advertising media, signal strength and government regulation and policies. The Newspapers' revenues are derived primarily from advertising and subscription revenues and to a lesser extent, from printing revenues. In general, newspaper publications receive revenue for advertising sold to reach readership within its geographical distribution area and its customers' marketing areas. The combined coverage and timing of the numerous weekly publications and the daily publications provide the Newspapers with flexibility and efficiencies to create a competitive advantage in attracting advertisers. As an inducement to its customers, the Newspapers offer advertisers more efficient buys when they purchase ad placement in multiple publications. The Newspapers have a widely diversified customer base, and for the year ended February 28, 1997, no single customer of the Newspapers represented more than 2% of the Company's revenues. The Newspapers' financial results are dependent on a number of factors, particularly those that impact local retail sales, including the general strength of the local and national economies, population growth, local and regional market competition and the perceived relative efficiency of newspapers compared to other advertising media. The following table sets forth the percentage of revenues generated by the Company's Stations and Newspapers.
YEAR ENDED FEBRUARY 28 OR 29, --------------------------------------------------------------- REVENUES 1993 1994 1995 1996 1997 - -------------------------------------------------------- ----- ----- ----- ----- ----- Stations................................................ 47% 51% 55% 52% 50% Newspapers.............................................. 53 49 45 48 50 --- --- --- --- --- 100 100 100 100 100 --- --- --- --- --- --- --- --- --- --- NINE MONTHS ENDED REVENUES NOVEMBER 30, 1997 - -------------------------------------------------------- --------------------- Stations................................................ 52% Newspapers.............................................. 48 --- 100 --- ---
The primary operating expenses incurred in the ownership and operation of the Stations include employee salaries and commissions, programming expenses and advertising and promotion expenses. For the Newspapers the primary operating expenses are employee salaries and commissions, newsprint and delivery charges. The Company also incurs and will continue to incur significant depreciation, amortization and interest expense as a result of completed and future acquisitions of radio stations and newspapers and due to existing borrowings and future borrowings, including the Notes and any borrowings under the New Credit Facility. The combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill tend not to be directly comparable from period to period due to the Company's acquisition activity. INCOME TAXES The Company includes "C" corporations, "S" corporations, limited partnerships and limited liability companies. The taxable income or loss for federal and state income tax purposes of the S Corporations, limited partnerships and limited liability companies is passed through to the stockholders, partners and members, respectively. The "C" corporations are in loss carryforward positions at February 28, 1997 for income tax purposes. Accordingly, the Company will not have a statutory rate income tax provision for the entire group due to the tax consequences of the individual companies. 50 IMPACT OF YEAR 2000 The Company has developed a plan to modify its information technology to recognize the year 2000 and has identified critical data processing systems which will be replaced with new systems. The Company expects the project to be substantially complete by 1999 and the cost is not expected to be material as a portion of the upgrades are covered by software support agreements with the vendors. The Company does not expect the project to have a significant effect on its operations. RESULTS OF OPERATIONS NINE MONTHS ENDED NOVEMBER 30, 1997 COMPARED TO NINE MONTHS ENDED NOVEMBER 30, 1996. Revenues for the nine months ended November 30, 1997 totaled $23.0 million, a 10.0% increase over $20.9 million for the nine months ended November 30, 1996. Of this $2.1 million increase, the Stations contributed $1.4 million and the Newspapers contributed approximately $700,000. The Stations' revenues for the nine months ended November 30, 1997 totaled $11.9 million, a 13.1% increase compared to the nine months ended November 30, 1996, due to the development of new Stations in Minnesota, Missouri and Colorado, which increased revenues by approximately $1,060,000 and revenue growth of the existing Stations which increased by $312,000 due to increased demand for advertising at those Stations. Operating expenses for the nine months ended November 30, 1997 totaled $19.3 million, an increase of $1.6 million or 9.0% over $17.7 million for the nine months ended November 30, 1996, primarily due to increases in operating department expenses, incentive plan expenses, other operating expenses, management fees and amortization expense. Operating department expenses increased $1,044,000 largely due to the commencement of operations at the newly acquired Stations described above and a newly acquired Newspaper. Incentive plan expenses increased $74,000 in connection with improvements in performance at certain Subsidiaries which increased incentive plan accruals under the performance incentive plan. Other operating expenses increased $200,000 due to consulting and Time Brokerage Agreement payments for a radio station in Colorado partially offset by other operating income in connection with a Time Brokerage Agreement for radio stations in Fargo, North Dakota and Moorhead, Minnesota ("Fargo/Moorhead"), which were sold in August 1996. Management fees increased $96,000 due to increased revenues during the period. Amortization expense increased by $241,000 due mainly to amortization of a non-compete agreement entered into in July 1997. Operating income for the nine months ended November 30, 1997 totaled approximately $3.6 million, a 9.1% increase over $3.3 million for the nine months ended November 30, 1996, primarily due to increased revenues. Interest expense, net for the nine months ended November 30, 1997 totaled $6.5 million, an increase of $953,000 or 17.0% over $5.6 million for the nine months ended November 30, 1996, due to increased borrowing levels to fund acquisitions and capital expenditures as well as higher effective interest rates during the period. Other income, net for the nine months ended November 30, 1996 of $1.1 million includes the $1.1 million gain on the sale of the Fargo/Moorhead stations. YEAR ENDED FEBRUARY 28, 1997 COMPARED TO YEAR ENDED FEBRUARY 29, 1996. Revenues for the year ended February 28, 1997 totaling $27.0 million increased $1.7 million or 6.8% from $25.3 million for the year ended February 29, 1996. The Stations' revenues totaled $13.6 million, an increase of $500,000 or 3.8% from $13.1 million for the prior period, and the Newspapers' revenues totaled $13.4 million, an increase of $1.2 million or 10% from $12.2 million for the prior period. The increase in the Stations' revenues can be attributed primarily to overall revenue growth of $1.4 million or 11.4% in connection with continuing operations which was partially offset by the loss of revenues of $895,000 for stations in Fargo/Moorhead which were sold in 1996. 51 Operating expenses for the year ended February 28, 1997 totaled $23.1 million, a decrease of $192,000 or 0.8% from $23.3 million for the year ended February 29, 1996. This decrease was primarily attributed to a $839,000 decrease in incentive plan expense in connection with a lower rate of operating performance growth at certain Subsidiaries, offset by increased operating department expenses of $403,000 due primarily to additional operating expenses of acquired companies which more than offset the reductions of operating expenses on the other companies including the Fargo/Moorhead stations sold in 1996 and increased management fees of $112,000, resulting from increased revenues. Operating income for the year ended February 28, 1997 totaling $3.9 million increased $1.9 million or 94.6% from $2.0 million for the year ended February 29, 1996. This increase was due primarily to increased operating revenues and decreased charges for incentive plan expense as noted previously. Interest expense, net for the year ended February 28, 1997 totaled $7.4 million, an increase of $302,000 or 4.2% over $7.1 million for the year ended February 29, 1996, due to increased borrowing levels to fund the acquisition of Stations located in Missouri and Minnesota and the acquisition of a Newspaper in Michigan as well as higher effective interest rates during the period. Other income, net for the six months ended August 31, 1996 of $1.0 million includes the $1.1 million gain on the sale of the Fargo/Moorhead stations. The extraordinary item in fiscal 1996 reflects an adjustment of accrued interest in the amount of $7.0 million related to subordinated debt for which contingent interest had been accrued at the maximum rate but was reduced at maturity pursuant to terms of an alternative valuation formula, as defined in the agreement. The gain was partially offset by the write-off of certain previously deferred financing fees of $131,000. YEAR ENDED FEBRUARY 29, 1996 COMPARED TO YEAR ENDED FEBRUARY 28, 1995 Revenues for the year ended February 29, 1996 totaling $25.3 million increased $2.1 million, or 9.2% from $23.2 million for the year ended February 28, 1995. The Stations' revenues increased $446,000 or 3.5% from $12.7 million for the prior period, and the Newspapers' revenues increased $1.7 million, or 15.9% from $10.5 million for the prior period. The net increase in the Stations' revenues was composed primarily of additional revenues from the acquisition of Stations in Missouri and Minnesota. The increase in the Newspapers' revenues resulted primarily from operating growth and price increases passed through to customers due to increased newsprint costs. Operating expenses for the year ended February 29, 1996 totaled $23.3 million, an increase of $2.3 million or 11.1% over $21.0 million for the year ended February 28, 1995 primarily due to increases in operating department expenses, incentive plan expenses and management fees. Operating department expenses for fiscal 1996 increased $1.1 million, or 6.3%, from $17.5 million for fiscal 1995. This increase results primarily from increased newsprint costs, additional operating expenses of three new Stations and increased promotional and other expenses due to a new direct competitor in Duluth, Minnesota. Incentive plan expense for fiscal 1996 increased $833,000 from $634,000 for fiscal 1995, in connection with improvements in the performance at certain Subsidiaries which increased incentive plan accruals under the performance incentive plan. Management fees in fiscal 1996 increased $154,000 or 9.2% from $1.7 million in fiscal 1995 due to a corresponding increase in operating revenues in fiscal 1996. Depreciation and amortization for the year ended February 29, 1996 totaled $1.3 million, a $201,000 increase over $1.1 million for the year ended February 28, 1995 due to the acquisitions of stations in Minnesota and Missouri and increased capital expenditures in fiscal 1995. Operating income for fiscal 1996 totaled $2.0 million, a decrease of $209,000, or 9.4% from $2.2 million in fiscal 1995. This decrease was due primarily to increased charges for incentive plan expense noted above. 52 Interest expense for the year ended February 29, 1996 increased $1.3 million, or 22.1%, over $5.8 million for the year ended February 28, 1995 due to increased borrowings to finance the acquisitions in Missouri and Minnesota and an increase in interest accruals on subordinated debt. The extraordinary item in fiscal 1996 reflects an adjustment of accrued interest in the amount of $7.0 million related to subordinated debt, for which contingent interest had been accrued at the maximum rate but was reduced at maturity pursuant to the terms of an alternative valuation formula, as defined in the agreement. The gain was partially offset by a write-off of certain previously deferred financing fees of $131,000. LIQUIDITY AND CAPITAL RESOURCES The Company's primary liquidity needs are to fund capital expenditures, provide working capital, meet debt service requirements and make acquisitions. The Company's principal sources of liquidity are expected to be cashflow from operations, excess proceeds from borrowings under the Notes and the New Credit Facility, and consummation of the sale of the Missouri Properties. Generally the Company's operating expenses are paid more quickly than its advertising revenues are collected. As a result of this time lag, working capital requirements have increased as the Company has grown and will likely increase further in the future. Net cash provided by (used in) operating activities was $(513,000), $37,000 and $920,000 for the years ended February 28, 1997, February 29, 1996 and February 28, 1995, respectively. The decrease in cash provided from operating activities over the three years resulted primarily from increased payments for management fees and interest. Net cash provided by (used in) operating activities was $654,000 and ($1,500,000) for the nine months ended November 30, 1997 and 1996, respectively. The improvement in the 1997 period is primarily the result of improvements in operations and reduced payments for management fees. Net cash provided by (used in) investing activities was $59,000, ($1,167,000), and $120,000 for the years ended February 28, 1997, February 29, 1996 and February 28, 1995, respectively. The cash generated in 1997 compared to the cash used in 1996 is due to the $1.9 million of proceeds on the sale of a radio station in 1997 offset by increased capital expenditures and loans to managed affiliates. The 1995 balance benefited from the increase in restricted cash balances. Net cash provided by (used in) investing activities was ($15,035,000) and $940,000 for the nine months ended November 30, 1997 and 1996, respectively. The uses in 1997 consisted primarily of $14.6 million in loans to Managed Affiliates and $3.0 million in payment of a non-competition agreement, neither of which occured in 1996, offset by radio station sales proceeds of $1.9 million in 1996. Net cash provided by (used in) financing activities was ($845,000), $2,654,000 and ($452,000) for the years ended February 28, 1997, February 29, 1996 and February 28, 1995, respectively. The cash provided in 1996 is basically attributable to higher net borrowings during the period as compared to other years. Net cash provided by (used in) financing activities was $13,715,000 and ($948,000) for the nine months ended November 30, 1997 and 1996, respectively. The additional proceeds in the 1997 period were generated from additional borrowings of $26.8 million offset by $12.2 million of dividends. The Company loaned approximately $900,000 of the proceeds of the Offering to Managed Affiliates and received in return therefor Managed Affiliate Notes which are unsecured, mature on January 1, 2001 and bear interest at a rate of 12% per annum. Such amounts are in addition to the $15.4 million already loaned by the Company to the Managed Affiliates at November 30, 1997. The proceeds of such loans were used by the Managed Affiliates to purchase property, equipment, and intangibles and to provide working capital for operations. It is anticipated that similar relationships may be initiated with other affiliates in the future. The aggregate amount of Managed Affiliate Notes may not exceed $20 million unless the Issuer 53 first obtains a written opinion of an independent investment bank of nationally recognized standing that such transaction is fair to the Issuer from a financial point of view. The sale of the Original Securities resulted in refinancing the Company's indebtedness with Amresco and Goldman Sachs. Because of a reduction in the interest rate, the Company's cash interest requirements will increase only marginally for each of the first two years following the sale of the Original Securities, even with a substantial increase in the Company's overall debt. Additionally, the added borrowings and completion of the Transactions resulted in approximately $22.4 million of excess cash on a pro forma basis as of November 30, 1997. In addition to its debt service obligations, the Company will require liquidity for capital expenditures and working capital needs. Capital expenditures in fiscal 1997 totaled approximately $1,269,000 of which approximately $337,000 related to existing Station operations and approximately $932,000 related to existing Newspaper operations. The Newspaper expenditures, which were financed with insurance proceeds, included approximately $500,000 to replace fire damaged property. The Company has budgeted $900,000 for capital expenditures of existing operations in fiscal 1998, approximately $610,000 of which had been expended as of November 30, 1997. Of the budgeted fiscal 1998 expenditures, approximately $450,000 are dedicated to Stations and $450,000 to Newspapers. The Company anticipates that capital expenditures in fiscal 1999 and fiscal 2000 will approximate $600,000 each year for existing properties. The Indenture limits the Company's ability to incur additional indebtedness. In addition to certain other permitted Indebtedness, the Indenture permits the Company to incur Indebtedness under revolving credit facilities. Limitations in the Indenture on the Company's ability to incur additional Indebtedness, together with the highly leveraged nature of the Company, could limit operating activities, including the Company's ability to respond to market conditions, to provide for unanticipated capital investments or to take advantage of business opportunities. However, the Company believes that its significant cash balances will currently enable it to continue significant growth through acquisitions as well as provide ample working capital for contingencies. See "Description of Notes--Certain Covenants." The Company believes that its cash on hand and cashflow from operations will be sufficient to enable the Company to meet all of its cash operating requirements for the next twelve months. SEASONALITY The advertising revenues of the Company generally are lowest in the first calendar quarter and highest in the second and fourth calendar quarters of each year, due in part to increases in consumer advertising in the spring and retail advertising in the period leading up to and including the holiday season. INFLATION The Company believes that inflation affects its business no more than it generally affects other similar businesses. 54 BUSINESS THE COMPANY The Company is a diversified media enterprise that acquires, develops, manages, and operates radio stations, newspapers and related businesses in middle markets. The Company presently owns, operates, or manages fifteen radio stations serving five markets located in Pennsylvania, Kentucky/Indiana, Colorado, Minnesota/Wisconsin, and Missouri, including three radio stations located in the Kentucky/Indiana market that are owned by Managed Affiliates. The group of Stations and Managed Affiliates' stations operated by the Company in each market holds a first or second ranking in both combined audience ratings and combined revenues, compared to other groups, in such market. In addition, in each of its markets, the Stations and Managed Affiliates' stations individually have at least one of the top two rankings in both audience ratings and revenues. The Newspapers operate integrated newspaper publishing, printing and print advertising distribution operations, providing total-market print advertising coverage throughout a seventeen-county area in central Michigan. This operation offers a two-edition daily newspaper, thirteen weekly publications, a web offset printing operation for Newspapers' publications and outside customers, and a private distribution company. The Company, each of its Subsidiaries, BMCLP and the Managed Affiliates are wholly owned directly or indirectly by Mr. Brill, who founded the business and began its operations in 1981. For the year ended February 28, 1997, the Company's pro forma combined revenues, net loss and Media Cashflow, excluding the Missouri Properties which are under contract to be sold (see "Recent or Pending Transactions"), were $27.4 million, $8.5 million and $10.2 million, respectively. For the nine months ended November 30, 1997, such pro forma combined revenues, net loss and Media Cashflow were $22.6 million, $5.6 million and $8.7 million, respectively. The financial statements of the Managed Affiliates are not combined with those of the Company. Historically, the Company has focused on media properties located in middle markets, which the Company believes offer greater opportunities than larger markets to build and maintain consistently high market and revenue shares at reasonable costs. The Company believes its markets are generally less competitive than major markets and are characterized by a limited number of direct competitors, local owner/operators that are less sophisticated and have less financial resources, and fewer alternative advertising media. In such markets, the Company is able to target broader demographic groups and to sell its advertising to a wider customer base than in major markets. The Company believes that, relative to larger markets, a higher percentage of revenues in middle markets is derived from local advertising and therefore a correspondingly higher portion of its revenues can be directly generated by its own sales efforts. The Company believes that local advertisers in middle markets often make advertising decisions based primarily on customer relationships and service and advertising results. The Company's primary focus is to provide high-quality customer service with promotional activities that yield results for advertisers and to build and maintain superior local advertiser relationships. The Company's overall operations, including its sales and marketing strategy, long-range planning, and management support services are managed by BMCLP, a limited partnership indirectly owned by Mr. Brill (see "Certain Transactions"). The management support provided by BMCLP has been a key element in the Company's ability to achieve significant increases in Media Cashflow at each of its properties following their acquisition. Each of the Company's properties is managed on a day-to-day basis by an experienced local president/general manager. As of September 30, 1997, the Company had a workforce of approximately 340 full-time and 100 part-time employees, none of whom is unionized. The principal executive offices of the Company are located at 420 N.W. Fifth Street, Evansville, Indiana 47708, and its telephone number is (812) 423-6200. 55 RADIO PROPERTY OVERVIEW In each of its markets, the Company's Stations and the Managed Affiliates' stations as a group hold at least one of the top two rankings in both combined audience ratings and combined revenues. Furthermore, in each of its markets the Company's Stations and the Managed Affiliates' stations individually hold at least one of the top two audience and revenues rankings. Set forth below is a list of the Stations and the Managed Affiliates' stations specifying their broadcasting frequency, FCC class, format, control, market, market rank and group rank by ratings and revenues.
STATION GROUP STATION ARBITRON RANK FCC OWNED/ MARKET -------------------------- FREQUENCY CLASS FORMAT MANAGED MARKET(S) RANK RATINGS REVENUES - ---------------------- --------- ----------- ------------ --------------------- ----------- --------- --------------- - ---------------------- WIOV-FM 105.1 FM-B Country Owned Lancaster, PA(1) 110 1 1 Reading, PA 130 2 2 WBKR-FM 92.5 FM-C Country Owned Evansville, IN 125(2) 1 1 WKDQ-FM 99.5 FM-C Country Managed(3) and Owensboro/ WSTO-FM 96.1 FM-C Adult Hits Managed(3) Henderson, KY WOMI-AM 1490 AM-C News/Talk Owned WVJS-AM 1420 AM-B News/Talk Managed(3) KTRR-FM 102.5 FM-C2 Adult Hits Managed(4) Fort Collins/ 135 1 1 KUAD-FM 99.1 FM-C1 Country Owned Greeley/ Loveland, CO KKCB-FM 105.1 FM-C1 Country Owned Duluth, MN/ 207 1 1 KLDJ-FM 101.7 FM-C2 Oldies Owned Superior, WI WEBC-AM 560 AM-B News/Talk Owned KATI-FM 94.3 FM-C2 Country Owned(5) Jefferson City/ NR(6) 2 2 KTXY-FM 106.9 FM-C Adult Hits Owned(5) Columbia/ KLIK-AM 950 AM-B Country Owned(5) Lake of the Ozarks, MO
- -------------------------- (1) WIOV-FM serves both Lancaster and Reading. The Company also owns and operates WIOV-AM, an AM-C station in Reading. Ratings and revenues ranks for WIOV-FM include WIOV-AM. (2) The Company estimates that on a combined basis the Evansville/Owensboro/Henderson market would have an Arbitron rank of 125 based on separate rankings of 151 and 255 for Evansville and Owensboro, respectively. (3) WKDQ-FM, WSTO-FM and WVJS-AM are owned by Managed Affiliates. (4) The Company manages KTRR-FM pursuant to a Time Brokerage Agreement pending completion of its acquisition. (5) The Missouri Properties are under contract for sale. See "Certain Transactions." Accordingly, the pro forma financial statements presented herein do not include the operating results of such stations. (6) The Jefferson City/Columbia/Lake of the Ozarks, Missouri market is not ranked by Arbitron. Columbia separately is ranked 237 by Arbitron, and KTXY-FM is the top-rated station by audience ranking in such market. LANCASTER AND READING, PENNSYLVANIA, which the Company estimates combined would have an Arbitron rank of 60, are served by WIOV-FM and WIOV-AM. WIOV-FM programs a Country music format and consistently is one of the region's top rated stations. WIOV-FM is the top-ranked radio station based on combined revenues in the Lancaster market. WIOV-AM serves the Reading market with a News/Talk format. EVANSVILLE, INDIANA, AND OWENSBORO/HENDERSON, KENTUCKY, which the Company estimates combined would have an Arbitron rank of 125, are served by WBKR-FM and WOMI-AM. These stations broadcast to the Tri-State area of southwestern Indiana, southern Illinois, and western Kentucky, which the Company 56 believes is undergoing significant economic expansion. WBKR-FM is the region's most powerful and most listened to radio station. The five stations operated by the Company (including the Managed Affiliates' stations, WKDQ-FM, WSTO-FM and WVJS-AM) rank first in the market in terms of both their combined revenues and their combined ratings, and individually hold three of the top four audience and revenues rankings in the market. FORT COLLINS/GREELEY/LOVELAND, COLORADO, which has recently been designated as a market by Arbitron and is ranked 135, is served by KUAD-FM and KTRR-FM. KUAD-FM is northern Colorado's leading radio station in terms of audience ratings and advertising revenues, and in the nineteen months since the Company began operating it pursuant to a Time Brokerage Agreement, KTRR-FM has established a significant presence in the market. These Stations primarily serve Larimer and Weld counties in northern Colorado, which comprise a distinct market approximately 65 miles north of Denver. The Company believes that radio advertising in the area is significantly underutilized by potential advertisers based on national norms. The Stations focus on the Fort Collins/Greeley/Loveland "triangle," and reach a listener base that the Company believes is well-educated, has significant disposable income, and is served locally by few other radio stations. DULUTH, MINNESOTA AND SUPERIOR, WISCONSIN, which have a combined Arbitron rank of 207, are served by KKCB-FM, KLDJ-FM and WEBC-AM, which the Company believes is the premier combination of radio stations in this market based on revenues and audience ratings. KKCB-FM, which operates a Country format, is the highest-rated station in its market. JEFFERSON CITY/COLUMBIA/LAKE OF THE OZARKS, MISSOURI, is served by KATI-FM, KTXY-FM and KLIK-AM. These stations are currently under contract for sale and pending closing are being operated by the purchaser under the terms of a Time Brokerage Agreement. See "--Recent or Pending Transactions." PUBLICATIONS OVERVIEW Set forth below is a list of the Newspaper publications specifying the location and circulation of each.
NEWSPAPER LOCATION CIRCULATION - ------------------------------------------------- ------------------- ----------- MORNING SUN...................................... Mt. Pleasant, MI 12,700 MT. PLEASANT BUYERS GUIDE........................ Mt. Pleasant, MI 28,400 CLARE COUNTY BUYERS GUIDE........................ Clare, MI 13,000 ALMA REMINDER.................................... Alma, MI 20,600 CADILLAC BUYERS GUIDE............................ Cadillac, MI 21,700 CARSON CITY REMINDER............................. Carson City, MI 11,000 EDMORE ADVERTISER................................ Edmore, MI 17,500 HEMLOCK SHOPPERS GUIDE........................... Hemlock, MI 12,500 GLADWIN BUYERS GUIDE............................. Gladwin, MI 16,800 ISABELLA COUNTY HERALD........................... Mt. Pleasant, MI 16,200 MIDLAND BUYERS GUIDE............................. Midland, MI 28,000 ST. JOHNS REMINDER............................... St. Johns, MI 16,200 THE NORTHEASTERN SHOPPER (NORTH EDITION)................................ Tawas City, MI 24,400 THE NORTHEASTERN SHOPPER (SOUTH EDITION)................................ Tawas City, MI 15,600 ----------- Total Circulation 254,600 ----------- -----------
The Newspapers serve a seventeen county area of small communities in central Michigan , where there are few other newspapers, no local television stations, and few radio stations. The Company has central offices and production facilities in Mt. Pleasant, Michigan and leads the central Michigan market in media billings. 57 The Company's daily newspaper, the MORNING SUN, has a paid subscription base of 12,700 readers and is the only daily newspaper published in Gratiot, Isabella and southern Clare counties. The Company's weekly newspaper and twelve weekly shopping guides are delivered free to more than 240,000 households in the central Michigan area. The Company's multiple products and private delivery system permit advertisers to buy customized advertising coverage for the portion of the local market that best reaches their potential customers. The Company also publishes numerous niche publications such as vacation guides and a monthly business report. The Newspapers have a widely diversified base of advertising and printing customers and during the year ended February 28, 1997 no one customer represented more than 2% of the Company's revenues. STRUCTURE AND GOVERNANCE In anticipation of the Offering, the ownership of the Stations and Newspapers was restructured to preserve certain historical tax benefits while permitting Mr. Brill the flexibility required to continue growing the business through acquisitions. Set forth below is a chart outlining the ownership of the Company and its principal affiliates. Certain intermediate entities have been omitted. [The chart, which is on file with the Issuer, shows that Mr. Brill is the sole ultimate owner of (i) BMCLP, (ii) the Managed Affiliates, (iii) the Subsidiaries (indirectly through BMC and Holdings) and (iv) Media (indirectly through BMC).] The Exchange Securities will be issued jointly by the Issuer. BMC through Subsidiaries directly and indirectly owns radio and newspaper properties, including those previously identified. The historical financial statements of The Radio and Newspaper Businesses of Alan R. Brill included elsewhere in this Prospectus include the financial position and results of operations of the radio and newspaper Subsidiaries on a combined basis. Each Subsidiary is wholly-owned directly or indirectly by BMC. The Managed Affiliates are not subsidiaries of the Company, but are managed by the Company pursuant to Managed Affiliates Management Agreements. As of the date of this Prospectus, the Managed Affiliates operate radio stations WKDQ-FM, WSTO-FM and WVJS-AM in Evansville, Indiana and Owensboro/Henderson, Kentucky, which were acquired by Mr. Brill in 1997. While subject to a Managed Affiliate Management Agreement, funds may be advanced from time to time to these and future Managed Affiliates by the Company or its Subsidiaries in the form of Managed Affiliate Notes. See "Description of Notes--Limitations on Affiliate Transactions." Local general managers operate the Stations and Newspapers on a day-to-day basis. Other management services, including benefit plan administration, risk management, finance, tax management, and strategic planning and operations oversight are provided to the Subsidiaries and the affiliates by BMCLP, which is owned indirectly by Mr. Brill. The fees charged by BMCLP are established on a contractual basis and, as set forth more fully under "Certain Transactions," such fees are payable to the extent set forth in the Description of the Notes. A table setting forth the revenues, operating income, identifiable assets, depreciation and amortization expense and capital expenditures of the Company's two business segments is included in Note 11 of the Combined Financial Statements included in this Prospectus. BUSINESS STRENGTHS MIDDLE MARKET FOCUS. The Company operates media businesses in middle markets which generally are less competitive than larger markets and are characterized by a limited number of direct competitors, local owner/operators which are less sophisticated and have less financial resources, and fewer alternative media. The Company believes that in its markets the majority of its revenues are directly generated by its own sales efforts. 58 STRONG AND GROWING MARKET SHARE. In each of its radio markets the Company's Stations or the Managed Affiliates' stations hold at least one of the top two rankings in both audience ratings and revenues. The Company believes that it is the leading advertising provider in its newspaper markets. The Company believes the Stations and Newspapers have strong community support and work to build and maintain strong middle market franchises. SUCCESSFUL ACQUISITION HISTORY. Mr. Brill has a history of identifying acquisition opportunities, initiating negotiations to buy such properties and developing creative structures by which to meet the requirements of the sellers of such properties. Mr. Brill and the management team have successfully developed acquired radio stations and newspapers and have improved Media Cashflow at each of the Company's properties following their acquisition. CONSISTENT MEDIA CASHFLOWS. The Company's Subsidiaries have a history of consistent media cashflows. The Company's Subsidiaries generated Media Cashflow margins (on a combined basis) of approximately 24%, 26%, and 30% for the one-year periods ended February 28, 1995, February 29, 1996, and February 28, 1997, respectively, and 39% for the nine-month period ended November 30, 1997. The Company believes that its Media Cashflow will continue to be strong and will enable the Company to continue its acquisition strategy. Furthermore, the Company's continuing operations currently require relatively small capital expenditures. EXPERIENCED AND COMMITTED MANAGEMENT TEAM. The Company's senior management team, provided by BMCLP, is highly experienced in the radio and newspaper industries. BMCLP has experienced little management turnover, and BMCLP's four senior operating executives have an average of 22 years each of experience in the media industry and have worked together since 1988. The Company has a decentralized management structure in which general managers make the key local operating decisions for each station or newspaper with support from BMCLP management. STRONG LOCAL ADVERTISER RELATIONSHIPS. Historically, the Company has created and maintained relationships directly with local advertisers in its markets, which enable the Company to respond immediately and creatively to meet customer needs. The Company believes that its marketing approach and customer relationships enable the Stations to generate greater revenues and margins than comparably ranked stations in their markets and enable the Newspapers to increase revenues and margins. To further strengthen its relationships with advertisers, the Company also offers and markets its ability to create customer traffic through on-site events staged at, and broadcast from, an advertiser's business. ACQUISITION STRATEGY The Company seeks to acquire underperforming middle market media businesses whose acquisition costs are low relative to potential revenues and cashflow. The Company focuses on developing significant long-term franchises in middle markets. The Company then seeks to improve revenues and cashflow, using its particular promotional, marketing, sales, programming and editorial approaches. The Company targets businesses that it believes operate in underdeveloped market segments with a low level of competition and a strong economic base, as well as stations with competitive technical facilities and businesses that are located in areas deemed desirable for relocation in terms of personnel recruitment. The Company believes that its acquisition strategy, properly implemented, has a number of specific benefits, including (i) diversification of revenues and cashflow across a broader base of industries, properties and markets, (ii) geographic clustering which has allowed improved cashflow margins through the consolidation of facilities, centralized newsgathering, cross-selling of advertising, elimination of redundant expenses, (iii) improved access to consultants and other industry resources, (iv) greater appeal to qualified industry management talent and (v) efficiencies from economies of scale. 59 OPERATING STRATEGY In order to appeal to advertising customers and maximize the revenues and cashflow of its properties, the Company's strategy is as follows: MARKETING PARTNERSHIPS. The Company believes that advertisers in its markets are attracted and retained through value-added customer services. While the Company seeks and achieves audience ratings and circulation as a means of attracting advertisers, its operations are distinguished by a particular emphasis on soliciting advertisers directly. The Company believes that in many middle markets the decision to advertise on a given radio station or in a given newspaper is driven in large measure by direct customer relationships and the level of customer success with past advertising programs and the marketing and sales effectiveness of the station or newspaper staff. The Company believes that building and solidifying marketing partnerships with advertisers and retaining such customers through effective results and high quality customer service are significant factors in maintaining leading revenue shares in its markets. OWNERSHIP OF STRONG MEDIA GROUPS. In each of its markets, the Company seeks to maintain and enhance its position as a market leader through its ownership of groups of stations or publications. Its ownership of groups of stations and publications allows the Company a variety of sales opportunities and customer demographics. By strategically coordinating customized programming, publishing, promotional, and selling strategies among a group of local stations or newspapers, the Company attempts to reach a wide range of demographic groups that appeal to advertisers. The Company believes that its wide range of advertising options permits it to offer pricing choices to suit customer needs and strengthen advertiser relationships. AGGRESSIVE SALES AND MARKETING. The Company seeks to maximize its share of local advertising revenues in each of its markets by implementing and maintaining strong direct sales and marketing programs. The Company tends to maintain separate sales forces for each of its Stations or Newspapers. The Company's Stations strive to maximize revenues by managing the on-air inventory of advertising time and adjusting prices based on local market conditions. Through its marketing efforts, the Company provides advertisers with an effective means of reaching a targeted demographic group. To further strengthen its relationships with radio advertisers, the Company also offers and markets its ability to create customer traffic through on-site events staged at, and broadcast from, an advertiser's place of business and promotions in which listeners are encouraged to participate by visiting such place of business. EXPERIENCED LOCAL MANAGEMENT. The Company believes that each of its Stations and Newspapers is primarily a local business and that much of its success is the result of the efforts of local management and staff. Accordingly, the Company decentralizes its operations. Each of the Company's local media groups is managed by a team of experienced managers who understand the trends, demographics, and competitive opportunities of the particular market. Local managers are responsible for developing annual operating budgets, and a major portion of their compensation is linked to performance against operating targets. BMCLP approves each station or newspaper group's annual operating budgets and imposes strict financial reporting requirements to track performance and monitor operating trends. The Company seeks and motivates managers who thrive on the challenges presented by such autonomy. Its success in finding and developing such managers has enabled the Company to compete successfully in each of its local markets. CENTRALIZED SUPPORT AND OVERSIGHT. The Company believes that its ability to utilize existing senior management and sales resources of its media groups enhances the growth potential of both acquired start-up and underperforming properties. Additionally, this support reduces the risks associated with undertaking new means of improving performance, such as launching new formats. Furthermore, the Company seeks to achieve substantial cost savings through the consolidation of facilities, management and administrative personnel and human resources, as well as through the reduction of redundant expenses. BMCLP personnel regularly visit the Stations and Newspapers to review performance, assist local management with 60 their programming, editorial, sales, recruiting and training efforts, and to develop and verify overall operating and marketing strategies, including cost management, designed to improve cashflow. These visits enable the Company to remain aware of developments in each Station's and Newspaper's market and to control and monitor costs while providing useful input to each local manager. COMMUNITY INVOLVEMENT. The Company believes that its marketing, sales and promotion efforts create direct relationships with its advertisers and audiences, making its Stations and Newspapers significant participants in the middle markets they serve. Each of the Company's Newspapers and Stations participates in numerous community programs, fund-raisers and activities that benefit a wide variety of organizations and produce revenues for the Company. RADIO INDUSTRY OVERVIEW Radio stations generate the majority of their revenue from the sale of advertising time to local and national spot advertisers and national network advertisers. Radio serves primarily as a medium for local advertising. During the past decade, local advertising revenue as a percentage of total radio advertising revenue has ranged from approximately 74% to 78%. The growth in total radio advertising revenue tends to be fairly stable and has generally grown at a rate faster than the Gross Domestic Product. Total radio advertising revenue in 1996 of $12.4 billion represented an 8.2% increase over 1995, as reported by the Radio Advertising Bureau ("RAB"). Radio is considered an efficient means of reaching specifically identified demographic groups. Stations are typically classified by their on-air format, such as country, adult contemporary, oldies or news/ talk. A station's format and style of presentation enable it to target certain demographic and geographic groups. By capturing a specific listening audience share of a market's radio audience, with particular concentration in a targeted demographic group, a station is able to market its broadcasting time to advertisers seeking to reach a specific audience. Advertisers and stations utilize data published by audience measuring services, such as Arbitron, to estimate how many people within particular geographic markets and demographic groups listen to specific stations. Stations determine the number of advertisements broadcast hourly that will maximize available revenue dollars without jeopardizing listening levels. Although the number of advertisements broadcast during a given time period may vary, the total number of advertisements broadcast on a particular station generally does not vary significantly from year to year. A station's local sales staff generates the majority of its local and regional advertising sales through direct solicitations of local advertising agencies and businesses. To generate national advertising sales, a station will engage a firm that specializes in soliciting radio advertising sales on a national level. National sales representatives obtain advertising principally from advertising agencies located outside the station's market and receive commissions based on the revenue from the advertising obtained. According to the RAB'S RADIO MARKETING GUIDE AND FACT BOOK FOR ADVERTISERS, 1997, radio reaches approximately 95% of all Americans over the age of 12 each week. More than one-half of all radio listening is done outside the home, in contrast to other advertising media, and three out of four adults are reached by car radio each week. Industry studies indicate that the average listener spends approximately three hours and 20 minutes per day listening to radio. The highest portion of radio listenership occurs during the morning, particularly between the time a listener wakes up and the time the listener reaches work. This morning "drive time" period reaches more than 80% of people over 12 years of age and, as a result, radio advertising sold during this period commands premium advertising rates. Radio listeners have gradually shifted over the years from AM (amplitude modulation) to FM (frequency modulation) stations. FM reception, as compared to AM, is generally clearer and provides greater tonal range and higher fidelity. FM's listener share is now in excess of 75%, despite the fact that the number of AM and FM commercial stations in the United States is approximately equal. 61 While this description is representative of the radio industry as a whole on a national basis, the Company believes that the description characterizes particularly that portion of the industry that operates in major markets. It believes that the radio business in middle markets differs significantly from that of the major markets. This distinction is characterized by the fewer number of radio stations in smaller markets, the fewer number of advertising alternatives, the greater relevance of any single business (or radio station) to the market's life, the greater proportion of advertising that is sold locally as opposed to national accounts and the much smaller proportion of advertising that is controlled by agencies. For these reasons, in middle markets a radio station has greater flexibility in competitive and sales strategy and has greater control, through its own direct marketing efforts, on its own outcome, as compared to major markets. With fewer competitors in a middle market a station can pursue listeners on a broader basis and serve a broader spectrum of advertisers, be less subject to competitive changes of competitors and, most importantly, deal directly with customers and around agencies if necessary to demonstrate and convince advertisers of the effectiveness of advertising on the station. The station does not have to wait for programming to be successful to draw customers when it can deal with potential clients directly on an effectiveness basis. As a result of ownership deregulation (see "--Federal Regulation of Radio Broadcasting" and "Risk Factors--Governmental Regulation"), middle market owners also can achieve the mass and efficiencies of major market operations through multiple station ownership. Such deregulation has greatly increased opportunities for ownership of stations in middle markets and has greatly increased the liquidity of station trading in the marketplace and, therefore, the liquidity that the financing markets are willing to offer. The Company believes that these factors and distinctions have greatly enhanced the ability of middle market broadcasters to achieve very favorable operating margins with attractive revenue levels on a reasonable cost basis and with fewer disruptions caused by radio competitors and other advertising alternatives. Furthermore, the greater relevance in a middle market of a single radio business offers great opportunities for the radio station to interact directly with its potential customers. NEWSPAPER INDUSTRY OVERVIEW Newspaper publishing is one of the oldest and largest segments of the media industry. Newspapers are an important medium for local advertising. The newspaper industry in the United States is comprised of the following segments: national and major metropolitan dailies; small metropolitan suburban dailies; suburban and community non-dailies; and free circulation "total market coverage" publications and shoppers ("Shoppers"). In many communities, the local newspapers provide a combination of social and economic linkages which make it attractive for readers and advertisers alike. The Company believes that small metropolitan and suburban dailies as well as suburban and community non-dailies and Shoppers are generally effective in addressing the needs of local readers and advertisers under widely varying economic conditions. The Company believes that because small metropolitan and suburban daily newspapers rely on a broad base of local retail and local classified advertising rather than more volatile national and major account advertising, their advertising revenues tend to be relatively stable. In addition, the Company believes such newspapers tend to publish information which is of particular interest to the local reader and which national and major metropolitan newspapers, television and radio generally do not report to the same extent. Most small metropolitan and suburban daily newspapers are the only daily local newspaper in the communities they serve. The Company believes that relatively few daily newspapers have been established in recent years due to the high cost of starting a daily newspaper operation and building a franchise identity. Shoppers provide nearly 100% penetration in their areas of distribution and generally derive revenues solely from advertising. These publications have limited or no news or editorial content. 62 The newspaper industry, as represented by larger markets at one end and smaller markets on the other, is composed of two distinct sub-industries. They differ particularly because of the influences of size, alternative claims on readers' attention, alternative advertising vehicles, alternative newspaper competitors, methods and costs of distribution, labor costs and flexibility, other cost structures, and significance of the product to its readers and customers. In all of these parameters the Company believes that in middle markets, these factors are more favorable to the financial results and stability of a newspaper business. These factors also create a more vital product for the readers in a middle market than newspapers may be in a major market, which typically has numerous and diverse information and entertainment sources. DESCRIPTION OF THE STATIONS AND THEIR MARKETS LANCASTER AND READING, PENNSYLVANIA. The Company owns and operates one FM and one AM radio station serving Lancaster and Reading, Pennsylvania.
STATION PROGRAMMING YEAR STATION CALL LETTERS FORMAT ACQUIRED/LMA - ----------------------------------------------------------------------------- ------------------- --------------- WIOV-FM...................................................................... Country 1984 WIOV-AM...................................................................... News/Talk 1981
Lancaster has an Arbitron rank of 110 and Reading has an Arbitron rank of 130. The Company estimates that combined, Lancaster and Reading would have an Arbitron rank of 60, with an age 12+ metro population of 663,600. Lancaster and Reading had market revenues of approximately $20.0 million in 1996, an increase of approximately 7.0% over 1995. There are 18 stations in the Lancaster and Reading market, but only (by the Company's estimates) two fully competitive FM stations in Reading and 6 fully competitive FM stations in Lancaster. The two stations owned and operated by the Company rank first in Lancaster in audience ratings and revenues and second in Reading in such categories. The licensed location of WIOV-FM in Ephrata, Pennsylvania provides the Station with the unique capability to broadcast with a "city grade" signal into both Lancaster and Reading from its transmitter site. Due to the limited availability of frequencies in the Pennsylvania area, such opportunity is not available to the Company's competitors. Nevertheless, mountains between the two markets hamper the Station's signal in Reading. The Station is now building a booster transmitter to establish a parity signal in the Reading market. WIOV-AM in 1994 took the call letters of its sister FM station to exploit the popularity of the FM station. Also in 1994, WIOV changed its format from Country to News/Talk. WIOV-FM has achieved a high level of recognition by listeners and advertisers in the Lancaster and Reading community through numerous promotional activities, including its sponsorship of an annual free Country music concert, which in 1997 was attended by approximately 55,000 people. The Company believes the Lancaster region represents one of the best middle markets in the country due to the region's strong and vibrant economy, attractive demographics, and desirable competitive environment. EVANSVILLE, INDIANA AND OWENSBORO/HENDERSON, KENTUCKY. The Company owns and operates one FM and one AM radio station and manages two FM radio stations and one AM radio station in the region of 63 southwestern Indiana, western Kentucky and southern Illinois, surrounding Evansville, Indiana and Owensboro, Kentucky (the "Tri-State Region").
STATION PROGRAMMING YEAR STATION CALL LETTERS FORMAT ACQUIRED/LMA - ----------------------------------------------------------------------------- ------------------- --------------- WBKR-FM...................................................................... Country 1993 WSTO-FM...................................................................... Adult Hits 1997 WKDQ-FM...................................................................... Country 1997 WOMI-AM...................................................................... News/Talk 1993 WVJS-AM...................................................................... News/Talk 1997
Evansville has an Arbitron rank of 151 and Owensboro has an Arbitron rank of 255. The Company believes that the Tri-State Region comprises a single economic market, and estimates that the combined Tri-State Region would have an Arbitron rank of 125, with an age 12+ metro population of 310,600. The Tri-State Region had market revenues of approximately $17.1 million in 1996, an approximate 3.6% increase over 1995. There are 33 stations in the Tri-State Region market of which, the Company estimates, 8 to 10 are fully competitive commercial FM stations. The five stations operated by the Company (including the Managed Affiliates WKDQ-FM, WSTO-FM and WVJS-AM) rank first in the market in terms of both combined gross revenues and combined ratings, and individually hold three of the top four ratings ranking in the market. The Company entered the market in 1993 with the purchase of WBKR-FM and WOMI-AM, and more than tripled the Media Cashflow of those Stations by the end of its first full fiscal year of ownership, principally by implementing its aggressive direct sales strategies. In addition, the Company has entered into Managed Affiliate Management Agreements with the Managed Affiliates, and had loaned, as of November 30, 1997, $15.4 million to them. See "Certain Transactions." The Company believes that the Managed Affiliates complement its existing strengths in the Tri-State Region. WBKR-FM ranks first in the Owensboro metro and regional markets and in the Evansville regional market, while such affiliated stations rank first in the Evansville metro market. Management believes that WBKR-FM, WSTO-FM and WKQD-FM have the best technical facilities in the greater Evansville and Owensboro market, providing strong regional signal coverage to the Tri-State Region. FORT COLLINS/GREELEY/LOVELAND, COLORADO. The Company owns and operates one FM radio station and manages one FM radio station in the area of Fort Collins, Greeley and Loveland, Colorado ("Fort Collins/ Greeley/Loveland"), approximately 65 miles north of Denver.
STATION PROGRAMMING YEAR STATION CALL LETTERS FORMAT ACQUIRED/LMA - ------------------------------------------------------------------------------------ ------------ --------------- KUAD-FM............................................................................. Country 1988 KTRR-FM............................................................................. Adult Hits 1996
Fort Collins/Greeley/Loveland has recently been designated an Arbitron market and ranked 135. The Company believes that there are only four fully competitive local commercial FM stations in the market. While market information has not been published for this market, the Company believes that KUAD-FM would be ranked first in the market in ratings and revenues, and that its Stations as a group would be ranked first in ratings and revenues in the market. 64 The Company entered the market in 1988 with the purchase of KUAD-FM, and shortly afterward changed the format of that Station to Country in order to distinguish it from a number of competing stations in the market. The Company found a high level of resistance to the use of radio advertising among potential advertisers in Fort Collins/Greeley/Loveland, which the Company believes resulted from a failure of other radio station operators in the region to develop trust and recognition of the effectiveness of radio among the market's retailers. To address such resistance, the Company has sponsored seminars, educational programs and media consultants for potential advertisers, distributed newsletters to potential advertisers and persistently pursued advertiser relationships. In part because of such customer education efforts, the Company has increased the Media Cashflow of KUAD-FM by more than ten times since its acquisition. The Company began to program KTRR-FM of Loveland, Colorado, in August, 1996 under a Time Brokerage Agreement and has developed it from a "stick" into a significant station in the market. The Company has exercised an option to purchase the assets of KTRR-FM, and expects to close the transaction in the near future (subject to the timely receipt of necessary regulatory approvals). The level of radio advertising revenue in the Fort Collins/Greeley/Loveland market, as a percentage of retail sales, remains significantly below national levels, and the Company believes that significant increases in market radio revenue are possible as it develops the market. The license location of KUAD-FM in Windsor, Colorado, enables the Station to broadcast into all of Fort Collins, Greeley and Loveland without being identified with any one of such communities to the exclusion of the others. DULUTH, MINNESOTA AND SUPERIOR, WISCONSIN. The Company owns and operates two FM radio stations and one AM radio station in Duluth, Minnesota.
STATION PROGRAMMING YEAR STATION CALL LETTERS FORMAT ACQUIRED/LMA - ------------------------------------------------------------------------------------ ------------ --------------- KKCB-FM............................................................................. Country 1984 KLDJ-FM............................................................................. Oldies 1995 WEBC-AM............................................................................. News/Talk 1984
The market of Duluth, Minnesota and Superior, Wisconsin ("Duluth") has an Arbitron rank of 207. Duluth had market revenue of approximately $6.6 million in 1996, an approximate 4.8% increase over 1995. There are 24 stations in the Duluth market, of which, the Company believes, only 8 are fully competitive commercial FM stations. The three stations owned and operated by the Company rank first in the market in terms of their combined ratings and revenues, and KKCB-FM ranks first in the market in ratings and revenues. The Company entered the market in 1984 with the purchase of KKCB-FM and WEBC-AM, and additionally acquired KLDJ in 1995, which it has developed from a "stick." By aggressively implementing its strategies of developing marketing partnerships with advertisers, assembling an experienced local management team and providing centralized support and oversight, the Company has built the Stations into the leading stations in the Duluth market according to revenue share and ratings. JEFFERSON CITY/COLUMBIA/LAKE OF THE OZARKS, MISSOURI. The Company has entered into definitive agreements to sell substantially all of the Missouri Properties (including market-leading KTXY-FM) for a net cash purchase price of $7,419,000, plus $256,000 of assumed liabilities. See "Recent or Pending Transactions." 65 THE NEWSPAPER OPERATIONS GENERAL. Central Michigan Newspapers, Inc. and its affiliates ("CMN," or "Newspapers") own and operate an integrated newspaper publishing, printing, and advertising distribution operation in central Michigan. CMN was founded in 1981, and the Company believes that CMN is the leading media company in its central Michigan market. CMN offers a two-edition daily newspaper, thirteen weekly publications, a web offset printing operation for Newspapers' publications and outside customers, and a private distribution company for its products and those of varied customers. Due to the close integration of all its operations and its private distribution system, CMN can provide customized market coverage to its advertisers to efficiently reach any of the more than 240,000 homes in its 120 mile by 140 mile market through its multiple product advertising buys. CMN relies on aggressively selling comprehensive total-market advertising coverage through its multiple publications and seeks to support its products with an aggressive operating strategy which emphasizes quality, consistency, creativity and integrity. The Newspapers operate in an attractive market with very favorable economic conditions and trends and a favorable competitive environment. CMN's superior operating capabilities were demonstrated in February 1994, when a fire destroyed its printing equipment, yet all the publications were printed and delivered on time the next day, even though CMN was forced to use outside printers. Another key to CMN's success is the strength of its distribution system, providing on-time, reliable and independently audited delivery service to more than 240,000 homes in its market place at a fraction of the cost of the U.S. post office. The distribution system includes several hundred well-supervised independent contractor delivery personnel and enables an advertiser to buy any part of the company's distribution area that best serves the advertiser's needs. The economic recession and loss of a major client had a dampening effect on financial results during the early 1990s. Although a major customer representing several million dollars of revenues went out of business, management was able to maintain overall Newspaper revenues and results, delivering increased cash flow in that year and the following year. No single customer of the Newspapers represented more than 2% of the Company's revenues, for the year ended February 28, 1997. Further, its cash flow has steadily increased from its fiscal 1993 low. Recently purchased printing and production equipment as a result of the fire loss has added new production and press capacity and doubled the printing speed of CMN, providing the Newspapers with much greater scheduling and technical flexibility and cost competitiveness. The new equipment has lead to increased printing jobs produced more efficiently for the Newspapers and their customers. DESCRIPTION OF NEWSPAPERS MORNING SUN. The MORNING SUN, published every day except Saturday, is delivered in Gratiot, Isabella and southern Clare counties. The service area has a combined household count of approximately 32,000. The MORNING SUN appears in two editions for each of the area's primary communities, Mt. Pleasant and Alma. According to an audit by Audit Bureau of Circulations, paid circulation is approximately 12,000 daily and 13,000 Sunday. As the area's only local, daily newspaper, the MORNING SUN is the local community's principal medium for news and information. Although approximately 80 percent of its articles, written by staff writers, concern matters of local interest, the Newspaper carries articles from the Associated Press, as well as syndicated features, including Clarence Page, Andy Rooney, and George Will. The MORNING SUN is staffed by 42 employees, including 18 in the editorial department and 14 in the display and classified advertising department. The Newspaper is established in the area and is widely recognized as the source for local news, sports, and coverage of a variety of opinions. It has won numerous awards, including awards from the Associated Press and Michigan Press Association, such as first place for sports coverage and second place for local news reporting and photography, and first place in the overall newspaper awards for the last two years. 66 WEEKLY SHOPPERS AND WEEKLY NEWSPAPER. The Newspapers publish thirteen weekly publications in contiguous markets, including twelve weekly shopping guides ("Shoppers") and a weekly newspaper, the ISABELLA COUNTY HERALD. The Shoppers provide advertisers weekly contact with many households at the lowest possible cost. While the Shoppers contain minimal news content, consumers rely mainly on them for retail information, given the absence of other media. The Shoppers are delivered free to more than 224,000 households in the Newspapers' market area. The ISABELLA COUNTY HERALD offers local news and information and is delivered free to approximately 16,200 households in the Mt. Pleasant area. By pooling together numerous Shoppers in contiguous areas, Newspapers derive economies of scale in printing, publishing, sales, and distribution to benefit both itself and its customers. ST. JOHNS REMINDER. ST. JOHNS REMINDER, published continuously since September 1947, was acquired by the Company in 1996. The ST. JOHNS REMINDER is distributed free each Sunday to 16,200 homes primarily in Clinton County and serves a growing agrarian market near Michigan's state capital, Lansing. Benefitting from an already strong retail business base, the ST. JOHNS REMINDER is positioned to capture the considerable retail growth taking place between Lansing and St. Johns. Significant revenues are expected to come from cross sales to existing advertisers of other Newspapers into St. Johns, because of its proximity to other Company markets and publications. Additionally, St. Johns is included in the Newspapers' classified and telemarketing network, offering its advertisers up to 240,000 Michigan households. NORTHEASTERN SHOPPER (NORTH AND SOUTH EDITION). In October 1997 the Company acquired the NORTHEASTERN SHOPPER, expanding the Newspapers' core market area by 40,000 households to the northeast. Established in 1954, these shopping guides, in separate northern and southern editions, are delivered free each Sunday in the central Michigan counties of Iosco, Ogemaw, Alcona, Arenac, and a portion of Bay County. The NORTHEASTERN SHOPPER serves an area with a flourishing retail market and strong year-round tourism appeal and fits strategically with the Company's other properties in the region. OTHER PUBLICATIONS. The Company also publishes COUNTRY ROADS, a monthly publication focusing on agriculture, and CENTRAL MICHIGAN BUSINESS, a monthly publication which is delivered to area businesses and which reports on activities and events of particular interest to the business community. The Newspapers use state-of-the-art web printing capabilities to perform commercial printing for third parties, typically in press runs of 30,000 to 200,000 copies. Much of this commercial printing is performed for the publications' advertising customers. Other commercial printing customers include other publishers of newspapers and shopping guides, specialty publications such as real estate guides, entertainment publications, and publications of national associations and schools. Examples of third party printing are CENTRAL MICHIGAN UNIVERSITY LIFE, a school newspaper, and AUTO SHOPPER, a weekly classified paper. MARKET OVERVIEW. The Newspapers' market covers an area approximately 120 miles by 140 miles, containing a total population in excess of 700,000 people. The area's relatively low population density makes print the only medium to serve the market efficiently. The Newspapers' market coverage consists of a seventeen-county area in central Michigan with Isabella and Gratiot counties at its core and includes the Michigan counties of Clare, Gladwin, Midland, Saginaw, Montcalm, Mecosta, Osceola, Wexford, Missaukee, Iosco, Clinton, Arenac, Ogemaw, Alcona, and part of Bay. With a population in excess of 100,000, the area of Isabella and Gratiot counties enjoys a thriving economy and a high quality of life. Mt. Pleasant, a city of 25,000 is home to Central Michigan University and its 17,000 students and has enjoyed steady population growth over the past two decades. Alma, a small college community of nearly 10,000 people in Gratiot County, is approximately 20 miles south of Mt. Pleasant. The area is diversified economically and industrially, including major employers in retail trade, agriculture, oil and gas production and field service, diversified manufacturing, tourism, and education. Traditionally, unemployment in the area has been much lower than average for the State of Michigan. 67 CUSTOMER BASE. The Newspapers are well-positioned to prosper in the future, particularly with an improving economy and increasing advertising spending. The customer base is diversified and dispersed with both local and regional businesses, including retail, food, automotive, furniture, lumber companies, and education industries. The Company's reputation for service and quality is evidenced by the long-term and expanding relationships it has with many of its customers, as well as the numerous awards the Newspapers have received. SALES AND PROMOTION. The Newspapers currently employ 43 sales representatives who are responsible for generating display and supplement advertising sales from customers. Each Shopper has at least one salesperson located in the area where the weekly is distributed. Each salesperson seeks to maximize advertising revenues by maintaining a local presence and establishing relationships with area businesses. In addition to a significant promotion budget the Company also participates in over 20 county fairs, the United Way, the Downtown Business Association, and numerous Chambers of Commerce. FACILITIES. As a result of a fire in 1994, the Newspapers had to purchase a full line of new equipment. The printing operation was moved to a temporary facility in Mt. Pleasant that has several truck docks for shipping and receiving and is used to store paper and finished goods. The Newspapers' office in Mt. Pleasant is located in leased space, which houses management, sales, marketing, editorial, composition, accounting, and other administrative functions. The Company believes that major savings can be achieved annually by relocating to a single plant, gaining efficiency in operations, improving communications and interaction among the departments, and saving by elimination of duplicate staffs and supervisory functions, and has identified a prospective facility for such a plant. See "Certain Transactions." EQUIPMENT. The Newspapers have new state-of-the-art press, editorial, classified, composing, and camera equipment. An investment of approximately $3 million was made in 1994 to acquire a new Goss Community press line and new production equipment. The web press doubles the speed at which the Newspapers can print jobs, thereby making the Newspapers much more competitive for contract printing opportunities. This new equipment has resulted in reduced labor requirements and greatly improved efficiency and financial performance. DISTRIBUTION. In addition to delivering its publications, the Newspapers also deliver over 60 million advertising insert pieces per year to residents in central Michigan. Customized delivery to a particular zone can be specifically created for an advertiser to reach as few as 150 households or more than 240,000 households on a given day at less than half the cost charged by the post office. MANAGEMENT AND STAFF. Under the Company's guidance, the Newspapers operate autonomously, with their staff directly responsible for most managerial, operating, and administrative decisions and functions. The Newspapers' activities are organized into approximately sixteen profit centers participating in a fully integrated print marketing operation. Each management team is experienced, capable, and committed to the growth and profitability of the company. In addition to experience gained in growing a highly successful company, most managers have substantial prior experience in the newspaper business. As of September 30, 1997, the Newspapers had 194 full-time employees and 51 part-time employees. This number does not include the several hundred independent contractor delivery personnel that distribute the Newspapers' publications. The Company has not experienced problems in securing qualified labor from the central Michigan area. There are no unions at the Newspapers, and all sales representatives and department heads are under non-competition agreements. The Company believes the salary and benefit structure has been effective in reducing supervisory costs and improving productivity. 68 ADVERTISING SALES Virtually all of the Company's revenue is generated from local, regional and national advertising for its Stations and Newspapers. During the year ended February 28, 1997, approximately 90% of the Company's revenues were generated from the sale of local and regional advertising. Additional revenue is generated from the sale of national advertising, network compensation payments and other miscellaneous transactions. The major categories of the Company's advertisers include retailers, restaurants, fast food, automotive and grocery. Each local sales staff solicits advertising either directly from the local advertiser or indirectly through an advertising agency with emphasis placed on direct contact. In so doing, the Company seeks to address individual advertiser needs and more effectively design an advertising campaign to help the advertiser sell its product. The Company employs personnel in each of its markets to produce advertisements for the customers. National sales are made by a firm specializing in advertising sales on the national level in exchange for a commission from the Company that is based on the Company's gross revenues from the advertising obtained. Regional and local sales, which the Company defines as sales in regions surrounding the Company's markets to companies that advertise in the Company's markets, are generally made by the Company's local sales staff. RADIO STATIONS. The Company's Stations strive to maximize revenue by managing the on-air inventory of advertising time and adjusting prices based on local market conditions and by utilizing the Company's ability, through its marketing efforts, to provide advertisers with an effective means of reaching a targeted demographic group. Each of the Company's stations has a general target level of on-air inventory that it makes available for advertising. This target level of inventory for sale may vary at different times of the day but tends to remain stable over time. Much of the Company's radio advertising pricing is based on demand for its radio stations' on-air inventory and, in general, the Company responds to this demand by varying prices rather than by varying its target inventory level for a particular station. Therefore, most changes in revenue in a mature station are explained by demand-driven pricing changes rather than by changes in the available inventory. The Company believes that radio is one of the most efficient and cost-effective means for advertisers to reach specific demographic groups. Advertising rates charged by radio stations are based primarily on (i) the effectiveness of a station's sales staff, (ii) the station's share of audiences in the demographic groups targeted by advertisers (as measured by ratings surveys estimating the number of listeners tuned to the station at various times), (iii) the number of stations in the market competing for the same demographic groups, (iv) the supply of and demand for radio advertising time and (v) certain qualitative factors. Rates are generally highest during morning and afternoon commuting hours. A station's listenership is reflected in ratings surveys that estimate the number of listeners tuned to the station and the time they spend listening. Each station's ratings may be used by its advertisers and advertising representatives to consider advertising with the station and are used by the Company to chart audience growth, set advertising rates and adjust programming. The radio broadcast industry's principal ratings service is Arbitron, which publishes periodic ratings surveys for significant domestic radio markets. These surveys are the Company's primary source of ratings data. While the Company seeks and achieves ratings as a means of attracting advertisers, its operations are distinguished by a particular emphasis on soliciting advertisers directly. NEWSPAPERS. The Company believes that the combined coverage of the Newspapers is an important competitive advantage in attracting advertisers because it permits them to cover the entire market area or specifically target any part of the market in central Michigan. The Company offers discounts on combination buys and coordination of all orders through one central office. The Newspapers are recognized as the number one medium for advertising throughout central Michigan, and the marketing focus is to generate revenues from each potential advertiser. The Company is focused on raising rates when appropriate, increasing volume, generating new business, and gaining additional market share. Some of the Newspapers have been in existence for over 50 years, with the ALMA REMINDER beginning in 1938, the MT. PLEASANT BUYERS GUIDE in 1946, and ST. JOHN'S REMINDER in 1947. 69 COMPETITION GENERAL. Each of the Company's Stations and Newspapers competes in varying degrees with radio, television, newspapers, direct marketing and other communications and advertising media having local, regional or national audiences. RADIO. The radio broadcasting industry is highly competitive. The success of each of the Company's Stations in its middle markets depends largely upon its direct marketing and sales efforts supported by its audience ratings and its share of the overall advertising revenue within its market. The Company's audience ratings and advertising revenues are subject to change, and any adverse change in a particular market affecting advertising expenditures or in the relative market positions of the stations located in that market could have a material adverse effect on the revenue of the Company's Stations located in that market. There can be no assurance that any one of the Company's Stations will be able to maintain or increase its current audience ratings or advertising revenue market share. The Company's Stations compete for listeners and advertising revenue directly with other radio stations within their respective markets. Radio stations compete for listeners primarily on the basis of program content that appeals to a particular demographic group. By building a strong listener base consisting of a specific demographic group in each of its markets, the Company provides support to its sales and marketing efforts to attract advertisers seeking to reach those listeners. Operators of radio stations must be alert to the possibility of another station changing its format to compete directly for listeners and advertisers. Another station's decision to convert to a format similar to that of one of the Company's radio stations in the same geographic area may result in lower ratings and advertising revenue, increased promotion and other expenses and, consequently, lower broadcast cashflow for the Company, but in middle markets with fewer stations the frequency of such events may be less than in major markets. Factors that are material to a radio station's competitive position include management experience, the effectiveness of its marketing plan and sales force, the Station's local audience rank in its market, transmitter power, assigned frequency, audience characteristics, local program acceptance and the number and characteristics of other radio stations in the market area. The Company attempts to improve its competitive position in each market by constantly building its sales staff, researching its Stations' programming, by implementing advertising campaigns aimed at the demographic groups for which its Stations program and by managing its sales efforts to attract a larger share of advertising dollars. However, the Company competes with some organizations that have greater financial resources than the Company. Recent changes in the FCC's policies and rules permit increased ownership and operation of multiple local radio stations. Management believes that radio stations that operate under common management or elect to take advantage of joint arrangements such as LMAs or JSAs may in certain circumstances have lower operating costs and may be able to offer advertisers more attractive rates and services. Although the Company currently operates multiple stations in each of its markets and intends to pursue the creation of additional multiple station groups, the Company's competitors in certain markets include operators of multiple stations or operators who already have entered into LMAs or JSAs. The Company also competes with other radio station groups to purchase additional stations. Some of these groups are owned or operated by companies that have substantially greater financial and other resources than the Company. Although the radio broadcasting industry is highly competitive, some barriers to entry exist (which can be mitigated to some extent by changing existing radio station formats and upgrading power, among other actions). The operation of a radio broadcast station requires a license from the FCC, and the number of radio stations that can operate in a given market is limited by the availability of FM and AM radio frequencies allotted by the FCC to communities in that market, as well as by the FCC's multiple ownership rules regulating the number of stations that may be owned and controlled by a single entity. The FCC's multiple ownership rules have changed significantly as a result of the Telecommunications Act. For a discussion of FCC regulation and the provisions of the Telecommunications Act, see "--Federal Regulation of Radio Broadcasting." 70 The Company's stations also compete for advertising revenue with other media, including newspapers, broadcast television, cable television, magazines, direct mail, coupons and outdoor advertising. In addition, the radio broadcasting industry is subject to competition from new media technologies that are being developed or introduced, such as the delivery of audio programming by cable television systems, by satellite and by digital audio broadcasting ("DAB"). DAB may deliver by satellite to nationwide and regional audiences, multi-channel, multi-format, digital radio services with sound quality equivalent to compact discs. The delivery of information through the presently unregulated Internet also could create a new form of competition. The radio broadcasting industry historically has grown despite the introduction of new technologies for the delivery of entertainment and information, such as broadcast television, cable television, audio tapes and compact disks. A growing population and greater availability of radios, particularly car and portable radios, have contributed to this growth. There can be no assurance, however, that the development or introduction in the future of any new media technology will not have an adverse effect on the radio broadcasting industry. The FCC has recently authorized a spectrum for the use of a new technology, satellite digital audio radio services ("DARS"), to deliver audio programming. DARS may provide a medium for the delivery by satellite or terrestrial means of multiple new audio programming formats to local and national audiences. It is not known at this time whether this digital technology also may be used in the future by existing radio broadcast stations either on existing or alternate broadcasting frequencies. The Company cannot predict what other matters might be considered in the future by the FCC, nor can it assess in advance what impact, if any, the implementation of any of these proposals or changes might have on its business. See "--Federal Regulation of Radio Broadcasting." NEWSPAPERS. The Company's Newspapers compete primarily with other daily and weekly newspapers, shoppers, shared mail packages and other local advertising media. The Newspapers also compete in varying degrees for advertisers and readers with magazines, radio, broadcast television, directories and other communications media that operate in their markets. The Company believes that its production systems and technologies, which enable it to publish separate editions in narrowly targeted zones, allow it to compete effectively in its markets. FEDERAL REGULATION OF RADIO BROADCASTING GENERAL. The ownership, operation and sale of broadcast stations, including those licensed to the Company, are subject to the jurisdiction of the FCC, which acts under authority derived from the Communications Act. The Communications Act was amended in 1996 by the Telecommunications Act to make changes in several broadcast laws. Among other things, the FCC assigns frequency bands for broadcasting; issues station licenses; determines whether to approve changes in ownership or control of station licensees; regulates equipment used by stations; adopts and implements regulations and policies that directly or indirectly affect the ownership, operation and employment practices of stations; and has the power to impose penalties for violations of its rules under the Communications Act. The following is a brief summary of certain provisions of the Communications Act and of specific FCC regulations and policies. Failure to observe these or other rules and policies can result in the imposition of various sanctions, including monetary forfeitures, the grant of "short" (less than the maximum) license renewal terms or, for particularly egregious violations, the denial of a license renewal application, the revocation of a license or the denial of FCC consent to acquire additional broadcast properties. Reference should be made to the Communications Act, FCC rules and the public notices and rulings of the FCC for further information concerning the nature and extent of federal regulation of broadcast stations. LICENSE GRANT AND RENEWAL. Until recently, radio broadcast licenses were granted for maximum terms of seven years but, acting under the authority of the Telecommunications Act, the FCC recently revised its rules to extend the maximum term for future renewals to eight years. Licenses may be renewed through an application to the FCC. Prior to the Telecommunications Act, during certain periods when a 71 renewal application was pending, competing applicants could file for the radio frequency being used by the renewal applicant. The Telecommunications Act prohibits the FCC from considering such competing applications if the FCC finds that the station has served the public interest, convenience and necessity, that there have been no serious violations by the licensee of the Communications Act or the rules and regulations of the FCC, and that there have been no other violations by the licensee of the Communications Act or the rules and regulations of the FCC that, when taken together, would constitute a pattern of abuse. Petitions to deny license renewals can be filed by interested parties, including members of the public. Such petitions may raise various issues before the FCC. The FCC is required to hold hearings on renewal applications if the FCC is unable to determine that renewal of a license would serve the public interest, convenience and necessity, or if a petition to deny raises a "substantial and material question of fact" as to whether the grant of the renewal application would be prima facie inconsistent with the public interest, convenience and necessity. Also, during certain periods when a renewal application is pending, the transferability of the applicant's license is restricted. Such a petition presently is pending against KUAD-FM, one of the Company's Stations, which broadcasts from Windsor, Colorado. The Company is not currently aware of any facts that would prevent the timely renewal of its licenses to operate any of its other Stations and Managed Affiliates, although there can be no assurance that the Company's licenses will be renewed. The FCC classifies each AM and FM station. An AM station operates on either a clear channel, regional channel or local channel. A clear channel is one on which AM stations are assigned to serve wide areas. Clear channel AM stations are classified as either: Class A stations, which operate on an unlimited time basis and are designated to render primary and secondary service over an extended area; Class B stations, which operate on an unlimited time basis and are designed to render service only over a primary service area; and Class D stations, which operate either during daytime hours only, during limited times only or on an unlimited time basis with low nighttime power. A regional channel is one on which Class B and Class D AM stations may operate and serve primarily a principal center of population and the rural areas contiguous to it. A local channel is one on which AM stations operate on an unlimited time basis and serve primarily a community and the suburban and rural areas immediately contiguous thereto. Class C AM stations operate on a local channel and are designed to render service only over a primary service area that may be reduced as a consequence of interference. The minimum and maximum facilities requirements for an FM station are determined by its class. FM class designations depend upon the geographic zone in which the transmitter of the FM station is located. In general, commercial FM stations are classified as follows, in order of increasing power and antenna height: Class A, B1, B, C3, C2, C1 and C. The parameters for each classification are as follows:
MAXIMUM ANTENNA HEIGHT MAXIMUM (HAAT)* CLASS POWER IN METERS ----- ----------- --------------------------- A 6 kw 100 B1 25 kw 100 B 50 kw 150 C3 25 kw 100 C2 50 kw 150 C1 100 kw 299 C 100 kw 600
- ------------------------ * Height Above Average Terrain 72 The following table sets forth the market, call letters, FCC license classification, HAAT, power and frequency of each of the stations owned, operated or managed by the Company, assuming the consummation of the Pending Transactions, and the date on which each station's FCC license expires.
HAAT EXPIRATION FCC IN POWER IN DATE OF MARKET STATION CLASS METERS KILOWATTS FREQUENCY FCC LICENSE - ------------------------------------- ---------------- --------- ------------- ----------------- ------------- -------------- Lancaster/Reading WIOV-FM B 212 25 105.1 mhz 8/1/98 Pennsylvania WIOV-AM C NA 1 1240 khz 8/1/98 Evansville, Indiana/ WBKR-FM C 320 100 92.5 mhz 8/1/04 Owensboro/Henderson, WOMI-AM C NA 1 1490 khz 8/1/04 Kentucky WVJS-AM B NA 5 1420 khz 8/1/03 WSTO-FM C 303 100 96.1 mhz 8/1/03 WKDQ-FM C 300 100 99.5 mhz 8/1/03 Fort Collins/Greeley/Loveland, KUAD-FM C1 200 100 99.1 mhz 4/1/97* Colorado KTRR-FM C2 150 50 102.5 mhz 8/2/04 Duluth, WEBC-AM B NA 5 560 khz 4/1/05 Minnesota/Superior, KKCB-FM C1 240 100 105.1 mhz 4/1/05 Wisconsin KLDJ-FM C2 251 25 101.7 mhz 4/1/05
- ------------------------ * Renewal application pending OWNERSHIP MATTERS. The Communications Act prohibits the assignment of a broadcast license or the transfer of control of a broadcast licensee without the prior approval of the FCC. In determining whether to assign, transfer, grant or renew a broadcast license, the FCC considers a number of factors pertaining to the licensee, including compliance with various rules limiting common ownership of media properties, the "character" of the licensee and those persons holding "attributable" interests therein, compliance with the Communications Act, including the limitation on alien ownership, as well as compliance with other FCC rules and policies, including equal employment opportunity requirements. Once a station purchase agreement has been signed, an application for FCC consent to assignment of license or transfer of control (depending upon whether the underlying transaction is an asset purchase or stock acquisition) is filed with the FCC. Approximately 10 to 15 days after this filing, the FCC publishes a notice assigning a file number to the application and advising that the application has been "accepted for filing." This notice begins a 30-day statutory waiting period, which provides the opportunity for third parties to file formal petitions to deny the transaction; informal objections may be filed any time prior to grant of an application. The FCC staff will normally review the application in this period and seek further information and amendments to the application if it has questions. Once the 30-day public notice period ends, the FCC's staff will complete its processing, assuming that no formal petitions or informal objections were received and that the application is otherwise consistent with FCC rules. The staff often grants the application by delegated authority approximately 10 days after the public notice period ends. At this point, the parties are legally authorized to close the purchase, although the FCC action is not legally a "final order." If there is a backlog of applications, the 10-day period can extend to 30 days or more. Public notice of the FCC staff grant is usually issued about a week after the grant is made, stating that the grant was effective when the staff made the grant. On the date of this notice, another 30-day period begins, within which time interested parties can file petitions seeking either staff reconsideration or full FCC review of the staff action. During this time the grant can still be modified, set aside or stayed, and is not a "final order." In the absence of a stay, however, the seller and buyer are not prevented from closing, at their own risk, despite the absence of a final order. Also, within 40 days after the public notice of the grant, the full FCC can review and reconsider the staff's grant on its own motion. Thus, during the additional 10 days beyond the 30-day period available to third parties, the grant is still not "final." In the event that review by the full FCC is requested and the FCC subsequently affirms the staff's grant of the 73 application, interested parties may thereafter seek judicial review in the United States Court of Appeals for the District of Columbia Circuit within thirty days of public notice of the full FCC's action. In the event the Court affirms the FCC's action, further judicial review may be sought by seeking rehearing en banc from the Court of Appeals or by certiorari from the United States Supreme Court. In the absence of the submission of a timely request for reconsideration, administrative review or judicial review, the FCC staff's grant of an application becomes final by operation of law. Upon the occurrence of that event, counsel is able to deliver an opinion that the FCC's grant is no longer subject to administrative or judicial review, although such action can nevertheless be set aside in rare circumstances, such as fraud on the agency by a party to the application. The pendency of a license renewal application will alter the aforementioned timetables because the FCC will not issue an unconditional assignment grant if the station's license renewal is pending. The Communications Act and FCC rules also generally restrict the common ownership, operation or control of radio broadcast stations serving the same local market, of a radio broadcast station and a television broadcast station serving the same local market, and of a radio broadcast station and a daily newspaper serving the same local market. Under these "cross-ownership" rules, absent waivers, the Company would not be permitted to acquire any daily newspaper or television broadcast station (other than low power television) in a local market where it then owned any radio broadcast station. The FCC's rules provide for the liberal grant of a waiver of the rule prohibiting common ownership of radio and television stations in the same geographic market in the top 25 television markets if certain conditions are satisfied. The Telecommunications Act extends this waiver policy to stations in the top 50 television markets, although the FCC has not yet implemented this change. In response to the Telecommunications Act, the FCC amended its multiple ownership rules to eliminate the national limits on ownership of AM and FM stations. The FCC's broadcast multiple ownership rules restrict the number of radio stations one person or entity may own, operate or control on a local level. These limits are: (i) in a market with 45 or more commercial radio stations, an entity may own up to eight commercial radio stations, not more than five of which are in the same service (FM or AM); (ii) in a market with between 30 and 44 (inclusive) commercial radio stations, an entity may own up to seven commercial radio stations, not more than four of which are in the same service; (iii) in a market with between 15 and 29 (inclusive) commercial radio stations, an entity may own up to six commercial radio stations, not more than four of which are in the same service; (iv) in a market with 14 or fewer commercial radio stations, an entity may own up to five commercial radio stations, not more than three of which are in the same service, except that an entity may not own more than 50% of the stations in such market. None of these multiple ownership rules requires any change in the Company's current ownership of radio broadcast stations or precludes consummation of the Transactions. However, these rules will limit the number of additional stations which the Company may acquire in the future in its markets. The FCC generally applies its television/radio/newspaper cross-ownership rules and its broadcast multiple ownership rules by considering the "attributable," or cognizable interests held by a person or entity. A person or entity can have an attributable interest in a radio station, television station or daily newspaper by being an officer, director, partner or shareholder of a company that owns that station or newspaper. Whether that interest is cognizable under the FCC's ownership rules is determined by the FCC's attribution rules. If an interest is attributable, the FCC treats the person or entity who holds that interest as the "owner" of the radio station, television station or daily newspaper in question, and therefore subject to the FCC's ownership rules. 74 With respect to a corporation, officers and directors and persons or entities that directly or indirectly can vote 5% or more of the corporation's stock (10% or more of such stock in the case of insurance companies, investment companies, bank trust departments and certain other "passive investors" that hold such stock for investment purposes only) generally are attributed with ownership of whatever radio stations, television stations and daily newspapers the corporation owns. With respect to a partnership, the interest of a general partner is attributable, as is the interest of any limited partner who is "materially involved" in the media-related activities of the partnership. Debt instruments, nonvoting stock, options and warrants for voting stock that have not yet been exercised, limited partnership interests where the limited partner is not "materially involved" in the media-related activities of the partnership, and minority (under 5%) voting stock, generally do not subject their holders to attribution. However, the FCC is currently reviewing its rules on attribution of broadcast interests, and it may modify its criteria. See "--Proposed Changes" below. Since under the doctrine of attributed ownership all of the Company's Stations are deemed to be owned by Alan R. Brill, the FCC multiple ownership rules could serve to limit to some extent the ability of the Company to acquire additional stations in some markets. PROGRAMMING AND OPERATION. The Communications Act requires broadcasters to serve the "public interest." Since 1981, the FCC gradually has relaxed or eliminated many of the more formalized procedures it developed to promote the broadcast of certain types of programming responsive to the needs of a station's community of license. However, licensees continue to be required to present programming that is responsive to community problems, needs and interests and to maintain records demonstrating such responsiveness. Complaints from listeners concerning a station's programming will be considered by the FCC when it evaluates the licensee's renewal application, but such complaints also may be filed and considered at any time. Stations also must pay regulatory and application fees and follow various FCC rules that regulate, among other things, political advertising, the broadcast of obscene or indecent programming, sponsorship identification and technical operations (including limits on radio frequency radiation). In addition, licensees must develop and implement programs designed to promote equal employment opportunities for women and minorities and must submit reports to the FCC on these matters annually and in connection with a renewal application. The broadcast of contests and lotteries is regulated by FCC rules. Failure to observe these or other rules and policies can result in the imposition of various sanctions, including monetary forfeitures, the grant of "short" (less than the maximum) renewal terms or, for particularly egregious violations, the denial of a license renewal application or the revocation of a license. In 1985, the FCC adopted rules regarding human exposures to levels of radio frequency radiation. These rules require applicants for new broadcast stations, renewals of broadcast licenses or modifications of existing licenses to inform the FCC at the time of filing such applications whether a new or existing broadcast facility would expose people to radio frequency radiation in excess of certain guidelines. More restrictive radiation limits became effective on October 15, 1997. The Company anticipates that such regulations will not have a material effect on its business. LOCAL MARKETING AGREEMENTS. Over the past five years, a number of radio stations, including certain of the Company's stations, have entered into what commonly are referred to as "local marketing agreements" ("LMAs") or "time brokerage agreements." These agreements take various forms. Separately-owned and licensed stations may agree to function cooperatively in terms of programming, advertising sales and other matters, subject to compliance with the antitrust laws and the FCC's rules and policies, including the requirement that the licensee of each station maintain independent control over the programming and other operations of its own station. The FCC has held that such agreements do not violate the Communications Act as long as the licensee of the station that is being substantially programmed by another entity maintains complete responsibility for, and control over, operations of its broadcast station and otherwise 75 ensures compliance with applicable FCC rules and policies and that the entity providing the programming is in compliance with the FCC local ownership rules. A station that brokers substantial time on another station in its market or engages in an LMA with a station in the same market will be considered to have an attributable ownership interest in the brokered station for purposes of the FCC's ownership rules, discussed above. As a result, a broadcast station may not enter into an LMA that allows it to program more than 15% of the broadcast time, on a weekly basis, of another local station that it could not own under the FCC's local multiple ownership rules. FCC rules also prohibit the broadcast licensee from simulcasting more than 25% of its programming on another station in the same broadcast service (i.e., AM-AM or FM-FM) where the two stations serve substantially the same geographic area, whether the licensee owns the stations or owns one and programs the other through an LMA arrangement. Another example of a cooperative agreement between differently owned radio stations in the same market is a joint sales agreement ("JSA"), whereby one station sells advertising time in combination, both on itself and on a station under separate ownership. In the past, the FCC has determined that issues of joint advertising sales should be left to antitrust enforcement. Currently, JSAs are not deemed by the FCC to be attributable for the purpose of its multiple ownership rules. However, the FCC has outstanding a notice of proposed rulemaking, which, if implemented, could require certain radio station operators to terminate any JSA it might have with a radio station with which such operator could not have an LMA. PROPOSED CHANGES. In December, 1994, the FCC initiated a proceeding to solicit comment on whether it should revise its radio and television ownership "attribution" rules by among other proposals (i) raising the basic benchmark for attributing ownership in a corporate licensee from 5% to 10% of the licensee's voting stock, (ii) increasing from 10% to 20% of the licensee's voting stock the attribution benchmark for "passive investors" in corporate licensees, (iii) restricting the availability of the attribution exemption when a single party controls more than 50% of the voting stock; and (iv) considering LMAs, JSAs, debt and non-voting stock interests to be attributable under certain circumstances. No decision has been made by the FCC in these matters. At this time, no determination can be made as to what effect, if any, this proposed rulemaking will have on the Company. EMPLOYEES At September 30, 1997, the Company employed approximately 340 persons full-time and 100 persons part-time. None of such employees is covered by collective bargaining agreements, and the Company considers its relations with its employees to be good. The Company employs several on-air personalities with large loyal audiences in their respective markets. The Company generally enters into employment agreements with these personalities to protect its interests in those relationships that it believes to be valuable. The loss of one of these personalities could result in a short-term loss of audience share, but the Company does not believe that any such loss would have a material adverse effect on the Company's financial condition or results of operations. PROPERTIES AND FACILITIES The types of properties required to support the Stations include offices, studios, transmitter sites and antenna sites. A Station's studios are generally housed with its offices in business districts, while transmitter sites and antenna sites are generally located so as to provide maximum market coverage. After giving effect to the Transactions, the Company will own studio facilities in Ephrata, Pennsylvania; Owensboro, Kentucky; Windsor, Colorado; and Duluth, Minnesota; and own transmitter and antenna sites in Reading, Pennsylvania; Owensboro; and Duluth. The Company leases its remaining studio and office facilities, and leases certain transmitter and antenna sites. The Company does not anticipate any difficulties in renewing any facility leases or in leasing alternative or additional space, if required. The Company owns substantially all of its other equipment, consisting principally of transmitting antennae, transmitters, studio equipment and general office equipment. 76 Substantially all of the Company's properties and equipment may be encumbered and serve as collateral for the Company's obligations hereinafter incurred by the Company under the New Credit Facility. No one property is material to the Company's operations. The Company believes that its properties are generally in good condition and suitable for its operations; however, it continually looks for opportunities to upgrade its properties and intends to upgrade studios, office space, and transmission facilities in certain markets. LEGAL PROCEEDINGS Currently and from time to time the Company is involved in litigation incidental to the conduct of its business, but it is not a party to any lawsuit or proceeding that, in the opinion of the Company, is likely to have a material adverse effect on the Company. MANAGEMENT Directors of the Company's corporate manager, Brill Media Management, Inc. ("Media"), are elected annually by its sole shareholder, Alan R. Brill. Executive officers of Media are elected by, and serve at the pleasure of, Media's board of directors. The following table sets forth certain information with regard to Media's principal executive officers and directors as of the date of this Offering Memorandum:
NAME AGE POSITION - ------------------------------------------------ --- ------------------------------------------------ Alan R. Brill 55 Director, President, Chief Executive Officer and Treasurer Robert M. Leich 54 Director Philip C. Fisher 59 Director Clifton E. Forrest 49 Director, Vice President (Newspapers), and Assistant Secretary Charles W. Laughlin 69 Director Alan L. Beck 46 Vice President (Radio) Donald C. TenBarge 40 Vice President, Controller, Secretary and Assistant Treasurer
Information concerning the experience and affiliations of the directors and executive officers of Media is as set forth below. ALAN R. BRILL, DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER. Mr. Brill founded the Company's predecessor beginning in 1981 and has worked in the media industry for 24 years. Prior to starting the Company, after Peace Corps service in Ecuador, Mr. Brill joined Arthur Young & Co. in New York City where he practiced as a CPA with a diversified clientele. In 1972, he joined a new, publicly-traded real estate investment trust in Atlanta as a senior financial and administrative executive. The trust was involved in short and long-term real estate loans, primarily to proprietary hospitals. In 1973, he was recruited by Worrell Newspapers, Inc., a large, privately-owned newspaper group headquartered in Charlottesville, Virginia, as its chief financial officer and named to the company's Board of Directors. As a senior executive in the company, Mr. Brill was involved in or responsible for all the company's numerous acquisitions and financings, had a role in most significant operating matters and built a small television group for the company. Soon after the founder transferred his ownership interest to his son and withdrew from the business, Mr. Brill left Worrell to form Brill Media Company, Inc. in 1981. Mr. Brill earned a B.A. in economics and mathematics from DePauw University and an M.B.A. from Harvard Business School. Mr. Brill is a Certified Public Accountant. ROBERT M. LEICH, DIRECTOR. Mr. Leich is President of Diversified Healthcare, Inc., successor to Charles Leich & Co., one of the country's largest independent drug distributors. He is a director of Old National 77 Bank, Evansville, Indiana and of the National Wholesale Druggists Association. He has served on the board of numerous civic and business organizations. Mr. Leich graduated from Yale University and received his M.B.A. degree from Indiana University at Bloomington. PHILIP C. FISHER, DIRECTOR. Dr. Fisher is Dean of Business, University of Southern Indiana and has published extensively on the case study method for entrepreneurial businesses. He has held numerous civic and business posts, including the board of the Evansville Chamber of Commerce and the executive committee of the Indiana Council for Economic Education. He received his undergraduate degree from Wayne State College, an M.B.A. from the University of South Dakota, and a Ph.D. from the Graduate School of Business of Stanford University. CLIFTON E. FORREST, DIRECTOR, VICE PRESIDENT (NEWSPAPERS) AND ASSISTANT SECRETARY. Mr. Forrest joined the Company's predecessors in 1981 as publisher of CMN. In 1987, he moved to Evansville to become a senior officer of BMCLP. His responsibilities consist of managing the publishing, printing and distribution areas and overseeing employee benefit plans, risk management programs, personnel issues, and certain other matters. Mr. Forrest has 33 years of industry experience including 10 years at Worrell Newspapers, Inc. where he served in various roles publishing daily and weekly newspapers in five different states. Mr. Forrest earned a B.A. degree with an emphasis in journalism, marketing, advertising and industrial sociology from Wichita State University. CHARLES W. LAUGHLIN, DIRECTOR. Mr. Laughlin is a lawyer and presently of counsel to Thompson & McMullan, P.C., a law firm in Richmond, Virginia. Mr. Laughlin received his undergraduate degree from the College of William & Mary and his J.D. from the University of Virginia. After completing a clerkship with the United States Court of Appeals for the Fourth Circuit, he has practiced law in Richmond, Virginia since 1956 and has served as counsel to the Company since its inception. ALAN L. BECK, VICE PRESIDENT (RADIO). Mr. Beck joined the Company's predecessor in 1985 as President/General Manager of the Pennsylvania Stations. After two years, he moved to the BMCLP where he became Vice President-Radio Group Operations. Currently, his major responsibilities include supervising the Stations and promotional companies through the general managers, and acting as a resource for other operations. Mr. Beck has 22 years of experience in all facets of the radio and television industries. Mr. Beck earned a B.A. degree in marketing from Southern Illinois University. DONALD C. TENBARGE, VICE PRESIDENT, CONTROLLER, SECRETARY AND ASSISTANT TREASURER. Mr. TenBarge joined BMCLP in 1988. He is responsible for the financial management and reporting of all operations and companies. In addition to managing the information systems, Mr. TenBarge also participates in financing activities and acquisitions. Prior to joining BMCLP, Mr. TenBarge was a manager in a regional CPA firm where he spent nine years engaged in many aspects of audit, tax, systems, and financial planning. Mr. TenBarge earned a B.S. in Accounting from the University of Evansville and is a Certified Public Accountant. To the full extent permitted by applicable Virginia law, Media is obligated to indemnify its officers and directors for liabilities and expenses incurred by them because of their status as officers or directors of Media. EXECUTIVE COMPENSATION The following table sets forth the compensation paid by the Company to Mr. Brill, as its President, Chief Executive Officer and Treasurer, in all capacities during the periods indicated. The Company did not pay any of its executive officers salary and bonus in excess of $100,000 in fiscal 1997. 78 SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION ------------------------------------------------------------ OTHER ANNUAL SALARY BONUS COMPENSATION NAME AND PRINCIPAL POSITION YEAR $ $ $ - ----------------------------------------------------------- --------- ------ ------ ------------------- Alan R. Brill.............................................. 1997 0 0 0 President, Chief Executive Officer, Treasurer and Director(1) ALL OTHER COMPENSATION NAME AND PRINCIPAL POSITION $ - ----------------------------------------------------------- ------------------- Alan R. Brill.............................................. 0 President, Chief Executive Officer, Treasurer and Director(1)
- ------------------------ (1) Mr. Brill received no compensation from the Company, and the other executive officers of the Company received no significant compensation from the Company. All such persons also serve as officers of, and receive compensation from, BMCLP. BMCLP provides management services to the Company and also to affiliated and unaffiliated entities other than the Company pursuant to administrative management agreements. During fiscal 1995, fiscal 1996 and fiscal 1997, BMCLP earned approximately $1.7 million, $1.8 million and $1.9 million, respectively, for such services to the Company. See "Certain Transactions." OPTIONS/SAR GRANTS IN FISCAL 1997 The following table sets forth certain information with respect to option grants made to Mr. Brill for the fiscal year ended February 28, 1997.
POTENTIAL REALIZABLE VALUE AT ASSUMED ANNUAL RATES OF STOCK PRICE NUMBER PERCENT OF TOTAL APPRECIATION OF SECURITIES OPTIONS/SARS FOR UNDERLYING GRANTED TO EXERCISE OPTION TERM OPTIONS/ SARS EMPLOYEES IN PRICE EXPIRATION --------------- NAME GRANTED FISCAL YEAR ($/SH) DATE 5% - ----------------------------------------------- ------------------- ----------------- ----------- ------------- --------------- Alan R. Brill.................................. 0 N/A N/A N/A $ 0 NAME 10% - ----------------------------------------------- --------------- Alan R. Brill.................................. $ 0
AGGREGATED OPTION/SAR EXERCISES IN FISCAL YEAR 1997 AND 1997 FISCAL YEAR-END OPTION/SAR VALUES
NUMBER OF SECURITIES UNDERLYING UNEXERCISED SHARES OPTIONS/SARS AT ACQUIRED ON FISCAL YEAR-END, EXERCISE VALUE EXERCISABLE/UNEXERCISABLE NAME (#)(1) REALIZED ($) (#) - ------------------------------------------ ----------------- ----------------- ----------------------------- Alan R. Brill............................. 0 $ 0 0 VALUE OF UNEXERCISED IN-THE-MONEY OPTIONS/SARS AT FISCAL YEAR-END, NAME EXERCISABLE/UNEXERCISABLE - ------------------------------------------ ------------------------------- Alan R. Brill............................. $ 0
Media made no grants to Mr. Brill of options or stock appreciation rights, and Mr. Brill did not exercise any stock or appreciation rights, in the fiscal year ended February 28, 1997. Mr. Brill held no options or SARs of Media as of February 28, 1997. INCENTIVE PLAN AGREEMENTS AND COMPENSATION OF DIRECTORS The Company has entered into performance incentive plan agreements (the "Plans") with Clifton E. Forrest with respect to the Newspapers business and Alan L. Beck with respect to the Stations' business (the "Executives") in their capacities as executives of the Company. The Plans accumulate increments annually based on certain defined performance criteria. As of February 28, 1997, vested interests of the Executives in the Plans totaled $1,785,000 for Mr. Forrest, and $1,700,000 for Mr. Beck. Payments under the Plans will commence only upon fulfillment of certain contingencies, including the Executive's death, disability, retirement, or employment termination and can be paid, at the Company's option, in amounts 79 not to exceed quarterly payments of 2.5% of the Executive's vested amount. The Company also participates in a defined contribution profit sharing plan to which all Company employees may make voluntary contributions. In the year ended February 28, 1997, Thompson & McMullan, P.C. (to which Mr. Laughlin is of counsel) received approximately $170,000 in fees from the Company. CERTAIN TRANSACTIONS Alan R. Brill directly or indirectly owns and controls the Issuer, the Company and each of the Company's Subsidiaries, Managed Affiliates and other affiliates. BMCLP is a limited partnership whose limited partners are Alan R. Brill and Northwest Radio, Inc., an affiliate owned by Mr. Brill, and whose general partner is Brill Media Company, Inc., also an affiliate of the Company. Since their organization or acquisition, each Subsidiary or affiliate owner of a Newspaper or Station has paid management fees to BMCLP pursuant to management agreements (the "Administrative Management Agreements"). Acting pursuant to such Administrative Management Agreements, BMCLP is responsible for and provides to the Stations and Newspapers long-range strategic planning, management support and oversight, establishment of primary policies and procedures, resource allocation, accounting and auditing, regulatory and legal compliance and support, license renewals and the evaluation of potential acquisitions. In addition, executives of BMCLP visit the Company's Stations and Newspapers on a frequent basis to review performance, to assist local management with programming, production, sales, and recruiting efforts, to develop, implement, and verify overall Station and Newspaper operating and marketing strategies, and, most importantly, to remain aware of developments in each market. The executives of BMCLP are the same persons that are executives of BMC (see "Management"), for which they presently receive no compensation from the Issuer or the Company. None of these executives has any interest in such Administrative Management Agreements, except for Alan R. Brill's indirect interest as owner of BMCLP, as indicated. Pursuant to such Administrative Management Agreements, BMCLP earns an annual fee, paid monthly as permitted, equal to ten percent of each Station's net cash revenues and five percent of each of the Newspapers' net cash revenues. Non-operating Subsidiaries and affiliates pay a nominal flat fee for any such service received. For the Company's nine months ended November 30, 1997 and years ended February 28, 1997, February 29, 1996 and February 28, 1995 the aggregate amount of such Administrative Management Agreement fees charged to Subsidiaries was approximately $1.6 million, $1.9 million, $1.8 million and $1.7 million, respectively. As and to the extent provided in the Indenture, the future payment of such fees will be subordinate to the prior payment of the Company's obligations on the Notes. See "Description of Notes--Certain Covenants--Limitations on Restricted Payments." Pursuant to reimbursement agreements, from time to time third-party services or products (such as insurance coverage) may be provided to one or more of the Company, its Subsidiaries, or their affiliates, in which case such costs are reimbursed on a ratable basis to the provider, which may be BMCLP, the Company, or another Subsidiary or affiliate. Pursuant to Managed Affiliate Management Agreements from time to time one or more of the Subsidiaries may provide management services to a Managed Affiliate on an agreed fee basis for services rendered. Such fees generally consist of a nominal fixed fee plus a variable additional fee based upon the Managed Affiliate's performance. One of the Company's Subsidiaries, Tri-State Broadcasting, Inc. ("Tri-State") has entered into such Managed Affiliate Management Agreements (the "Tri-State Agreements") with two Managed Affiliates, TSB III, LLC, the owner and operator of radio stations WSTO-FM and WVJS-AM licensed to Owensboro, Kentucky and TSB IV, LLC, the owner and operator of radio station WKDQ-FM, licensed to Henderson, Kentucky, each an entity wholly owned by Mr. Brill. Pursuant to the Tri-State Agreements, Tri-State will receive from each of the Managed Affiliates a monthly fee of $10,000 and an additional annual fee based upon such Managed Affiliate's financial performance. The Company 80 charged the Managed Affiliates $180,000 and $40,000 for the nine months ended November 30, 1997 and year ended February 28, 1997, respectively. Prior to November 30, 1997, the Company declared and paid a distribution of $8.0 million in cash to Mr. Brill and $4.2 million for purposes of satisfaction of affiliate notes receivable owing from Mr. Brill. See "Capitalization." Pursuant to Member Management Agreements, Huron Management, Inc., an affiliate owned and controlled by Mr. Brill, acts as member-manager of two of the Company's Subsidiaries, Huron P.S., LLC, and Huron Newspapers, LLC. Nominal charges are made by the management company for this management oversight and for the costs associated therewith. In a like arrangement, Northland Management, Inc., an affiliate controlled by Mr. Brill, is manager on a fee basis to another Subsidiary, Northland Broadcasting, LLC. On a temporary basis, at a present cost of approximately $70,000 per year, a Subsidiary, Central Michigan Newspapers, Inc. ("CMN"), presently leases space from the current owner of a facility that will be owned by CMR Investments, L.P. ("CMR") a limited partnership affiliate of the Company (in which BMCLP's and the Company's executives, Mr. Brill, Clifton E. Forrest, and Alan L. Beck each has an interest as a limited partner) after closing of the purchase of such property by CMR. CMN has advanced to CMR the sum of $500,000 (a portion of the insurance proceeds resulting from a fire loss at CMN's prior production facilities) for CMN's share of the "build out" costs of new quarters that CMN will lease from CMR and will occupy after CMR has acquired and renovated the property. After renovation is complete, CMR and CMN will effect the long-term lease for occupancy of the improved property for use as the Newspapers' main office and production facility, all at a cost no greater than that required for comparable space elsewhere in that market, if available, and CMN will be relieved of its present several facility commitments. DRI, LLC, an affiliate owned indirectly by Mr. Brill, recently acquired title to a building in Duluth, Minnesota (the "Duluth Building"). It is anticipated that DRI, LLC will enter into a lease on market rental terms with the Subsidiaries Northland Broadcasting, LLC and NBII, Inc. for use of a portion of the Duluth Building as a studio facility for the Duluth, Minnesota/Superior Wisconsin Stations. From time to time various Company Subsidiaries and affiliates have entered into loan transactions between themselves, which transactions are duly recorded in the appropriate Company books and records and the annual effects of which are fully reflected in the Company's financial statements. Certain of the Subsidiaries and other affiliates were indebted under the terms of certain senior secured obligations guaranteed by Mr. Brill and payable to AMRESCO Funding Corporation ("Amresco") and Goldman Sachs Credit Partners L.P. ("Goldman Sachs"). These obligations were paid, along with accrued interest thereon and a prepayment premium of $2.8 million, from the proceeds of the Offering as reflected in the pro forma combined financial statements contained in this Prospectus. The Company loaned approximately $900,000 of the proceeds of the Offering to Managed Affiliates and received in return therefor Managed Affiliate Notes which are unsecured, mature on January 1, 2001 and bear interest at a rate of 12% per annum. Such amounts are in addition to the $15.4 million already loaned by the Company to the Managed Affiliates at November 30, 1997. The proceeds of such loans were used by the Managed Affiliates to purchase property, equipment, and intangibles and to provide working capital for operations. Total interest income earned by the Company on these loans totalled $1,220,225 and $3,606 for the nine months ended November 30, 1997 and year ended February 28, 1997, respectively. It is anticipated that similar relationships may be initiated with other affiliates in the future. No transaction may cause the aggregate principal amount of Managed Affiliate Notes then outstanding to exceed $20.0 million unless: (i) the Board of Directors, including a majority of the disinterested members of the Board, determines that the terms of the transaction are no less favorable than those that could be obtained at the time of such transaction in arms-length dealings with a person who is not an Affiliate; (ii) the Issuer obtains a written opinion of an independent investment bank of nationally recognized standing that the 81 transaction is fair to the Issuer from a financial point of view; and (iii) the Issuer at the time of the transaction is able to make a Restricted Payment in an amount equal to such excess amount. The Company is subject to provisions of Virginia law that restrict transactions between the Company and its directors and officers, but the Company does not additionally have a conflicts policy. RECENT OR PENDING TRANSACTIONS On February 24, 1998 the Company completed the asset acquisition of certain newspaper, printing and distribution operations located in northern Michigan. Total consideration amounted to approximately $8.5 million and included cash of $5.5 million and seller notes of $3.0 million. In addition, the Company entered into a non-compete agreement totaling approximately $365,000. The financial statements and pro forma impacts of this acquisition are expected to be included in a future filing on Form 8-K by the Company and accordingly are not included in the pro forma financial information included herein or in the definition of Transactions. In conjunction with such acquisition, the Company formed six new wholly-owned subsidiaries of Holdings, all of which are guarantors of the Securities. The Missouri Properties have entered into agreements for the sale of substantially all of the assets of the Missouri Properties for a net cash purchase price of approximately $7.4 million, plus assumed liabilities of $256,000. The net book value of the Assets is approximately $1.8 million at November 30, 1997. The Company expects to record a pretax gain of approximately $5.5 million after expenses. Pursuant to the terms of a Time Brokerage Agreement which provides for monthly payments of $50,000 to the Missouri Properties, the purchaser is operating and managing the Missouri Properties pending closing of the purchase. Closing of the sale and purchase is expected to occur immediately upon the FCC granting requisite approval for transfer of the broadcast licenses associated with these Stations. Applications for transfer of broadcast licenses of the Missouri Properties have been filed with the FCC by the purchasers. A local market competitor has objected to the transfer of the licenses and on December 12, 1997, filed with the FCC a Petition to Deny the license transfers and to terminate the Time Brokerage Agreement. No action has been taken on the Petition to Deny by the FCC, and the Company believes that even if the Petition to Deny were granted, the consequences would not be material to the Company. The Attorney General of the State of Missouri on January 9, 1998 filed a civil investigative demand on the Company to provide documents in order to consider whether the proposed transaction would violate federal or Missouri antitrust laws. The Company has complied with the demand. The Company's Subsidiary, NCR II Inc., presently manages and programs radio station KTRR-FM in Loveland, Colorado pursuant to a Time Brokerage Agreement with Onyx Broadcasting, Inc., has executed an option to purchase substantially all of the assets of KTRR-FM for a purchase price of $2.0 million, and will enter into a covenant not to compete with the sellers, with a stated consideration of $500,000, payable over its five year term. It is expected that closing of the purchase of KTRR-FM will occur shortly after execution of a definitive asset purchase agreement for this transaction and required approval for transfer of the broadcast licenses by the FCC. On October 1, 1997 two of the Company's newspaper Subsidiaries acquired the assets of Huron and Northeastern, newspapers located on the coast of Lake Huron, Michigan, for a total consideration of $2.8 million. 82 THE EXCHANGE OFFER PURPOSE AND EFFECT OF THE EXCHANGE OFFER The Original Securities were originally sold by the Issuer on December 30, 1997 in transactions exempt from the registration requirements of the Securities Act. The $3,000,000 aggregate principal amount of the Original Appreciation Notes and $105,000,000 aggregate principal amount of the Original Notes were sold to the Initial Purchaser pursuant to the Purchase Agreement. The Initial Purchaser subsequently resold such Securities. The Issuer, the Subsidiary Guarantors, and the Initial Purchaser entered into the Registration Rights Agreements pursuant to which the Issuer and the Subsidiary Guarantors agreed, for the benefit of the holders, that they would, at their own expense, (i) file within 60 days after December 30, 1997, the original issue date of the Securities (the "Issue Date"), one or more registration statements (the "Exchange Offer Registration Statement") with the Commission with respect to the Exchange Offer for the Exchange Securities and (ii) use their reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective by the Commission under the Securities Act within 150 days after the Issue Date and (iii) use their reasonable best efforts to cause such Exchange Offer Registration Statement to remain effective until the closing of the Exhange Offer and (iv) use their reasonable best efforts to consummate the Exchange Offer no later than 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective, the Issuer will commence the Exchange Offer. The Issuer will keep the Exchange Offer open for not less than 20 business days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to the holders of the Securities. For each Original Note surrendered pursuant to the Exchange Offer, the holder who surrendered such Original Note will receive an Exchange Note having a principal amount equal to that of the surrendered Original Note. Interest on each Exchange Note will accrue from the last date on which interest was paid on the Original Note surrendered in exchange therefor or, if no interest has been paid on such Original Note, from the Issue Date. For each Original Appreciation Note surrendered pursuant to the Exchange Offer, the holder who surrendered such Original Appreciation Note will receive an Exchange Appreciation Note having a principal amount equal to that of the surrendered Original Appreciation Note. Under existing interpretations of the staff to the Commission contained in several no-action letters to third parties, the Exchange Securities would generally be freely transferable by holders thereof other than Affiliates of the Issuer after the Exchange Offer without further registration under the Securities Act only if (i) the Exchange Securities were acquired in the ordinary course of business of such holder or such other person, (ii) neither such holder nor such other person is engaging in or intends to engage in a distribution of the Exchange Securities and (iii) neither such holder nor such other person has an arrangement or understanding with any person to participate in the distribution of the Exchange Securities. However, any purchaser of Securities who is an Affiliate of the Issuer or who intends to participate in the Exchange Offer for the purpose of distribution of the Exchange Securities (i) will not be able to rely on the position of the staff of the Commission, (ii) will not be able to tender its Securities in the Exchange Offer and (iii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the Securities, unless such sale or transfer is made pursuant to an exemption from such requirements. Each holder of the Original Securities that wishes to exchange such Original Securities for Exchange Securities in the Exchange Offer will be required to represent in the Letters of Transmittal that (i) the Exchange Securities are to be acquired by the holder or the person receiving such Exchange Securities, whether or not such person is the holder, in the ordinary course of business, (ii) the holder or any such other person (other than a broker-dealer referred to in the next sentence) is not engaging, and does not intend to engage, in the distribution of the Exchange Securities, (iii) the holder or any such other person has no arrangement or understanding with any person to participate in the distribution of the Exchange Securities, (iv) neither the holder nor any such other person is an "affiliate" of the Issuer within the meaning of Rule 405 under the Securities Act and (v) the holder or any such other person acknowledges that if such holder or other person participates in the Exchange Offer for the purpose of distributing the 83 Exchange Securities it must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the Exchange Securities and cannot rely on those no-action letters. As indicated above, in connection with any resales of Exchange Securities, any broker-dealer (a "Participating Broker-Dealer") that acquired the Original Securities for its own account as a result of market-making or other trading activities must deliver a prospectus meeting the requirements of the Securities Act. Based on existing interpretations of the staff of the Commission, the Company believes that Participating Broker-Dealers may fulfill their prospectus delivery requirements with respect to the Exchange Securities (other than a resale of an unsold allotment from the original sale of the Securities) with this Prospectus. Under the Registration Rights Agreements, the Issuer is required to make this Prospectus available to Participating Broker-Dealers and other persons, if any, with similar prospectus delivery requirements, for a period of 180 days after consummation of the Exchange Offer for use in connection with the resale of Exchange Securities. See "Plan of Distribution." In the event that (i) applicable law or interpretations of the staff of the Commission do not permit the Company to effect such an Exchange Offer, (ii) for any other reason the Exchange Offer is not consummated within 180 days after the Issue Date, (iii) under certain circumstances upon the request of the Inital Purchaser or (iv) any holder of Original Securities (other than the Initial Purchaser) is not able to make the representations set forth in the Letter of Transmittal and described above, the Issuer will, at its expense, (a) as promptly as reasonably practicable file a registration statement (the "Shelf Registration Statement") relating to the offer and sale of the then outstanding Original Securities, (b) use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective under the Securities Act by the 180th day after the Issue Date (or promptly in the event of a request by the Initial Purchaser pursuant to clause (iii) above) and (c) use its reasonable best efforts to keep the Shelf Registration Statement effective until the earlier of two years from the Issue Date (or one year from the date the Shelf Registration Statement is declared effective if such Shelf Registration Statement is filed upon the request of the Initial Purchaser pursuant to clause (iii) above) or such shorter period which will terminate when all of the Original Securities become eligible for resale pursuant to Rule 144 under the Securities Act without volume restriction (the "Effectiveness Period"). TERMS OF THE EXCHANGE OFFER Upon the terms and subject to the conditions set forth in this Prospectus and in the Letters of Transmittal, the Issuer will accept any and all Original Securities validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on the Expiration Date. The Issuer will issue an equal principal amount of Exchange Notes in exchange for such principal amount of outstanding Original Notes accepted in the Exchange Offer and an equal principal amount of Exchange Appreciation Notes in exchange for such principal amount of outstanding Original Appreciation Notes accepted in the Exchange Offer. Holders may tender some or all of their Original Securities pursuant to the Exchange Offer. Notes may be tendered only in integral multiples of $1,000; provided, however, that a holder holding any Original Note in a denomination of other than an integral multiple of $1,000 may tender the principal amount of such Original Note that is not an integral multiple of $1,000 in addition to tendering, in integral multiples of $1,000, the remaining principal amount, if any, of such Original Note. The form and terms of the Exchange Notes are the same as the form and terms of the Original Notes and the form and terms of the Exchange Appreciation Notes are the same as the form and terms of the Original Appreciation Notes except that (i) the Exchange Notes and the Exchange Appreciation Notes will bear a "Series B" designation and different CUSIP Numbers from the Securities, (ii) the Exchange Notes and the Exchange Appreciation Notes will have been registered under the Securities Act and hence will not bear legends restricting the transfer thereof and (iii) the holders of the Exchange Notes and the Exchange Appreciation Notes will not be entitled to certain rights of holders of Notes and Appreciation Notes under the Registration Rights Agreements, which rights will terminate as to holders of the Exchange Securities when the Exchange Offer is consummated. The Exchange Notes will evidence the same debt as 84 the Original Notes and will be entitled to the benefits of the Notes Indenture. The Exchange Appreciation Notes will evidence the same debt as the Original Appreciation Notes and will be entitled to the benefits of the Appreciation Notes Indenture. As of the date of this Prospectus, $105,000,000 aggregate principal amount of Original Notes are outstanding and $3,000,000 aggregate principal amount of Original Appreciation Notes are outstanding. The Issuer has fixed the close of business on , 1998 as the date for purposes of determining the persons to whom this Prospectus and the Letters of Transmittal will be mailed initially. The Issuer shall be deemed to have accepted validly tendered Original Securities when, as and if the Issuer has given oral or written notice thereof to the Exchange Agent. The Exchange Agent will act as agent for the tendering holders for the purpose of receiving the Exchange Securities from the Issuer. If any tendered Original Securities are not accepted for exchange because of an invalid tender, the occurrence of certain other events set forth herein or otherwise, the certificates for any such unaccepted Original Securities will be returned, without expense, to the tendering holder thereof as promptly as practicable after the Expiration Date. Holders who tender Original Securities in the Exchange Offer will not be required to pay brokerage commissions or fees or, subject to the instructions in the Letters of Transmittal, transfer taxes with respect to the exchange of Original Securities pursuant to the Exchange Offer. The Issuer will pay all charges and expenses, other than transfer taxes in certain circumstances, in connection with the Exchange Offer. See "--Fees and Expenses." EXPIRATION DATE; EXTENSIONS; AMENDMENTS The term "Expiration Date" shall mean 5:00 p.m., New York City time, on , 1998, unless the Issuer, in its sole discretion, extends the Exchange Offer, in which case the term "Expiration Date" shall mean the latest date and time to which the Exchange Offer is extended. The Exchange Offer may be extended as necessary to resolve whether holders who participate in the Exchange Offer will receive freely tradeable securities, and if an extension occurs, tendered securities may be withdrawn after the original Expiration Date but before the expiration of the extended period. In order to extend the Exchange Offer, the Issuer will notify the Exchange Agent of any extension by written notice and will mail to the registered holders an announcement thereof, each prior to 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. The Issuer reserves the right, in its sole discretion, (i) to delay accepting any Original Securities, to extend the Exchange Offer or to terminate the Exchange Offer if any of the conditions set forth below under "--Conditions" shall not have been satisfied, by giving written notice of such delay, extension or termination to the Exchange Agent or (ii) to amend the terms of the Exchange Offer in any manner. Any such delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by written notice thereof to the registered holders. INTEREST ON THE EXCHANGE SECURITIES Interest on each Exchange Note will accrue from the last date on which interest was paid on the Original Note surrendered in exchange therefor or, if no interest has been paid on such Original Note, from the Issue Date. Holders whose Original Notes are accepted for exchange will be deemed to have waived the right to receive interest accrued on such Original Notes. Accordingly, holders who exchange their Original Notes will receive the same interest payment on the next interest payment date (expected to be June 15, 1998) that they would have received had they not accepted the Exchange Offer. Interest on the Exchange Notes is payable semi-annually on each June 15 and December 15 commencing on June 15, 1998. 85 PROCEDURES FOR TENDERING Only a holder of Original Securities may tender such Original Securities in the Exchange Offer. To tender in the Exchange Offer, a holder must complete, sign and date the appropriate Letter of Transmittal, or a facsimile thereof, have the signatures thereon guaranteed if required by the Letter of Transmittal and mail or otherwise deliver such Letter of Transmittal, or such facsimile, together with the Original Securities and any other required documents, to the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. A separate Letter of Transmittal is required for the tender of Original Notes and for the tender of Original Appreciation Notes. To be tendered effectively, the Original Securities, Letters of Transmittal and other required documents must be completed and received by the Registrar at the address set forth below under "--Exchange Agent" prior to 5:00 p.m., New York City time, on the Expiration Date. Delivery of the Original Securities may be made by book-entry transfer in accordance with the procedures described below. Confirmation of such book-entry transfer must be received by the Exchange Agent prior to the Expiration Date. Notwithstanding the foregoing, DTC Participants tendering through ATOP will be deemed to have made valid delivery where the Exchange Agent receives an Agent's Message (defined below) prior to the Expiration Date. The Exchange Agent will review Letters of Transmittal and inform the tendering parties of defects therein. By executing a Letter of Transmittal, each holder will make to the Issuer the representations set forth above in the second paragraph under the heading "--Purpose and Effect of the Exchange Offer." The tender by a holder and the acceptance thereof by the Issuer will constitute the agreement between such holder and the Issuer in accordance with the terms and subject to the conditions set forth herein and in the Letters of Transmittal. The Original Securities were issued as units, each of which was immediately separable into one Original Note and one Original Appreciation Note (the "Units"). The Exchange Notes and Exchange Appreciation Notes are being offered separately, and not as units. By submitting a Letter of Transmittal to tender Original Securities, or by electronically transmitting its acceptance of the Exchange Offer through ATOP, a holder of Units will request the separation of such Units into their component parts. THE METHOD OF DELIVERY OF ORIGINAL SECURITIES AND THE LETTERS OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND SOLE RISK OF THE HOLDER. AS AN ALTERNATIVE TO DELIVERY BY MAIL, HOLDERS MAY WISH TO CONSIDER OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR SECURITIES SHOULD BE SENT TO THE ISSUER. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR SUCH HOLDERS. ORIGINAL SECURITIES HELD THROUGH DTC. Each beneficial owner holding Original Securities through a DTC Participant must instruct such DTC Participant to cause its Original Securities to be tendered in accordance with the procedures set forth in this Prospectus. Pursuant to an authorization given by DTC to the DTC Participants, each DTC Participant holding Original Securities through DTC must (i) electronically transmit its acceptance through ATOP, and DTC will then edit and verify the acceptance, execute a book-entry delivery to the Exchange Agent's account at DTC and send an Agent's Message to the Exchange Agent for its acceptance, or (ii) comply with the guaranteed delivery procedures set forth below and in the Notice of Guaranteed Delivery. See "--Guaranteed Delivery Procedures." 86 The Exchange Agent will (promptly after the date of this Prospectus) establish accounts at DTC for purposes of the Exchange Offer with respect to Original Securities held through DTC, and any financial institution that is a DTC Participant may make book-entry delivery of interests in Original Securities into the Exchange Agent's account through ATOP. However, although delivery of interests in the Original Securities may be effected through book-entry transfer into the Exchange Agent's account through ATOP, an Agent's Message in connection with such book-entry transfer, and any other required documents, must be, in any case, transmitted to and received by the Exchange Agent at its address set forth under "--Exchange Agent," or the guaranteed delivery procedures set forth below must be complied with, in each case, prior to the Expiration Date. Delivery of documents to DTC does not constitute delivery to the Exchange Agent. The confirmation of a book-entry transfer into the Exchange Agent's account at DTC as described above is referred to herein as a "Book-Entry Confirmation." The term "Agent's Message" means a message transmitted by DTC to, and received by, the Exchange Agent and forming a part of the Book-Entry Confirmation, which states that DTC has received an express acknowledgment from each DTC Participant tendering through ATOP that such DTC Participants have received a Letter of Transmittal and agree to be bound by the terms of the Letter of Transmittal and that the Issuer may enforce such agreement against such DTC Participants. Cede & Co., as the Holder of the global certificates representing the Original Notes and the Original Appreciation Notes (each a "Global Security," or together, the "Global Securities"), will tender a portion of each of the Global Securities equal to the aggregate principal amount due at the stated maturity or number of shares for which instructions to tender are given by DTC Participants. ORIGINAL SECURITIES HELD BY HOLDERS. Any beneficial owner whose Original Securities are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact such registered holder promptly and instruct such registered holder to tender on such beneficial owner's behalf. See "Instructions to Registered Holder and/or Book-Entry Transfer Facility Participant from Beneficial Owner" included with the Letters of Transmittal. Signatures on a Letter of Transmittal or a notice of withdrawal, as the case may be, must be guaranteed by an Eligible Institution (as defined) unless the Original Securities tendered pursuant thereto are tendered (i) by a registered holder who has not completed the box entitled "Special Delivery Instructions" on the Letter of Transmittal or (ii) for the account of an Eligible Institution. In the event that signatures on a Letter of Transmittal or a notice of withdrawal, as the case may be, are required to be guaranteed, such guarantee must be by a member firm of the Medallion System (an "Eligible Institution"). If a Letter of Transmittal is signed by a person other than the registered holder of any Original Securities listed therein, such Original Securities must be endorsed or accompanied by a properly completed bond power for both the Original Notes and Original Appreciation Notes, signed by such registered holder as such registered holder's name appears on such Original Securities with the signature thereon guaranteed by an Eligible Institution. If a Letter of Transmittal or any Original Securities or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and evidence satisfactory to the Issuer of their authority to so act must be submitted with the Letter of Transmittal. All questions as to the validity, form, eligibility (including time of receipt) and acceptance of tendered Original Securities and withdrawal of tendered Original Securities will be determined by the Issuer in its sole discretion, which determination will be final and binding. The Issuer reserves the absolute right to reject any and all Original Securities not properly tendered or any Original Securities the Issuer's acceptance of which would, in the opinion of counsel for the Issuer, be unlawful. The Issuer also reserves the right in its sole discretion to waive any defects, irregularities or conditions of tender as to particular Original Securities. The Issuer's interpretation of the terms and conditions of the Exchange Offer 87 (including the instructions in the Letters of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Original Securities must be cured within such time as the Issuer shall determine. Although the Issuer intends to notify holders of defects or irregularities with respect to tenders of Original Securities, neither the Issuer, the Exchange Agent nor any other person shall incur any liability for failure to give such notification. Tenders of Original Securities will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Original Securities received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering holders, unless otherwise provided in the Letters of Transmittal, as soon as practicable following the Expiration Date. Any beneficial owner whose Original Securities are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact such registered holder promptly and instruct such registered holder to tender on such beneficial owner's behalf. If such beneficial owner wishes to tender on such owner's own behalf, such owner must, prior to completing and executing a Letter of Transmittal and delivering its Original Securities, either make appropriate arrangements to register ownership of the Original Securities in such owner's name or obtain a properly completed bond power for both the Original Notes and Original Appreciation Notes from the registered holder. The Transfer of registered ownership may take considerable time and may not be completed prior to the Expiration Date and if the beneficial owner has not instructed the record owner to tender its Original Securities, the beneficial owner will be unable to participate in the Exchange Offer and thereafter will have no registration rights. GUARANTEED DELIVERY PROCEDURES ORIGINAL SECURITIES HELD THROUGH DTC. DTC Participants holding Original Securities through DTC who wish to cause their Original Securities to be tendered, but who cannot transmit their acceptances through ATOP prior to the Expiration Date, may cause a tender to be effected if: (a) guaranteed delivery is made by or through an Eligible Institution; (b) prior to 5:00 p.m., New York City time on the Expiration Date, the Exchange Agent receives from such Eligible Institution a properly completed and duly executed Notice of Guaranteed Delivery (by mail, hand delivery, facsimile transmission or overnight courier) substantially in the form provided by the Company herewith; and (c) Book-Entry Confirmation and an Agent's Message in connection therewith (as described above) are received by the Exchange Agent within three NYSE trading days after the date of the execution of the Notice of Guaranteed Delivery. ORIGINAL SECURITIES HELD BY HOLDERS. Holders who wish to tender their Original Securities and (i) whose Original Securities are not immediately available, (ii) who cannot deliver their Original Securities, the Letters of Transmittal or any other required documents to the Exchange Agent or (iii) who cannot complete the procedures for book-entry transfer, prior to the Expiration Date, may effect a tender if: (a) the tender is made through an Eligible Institution; (b) prior to the Expiration Date, the Registrar receives from such Eligible Institution a properly completed and duly executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand delivery) setting forth the name and address of the holder, the certificate number(s) of such Original Securities and the principal amount of Original Notes and/or principal amount of Original Appreciation Notes tendered, stating that the tender is being made thereby and guaranteeing that, within five New York Stock Exchange trading days after the Expiration Date, the Letters of Transmittal (or facsimiles thereof) together with the certificate(s) representing the Original Securities, and any other 88 documents required by the Letters of Transmittal will be deposited by the Eligible Institution with the Registrar; and (c) such properly completed and executed Letters of Transmittal (or facsimiles thereof), as well as the certificate(s) representing all tendered Original Securities in proper form for transfer, and all other documents required by the Letters of Transmittal are received by the Exchange Agent within five New York Stock Exchange trading days after the Expiration Date. Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will be sent to holders who wish to tender their Original Securities according to the guaranteed delivery procedures set forth above. WITHDRAWAL OF TENDERS Except as otherwise provided herein, tenders of Original Securities may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date. To withdraw a tender of Original Securities in the Exchange Offer, a letter or facsimile transmission notice of withdrawal must be received by the Exchange Agent at its address set forth herein prior to 5:00 p.m., New York City time, on the Expiration Date. Any such notice of withdrawal by a DTC Participant must contain the name and number of the DTC Participant, the principal amount due at the stated maturity of Original Appreciation Notes to which such withdrawal relates and the signature of the DTC Participant. Any such notice of withdrawal by a Holder of Original Securities must (i) specify the name of the person having deposited the Original Securities to be withdrawn (the "Depositor"), (ii) identify the Original Securities to be withdrawn (including the certificate number(s) and principal amount of Original Notes and/ or principal amount of Original Appreciation Notes) (iii) be signed by the holder in the same manner as the original signature on the Letters of Transmittal by which such Original Securities were tendered (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the Exchange Agent with respect to the Original Notes and the Original Appreciation Notes register the transfer of such Original Securities into the name of the person withdrawing the tender and (iv) specify the name in which any such Original Securities are to be registered, if different from that of the Depositor. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Issuer, whose determination shall be final and binding on all parties. Any Original Securities so withdrawn will be deemed not to have been validly tendered for purposes of the Exchange Offer, and no Exchange Securities will be issued with respect thereto unless the Original Securities so withdrawn are validly retendered. Any Original Securities which have been tendered but which are not accepted for exchange will be returned to the holder thereof without cost to such holder as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Original Securities may be retendered by following one of the procedures described above under "--Procedures for Tendering" at any time prior to the Expiration Date. CONDITIONS Notwithstanding any other term of the Exchange Offer, the Issuer shall not be required to accept for exchange, or exchange Exchange Securities for, any Original Securities, and may terminate or amend the Exchange Offer as provided herein before the acceptance of such Original Securities, if the Exchange Offer, or the making of any exchange by a holder of Original Securities, violates applicable law or any applicable interpretation of the staff of the Commission. EXCHANGE AGENT The United States Trust Company of New York has been appointed as Exchange Agent for the Exchange Offer. Questions and requests for assistance, requests for additional copies of this Prospectus or 89 of the Letters of Transmittal and requests for Notice of Guaranteed Delivery should be directed to the Exchange Agent addressed as follows: For Information by Telephone: 1-800-548-6565 By Registered or Certified Mail: By Hand Before 4:30 p.m.: United States Trust Company of New York United States Trust Company of New York P.O. Box 843 Cooper Station 111 Broadway New York, New York 10276 New York, New York 10006 Attention: Corporate Trust Services Attention: Lower Level Corporate Trust Window By Overnight Courier and By Facsimile Transmission: By Hand After 4:30 p.m.: (212) 780-0592 United States Trust Company of New York Attention: Customer Service 770 Broadway, 13th Floor New York, New York 10003 Confirm by Telephone to: (800) 548-6565
Originals of all documents sent by facsimile should be sent promptly by registered or certified mail, by hand, or by overnight delivery service. Delivery to an address or transmission of instructions via facsimile other than as set forth above will not constitute a valid delivery. The United States Trust Company of New York also acts as Trustee under the Note Indenture and as Appreciation Note Indenture and as Registrar and Paying Agent with regard to the Notes and the Appreciation Notes. FEES AND EXPENSES The expenses of soliciting tenders will be borne by the Issuer. The principal solicitation is being made by mail; however, additional solicitation may be made by telegraph, telecopy, telephone or in person by officers and regular employees of the Issuer and its affiliates. The Issuer has not retained any dealer-manager in connection with the Exchange Offer and will not make any payments to brokers, dealers or others soliciting acceptances of the Exchange Offer. The Issuer, however, will pay the Exchange Agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses in connection therewith. The cash expenses to be incurred in connection with the Exchange Offer will be paid by the Issuer. Such expenses include fees and expenses of the Exchange Agent, Trustee, Registrar and Paying Agent, accounting and legal fees and printing costs, among others. ACCOUNTING TREATMENT The Exchange Notes and the Exchange Appreciation Notes will be recorded at the same carrying value as the Original Notes and the Original Appreciation Notes as reflected in the Issuer's accounting records on the date of exchange. Accordingly, no gain or loss for accounting purposes will be recognized by the Issuer. The expenses of the Exchange Offer will be amortized over the remaining term of the Securities. CONSEQUENCES OF FAILURE TO EXCHANGE Original Securities that are not exchanged for Exchange Securities pursuant to the Exchange Offer will remain restricted securities. Accordingly, such Original Securities may be resold only (i) to the Issuer (upon redemption thereof or otherwise), (ii) so long as the Securities are eligible for resale pursuant to Rule 144A under the Securities Act, to a person inside the United States whom the seller reasonably 90 believes is a qualified institutional buyer within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, (iii) in accordance with Rule 144 under the Securities Act, or pursuant to another exemption from the registration requirements of the Securities Act (and based upon an opinion of counsel reasonably acceptable to the Issuer), (iv) outside the United States to a foreign person in a transaction meeting the requirements of Rule 904 under the Securities Act or (v) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any state of the United States. RESALE OF THE EXCHANGE SECURITIES With respect to resales of Exchange Securities, based on no-action letters issued by the staff of the Commission to third parties, the Issuer believes that a holder or other person who receives Exchange Securities, whether or not such person is the holder (other than a person who is an "affiliate" of the Issuer within the meaning of Rule 405 under the Securities Act), who receives Exchange Securities in exchange for Original Securities in the ordinary course of business and who is not participating, does not intend to participate, and has no arrangement or understanding with any person to participate, in the distribution of the Exchange Securities, will be allowed to resell the Exchange Notes and Exchange Appreciation Notes to the public without further registration under the Securities Act and without delivering to the purchasers of the Exchange Securities a prospectus that satisfies the requirements of Section 10 of the Securities Act. However, if any holder acquires Exchange Securities in the Exchange Offer for the purpose of distributing or participating in a distribution of Exchange Securities, such holder cannot rely on the position of the staff of the Commission enunciated in such no-action letters, and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction, unless an exemption from registration is otherwise available. Further, each Participating Broker-Dealer that receives Exchange Securities for its own account in exchange for Original Securities where such Original Securities were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities, may be a statutory underwriter and must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. The Letters of Transmittal state that by so acknowledging and by delivering a prospectus, a Participating Broker-Dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. As contemplated by these no-action letters and the Registration Rights Agreements, each holder accepting the Exchange Offer is required to represent to the Issuer in the Letter of Transmittal that (i) the Exchange Securities are to be acquired by the holder or the person receiving such Exchange Securities, whether or not such person is the holder, in the ordinary course of business, (ii) the holder or any such other person (other than a broker-dealer referred to in the next sentence) is not engaging, and does not intend to engage, in the distribution of the Exchange Securities, (iii) the holder or any such other person has no arrangement or understanding with any person to participate in the distribution of the Exchange Securities, (iv) neither the holder nor any such other person is an "affiliate" of the Issuer within the meaning of Rule 405 under the Securities Act and (v) the holder or any such other person acknowledges that if such holder or other person participates in the Exchange Offer for the purpose of distributing the Exchange Securities it must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the Exchange Securities and cannot rely on those no-action letters. As indicated above, each Participating Broker-Dealer that receives Exchange Securities for its own account in exchange for Original Securities must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. For a description of the procedures for such resales by Participating Broker-Dealers, see "Plan of Distribution." The Issuer, will, in the event of the filing of the Shelf Registration Statement, provide to each holder of the Original Notes copies of the prospectus which is a part of the Shelf Registration Statement, notify each such holder when the Shelf Registration Statement has become effective and take certain other actions as are required to permit unrestricted resales of the Original Notes. A holder of Original Notes 91 that sells its Original Notes pursuant to the Shelf Registration Statement generally will be required to be named as a selling securityholder in the related prospectus and to deliver such prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with such sales and will be bound by the provisions of the Registration Rights Agreement that are applicable to such a holder (including certain indemnification rights and obligations thereunder). If the Issuer and the Subsidiary Guarantors fail to comply with the above provisions or if such registration statements fail to become effective, then, as the sole liquidated damages for such failure by the Issuer and the Subsidiary Guarantors, additional interest (the "Additional Interest") shall become payable with respect to the Securities as follows: (i) if the Exchange Offer Registration Statement or Shelf Registration Statement is not declared effective within 150 days following the Issue Date, Additional Interest shall accrue on the Notes over and above the stated interest, and Appreciation Notes Additional Interest shall accrue on $3,000,000, in each case at a rate of 0.50% per annum for the first 120 days commencing on the 151st day after the Issue Date, such Additional Interest rate and Appreciation Notes Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 30-day period; or (ii) if (A) the Issuer has not exchanged all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to 180 days after the Issue Date or (B) the Exchange Offer Registration Statement ceases to be effective at any time prior to the time that the Exchange Offer is consummated or (C) if applicable, the Shelf Registration Statement has been declared effective and such Shelf Registration Statement ceases to be effective at any time prior to the second anniversary of the Issue Date (unless all the Securities have been sold thereunder) then Additional Interest shall accrue on the Notes over and above the stated interest, and Appreciation Notes Additional Interest shall accrue on $3,000,000, in each case at a rate of 0.50% per annum for the first 30 days commencing on (x) the 181st day after the Issue Date with respect to the Notes or Appreciation Notes, as the case may be, validly tendered and not exchanged by the Issuer, in the case of (A) above, or (y) the day the Exchange Offer Registration ceases to be effective or usable for its intended purpose in the case of (B) above, or (z) the day such Shelf Registration Statement ceases to be effective in the case of (C) above, such Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 30-day period; PROVIDED HOWEVER, that in no event may the rate of interest for any Additional Interest on the Notes or Appreciation Notes Additional Interest on the Appreciation Notes exceed, in the aggregate, 1.5% per annum; and PROVIDED FURTHER, that (1) upon the effectiveness of the Exchange Offer Registration Statement or Shelf Registration Statement (in the case of (i) above), or (2) upon the exchange of Exchange Offer Notes for all Notes tendered (in the case of clause (ii)(A) above), or upon the effectiveness of the Exchange Offer Registration Statement which had ceased to remain effective in the case of clause (ii)(B) above, or upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in the case of clause (ii)(C) above), Additional Interest on the Notes as a result of such clause or the relevant subclause thereof, as the case may be, shall cease to accrue. Any amounts of Additional Interest due pursuant to clauses (i) or (ii) above will be payable and will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Notes multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months), and the denominator of which is 360. While the Company believes that the foregoing summary of certain provisions of the Registration Rights Agreements is materially complete, it is subject to, and is qualified in its entirety by, all the provisions of the Registration Rights Agreements, which are filed as exhibits to the Registration Statement of which this Prospectus is a part. 92 DESCRIPTION OF NOTES GENERAL The Original Notes were issued, and the Exchange Notes are to be issued, under an indenture, dated as of December 30, 1997 (the "Indenture"), between the Issuer and United States Trust Company of New York, as trustee (the "Trustee"), a copy of which is available upon request to the Issuer. The following is a summary of certain provisions of the Indenture and the Notes and does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the Indenture (including the definitions of certain terms therein and those terms made a part thereof by the Trust Indenture Act of 1939, as amended) and the Notes. The definition of certain capitalized terms used in the following summary are set forth below under "Certain Definitions". Principal of, premium, if any, and interest on the Notes will be payable, and the Notes may be exchanged or transferred, at the office or agency of the Issuer in the Borough of Manhattan, The City of New York (which initially shall be the corporate trust office of the Trustee in New York, New York), except that, at the option of the Issuer, payment of interest may be made by check mailed to the address of the holders of the Notes as such address appears in the Note Register. Initially, the Trustee will act as Paying Agent and Registrar for the Notes. The Notes may be presented for registration of transfer and exchange at the offices of the Registrar, which initially will be the Trustee's corporate trust office. The Issuer may change any Paying Agent and Registrar without notice to holders of the Notes. The Notes will be issued only in fully registered form, without coupons, in denominations of $1,000 and any integral multiple of $1,000. No service charge will be made for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection therewith. TERMS OF NOTES The Notes are limited to $105.0 million in aggregate principal amount and will mature on December 15, 2007. The Notes will bear cash interest at a rate of 7 1/2% per annum from the date of original issuance until December 15, 1999, and at a rate of 12% per annum from and including December 15, 1999 until maturity. Interest on each Note will be payable semiannually on June 15 and December 15 of each year (each an "Interest Payment Date"), commencing on June 15, 1998, to holders of record at the close of business on the June 1st or December 1st immediately preceding the Interest Payment Date. In addition, prior to December 15, 1999, original issue discount will accrete on the Notes such that the yield to maturity will be 12% per annum, compounded on the basis of semi-annual compounding. The interest rate on the Notes is subject to increase under certain circumstances. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. Any Original Notes that remain outstanding after consummation of the Exchange Offer and any Exchange Notes issued in connection with the Exchange Offer will be treated as a single class of securities under the Note Indenture. The Notes will not be entitled to the benefit of any mandatory sinking fund. OPTIONAL REDEMPTION Except as set forth below, the Notes will not be redeemable at the option of the Issuer prior to December 15, 2002. On and after such date, the Notes will be redeemable, at the Issuer's option, in whole or in part, at any time upon not less than 30 nor more than 60 days' prior notice mailed by first-class mail to each holder's registered address, at the following redemption prices (expressed in percentages of principal amount), if redeemed during the 12-month period commencing on December 15th of the years 93 set forth below, plus accrued and unpaid interest to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date):
REDEMPTION PERIOD PRICE - --------------------------------------------------------------------------------- ----------- 2002............................................................................. 106.00% 2003............................................................................. 104.00% 2004............................................................................. 102.00% 2005 and thereafter.............................................................. 100.00%
OPTIONAL REDEMPTION UPON EQUITY OFFERING. In addition, in the event of the sale by the Issuer prior to December 15, 2000 of its Capital Stock (other than Disqualified Stock) in one or more Public Equity Offerings the Net Cash Proceeds of which are at least $25.0 million in the aggregate, the Issuer may, at its option, use the Net Cash Proceeds of such sale or sales of Capital Stock to redeem up to 25% of the aggregate principal amount of the Notes at a redemption price in the case of a redemption date prior to December 15, 1999, equal to 112.0% of the Accreted Value thereof plus accrued and unpaid interest thereon, if any, to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date) and for any redemption date on or after December 15, 1999, at a redemption price equal to 112.0% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date); PROVIDED, HOWEVER, that after any such redemption the aggregate principal amount of the Notes outstanding must equal at least $79.0 million. In order to effect the foregoing redemption with the proceeds of any such sale of Capital Stock, the Issuer shall make such redemption not more than 90 days after the consummation of any such sale or sales of Capital Stock. SELECTION. In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee on a PRO RATA basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate; PROVIDED, HOWEVER, that if a partial redemption is made with proceeds of a sale of Capital Stock, selection of the Notes or portion thereof for redemption shall be made by the Trustee only on a PRO RATA basis, unless such method is otherwise prohibited. Notes may be redeemed in part in multiples of $1,000 principal amount only. Notice of redemption will be sent, by first class mail, postage prepaid, at least 30 but not more than 60 days (unless a shorter period is acceptable to the Trustee) prior to the date fixed for redemption to each holder whose Notes are to be redeemed at the last address for such holder then shown on the registry books. If any Note is to be redeemed in part only, the notice of redemption that relates to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the holder thereof upon cancellation of the original Note. On and after any redemption date, interest will cease to accrue on the Notes or part thereof called for redemption as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the redemption price pursuant to the Indenture. RANKING The Notes will be senior unsecured obligations of the Issuer. The Notes will rank PARI PASSU in right of payment with all existing and future senior unsecured indebtedness of the Issuer and will rank senior in right of payment to any subordinated indebtedness of the Issuer (including the Appreciation Notes). The Notes and the Subsidiary Guarantees will be effectively subordinated in right of payment to secured debt of the Issuer and the Subsidiary Guarantors to the extent of the assets serving as security therefor. As of November 30, 1997 on a pro forma basis, after giving effect to the Transactions, the Issuer had no outstanding secured indebtedness to which the Notes would have been effectively subordinated, and the aggregate amount of the Subsidiary Guarantors' outstanding senior secured indebtedness to which the Subsidiary Guarantees would have been effectively subordinated was approximately $4.8 million. 94 SUBSIDIARY GUARANTEES Each Subsidiary Guarantor unconditionally guarantees, jointly and severally, to each holder and the Trustee, on a senior basis, the full and prompt payment of principal of and interest on the Notes, and of all other obligations of the Issuer under the Indenture. The obligations of each Subsidiary Guarantor are limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under the Indenture, result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. Each Subsidiary Guarantor that makes a payment or distribution under a Subsidiary Guarantee shall be entitled to a contribution from each other Subsidiary Guarantor in a PRO RATA amount based on the Adjusted Net Assets of each Subsidiary Guarantor. Each Subsidiary Guarantor may consolidate with or merge into or sell its assets to the Issuer or another Subsidiary Guarantor without limitation. Upon the sale or disposition of a Subsidiary Guarantor (or all or substantially all of its assets) to a Person which is not a Subsidiary Guarantor, which sale or disposition is otherwise in compliance with the Indenture (including the covenant described under "Certain Covenants--Limitations on Sales of Assets and Subsidiary Stock"), such Subsidiary Guarantor shall be deemed released from all its obligations under the Indenture and its Subsidiary Guarantee and such Subsidiary Guarantee shall terminate; PROVIDED, HOWEVER, that any such termination shall occur only to the extent that all obligations of such Subsidiary Guarantor under all of its Subsidiary Guarantors of, and under all of its pledges of assets or other security interests which secure any other Indebtedness of the Issuer shall also terminate upon such release, sale or transfer. Subsequent to the Issue Date, separate financial information for the Subsidiary Guarantors will not be provided except to the extent required by Regulation S-X under the Securities Act. CHANGE OF CONTROL Upon the occurrence of a Change of Control, each holder will have the right to require the Issuer to purchase all or any part of such holder's Notes, in the case of a repurchase date prior to December 15, 1999, at a purchase price in cash equal to 101% of the Accreted Value thereof plus any accrued and unpaid interest, if any, to the date of repurchase (subject to the right of holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date) and for any repurchase date on or after December 15, 1999, at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of repurchase (subject to the right of holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date) (such applicable purchase price being here in after referred to as the "Change of Control Purchase Price"). Within 30 days following any Change of Control, unless the Issuer has mailed a redemption notice with respect to all the outstanding Notes in connection with such Change of Control, the Issuer shall mail a notice to each holder with a copy to the Trustee stating: (1) that a Change of Control has occurred and that such holder has the right to require the Issuer to repurchase such holder's Notes at a purchase price in cash equal to the Change of Control Purchase Price; (2) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); and (3) the procedures determined by the Issuer, consistent with the Indenture, that a holder must follow in order to have its Notes repurchased. The Issuer shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this covenant. To the extent that the provisions of any securities laws or regulations conflict 95 with provisions of the Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in the Indenture by virtue thereof. The definition of "Change of Control" includes, among other transactions, a disposition of all or substantially all of the property and assets of the Issuer and its Subsidiaries. With respect to the disposition of property or assets, the phrase "all or substantially all" as used in the Indenture varies according to the facts and circumstances of the subject transaction, has no clearly established meaning under New York law (which is the law which governs the Indenture) and is subject to judicial interpretation. Accordingly, in certain circumstances there may be a degree of uncertainty in ascertaining whether a particular transaction would involve a disposition of "all or substantially all" of the property or assets of a Person, and therefore it may be unclear as to whether a Change of Control has occurred and whether the Issuer is required to make an offer to repurchase the Notes as described above. There can be no assurance that the Issuer will have sufficient funds available at the time of any Change of Control to make any debt payment (including repurchases of Notes) required under the Indenture upon a Change of Control (as well as may be required pursuant to other securities of the Issuer which might be outstanding at the time). The above provisions requiring the Issuer to repurchase the Notes pursuant to a Change of Control will, unless consents are obtained, require the Issuer to repay all indebtedness then outstanding which by its terms would prohibit such Note repurchase, either prior to or concurrently with such Note repurchase. CERTAIN COVENANTS The Indenture contains certain covenants including, among others, the following: LIMITATION ON INDEBTEDNESS. (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness; PROVIDED, HOWEVER, that: (i) the Issuer and its Restricted Subsidiaries may Incur Indebtedness which is expressly subordinated to the Notes and the Subsidiary Guarantees if no Default or Event of Default shall have occurred and be continuing at the time of such Incurrence or would occur as a consequence of such Incurrence and the Consolidated Leverage Ratio would not be greater than 7.00 to 1.00 and (ii) the Issuer and its Restricted Subsidiaries may Incur unsecured Indebtedness ranking on a parity with the Notes if no Default or Event of Default shall have occurred and be continuing at the time of such Incurrence or would occur as a consequence of such Incurrence and the Consolidated Senior Leverage Ratio would not be greater than 6.50 to 1.00, PROVIDED, HOWEVER, that as provided in the definition of Permitted Liens Indebtedness Incurred pursuant to this clause (ii) may be secured by a Lien if at the time of such Incurrence the Consolidated Senior Secured Leverage Ratio would not be greater than 3.00 to 1.00. (b) Notwithstanding the foregoing paragraph (a), the Issuer and its Restricted Subsidiaries may Incur the following Indebtedness: (i) Indebtedness Incurred which does not exceed $15.0 million at any time outstanding, less the aggregate principal amount thereof permanently repaid with the net proceeds of Asset Dispositions; (ii) Indebtedness of the Issuer owing to and held by any Wholly-Owned Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Issuer or any Wholly-Owned Subsidiary; PROVIDED, HOWEVER, that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Wholly-Owned Subsidiary ceasing to be a Wholly-Owned Subsidiary or any subsequent transfer of any such Indebtedness (except to the Issuer or any Wholly-Owned Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness by the issuer thereof; 96 (iii) Indebtedness represented by (A) the Notes and the Subsidiary Guarantees, (B) the Appreciation Notes and the Guarantees thereof, (C) Existing Indebtedness and (D) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iii) (other than clause (B)) or Incurred pursuant to paragraph (a) above. (iv) (A) Indebtedness of a Restricted Subsidiary Incurred and outstanding on the date on which such Restricted Subsidiary was acquired , directly or indirectly, by the Issuer (other than Indebtedness Incurred in anticipation of, or to provide all or any portion of the funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary or was otherwise acquired by the Issuer); PROVIDED, HOWEVER, that at the time such Restricted Subsidiary is acquired by the Issuer, the Issuer would have been able to Incur $1.00 of additional Indebtedness pursuant to clause (ii) of paragraph (a) above after giving effect to the Incurrence of such Indebtedness pursuant to this clause (iv) and (B) Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (iv); (v) Indebtedness (A) in respect of performance bonds, bankers' acceptances and surety or appeal bonds provided by the Issuer or any of its Restricted Subsidiaries to their customers in the ordinary course of their business, (B) in respect of performance bonds or similar obligations of the Issuer or any of its Restricted Subsidiaries for or in connection with pledges, deposits or payments made or given in the ordinary course of business in connection with or to secure statutory, regulatory or similar obligations, including obligations under health, safety or environmental obligations and (C) arising from Guarantees to suppliers, lessors, licensees, contractors, franchises or customers of obligations (other than Indebtedness) incurred in the ordinary course of business; (vi) Indebtedness under Currency Agreements and Interest Rate Agreements; PROVIDED, HOWEVER, that such Currency Agreements and Interest Rate Agreements are entered into for BONA FIDE hedging purposes of the Issuer or its Restricted Subsidiaries (as determined in good faith by the Board of Directors of the Issuer) and correspond in terms of notional amount, duration, currencies and interest rates as applicable, to Indebtedness of the Issuer or its Restricted Subsidiaries Incurred without violation of the Indenture or to business transactions of the Issuer or its Restricted Subsidiaries on customary terms entered into in the ordinary course of business; (vii) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Issuer or any of its Restricted Subsidiaries pursuant to such agreements, in each case Incurred in connection with the disposition of any business assets or Restricted Subsidiary of the Issuer or (other than Guarantees of Indebtedness or other obligations incurred by any Person acquiring all or any portion of such business assets or Restricted Subsidiary of the Issuer for the purpose of financing such acquisition) in a principal amount not to exceed the gross proceeds actually received by the Issuer or any of its Restricted Subsidiaries in connection with such disposition; PROVIDED, HOWEVER, that the principal amount of any Indebtedness Incurred pursuant to this clause (vii) when taken together with all Indebtedness Incurred pursuant to this clause (vii) and then outstanding, shall not exceed $1.0 million; (viii) Indebtedness consisting of (A) Guarantees by the Issuer (so long as the Issuer could have Incurred such Indebtedness directly without violation of the Indenture) and (B) Guarantees by a Restricted Subsidiary of Indebtedness Incurred by the Issuer without violation of the Indenture (so long as such Restricted Subsidiary could have Incurred such Indebtedness directly without violation of the Indenture); (ix) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument issued by the Issuer or any of its Subsidiaries drawn against insufficient 97 funds in the ordinary course of business in an amount not to exceed $250,000 at any time, PROVIDED, HOWEVER that such Indebtedness is extinguished within two business days of its incurrence; and (x) Indebtedness (other than Indebtedness described in clauses (i)-(ix)) in a principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (x) and then outstanding, will not exceed $5.0 million (it being understood that any Indebtedness Incurred under this clause (x) shall cease to be deemed Incurred or outstanding for purposes of this clause (x) (but shall be deemed to be Incurred for purposes of paragraph (a)) from and after the first date on which the Issuer or its Restricted Subsidiaries could have Incurred such Indebtedness under the foregoing paragraph (a) without reliance upon this clause (x)). (c) Notwithstanding the foregoing, neither the Issuer nor any Restricted Subsidiary shall Incur any Indebtedness under paragraph (b) above if the proceeds thereof are used, directly or indirectly, to refinance any Subordinated Obligations of the Issuer or a Restricted Subsidiary unless such Indebtedness shall be subordinated to the Notes to at least the same extent as such Subordinated Obligations. (d) Notwithstanding the foregoing, no Restricted Subsidiary shall incur any Indebtedness under clause (i) of paragraph (a) if such Indebtedness is sold pursuant to Rule 144A under the Securities Act or a public offering registered under the Securities Act. (e) The Issuer will not permit any Unrestricted Subsidiary to Incur any Indebtedness other than Non-Recourse Debt. (f) For purposes of determining any particular amount of Indebtedness under the "Limitation on Indebtedness" covenant, Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with the "Limitation on Indebtedness" covenant, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in the above clauses, the Issuer, in its sole discretion, shall classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of such clauses. LIMITATION ON RESTRICTED PAYMENTS. (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any payment in connection with any merger or consolidation involving the Issuer or any of its Restricted Subsidiaries) except (A) dividends or distributions payable in its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock and (B) dividends or distributions payable to the Issuer or a Restricted Subsidiary of the Issuer which holds any equity interest in the paying Restricted Subsidiary (and if the Restricted Subsidiary paying the dividend or making the distribution is not a Wholly-Owned Subsidiary, to its other holders of Capital Stock on a PRO RATA basis), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Issuer held by Persons other than a Wholly-Owned Subsidiary of the Issuer or any Capital Stock of a Restricted Subsidiary of the Issuer held by any Affiliate of the Issuer, other than a Wholly-Owned Subsidiary (in either case, other than in exchange for its Capital Stock (other than Disqualified Stock)), (iii) purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase or acquisition), (iv) make any Investment (other than a Permitted Investment) in any Person, (v) make any payment under any Performance Compensation Agreement or (vi) make any payment to Alan R. Brill (including under a Performance Compensation Agreement or in his capacity as an employee of the Issuer or any Subsidiary) except for reimbursement for advances or other out-of-pocket costs and expenses incurred in the ordinary course of business (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement, Investment or payment as described in preceding clauses (i) through (vi) being referred to as a "Restricted 98 Payment"); if at the time the Issuer or such Restricted Subsidiary makes such Restricted Payment: (1) a Default shall have occurred and be continuing (or would result therefrom); or (2) the Issuer is not able to incur an additional $1.00 of Indebtedness pursuant to paragraph (a) (ii) under "--Limitation on Indebtedness"; or (3) the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made subsequent to the Issue Date would exceed the sum of (A) 50% of (x) the Consolidated Net Income accrued during the period (treated as one accounting period) from the first day of the fiscal quarter beginning on or after the Issue Date to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment as to which financial results are available (but in no event ending more than 135 days prior to the date of such Restricted Payment) (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit) less (y) the aggregate amount of Restricted Payments made pursuant to clause (v) of paragraph (b); (B) the aggregate Net Cash Proceeds received by the Issuer from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to the Issue Date (other than net proceeds received from an issuance or sale of such Capital Stock to (x) a Subsidiary of the Issuer, (y) an employee stock ownership plan or similar trust or (z) management employees of the Issuer or any Subsidiary of the Issuer (other than sales of Capital Stock (other than Disqualified Stock) to management employees of the Issuer pursuant to BONA FIDE employee stock option plans of the Issuer); PROVIDED, HOWEVER, that the value of any non-cash net proceeds shall be as determined by the Board of Directors in good faith, except that in the event the value of any non-cash net proceeds shall be $1.0 million or more, the value shall be as determined in writing by an independent investment banking firm of nationally recognized standing; (C) the amount by which Indebtedness of the Issuer is reduced on the Issuer's balance sheet upon the conversion or exchange (other than by a Restricted Subsidiary of the Issuer) subsequent to the Issue Date of any Indebtedness of the Issuer convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Issuer (less the amount of any cash, or other property, distributed by the Issuer upon such conversion or exchange); and (D) the amount equal to the net reduction in Investments (other than Permitted Investments) made after the Issue Date by the Issuer or any of its Restricted Subsidiaries in any Person resulting from (i) repurchases or redemptions of such Investments by such Person, proceeds realized upon the sale of such Investment to an unaffiliated purchaser, repayments of loans or advances or other transfers of assets by such Person to the Issuer or any Restricted Subsidiary of the Issuer or (ii) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment") not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments previously included in the calculation of the amount of Restricted Payments; PROVIDED, HOWEVER, that no amount shall be included under this clause (D) to the extent it is already included in Consolidated Net Income. (b) The provisions of paragraph (a) shall not prohibit: (i) any purchase or redemption of Capital Stock or Subordinated Obligations (including, without limitation, the Appreciation Notes) of the Issuer made by exchange for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Issuer (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary, an employee stock ownership plan or similar trust for management employees of the Issuer or any Subsidiary of the Issuer); PROVIDED, HOWEVER, that (A) such purchase or redemption shall be excluded in the calculation of the aggregate amount of Restricted Payments for purposes of clause (3) of paragraph (a) and (B) the Net Cash Proceeds from such sale shall be excluded in the calculation of the amount of aggregate Net Cash Proceeds from clause (3) (B) of paragraph (a); (ii) any purchase or redemption of Subordinated Obligations of the Issuer made by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Obligations of the Issuer in compliance with the "Limitation on Indebtedness" covenant; PROVIDED, HOWEVER, that such purchase or redemption shall be excluded in the calculation of the aggregate amount of Restricted Payments for purposes of clause (3) of paragraph (a); (iii) any purchase or redemption of Subordinated Obligations from Net Available Cash to the extent permitted under "-- Limitation on Sales of Assets and Subsidiary Stock" below; PROVIDED, HOWEVER, that such purchase or redemption shall be excluded in the calculation of the aggregate amount of Restricted Payments for 99 purposes of clause (3) of paragraph (a); (iv) dividends paid within 60 days after the date of declaration if at such date of declaration such dividend would have complied with this provision; PROVIDED, HOWEVER, that such dividend shall be included in the calculation of the amount of Restricted Payments for purposes of clause (3) of paragraph (a); (v) for so long as the Issuer is not treated for tax purposes as a corporation or an association taxable as a corporation or other entity that is subject to an entity level tax for income tax purposes, distributions to each Member, as soon as practicable after the end of each calendar quarter, of an amount reasonably determined to be necessary to permit such Member to pay any federal, state or local income taxes imposed on such Member's allocable share of income from the Issuer; PROVIDED, HOWEVER, that in no event shall any distribution to a Member exceed the Tax Allowance Amount for such Member in respect of such quarter and the Issuer shall cause the Accountants to deliver to the Trustee a certificate setting forth the determination of each Member's Tax Allowance Amount within 60 days of the end of each fiscal year; (vi) payments under the Performance Compensation Agreements (other than any Performance Compensation Agreement with Alan R. Brill) not exceeding in the aggregate $500,000 in any fiscal year PROVIDED, HOWEVER, that any such payment pursuant to this clause (vi) shall be included in the calculation of the aggregate amount of Restricted Payments for purposes of clause 3 of paragraph (a); and (vii) payments in respect of the redemption of the Appreciation Notes under the Appreciation Note Indenture, PROVIDED, HOWEVER, that the Issuer is able to Incur an additional $1.00 of Subordinated Indebtedness pursuant to (a) (i) under "--Limitation on Indebtedness", and PROVIDED, FURTHER, that such payments shall be included in the calculation of the aggregate amount of Restricted Payments for purposes of clause (3) of paragraph (a); and PROVIDED, FURTHER, that in the case of clauses (i), (ii), (iii) and (vii) and clause (vi) with respect to Performance Compensation Agreements entered into after the Issue Date, no Event of Default shall have occurred or be continuing at the time of such payment or as a result thereof. (c) For purposes of determining compliance with the foregoing covenant, Restricted Payments may be made with cash or non-cash assets, PROVIDED, HOWEVER, that any Restricted Payment made other than in cash shall be valued at the fair market value (determined, subject to the additional requirements of the immediately succeeding proviso, in good faith by the Board of Directors) of the assets so utilized in making such Restricted Payment, PROVIDED, FURTHER, that (i) in the case of any Restricted Payment made with Capital Stock or Indebtedness, such Restricted Payment shall be deemed to be made in an amount equal to the greater of the fair market value thereof and the liquidation preference (if any) or principal amount of the Capital Stock or Indebtedness, as the case may be, so utilized, and (ii) in the case of any Restricted Payment in an aggregate amount in excess of $1.0 million, a written opinion as to the fairness of the valuation thereof (as determined by the Issuer) for purposes of determining compliance with the "Limitation on Restricted Payments" covenant in the Indenture shall be issued by an independent investment banking firm of national standing. (d) Not later than the date of making any Restricted Payment or Permitted Investment described in clause (xii) of the definition thereof, the Issuer shall deliver to the Trustee an Officer's Certificate stating that such Restricted Payment or Permitted Investment, as the case may be, complies with the Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Issuer's latest available quarterly financial statements and a copy of any required investment banker's opinion. LIMITATION ON LIENS. The Issuer will not and will not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Liens except for Permitted Liens. LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED SUBSIDIARIES. The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligation owed to the Issuer or another Restricted Subsidiary, (ii) make any loans or advances to the Issuer or another Restricted Subsidiary or (iii) transfer any of its property or assets to the Issuer or another Restricted Subsidiary, except: (a) any encumbrance or restriction pursuant to an agreement in effect at or entered 100 into on the Issue Date; (b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Issuer and outstanding on such date (other than Indebtedness Incurred in anticipation of, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Issuer or was acquired by the Issuer); (c) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of the Indenture or effecting a refinancing of Indebtedness issued pursuant to an agreement referred to in clauses (a) or (b) or this clause (c) or contained in any amendment to an agreement referred to in clauses (a) or (b) or this clause (c); PROVIDED, HOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement or amendment, taken as a whole, are no less favorable to the holders of the Notes in any material respect, as determined in good faith by the Board of Directors of the Issuer, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the Issue Date; (d) in the case of clause (iii), any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by the Indenture, (C) that is included in a licensing agreement to the extent such restrictions limit the transfer of the property subject to such licensing agreement or (D) arising or agreed to in the ordinary course of business and that does not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any of its Restricted Subsidiaries in any manner material to the Issuer or any such Restricted Subsidiary; (e) in the case of clause (iii) above, restrictions contained in security agreements, mortgages or similar documents securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements; (f) in the case of clause (iii) above, any instrument governing or evidencing Indebtedness of a Person acquired by the Issuer or any Restricted Subsidiary of the Issuer at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired; PROVIDED, HOWEVER, that such Indebtedness is not incurred in connection with or in contemplation of such acquisition; (g) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition; and (h) encumbrances or restrictions arising or existing by reason of applicable law. LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK. (a)The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless (i) the Issuer or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by the Issuer's Board of Directors (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition, (ii) at least 80% of the consideration thereof received by the Issuer or such Restricted Subsidiary is in the form of cash or Cash Equivalents other than in the case where the Issuer or a Restricted Subsidiary is exchanging all or substantially all of the assets of one or more broadcast stations operated by the Issuer or such Restricted Subsidiary, as the case may be, (including by way of the transfer of Capital Stock) for all or substantially all of the assets (including by way of the transfer of Capital Stock) constituting one or more broadcast stations operated by another Person (an "Asset Swap"), PROVIDED, HOWEVER, that at least 80% of the consideration, if any, received by the Issuer and its Restricted Subsidiaries in such Asset Swap, other than the stock and assets of broadcast station(s), is in the form of cash or Cash Equivalents and (iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Issuer (or such Restricted Subsidiary, as the case may be) (A) FIRST, to the extent the Issuer or any Restricted Subsidiary elects (or is required by the terms of any Senior Secured Indebtedness), (x) to prepay, repay or purchase senior 101 secured indebtedness in each case owing to a Person other than the Issuer or any of its Subsidiaries or (y) to the investment in or acquisition of Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) SECOND, within 365 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to make an offer to purchase Notes, at 100% of Accreted Value thereof if such purchase date occurs prior to December 15, 1999, and at 100% of the principal amount thereof if such purchase date occurs on or after December 15, 1999, in each case plus accrued and unpaid interest, if any, thereon; (C) THIRD, within 90 days after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date that is 365 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to prepay, repay or repurchase Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Issuer or a Subsidiary); and (D) FOURTH, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to (w) the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Issuer (other than Indebtedness owing to any Subsidiary of the Issuer) or Indebtedness of any Subsidiary (other than Indebtedness owed to the Issuer or any of its Subsidiaries) or (z) any other purpose otherwise permitted under the Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and (C) or the date that is 365 days from the receipt of such Net Available Cash; PROVIDED, HOWEVER, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (D) above, the Issuer or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Issuer and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant at any time exceeds $10.0 million. The Issuer shall not be required to make an offer for Notes pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A)) is less than $10.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Notwithstanding the foregoing, the Issuer will not be required to comply with the terms of this covenant to the extent such Asset Disposition consists of a sale of the Missouri Properties; PROVIDED, HOWEVER, that if the Net Available Cash from such Asset Disposition exceeds $7.5 million, the Issuer will be required to apply the amount of such excess in accordance with the provision of this covenant. For the purposes of this covenant, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Secured Indebtedness of the Issuer, or Senior Secured Indebtedness of any Restricted Subsidiary of the Issuer and the release of the Issuer or such Restricted Subsidiary from all liability on such Senior Secured Indebtedness in connection with such Asset Disposition (in which case the Issuer shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities received by the Issuer or any Restricted Subsidiary of the Issuer from the transferee that are promptly (and in any event within 60 days) converted by the Issuer or such Restricted Subsidiary into cash. (b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to clause (a) (iii) (B), the Issuer will be required to purchase Notes tendered pursuant to an offer by the Issuer for the Notes at a purchase price of 101% of the Accreted Value thereof or 101% of the principal amount thereof, as applicable under clause (a)(iii)(B), and in each case plus accrued and unpaid interest, if any, to the purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in the Indenture. If the aggregate purchase price of the Notes tendered pursuant to the offer is less than the Net Available Cash allotted to the purchase of the Notes, the Issuer will apply the remaining Net Available Cash in accordance with clauses (a) (iii) (C) or (D) above. 102 (c) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to the Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Indenture by virtue thereof. LIMITATION ON AFFILIATE TRANSACTIONS. (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with or for the benefit of any Affiliate of the Issuer, other than a Wholly-Owned Subsidiary (an "Affiliate Transaction") unless: (i) the terms of such Affiliate Transaction are no less favorable to the Issuer or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm's length dealings with a Person who is not such an Affiliate; (ii) in the event such Affiliate Transaction involves an aggregate amount in excess of $200,000, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Issuer and by a majority of the disinterested members of such Board, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in (i) above); and (iii) in the event such Affiliate Transaction involves an aggregate amount in excess of $1.0 million, the Issuer has received a written opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is fair to the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view. (b) The foregoing paragraph (a) shall not apply to (i) any Restricted Payment permitted to be made pursuant to the covenant described under "--Limitation on Restricted Payments," (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, or any stock options and stock ownership plans for the benefit of employees, officers and directors, consultants and advisors approved by the Board of Directors of the Issuer, (iii) loans or advances to employees in the ordinary course of business of the Issuer or any of its Restricted Subsidiaries in aggregate amount outstanding not to exceed $250,000 to any employee or $1.0 million in the aggregate at any time, (iv) any transaction between Wholly-Owned Subsidiaries, (v) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Issuer and the Issuer's Restricted Subsidiaries and indemnification agreements with, or for the benefit of, officers and employees of BMCLP to the extent related to the performance of management services for the Issuer or any of its Subsidiaries, in each case in the ordinary course of business, (vi) transactions pursuant to agreements in existence on the Issue Date (other than with BMCLP) which are (x) described in this Offering Memorandum or (y) otherwise, in the aggregate, immaterial to the Issuer and its Restricted Subsidiaries taken as a whole, (vii) any employment, non-competition or confidentiality agreements entered into by the Issuer or any of its Restricted Subsidiaries with its employees in the ordinary course of business, (viii) the issuance of Capital Stock of the Issuer (other than Disqualified Stock); (ix) the acquisition of Managed Affiliate Notes provided that the aggregate principal amount thereof (including the Managed Affiliate Notes outstanding on the Issue Date) does not exceed $20 million at any time outstanding ; (x) the Managed Affiliate Management Agreements; and (xi) provided that no Default or Event of Default shall have occurred and be continuing, payments to BMCLP for services rendered to the Issuer and the Restricted Subsidiaries under the Administrative Management Agreements not to exceed in any fiscal year in the aggregate the remainder of (A) the lesser of (1) the greater of $2 million or 15% of Media Cashflow for such fiscal year or (2) $5 million over (B) the payments to BMCLP under management agreements between BMCLP and Managed Affiliates in such fiscal year provided that the obligations to make such payments to BMCLP under the Administrative Management Agreements constitute Subordinated Obligations and the terms of such subordination are no less favorable to the holders of senior indebtedness (including the Notes) than the terms set forth in the Administrative Management Agreements between the Issuer and BMCLP on the Issue Date. 103 LIMITATION ON ISSUANCES OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES. The Issuer shall not permit any of its Restricted Subsidiaries to issue any Capital Stock to any Person (other than to the Issuer or a Wholly-Owned Subsidiary of the Issuer) or permit any Person (other than the Issuer or a Wholly-Owned Subsidiary of the Issuer) to own any Capital Stock of a Restricted Subsidiary of the Issuer, if in either case as a result thereof such Restricted Subsidiary would no longer be a Restricted Subsidiary of the Issuer; PROVIDED, HOWEVER, that this provision shall not prohibit (x) the Issuer or any of its Restricted Subsidiaries from selling, leasing or otherwise disposing of all of the Capital Stock of any Restricted Subsidiary or (y) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary in compliance with the Indenture. LIMITATION ON SALE/LEASEBACK TRANSACTIONS. Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into, Guarantee or otherwise become liable with respect to any Sale/Leaseback Transaction with respect to any property or assets unless (i) the Issuer or such Restricted Subsidiary, as the case may be, would be entitled, pursuant to the Indenture, to Incur Indebtedness secured by a Permitted Lien on such property or assets in an amount equal to the Attributable Indebtedness with respect to such Sale/Leaseback Transaction, (ii) the net cash proceeds from such Sale/Leaseback Transaction are at least equal to the fair market value of the property or assets subject to such Sale/Leaseback Transaction (such fair market value determined, in the event such property or assets have a fair market value in excess of $1.0 million, no more than 30 days prior to the effective date of such Sale/Leaseback Transaction, by the Board of Directors of the Issuer as evidenced by a resolution of such Board) and (iii) the net cash proceeds of such Sale/Leaseback Transaction are applied in accordance with the provisions described under "--Limitation on Sales of Assets and Subsidiary Stock." SEC REPORTS. The Issuer will file with the Trustee and provide to the holders of the Notes, within 15 days after it files them with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) which the Issuer files with the Commission pursuant to Section 13 or 15(d) of the Exchange Act. In the event that the Issuer is not required to file such reports with the Commission pursuant to the Exchange Act, the Issuer will nevertheless deliver such Exchange Act information to the holders of the Notes within 15 days after it would have been required to file it with the Commission. LIMITATION ON DESIGNATIONS OF UNRESTRICTED SUBSIDIARIES. The Issuer may designate any Subsidiary of the Issuer (other than a Subsidiary of the Issuer which owns Capital Stock of a Restricted Subsidiary) as an "Unrestricted Subsidiary" under the Indenture (a "Designation") only if: (a) no Default shall have occurred and be continuing at the time of or after giving effect to such Designation; and (b) the Issuer would be permitted under the Indenture to make an Investment in Unrestricted Subsidiaries at the time of Designation (assuming the effectiveness of such Designation) in an amount (the "Designation Amount") equal to the sum of (i) fair market value of the Capital Stock of such Subsidiary owned by the Issuer and the Restricted Subsidiaries on such date and (ii) the aggregate amount of other Investments of the Issuer and the Restricted Subsidiaries in such Subsidiary on such date; and (c) except in the case of a newly formed or a newly acquired Subsidiary, the Issuer would be permitted to incur $1.00 of additional Indebtedness pursuant to clause (a)(ii) of the covenant described under "--Limitation on Indebtedness" at the time of Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Issuer shall be deemed to have made an Investment constituting a Restricted Payment pursuant to the covenant described under "--Limitation on Restricted Payments" for all purposes of the Indenture (including, without limitation, the definition of Permitted Investment) in the Designation Amount. The Indenture will further provide that the Issuer shall not, and 104 shall not permit any Restricted Subsidiary to, at any time (x) provide direct or indirect credit support for or a guarantee of any Indebtedness of any Unrestricted Subsidiary (including of any undertaking, agreement or instrument evidencing such Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary), except, in the case of clause (x) or (y), to the extent permitted under the covenant described under "--Limitation on Restricted Payments." The Issuer may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a "Revocation"), whereupon such Subsidiary shall then constitute a Restricted Subsidiary, if: (a) no Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; and (b) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be Incurred for all purposes of the Indenture. All Designations and Revocations must be evidenced by Board Resolutions of the Issuer delivered to the Trustee certifying compliance with the foregoing provisions. FUTURE NOTE GUARANTORS. The Issuer will cause each newly organized or acquired Restricted Subsidiary to execute and deliver to the Trustee a Subsidiary Guarantee. LIMITATION ON BUSINESS. The Issuer will not and will not permit any of its Restricted Subsidiaries to directly or indirectly engage in any business other than a Permitted Business. MERGER AND CONSOLIDATION. The Issuer shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its assets to, any Person, unless: (i) the resulting, surviving or transferee Person (the "Successor Company") shall be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Issuer) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Issuer under the Notes and the Indenture; (ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any Subsidiary of the Successor Company as a result of such transaction as having been incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction, the Successor Company (A) shall have a Consolidated Net Worth equal or greater to the Consolidated Net Worth of the Issuer immediately prior to such transaction and (B) shall be able to incur at least an additional $1.00 of Indebtedness pursuant to paragraph (a)(ii) of the covenant described under "Limitation on Indebtedness"; (iv) the Issuer shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the Indenture; and (v) there has been delivered to the Trustee an Opinion of Counsel to the effect that holders of Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such consolidation, merger, conveyance, transfer or lease and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such consolidation, merger, conveyance, transfer or lease had not occurred. The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under the Indenture, but, in the case of a lease of all or substantially all its assets, the Issuer will not be released from the obligation to pay the principal of and interest on the Notes. 105 Notwithstanding the foregoing clauses (ii) and (iii), any Restricted Subsidiary of the Issuer may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer or any other Restricted Subsidiary. EVENTS OF DEFAULT Each of the following constitutes an Event of Default under the Indenture: (i) a default in any payment of interest on any Note when due, continued for 30 days, (ii) a default in the payment of principal or premium of any Note when due at its Stated Maturity, upon optional or mandatory redemption, upon required repurchase, upon declaration or otherwise, (iii) the failure by the Issuer to comply with its obligations under the "--Mergers and Consolidations" covenant described under "--Certain Covenants" above or the failure to make or consummate an offer to purchase the Notes in accordance with the "-- Change of Control" or "--Limitations on Sale of Assets and Subsidiary Stock" covenants described under "--Certain Covenants" above, (iv) the failure by the Issuer to comply for 30 days after notice with any of its obligations under the covenants described under "--Certain Covenants" above, other than "Merger and Consolidation," (v) the failure by the Issuer to comply for 60 days after notice with its other agreements contained in the Indenture, (vi) Indebtedness of the Issuer or any Restricted Subsidiary is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds $1.0 million and such default shall not have been cured after a 10-day period, (vii) certain events of bankruptcy, insolvency or reorganization of the Issuer or a Significant Subsidiary (the "bankruptcy provisions"), (viii) any judgment or decree for the payment of money in excess of $1.0 million (to the extent not covered by insurance) is rendered against the Issuer or a Significant Subsidiary and such judgment or decree shall remain undischarged or unstayed for a period of 60 days after such judgment becomes final and non-appealable (the "judgment default provision") or (ix) any Subsidiary Guarantee by a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms of the Indenture) or any Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms its obligations under the Indenture or its Subsidiary Guarantee and such Default continues for 10 days. However, a default under clause (iv) or (v) will not constitute an Event of Default until the Trustee or the holders of 25% in principal amount of all outstanding series of Notes, voting as a single class, notify the Issuer of the default and the Issuer does not cure such default within the time specified in clause (iv) or (v) after receipt of such notice. If an Event of Default occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of all outstanding series of Notes, voting as a single class, by notice to the Issuer may declare to be immediately due and payable, (i) in the case of a declaration that occurs prior to December 15, 1999, the Accreted Value of all the Notes then outstanding plus accrued interest on the Notes to the date of acceleration, and (ii) in the case of a declaration that occurs on or after December 15, 1999, the entire principal amount of all the Notes then outstanding plus accrued interest to the date of acceleration. Upon such a declaration, such principal and premium and accrued and unpaid interest shall be due and payable immediately. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer occurs, the principal of and premium and accrued and unpaid interest on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any holders. Under certain circumstances, the holders of a majority in principal amount of all outstanding series of Notes, voting as a single class, may rescind any such acceleration with respect to the Notes and its consequences. 106 Subject to the provisions of the Indenture relating to the duties of the Trustee, if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any of the holders unless such holders have offered to the Trustee reasonable indemnity or security against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no holder may pursue any remedy with respect to the Indenture or the Notes unless (i) such holder has previously given the Trustee notice that an Event of Default is continuing, (ii) holders of at least 25% in principal amount of all outstanding series of Notes, voting as a single class, have requested the Trustee to pursue the remedy, (iii) such holders have offered the Trustee reasonable security or indemnity against any loss, liability or expense, (iv) the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity and (v) the holders of a majority in principal amount of all series of outstanding Notes, acting as a single class, have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period. Subject to certain restrictions, the holders of a majority in principal amount of all outstanding series of Notes, voting as a single class, are given the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Notes. The Trustee, however, may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines is unduly prejudicial to the rights of any other holder or that would involve the Trustee in personal liability. Prior to taking any action under the Indenture, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action. The Indenture provides that if a Default occurs and is continuing and is known to the Trustee, the Trustee must mail to each holder notice of the Default within 90 days after it occurs. Except in the case of a Default in the payment of principal of, premium (if any) or interest on any Note, the Trustee may withhold notice if and so long as its board of directors, a committee of its board of directors or a committee of its Trust officers in good faith determines that withholding notice is in the interests of the Noteholders. In addition, the Issuer is required to deliver to the Trustee, within 90 days after the end of each fiscal year, a certificate indicating whether the signers thereof know of any Default that occurred during the previous year. The Issuer also is required to deliver to the Trustee, within 30 days after the occurrence thereof, written notice of any events which would constitute certain Defaults. AMENDMENTS AND WAIVERS Subject to certain exceptions, the Indenture may be amended with the consent of the holders of a majority in principal amount of all outstanding series of Notes, voting as a single class, then outstanding and any past default or compliance with any provisions may be waived with the consent of the holders of a majority in principal amount of all outstanding series of Notes, voting as a single class. However, without the consent of each holder of an outstanding Note affected, no amendment may, among other things, (i) reduce the amount of Notes whose holders must consent to an amendment, (ii) reduce the stated rate of or extend the stated time for payment of interest on any Note, (iii) reduce the principal of or extend the Stated Maturity of any Note, (iv) reduce the premium payable upon the redemption or repurchase of any Note or change the time at which any Note may be redeemed as described under "--Optional Redemption" above, (v) make any note payable in money other than that stated in the Note, (vi) impair the right of any holder to receive payment of principal of and interest on such holder's Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such holder's Notes or (vii) make any change in the amendment provisions which require each holder's consent or in the waiver provisions. Without the consent of any holder, the Issuer and the Trustee may amend the Indenture to cure any ambiguity, omission, defect or inconsistency, to provide for the assumption by a successor corporation, partnership, trust or limited liability company of the obligations of the Issuer under the Indenture (provided that there has been delivered to the Trustee an Opinion of Counsel to the effect that holders of 107 Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such assumption and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such assumption had not occurred), to provide for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163 (f) (2) (B) of the Code), to the Notes, to secure the Notes, to add to the covenants of the Issuer for the benefit of the holders or to surrender any right or power conferred upon the Issuer, to make any change that does not adversely affect the rights of any holder or to comply with any requirement of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act. The consent of the holders is not necessary under the Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment. After an amendment under the Indenture becomes effective, the Issuer is required to mail to the holders a notice briefly describing such amendment. However, the failure to give such notice to all the holders or any defect therein, will not impair or affect the validity of the amendment. DEFEASANCE The Issuer at any time may terminate all its obligations under the Notes and the Indenture ("legal defeasance"), except for certain obligations, including those respecting the defeasance trust and obligations to register the transfer or exchange of the Notes, to replace mutilated, destroyed, lost or stolen Notes and to maintain a registrar and paying agent in respect of the Notes. The Issuer at any time may terminate its obligations under covenants described under "--Certain Covenants" (other than "Merger and Consolidation"), the operation of the cross acceleration provision, the bankruptcy provisions with respect to Significant Subsidiaries and the judgment default provision described under "--Events of Default" above and the limitations contained in clauses (iii) and (iv) under "--Certain Covenants--Merger and Consolidation" above ("covenant defeasance"). The Issuer may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option. If the Issuer exercises its legal defeasance option, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. If the Issuer exercises its covenant defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified in clause (iv), (vi), (vii) (with respect only to Significant Subsidiaries), (viii) or (ix) under "--Events of Default" above or because of the failure of the Issuer to comply with clause (iii) or (iv) under "--Certain Covenants--Merger and Consolidation" above. In order to exercise either defeasance option, the Issuer must irrevocably deposit in trust (the "defeasance trust") with the Trustee money or U.S. Government Obligations for the payment of principal, premium (if any) and interest on the Notes to redemption or maturity, as the case may be, and must comply with certain other conditions, including delivery to the Trustee of an Opinion of Counsel to the effect that holders of the Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and defeasance and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred (and, in the case of legal defeasance only, such Opinion of Counsel must be based on a ruling of the Internal Revenue Service or other change in applicable Federal income tax law). SATISFACTION AND DISCHARGE OF THE INDENTURE The Indenture will cease to be of further effect (except as otherwise expressly provided for in the Indenture) when either (i) all outstanding Notes have been delivered (other than lost, stolen or destroyed Notes which have been replaced) to the Trustee for cancellation or (ii) all outstanding Notes have become 108 due and payable, whether at maturity or as a result of the mailing of a notice of redemption pursuant to the terms of the Indenture and the Issuer has irrevocably deposited with the Trustee funds sufficient to pay at maturity or upon redemption all outstanding Notes, including interest thereon (other than lost, stolen, mutilated or destroyed Notes which have been replaced), and, in either case, the Issuer has paid all other sums payable under the Indenture. The Trustee is required to acknowledge satisfaction and discharge of the Indenture on demand of the Issuer accompanied by an Officer's Certificate and an Opinion of Counsel at the cost and expense of the Issuer. TRANSFER AND EXCHANGE Upon any transfer of a Note, the registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents, and to pay any taxes and fees required by law or permitted by the Indenture. The registrar is not required to transfer or exchange any Notes selected for redemption nor is the registrar required to transfer or exchange any Notes for a period of 15 days before a selection of Notes to be redeemed. The registered holder of a Note may be treated as the owner of it for all purposes. CONCERNING THE TRUSTEE United States Trust Company of New York is the Trustee under the Indenture and has been appointed by the Issuer as Registrar and Paying Agent with regard to the Notes. The Trustee's current address is 114 West 47th Street, New York, New York. The Indenture contains certain limitations on the rights of the Trustee, should it become a creditor of the Issuer, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim, as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest (as defined) it must eliminate such conflict or resign. The holders of a majority in aggregate principal amount of the then outstanding Notes issued under the Indenture will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee. The Indenture provides that in case an Event of Default shall occur (which shall not be cured) the Trustee will be required, in the exercise of its power, to use the degree of care that a prudent man in the conduct of his own affairs would use. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any of the holders of the Notes issued thereunder unless they shall have offered to the Trustee security and indemnity satisfactory to it. GOVERNING LAW The Indenture provides that it and the Notes will be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. CERTAIN DEFINITIONS "Accountants" means Ernst & Young LLP or such other nationally recognized firm of independent certified public accountants that is reasonably acceptable to the Trustee. "Accreted Value" means, as of any date, with respect to each $1,000 principal amount at maturity of Notes: (A) if such date is prior to December 15, 1999, the sum of (1) the initial offering price of such Notes and (2) the portion of the original issue discount for such Notes (which for this purpose shall be deemed to be the excess of the principal amount over such initial offering price) which shall be amortized with respect to such Notes to but not including such date, such original issue discount to be so amortized at a rate, 109 which together with cash interest paid on the Notes, represents a yield to maturity of 12% per annum using semiannual compounding of such rate on each June 15 and December 15, commencing June 15, 1998 (the "Semi-Annual Accrual Date") from the Issue Date but not including the date of determination (the following table indicates the Accreted Value at the semiannual compounding dates of the Notes:
SEMI-ANNUAL ACCRETED ACCRUAL DATE VALUE - ------------------------------------------------------------------------------- ------------- June 15, 1998.................................................................. $ 939.82 December 15, 1998.............................................................. $ 958.71 June 15, 1999.................................................................. $ 978.73 December 15, 1999.............................................................. $ 1,000.00
and (B) if such date occurs on or after December 15, 1999, $1,000. At any time prior to December 15, 1999 and between two Semi-Annual Accrual Dates, the Accreted Value will be the sum of (1) the Accreted Value for the Semi-Annual Accrual Date immediately preceding the date of determination, and (2) the Proportionate Share (as defined below). The "Proportionate Share" is an amount equal to the product of (i) the Accreted Value for the immediately following Semi-Annual Accrual Date less the Accreted Value for the immediately preceding Semi-Annual Date times (ii) a fraction, the numerator of which is the number of days from the immediately preceding Semi-Annual Accrual Date to the date of such determination, using a 360-day year of twelve 30-day months, and the denominator of which is 180. "Additional Assets" means (i) any property or assets (other than Indebtedness and Capital Stock) in a Permitted Business; (ii) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Issuer or a Restricted Subsidiary of the Issuer; (iii) Capital Stock constituting a minority interest in any person that at such time is a Restricted Subsidiary of the Issuer; or (iv) Permitted Investments of the type and in the amounts described in clause (viii) of the definition thereof; provided, however, that, in the case of clauses (ii) and (iii), such Restricted Subsidiary is primarily engaged in a Permitted Business. "Adjusted Net Assets" of a Subsidiary Guarantor at any date means the lesser of the amount by which (x) the fair value of the property of such Subsidiary Guarantor exceeds the total amount of liabilities, including, without limitation, the probable liability of such Subsidiary Guarantor with respect to its contingent liabilities (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date), but excluding liabilities under the Subsidiary Guarantee of such Subsidiary Guarantor at such date and (y) the present fair salable value of the assets of such Subsidiary Guarantor at such date exceeds the amount that will be required to pay the probable liability of such Subsidiary Guarantor on its debts (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date and after giving effect to any collection from any Subsidiary by such Subsidiary Guarantor in respect of the obligations of such Subsidiary under the Subsidiary Guarantee), excluding debt in respect of the Subsidiary Guarantee, as they become absolute and matured. "Affiliate" of any specified person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Appreciation Notes" means the Appreciation Notes due 2007. 110 "Appreciation Note Indenture" means the Indenture, dated as of the Issue Date, between the Issuer and the United States Trust Company of New York relating to the Appreciation Notes as in effect on the Issue Date and without giving effect to any modification or amendment thereto made after the Issue Date. "Asset Acquisition" means (i) an investment by the Issuer or any of its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be merged into or consolidated with the Issuer or any of its Restricted Subsidiaries or (ii) an acquisition by the Issuer or any of its Restricted Subsidiaries of the property and assets of any Person other than the Issuer or any of its Restricted Subsidiaries that constitute substantially all of a division or line of business of such Person. "Asset Disposition" means any sale, lease, transfer, issuance or other disposition (or series of related sales, leases, transfers, issuances or dispositions that are part of a common plan) of shares of Capital Stock of (or any other equity interests in) a Restricted Subsidiary (other than directors' qualifying shares) or of any other property or other assets (each referred to for the purposes of this definition as a "disposition") by the Issuer or any of its Restricted Subsidiaries (including any disposition by means of a merger, consolidation or similar transaction) other than (i) a disposition by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to a Wholly-Owned Subsidiary, (ii) a disposition of inventory in the ordinary course of business, (iii) a disposition of obsolete or worn out equipment or equipment that is no longer useful in the conduct of the business of the Issuer and its Restricted Subsidiaries and that is disposed of in each case in the ordinary course of business, (iv) dispositions of property for net proceeds which, when taken collectively with the net proceeds of any other such dispositions under this clause (iv) that were consummated since the beginning of the calendar year in which such disposition is consummated, do not exceed $1.0 million, and (v) transactions permitted under "--Certain Covenants-- Merger and Consolidation" above. Notwithstanding anything to the contrary contained above, a Restricted Payment made in compliance with the "Limitation on Restricted Payments" covenant shall not constitute an Asset Disposition except for purposes of determinations of the Consolidated Leverage Ratio. "Average Life" means, as of the date of determination, with respect to any Indebtedness, the quotient obtained by dividing (i) the sum of the product of the numbers of years (rounded upwards to the nearest month) from the date of determination to the dates of each successive scheduled principal payment of such Indebtedness or redemption multiplied by the amount of such payment by (ii) the sum of all such payments. "Board of Directors" means, as to the Issuer (i) so long as BMC or any successor to BMC is a limited liability company or partnership, the board of directors of Brill Media Management, Inc. which is the manager of BMC and (ii) at any other time the Board of Directors of the Issuer. "Capital Stock" of any Person means any and all shares, membership and other interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity. "Capitalized Lease Obligations" means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty. "Cash Equivalents" means (i) United States dollars, (ii) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof, (iii) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank 111 deposits, in each case with any commercial bank having capital and surplus in excess of $500 million, (iv) repurchase obligations for underlying securities of the types described in clauses (ii) and (iii) entered into with any financial institution meeting the qualifications specified in clause (iii) above, (v) commercial paper rated A-1 or the equivalent thereof by Moody's or S&P and in each case maturing within one year after the date of acquisition, (iv) investment funds investing 95% of their assets in securities of the types described in clauses (i)-(v) above, (vii) readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moody's or S&P and (viii) Indebtedness or preferred stock issued by Persons with a rating of "A" or higher from S&P or "A2" or higher from Moody's. "Change of Control" means, (i) any sale, lease, exchange or other transfer (collectively, a "Transfer") (in one transaction or a series of related transactions) of all or substantially all of the assets of the Issuer or the Issuer and its Restricted Subsidiaries on a consolidated basis or (ii) a majority of the Board of Directors of the Issuer or of any direct or indirect holding company thereof shall consist of Persons who are not Continuing Directors of the Issuer; or (iii) the acquisition by any Person or Group (other than Alan R. Brill or any Related Brill Party) of the power, directly or indirectly, to vote or direct the voting of securities having more than 35% of the ordinary voting power for the election of directors of the Issuer, or any direct or indirect holding company thereof; PROVIDED, HOWEVER that no Change of Control shall be deemed to occur pursuant to this clause (iii), so long as Alan R. Brill and the Related Brill Parties collectively own an amount of securities representing the power, directly or indirectly, to vote or direct the voting of securities having more than 50% of the ordinary voting power for the election of directors of the Issuer or of any direct or indirect holding company thereof. "Consolidated EBITDA" means, for any period an amount equal to Consolidated Net Income for such period, plus the following to the extent deducted in calculating such Consolidated Net Income: (i) the provision for taxes for such period based on income or profits and any provision for taxes utilized in computing net loss, (ii) Consolidated Interest Expense, (iii) depreciation expense, (iv) amortization expense (including the amortization of debt issuance costs), (v) all other non-cash items reducing Consolidated Net Income for such period (excluding any non-cash item to the extent it represents an accrual of or reserve for cash disbursements for any subsequent period prior to the Stated Maturity of the Notes or amortization of a pre-paid cash expense that was paid in a prior period), minus (b) all non-cash items increasing Consolidated Net Income for such period, in each case for the Issuer and its Restricted Subsidiaries for such period determined in accordance with GAAP, PROVIDED, HOWEVER, that, for purposes of calculating Consolidated EBITDA during any fiscal quarter, cash income from a particular Investment (other than a Managed Affiliate Note) of such Person shall be included only (x) if cash income has been received by such Person with respect to such Investment during each of the previous four fiscal quarters, or (y) if the cash income derived from such Investment is attributable to Temporary Cash Investments. "Consolidated Interest Expense" means, for any period, the total interest expense of the Issuer and its Restricted Subsidiaries determined in accordance with GAAP, PLUS, to the extent not included in such interest expense (i) interest expense attributable to Capitalized Lease Obligations, (ii) capitalized interest, (iii) non-cash interest expense, (iv) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing, (v) interest actually paid by the Issuer or any such Restricted Subsidiary under any Guarantee of Indebtedness or other obligation of any other Person, (vi) net payments (whether positive or negative) pursuant to Interest Rate Agreements, (vii) the cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than the Issuer) in connection with Indebtedness Incurred by such plan or trust and (viii) cash and Disqualified Stock dividends in respect of all Preferred Stock of Subsidiaries and Disqualified Stock of the Issuer held by Persons other than the Issuer or a Wholly-Owned Subsidiary and less (a) to the extent included in such interest expense, the amortization of capitalized debt issuance costs and (b) interest income. Notwithstanding the foregoing, the Consolidated Interest Expense with respect to any Restricted Subsidiary of the Issuer, that was not a 112 Wholly-Owned Subsidiary, shall be included only to the extent (and in the same proportion) that the net income of such Restricted Subsidiary was included in calculating Consolidated Net Income. "Consolidated Leverage Ratio" means, on any Transaction Date, the ratio of (i) the aggregate amount of Indebtedness of the Issuer and its Restricted Subsidiaries on a consolidated basis outstanding on such Transaction Date (other than Indebtedness under the Appreciation Notes) less the cash and Cash Equivalents held by the Issuer and its Restricted Subsidiaries on a consolidated basis on such Transaction Date to (ii) the amount of Media Cashflow for the then most recent four fiscal quarters for which financial statements of the Issuer have been filed with the Commission or provided to the Trustee pursuant to the "SEC Reports" covenant described in the Indenture (such four fiscal quarter period being the "Four Quarter Period"); PROVIDED, HOWEVER that, in making the foregoing calculation, (A) PRO FORMA effect shall be given to any Indebtedness to be Incurred or repaid on the Transaction Date; (B) PRO FORMA effect shall be given to Asset Dispositions and Asset Acquisitions (including giving PRO FORMA effect to the application of proceeds of any Asset Disposition) that occur from the beginning of the Four Quarter Period through and including the Transaction Date (the "Reference Period"), as if they had occurred and such proceeds had been applied on the first day of such Reference Period; and (C) PRO FORMA effect shall be given to asset dispositions and asset acquisitions (including giving PRO FORMA effect to the application of proceeds of any asset disposition) that have been made by any Person that has become a Restricted Subsidiary or has been merged with or into the Issuer or any Restricted Subsidiary during such Reference Period and that would have constituted Asset Dispositions or Asset Acquisitions had such transactions occurred when such Person was a Restricted Subsidiary as if such asset disposition or asset acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the first day of such Reference Period; PROVIDED, FURTHER that to the extent that clause (B) or (C) of this sentence requires that PRO FORMA effect be given to an Asset Acquisition or Asset Disposition, such PRO FORMA calculation shall be based upon the four full fiscal quarters immediately preceding the Transaction Date of the Person, or division or line of business of the Person, that is acquired or disposed of for which financial information is available. "Consolidated Net Income" means, for any period, the consolidated net income (loss) of the Issuer and its consolidated Restricted Subsidiaries determined in accordance with GAAP; PROVIDED, HOWEVER, that there shall not be included in such Consolidated Net Income: (i) any net income (loss) of any person acquired by the Issuer or any of its Restricted Subsidiaries in a pooling of interests transaction for any period prior to the date of such acquisition, (ii) any net income of any Restricted Subsidiary of the Issuer if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Issuer (other than restrictions in effect on the Issue Date with respect to a Restricted Subsidiary of the Issuer and other than restrictions that are created or exist in compliance with the "Limitation on Restrictions on Distributions from Restricted Subsidiaries" covenant), (iii) any gain or loss realized upon the sale or other disposition of any assets of the Issuer or its consolidated Restricted Subsidiaries (including pursuant to any Sale/ Leaseback Transaction) which are not sold or otherwise disposed of in the ordinary course of business and any gain or loss realized upon the sale or other disposition of any Capital Stock of any Person, (iv) any extraordinary gain or loss, (v) the cumulative effect of a change in accounting principles, (vi) the net income of any Person, other than a Restricted Subsidiary, except to the extent of the lesser of (A) cash dividends or distributions actually paid to the Issuer or any of its Restricted Subsidiaries by such Person and (B) the net income of such Person (but in no event less than zero), and the net loss of such Person (other than an Unrestricted Subsidiary) shall be included only to the extent of the aggregate Investment of the Issuer or any of its Restricted Subsidiaries in such Person and (vii) any non-cash expenses attributable to grants or exercises of employee stock options. Notwithstanding the foregoing, for the purpose of the covenant described under "--Certain Covenants--Limitation on Restricted Payments" only, (x) there shall be excluded from Consolidated Net Income any dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Issuer or a Restricted Subsidiary to the extent such dividends, repayments or transfers increase the amount of Restricted Payments permitted under such covenant pursuant to clause (a) (3) (D) thereof and (y) there shall be added to Consolidated Net Income 113 the amount of any accruals under the Performance Compensation Agreements to the extent deducted in determining such Consolidated Net Income. "Consolidated Net Worth" means the total of the amounts shown on the balance sheet of the Issuer and its consolidated Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of the end of the most recent fiscal quarter of the Issuer ending prior to the taking of any action for the purpose of which the determination is being made and for which financial statements are available (but in no event ending more than 135 days prior to the taking of such action), as (i) the par or stated value of all outstanding Capital Stock of the Issuer plus (ii) paid in capital or capital surplus relating to such Capital Stock plus (iii) any retained earnings or earned surplus less (A) any accumulated deficit and (B) any amounts attributable to Disqualified Stock. "Consolidated Senior Leverage Ratio" means, on any Transaction Date, the Consolidated Leverage Ratio on such Transaction Date; PROVIDED, HOWEVER, that the reference to "Indebtedness" in clause (i) of the definition of Consolidated Leverage Ratio shall be deemed to be a reference to "Senior Indebtedness." "Consolidated Senior Secured Leverage Ratio" means, on any Transaction Date, the Consolidated Leverage Ratio on such Transaction Date; PROVIDED, HOWEVER, that the reference to "Indebtedness" in clause (i) of the definition of Consolidated Leverage Ratio shall be deemed to be a reference to "Senior Secured Indebtedness." "Consolidated Unrestricted Subsidiary Advance Leverage Ratio" means, on any Transaction Date, the Consolidated Leverage Ratio on such Transaction Date; PROVIDED, HOWEVER, that clause (i) of the definition of Consolidated Leverage Ratio shall be deemed to be a reference to "Unrestricted Subsidiary Advances." "Continuing Director" of any Person means, as of the date of determination, any Person who (i) was a member of the Board of Directors of such Person on the date of the Indenture or (ii) was nominated for election or elected to the Board of Directors of such Person with the affirmative vote of a majority of the Continuing Directors of such Person who were members of such Board of Directors at the time of such nomination or election. "Currency Agreement" means in respect of a Person any foreign exchange contract, currency swap agreement or other similar agreement as to which such Person is a party or a beneficiary. "Default" means any event which is, or after notice or passage of time or both would be, an Event of Default. "Disqualified Stock" means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event (other than an event which would constitute a Change of Control), (i) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the final Stated Maturity of the Notes, or (ii) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (a) debt securities or (b) any Capital Stock referred to in (i) above, in each case at any time prior to the final Stated Maturity of the Notes. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, or any successor statute or statutes thereto. "Existing Indebtedness" means Indebtedness of the Issuer or its Restricted Subsidiaries in existence on the Issue Date, plus interest accrued thereon, after application of the net proceeds of the Notes as described in this Offering Memorandum. 114 "fair market value" means, with respect to any asset or property, the price which could be negotiated in an arm's-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair market value shall be determined by the Board of Directors of the Issuer acting reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Issuer delivered to the Trustee. "GAAP" means generally accepted accounting principles in the United States of America as in effect as of the date of the Indenture, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. All ratios and computations based on GAAP contained in the Indenture shall be computed in conformity with GAAP. "Group" means any "group" for purposes of Section 13(d) of the Exchange Act. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); PROVIDED, HOWEVER, that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guarantee" used as a verb has a corresponding meaning. "Incur" means issue, assume, guarantee, incur or otherwise become liable for; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of a Person existing at the time such person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary. "Indebtedness" means, with respect to any Person on any date of determination (without duplication), (i) the principal of and premium (if any) in respect of indebtedness of such Person for borrowed money, (ii) the principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto) (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (i), (ii) and (v) ) entered into in the ordinary course of business of such Person to the extent that such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the third business day following receipt by such Person of a demand for reimbursement following payment on the letter of credit), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services (except (x) trade payables and accrued expenses (including accrued management fees under the Administrative Managment Agreements) incurred in the ordinary course of business and (y) contingent or "earnout" payment obligations in respect of any Permitted Business acquired by the Issuer or any Restricted Subsidiary), which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, (v) all Capitalized Lease Obligations and all Attributable Indebtedness of such Person, (vi) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, (vii) all Indebtedness of other Persons to the extent Guaranteed by such Person, (viii) the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock or, with respect to any Restricted Subsidiary of the Issuer, any Preferred Stock of such Restricted Subsidiary to the extent such obligation arises on or before the final Stated Maturity of the Notes (but excluding, in each case, accrued dividends) with the amount of 115 Indebtedness represented by such Disqualified Stock or Preferred Stock, as the case may be, being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price; PROVIDED, HOWEVER, that, for purposes hereof the "maximum fixed repurchase price" of any Disqualified Stock or Preferred Stock, as the case may be, which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock, as the case may be, as if such Disqualified Stock or Preferred Stock, as the case may be, were purchased on any date on which Indebtedness shall be required to be determined pursuant to the Indenture, and if such price is based on the fair market value of such Disqualified Stock or Preferred Stock, as the case may be, such fair market value shall be determined in good faith by the Board of Directors of the Issuer and (ix) to the extent not otherwise included in this definition, obligations under Currency Agreements and Interest Rate Agreements. Unless specifically set forth above, the amount of Indebtedness of any Person at any date shall be the outstanding principal amount of all unconditional obligations as described above, as such amount would be reflected on a balance sheet prepared in accordance with GAAP, and the maximum liability of such Person, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations described above at such date. Notwithstanding the foregoing, Indebtedness shall not include any accrued obligations under Performance Compensation Agreements. "Interest Rate Agreement" means with respect to any Person any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement as to which such Person is party or a beneficiary. "Investment" in any Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business that are recorded as accounts payable on the balance sheet of such Person) or other extension of credit (including by way of Guarantee or similar arrangement, but excluding any debt or extension of credit represented by a bank deposit other than a time deposit) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by such Person. For purposes of the "Limitation on Restricted Payments" covenant, (i) "Investment" shall include the portion (proportionate to the Issuer's equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary of the Issuer at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; PROVIDED, HOWEVER, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer shall be deemed to continue to have a permanent "Investment" in an Unrestricted Subsidiary in an amount (if positive) equal to (x) the Issuer's "Investment" in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to the Issuer's equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time that such Subsidiary is so redesignated a Restricted Subsidiary; and (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors and evidenced by a resolution of such Board of Directors certified in an Officers' Certificate to the Trustee. "Issue Date" means the date on which the Notes are originally issued. "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof). "Managed Affiliate", solely for purposes of this Description of Notes, means a Person at least 90% of the Capital Stock of which is owned, directly or indirectly, by Alan R. Brill; PROVIDED HOWEVER, that (i) such Person is engaged solely in a Permitted Business, (ii) such Person is a party to a Managed Affiliate Management Agreement and (iii) except in the case of TSB III, LLC and TSB IV, LLC the business of such Person is acquired by Alan R. Brill, directly or indirectly, after the Issue Date. 116 "Managed Affiliate Notes" mean any promissory notes of a Managed Affiliate, issued to the Issuer or a Restricted Subsidiary, each of which promissory notes shall (i) mature on a day no later than the third anniversary of the date of issuance thereof, (ii) become immediately due and payable upon (w) the default by such Managed Affiliate under the Managed Affiliate Management Agreement to which it is party or (x) the issuer thereunder ceasing to constitute a Managed Affiliate or (y) the acceleration of the Notes or (z) on the bankruptcy, insolvency or reorganization of the Issuer and (iii) bear interest payable in cash no less often than semi-annually at a rate per annum no less than the rate of interest payable on the Notes. Each Managed Affiliate Note shall provide that the payment of any management fee by the relevant Managed Affiliate pursuant to any management agreement (other than a Managed Affiliate Management Agreement) with an Affiliate of the Issuer or such Managed Affiliate shall be subordinated to the obligations of the relevant Managed Affiliate under such Managed Affiliate Note to the same extent as the obligations of the Issuer and the Subsidiary Guarantors under the Administrative Management Agreements are subordinated to the obligations of such persons under the Notes and the Subsidiary Guarantees. "Managed Affiliate Management Agreement" means any agreement between a Restricted Subsidiary, on the one hand, and a Managed Affiliate, on the other hand, providing for the payment by such Managed Affiliate to one or more Restricted Subsidiaries of a cash management fee payable at least semi annually equal to a specified percentage of the excess cash flow of such Managed Affiliate as defined in such agreement. "Media Cashflow" for any period means for any Person an amount equal to Consolidated EBITDA for such period plus interest income received in respect of the Managed Affiliate Notes during such period and the following to the extent deducted in calculating such Consolidated EBITDA (i) management fees charged by BMCLP under the Administrative Management Agreements, (ii) expenses accruing under Performance Compensation Agreements , (iii) consulting fees payable in connection with acquisitions and (iv) fees paid under Time Brokerage Agreements. "Member" means any Person who holds a membership interest in the Issuer. "Missouri Properties" means the radio stations KLIK-AM, KTXY-FM and KATI-FM serving Jefferson City, MO. "Net Available Cash" from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets subject to such Asset Disposition) therefrom in each case net of (i) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, foreign and local taxes required to be paid or accrued as a liability under GAAP, as a consequence of such Asset Disposition, (ii) all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Disposition or by applicable law, be repaid out of the proceeds from such Asset Disposition, (iii) all distributions and other payments required to be made to any Person owning a beneficial interest in assets subject to sale or minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition, (iv) the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Issuer or any Restricted Subsidiary of the Issuer after such Asset Disposition, PROVIDED, HOWEVER, that upon any reduction in such reserves (other than to the extent resulting from payments of the respective reserved liabilities), Net Available Cash shall be increased by the amount of such reduction to reserves, and (v) any portion of the purchase price from an Asset Disposition placed in escrow (whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Disposition or otherwise in connection with such Asset Disposition); PROVIDED, HOWEVER, that upon the termination of such escrow, Net Available Cash shall be increased by any portion of funds therein released to the Issuer or any Restricted Subsidiary. 117 "Net Cash Proceeds," with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys' fees, accountants' fees, underwriters' or placement agents' fees, discounts or commissions and brokerage, consultant and other fees or expenses actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale. "Non-Recourse Debt" means Indebtedness (i) as to which neither the Issuer nor any Restricted Subsidiary (a) provides any guarantee or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable (as a guarantor, general partner or otherwise) and (ii) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of the Issuer or any Restricted Subsidiary to declare a default under such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity. "Officer" means the Chairman of the Board, the Vice-Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice-President, the Treasurer or the Secretary of the Issuer. "Officer's Certificate" means a certificate signed by two Officers of the Issuer at least one of whom shall be the principal executive, financial or accounting officer of the Issuer. "Opinion of Counsel" means a written opinion, in form and substance acceptable to the Trustee, from legal counsel who is acceptable to the Trustee. "Paying Agent" means United States Trust Company of New York. "Performance Compensation Agreement" means any agreements between the Issuer or any Restricted Subsidiary and any executive officer of such Subsidiary pursuant to which such Subsidiary provides deferred compensation to such officer by crediting amounts (as determined under a formula set forth in such agreement) to an identified account for the benefit of such executive officer. Future Performance Compensation Agreements shall provide that no payment shall be required to be made by the Issuer or any Restricted Subsidiary thereunder if such payment is not permitted under the Indenture and that the Issuer's and the Restricted Subsidiary's obligations to make payments thereunder shall be subordinated to (i) the obligations of the Issuer and the Subsidiary Guarantors under the Notes and the Subsidiary Guarantees and (ii) the obligations of the Issuer and the Subsidiary Guarantors under the Appreciation Notes and the Guarantees thereof. "Permitted Business" means any business which is the same as or related, ancillary or complementary to any of the businesses of the Issuer and its Restricted Subsidiaries on the date of the Indenture, as reasonably determined by the Issuer's Board of Directors. "Permitted Investment" means an Investment by the Issuer or any of its Restricted Subsidiaries in (i) a Wholly-Owned Subsidiary of the Issuer; PROVIDED, HOWEVER, that the primary business of such Wholly-Owned Subsidiary is a Permitted Business; (ii) another Person if as a result of such Investment such other Person becomes a Wholly-Owned Subsidiary of the Issuer or is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, the Issuer or a Wholly-Owned Subsidiary of the Issuer; PROVIDED, HOWEVER, that in each case such Person's primary business is a Permitted Business; (iii) Temporary Cash Investments; (iv) receivables owing to the Issuer or any of its Restricted Subsidiaries, created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; (v) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; (vi) loans and advances to employees made in the ordinary course of business consistent with past practices of the Issuer or such Restricted Subsidiary in an aggregate amount outstanding at any one time not to exceed $250,000 to any one employee or $1.0 million in the aggregate; (vii) stock, obligations or securities received in settlement of debts created in the ordinary course of 118 business and owing to the Issuer or any of its Restricted Subsidiaries or in satisfaction of judgments or claims; (viii) a Person engaged in a Permitted Business or a loan or advance by the Issuer the proceeds of which are used solely to make an investment in a Person engaged in a Permitted Business or a Guarantee by the Issuer of Indebtedness of any Person in which such Investment has been made PROVIDED, HOWEVER, that no Permitted Investments may be made pursuant to this clause (viii) to the extent the amount thereof would, when taken together with all other Permitted Investments made pursuant to this clause (viii), exceed $5.0 million in the aggregate (plus, to the extent not previously reinvested, any return of capital realized on Permitted Investments made pursuant to this clause (viii), or any release or other cancellation of any Guarantee constituting such Permitted Investment); (ix) Persons to the extent such Investment is received by the Issuer or any Restricted Subsidiary as consideration for asset dispositions effected in compliance with the covenant described under "Certain Covenants--Limitations on Sales of Assets and Subsidiary Stock"; (x) prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Issuer and its Restricted Subsidiaries, (xi) the Managed Affiliate Note; PROVIDED, HOWEVER, that the aggregate principal amount thereof (including any Managed Affiliate Notes outstanding on the Issue Date) does not exceed $20 million at any time outstanding, (xii) loans to Unrestricted Subsidiaries; PROVIDED, HOWEVER, that (1) no Default or Event of Default shall have occurred and be continuing at the time of the Incurrence thereof by the relevant Unrestricted Subsidiary or would occur as a consequence thereof and the Consolidated Unrestricted Subsidiary Advance Leverage Ratio would not be greater than 2.00 to 1.00, (2) such advances are senior to all other Indebtedness of the relevant Unrestricted Subsidiary other than Capitalized Lease Obligations, mortgage financing or purchase money obligations outstanding on the date on which such Unrestricted Subsidiary was acquired, directly or indirectly, by the Issuer or the date such Subsidiary was designated an Unrestricted Subsidiary (other than Indebtedness Incurred in anticipation of, or to provide all or any portion of the funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Unrestricted Subsidiary became a Subsidiary or was otherwise acquired by the Issuer or was designated as an Unrestricted Subsidiary) and (3) such Unrestricted Subsidiary is engaged primarily in a Permitted Business; and (xiii) Investments in connection with pledges, deposits, payments or performance bonds made or given in the ordinary course of business in connection with or to secure statutory, regulatory or similar obligations, including obligations under health, safety or environmental obligations. "Permitted Liens" means: (i) pledges or deposits by the Issuer or any Restricted Subsidiary under workmen's compensation laws, unemployment insurance laws, other types of social security benefits or similar legislation, or good faith deposits in connection with bids, tenders or contracts (other than for the payment of Indebtedness) or leases to which the Issuer or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations or deposits of cash or United States government bonds to secure surety or appeal bonds to which the Issuer or any Restricted Subsidiary is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred by the Issuer or any Restricted Subsidiary in the ordinary course of business consistent with past practice; (ii) Liens imposed by law, such as carriers', warehousemen's and mechanics' Liens, in each case for sums not yet due from the Issuer or any Restricted Subsidiary or being contested in good faith by appropriate proceedings by the Issuer or any Restricted Subsidiary, as the case may be, or other Liens arising out of judgments or awards against the Issuer or any Restricted Subsidiary with respect to which the Issuer or such Restricted Subsidiary, as the case may be, will then be prosecuting an appeal or other proceedings for review; (iii) Liens for property taxes or other taxes, assessments or governmental charges of the Issuer or any Restricted Subsidiary not yet due or payable or subject to penalties for nonpayment or which are being contested by the Issuer or such Restricted Subsidiary, as the case may be, in good faith by appropriate proceedings; (iv) Liens in favor of issuers of performance bonds and surety bonds issued pursuant to clause (b)(v) under "--Certain Covenants--Limitation on Indebtedness"; (v) survey exceptions, encumbrances, easements or, reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes or zoning or other restrictions as to the use of real property of the Issuer or any Restricted Subsidiary incidental to the ordinary course of conduct of the business of 119 the Issuer or such Restricted Subsidiary or as to the ownership of properties of the Issuer or any Restricted subsidiary, which, in either case, were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of the Issuer or any Restricted subsidiary; (vi) Liens to secure Indebtedness permitted under clause (b)(i) under "--Certain Covenants--Limitation on Indebtedness"; (vii) Liens outstanding immediately after the Issue Date as set forth on Schedule II to the Indenture (and not otherwise permitted by clause (vi)); (viii) Liens on property, assets or shares of stock of any Restricted Subsidiary at the time such Restricted Subsidiary became a Subsidiary of the Issuer; PROVIDED, HOWEVER, that (A) if any such Lien has been Incurred in anticipation of such transaction, such property, assets or shares of stock subject to such Lien will have a fair market value at the date of the acquisition thereof not in excess of the lesser of (1) the aggregate purchase price paid or owed by the Issuer in connection with the acquisition of such Restricted Subsidiary and (2) the fair market value of all property and assets of such Restricted Subsidiary and (B) any such Lien will not extend to any other assets owned by the Issuer or any Restricted Subsidiary; (ix) Liens on property or assets at the time the Issuer or any Restricted Subsidiary acquired such assets, including any acquisition by means of a merger or consolidation with or into the Issuer or such Restricted Subsidiary; PROVIDED, HOWEVER, that (A) if any such Lien is Incurred in anticipation of such transaction, such property or assets subject to such Lien will have a fair market value at the date of the acquisition thereof not in excess of the lesser of the aggregate purchase price paid or owed by the Issuer or such Restricted Subsidiary in connection with the acquisition thereof and of any other property and assets acquired simultaneously therewith and (2) the fair market value of all such property and assets acquired by the Issuer or such Restricted Subsidiary and (B) any such Lien will not extend to any other property or assets owned by the Issuer or any Restricted Subsidiary; (x) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Issuer or a Wholly Owned Subsidiary; (xi) Liens to secure any extension, renewal, refinancing, replacement or refunding (or successive extensions, renewals, refinancings, replacements or refundings), in whole or in part, of any Indebtedness secured by Liens referred to in any of clauses (vii), (viii) and (ix); PROVIDED, HOWEVER, that any such Lien will be limited to all or part of the same property or assets that secured the original Lien (plus improvements on such property) and the aggregate principal amount of Indebtedness that is secured by such Lien will not be increased to an amount greater than the sum of (A) the outstanding principal amount, or, if greater, the committed amount, of the Indebtedness described under clauses (vii), (viii) and (ix) at the time the original Lien became a Permitted Lien under the Indenture and (B) an amount necessary to pay any premiums, fees and other expenses Incurred by the Issuer in connection with such refinancing, refunding, extension, renewal or replacement; (xii) Liens on property or assets of the Issuer securing Interest Rate Agreements and Currency Agreements, permitted under "--Certain Covenants--Limitation on Indebtedness", so long as the related Indebtedness is secured by a Lien on the same property securing the relevant Interest Rate Agreement or Currency Agreement; (xiii) Liens on property or assets of the Issuer or any Restricted Subsidiary securing Indebtedness under Sale/Leaseback Transactions permitted under "--Certain Covenants--Limitation on Sale/Leaseback Transactions"; PROVIDED, HOWEVER, that (A) the amount of Indebtedness Incurred in any specific case does not, at the time such Indebtedness is Incurred, exceed the lesser of the cost or fair market value of the property or asset subject to such Sale/Leaseback Transaction, (B) such Lien will attach to such property or asset upon commencement of such Sale/Leaseback Transaction and (C) no property or asset of the Issuer or any Restricted Subsidiary (other than the property subject to such Sale/Leaseback Transaction) are subject to any Lien securing such Indebtedness; and (ix) Liens securing Indebtedness permitted to be secured pursuant to the proviso to clause (ii) of paragraph (a) under "-- Certain Covenants--Limitation on Indebtedness." "Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "Preferred Stock," as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the 120 distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation. "Public Equity Offering," means underwritten public offerings or quotations or placements of Capital Stock of the Issuer (other than Disqualified Stock) which has been registered with the Commission under the Securities Act. "Refinancing Indebtedness" means Indebtedness that refunds, refinances, replaces, renews, repays or extends (including pursuant to any defeasance or discharge mechanism) (collectively, "refinances," and "refinanced" shall have a correlative meaning) any Indebtedness existing on the date of the Indenture or Incurred in compliance with the Indenture (including Indebtedness of the Issuer that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness; PROVIDED, HOWEVER, that (i) the Refinancing Indebtedness has a Stated Maturity no earlier than the earlier of (A) the first anniversary of the Stated Maturity of the Notes and (B) Stated Maturity of the Indebtedness being refinanced, (ii) the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the lesser of (A) the Average Life of the Notes and (B) the Average Life of the Indebtedness being refinanced; and (iii) the Refinancing Indebtedness is in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to (or 101% of, in the case of a refinancing of the Notes in connection with a Change of Control) or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus the amount of any premium required to be paid in connection therewith and reasonable fees and expenses therewith); PROVIDED, HOWEVER, that if the Indebtedness being refinanced is Existing Indebtedness which was a purchase money obligation, mortgage or Capital Lease the Refinancing Indebtedness is an aggregate principal amount that is equal to or less than the lesser of the original principal amount of such Existing Indebtedness and the fair market value (determined on the date of such Refinancing Indebtedness is Incurred) of the personal property securing such Existing Indebtedness or the personal property of similar nature and quality replacing such personal property; PROVIDED, FURTHER, that Refinancing Indebtedness shall not include Indebtedness of a Subsidiary which refinances Indebtedness of the Issuer. "Related Brill Party" means (A) the spouse or immediate family member of Alan R. Brill or (B) any trust, corporation, partnership or other entity, the beneficiaries, shareholders, partners, members, owners or Persons beneficially holding an 80% or more controlling interest of which consist of Alan R. Brill and/or such other Persons referred to in the immediately preceding clause (A). "Restricted Subsidiary" means any Subsidiary of the Issuer other than an Unrestricted Subsidiary. "Sale/Leaseback Transaction" means an arrangement relating to property now owned or hereafter acquired whereby the Issuer or a Restricted Subsidiary transfers such property to a Person and the Issuer or a Subsidiary leases it from such Person. "Senior Indebtedness" means all Indebtedness of the Issuer and its Restricted Subsidiaries other than Subordinated Obligations. "Senior Secured Indebtedness" means Indebtedness of the Issuer and its Restricted Subsidiaries which is secured by a Lien; PROVIDED, HOWEVER, that for purposes of the Consolidated Senior Secured Leverage Ratio the full amount of Senior Secured Indebtedness permitted to be outstanding under clause (i) of paragraph (b) under "--Certain Covenants--Limitation on Indebtedness" shall be deemed to be outstanding. "Significant Subsidiary" means any Restricted Subsidiary that would be a "Significant Subsidiary" of the Issuer within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC. 121 "Stated Maturity" means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision. "Subordinated Obligation" means any Indebtedness of the Issuer or a Restricted Subsidiary (whether outstanding on the Issue Date or thereafter Incurred) which is subordinate or junior in right of payment to the Notes and the Subsidiary Guarantees pursuant to a written agreement. "Subsidiary" of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a Subsidiary shall refer to a Subsidiary of the Issuer. "Subsidiary Guarantee" means the Guarantee of the Notes by a Subsidiary Guarantor. "Subsidiary Guarantor" means each Subsidiary of the Issuer on the Issue Date and each newly organized or acquired Restricted Subsidiary. "Tax Allowance Amount" means, with respect to any Member, for any calendar quarter, (i) forty percent (40%) of the excess of (a) the estimated taxable income allocable to such Member arising from its ownership of an interest in the Issuer for the fiscal year through such calendar quarter over (b) any losses of the Issuer for prior fiscal years and such fiscal year that are allocable to such Member that were not previously utilized in the calculation of Tax Allowance Amounts for any period minus (ii) prior distributions of Tax Allowance Amounts for such fiscal year, all as determined by the Accountants in good faith. The amount so determined by the Accountants shall be the Tax Allowance Amount for such period and shall be final and binding on all Members. "Temporary Cash Investments" means any of the following: (i) any Investment in direct obligations of the United States of America or any agency thereof or obligations Guaranteed by the United States of America or any agency thereof, (ii) Investments in time deposit accounts, certificates of deposit and money market deposits maturing within 365 days of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital surplus and undivided profits aggregating in excess of $250 million (or the foreign currency equivalent thereof) and whose long-term debt, or whose parent holding company's long-term debt, is rated "A" (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act), (iii) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (i) above entered into with a bank meeting the qualifications described in clause (ii) above, (iv) Investments in commercial paper, maturing not more than 365 days after the date of acquisition, issued by a corporation (other than an Affiliate of the Issuer) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of "P-1" (or higher) according to Moody's Investors Service, Inc. or "A-1" (or higher) according to Standard and Poor's Ratings Group, (v) Investments in securities with maturities of six months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least "A" by Standard & Poor's Ratings Group or "A" by Moody's Investors Service, Inc. and (vi) Investments in mutual funds whose investment guidelines restrict such funds' investments to those satisfying the provisions of clauses (i) through (v) above. 122 "Transaction Date" means, with respect to the Incurrence of any Indebtedness by the Issuer or any of its Subsidiaries, the date such Indebtedness is to be Incurred. "Unrestricted Subsidiary" means (i) any Subsidiary of the Issuer that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors in the manner provided below and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of the Issuer (including any newly acquired or newly formed Subsidiary of the Issuer) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the Issuer or any Restricted Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; PROVIDED, HOWEVER, that each Subsidiary to be so designated and each of its Subsidiaries has not at the time of such designation, and does not thereafter create, Incur, issue, assume, guarantee or otherwise becomes liable with respect to any Indebtedness other than Non-Recourse Debt and either (A) the Subsidiary to be so designated has total consolidated assets of $10,000 or less or (B) if such Subsidiary has consolidated assets greater than $10,000, then such designation would be permitted under "--Certain Covenants--Limitation on Restricted Payments." The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary subject to the limitations contained in "--Certain Covenants--Limitation on Designations of Unrestricted Subsidiaries." "Unrestricted Subsidiary Advance" means loans made by the Issuer and its Restricted Subsidiaries to Unrestricted Subsidiaries. "U.S. Government Obligations" means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer's option. "Wholly-Owned Subsidiary" means a Restricted Subsidiary of the Issuer, at least 95% of the Capital Stock of which (other than directors' qualifying shares) is owned by the Issuer or another Wholly-Owned Subsidiary. 123 DESCRIPTION OF APPRECIATION NOTES GENERAL The Original Appreciation Notes were issued, and the Exchange Appreciation Notes are to be issued, under an indenture, dated as of December 30, 1997 (the "Appreciation Note Indenture"), between the Issuer and United States Trust Company of New York, as trustee (the "Trustee"), a copy of which is available upon request to the Issuer. The following is a summary of certain provisions of the Appreciation Note Indenture and the Appreciation Notes and does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the Appreciation Note Indenture (including the definitions of certain terms therein and those terms made a part thereof by the Trust Indenture Act of 1939, as amended) and the Appreciation Notes. The definition of certain capitalized terms used in the following summary are set forth below under "Certain Definitions". Principal of, and interest and premium, if any, on the Appreciation Notes will be payable, and the Appreciation Notes may be exchanged or transferred, at the office or agency of the Issuer in the Borough of Manhattan, The City of New York (which initially shall be the corporate trust office of the Trustee in New York, New York). Initially, the Trustee will act as Paying Agent and Registrar for the Appreciation Notes. The Appreciation Notes may be presented for registration of transfer and exchange at the offices of the Registrar, which initially will be the Trustee's corporate trust office. The Issuer may change any Paying Agent and Registrar without notice to holders of the Appreciation Notes. The Appreciation Notes will be issued only in fully registered form, without coupons, in denominations of any integral multiple of approximately $28.57. No service charge will be made for any registration of transfer or exchange of Appreciation Notes, but the Issuer may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection therewith. TERMS OF APPRECIATION NOTES The Appreciation Notes will mature on December 15, 2007 (the "Maturity Date"). Each Appreciation Note will entitle the holder thereof to receive on the Maturity Date a cash payment of principal and interest in the amount equal to the greater of (i) the principal amount thereof or (ii) the Specified Percentage (as defined) of the Value (as defined) of BMC on the Maturity Date. "Specified Percentage" of an Appreciation Note with a principal amount of $28.57 means .0000004761904761% (5% DIVIDED BY 105,000 Units), so that the holders of all Appreciation Notes will be entitled to receive, in the aggregate, 5% of the Value of BMC. The "Value" of BMC on the Maturity Date means an amount equal to the sum of (i) 12 times Media Cashflow for the then most recent four fiscal quarters for which financial statements of BMC are available plus (ii) the cash and Cash Equivalents of BMC and its Subsidiaries on the Maturity Date, less the aggregate amount of Indebtedness (as defined) of BMC and its Subsidiaries on a consolidated basis outstanding on the Maturity Date. Any Original Appreciation Notes that remain outstanding after consummation of the Exchange Offer and any Exchange Appreciation Notes issued in connection with the Exchange Offer will be treated as a single class of securities under the Appreciation Note Indenture. The Appreciation Notes will not be entitled to the benefit of any mandatory sinking fund. OPTIONAL REDEMPTION Except as set forth below, the Appreciation Notes will not be redeemable at the option of the Issuer prior to June 15, 1999. Thereafter, if an Initial Public Offering has not occurred on or before a date set forth below, the Appreciation Notes will be redeemable, at the Issuer's option, in whole but not in part, on such date upon not less than 30 nor more than 60 days' prior notice mailed by first-class mail to each holder's registered address, at a redemption price equal to the Pro Rata Percentage of each Appreciation 124 Note of the amount set forth below opposite such redemption date (which amount, in each case, represents payment in full of all principal and interest on the Appreciation Notes):
DATE AMOUNT - ----------------------------------------------------------------------------- --------------- June 15, 1999................................................................ $ 3.0 million June 15, 2000................................................................ $ 8.3 million June 15, 2001................................................................ $ 12.8 million June 15, 2002................................................................ $ 18.0 million June 15, 2003................................................................ $ 24.0 million June 15, 2004................................................................ $ 31.0 million June 15, 2005................................................................ $ 39.0 million June 15, 2006................................................................ $ 48.0 million June 15, 2007................................................................ $ 58.0 million
"Pro Rata Percentage" of an Appreciation Note having a principal value of $28.57 means .000009523809522. MANDATORY REDEMPTION AT THE OPTION OF THE HOLDERS UPON THE OCCURRENCE OF CERTAIN EVENTS Upon the occurrence of an Initial Public Offering, a Sale of the Company or the liquidation of the Issuer (each such event, a "Specified Event"), each holder will have the right to require the Issuer to redeem all or any part of such holder's Appreciation Notes at the relevant Specified Event Purchase Price (as defined below) (which amount, in each case, represents payment in full of all principal and interest on the Appreciation Notes). Within 30 days following any Specified Event, unless the Issuer has mailed a redemption notice with respect to all the outstanding Appreciation Notes in connection with such Specified Event, the Issuer shall mail a notice to each holder with a copy to the Trustee stating: (1) that a Specified Event has occurred and that such holder has the right to require the Issuer to redeem such holder's Appreciation Notes at a purchase price in cash equal to the relevant Specified Event Purchase Price; (2) the redemption date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); and (3) the procedures determined by the Issuer, consistent with the Appreciation Note Indenture, that a holder must follow in order to have its Appreciation Notes redeemed. The Issuer shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the redemption of Appreciation Notes pursuant to this covenant. To the extent that the provisions of any securities laws or regulations conflict with provisions of the Appreciation Note Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in the Appreciation Note Indenture by virtue thereof. The definition of "Sale of Company" includes, among other transactions, a disposition of all or substantially all of the property and assets of the Issuer and its Subsidiaries. With respect to the disposition of property or assets, the phrase "all or substantially all" as used in the Appreciation Note Indenture varies according to the facts and circumstances of the subject transaction, has no clearly established meaning under New York law (which is the law which governs the Appreciation Note Indenture) and is subject to judicial interpretation. Accordingly, in certain circumstances there may be a degree of uncertainty in ascertaining whether a particular transaction would involve a disposition of "all or substantially all" of the property or assets of a Person, and therefore it may be unclear as to whether a Sale of the Company has occurred and whether the Issuer is required to make an offer to redeem the Appreciation Notes as described above. 125 MANDATORY REDEMPTION AT THE OPTION OF THE HOLDERS ON SPECIFIED DATES In addition, if an Initial Public Offering has not occurred on or before a date set forth below, the holders may require the Issuer to redeem its Appreciation Notes, in whole or in part, on such date at a redemption price equal to the Pro Rata Percentage of such Appreciation Note of the amount set forth below opposite such date (which amount, in each case, represents payment in full of all principal and interest thereon):
DATE AMOUNT - ----------------------------------------------------------------------------- --------------- June 30, 2003................................................................ $ 24.0 million June 30, 2004................................................................ $ 20.0 million June 30, 2005................................................................ $ 13.0 million
A holder may exercise its rights to require the redemption of the Appreciation Notes held by such holder by mailing a notice to the Trustee on or before a date as set forth above stating that such holder is demanding that the Issuer redeem the Appreciation Notes and the portion of the Appreciation Notes to be redeemed. Upon receipt of such notice the Issuer shall redeem the Appreciation Notes for which such notice has been received by no later than the 90th day following the relevant date. There can be no assurance that the Issuer shall have sufficient funds available at the time of any mandatory redemption of the Appreciation Notes to make any debt payment (including repurchases of Appreciation Notes) required under the Appreciation Note Indenture (as well as may be required pursuant to the other securities of the Issuer which might be outstanding at the time). The exercise by the holders of their right to require the Issuer to redeem the Appreciation Notes could cause a default under Senior Indebtedness of the Issuer and its Subsidiaries. RANKING AND SUBORDINATION The payment of the principal on the Appreciation Notes is subordinated in right of payment, as set forth in the Appreciation Note Indenture, to the payment when due of all existing and future Senior Indebtedness of the Issuer, including the Notes. As of November 30, 1997, on a pro forma basis after giving effect to the Offering and the Transaction, the outstanding Senior Indebtedness and Guarantor Senior Indebtedness of the Issuer and the Subsidiary Guarantors to which the Appreciation Notes and the Guarantees thereof would have been subordinated would have been $99.3 million. The Appreciation Note Indenture does not contain any limitation on the amount of additional Indebtedness that the Issuer may incur. The Issuer may not pay the Appreciation Notes and may not otherwise purchase, redeem or otherwise retire any Appreciation Note (collectively, "pay the Appreciation Notes") if (i) any Designated Senior Indebtedness is not paid when due or (ii) any other default on Designated Senior Indebtedness occurs and the maturity of such Designated Senior Indebtedness is accelerated in accordance with its terms unless, in either case, the default has been cured or waived and any such acceleration has been rescinded or such Designated Senior Indebtedness has been paid in full in cash. However, the Issuer may pay the Appreciation Note without regard to the foregoing if the Issuer and the Trustee receive written notice approving such payment from the Representative of the Designated Senior Indebtedness with respect to which either of the events set forth in clause (i) or (ii) of the immediately preceding sentence has occurred and is continuing. By reason of such subordination provisions contained in the Appreciation Note Indenture, in the event of insolvency, creditors who are holders of Senior Indebtedness (including holders of the Notes) may recover more, ratably, than the holders of the Appreciation Notes, and creditors who are not holders of Senior Indebtedness (including holders of the Appreciation Notes) may recover less, ratably, than holders of Senior Indebtedness. 126 SUBSIDIARY GUARANTEES Each Subsidiary Guarantor unconditionally guarantees, jointly and severally, to each holder and the Trustee, on a subordinated basis, the full and prompt payment of principal of and interest on the Appreciation Notes, and of all other obligations of the Issuer under the Appreciation Note Indenture. The Indebtedness evidenced by each Guarantee of the Appreciation Notes will be subordinated to Guarantor Senior Indebtedness on substantially the same basis as the Appreciation Notes are subordinated to Senior Indebtedness. The Appreciation Note Indenture does not contain any limitations on the amount of additional Indebtedness that the Issuer's Subsidiaries may incur. The obligations of each Subsidiary Guarantor under its Guarantee of the Appreciation Notes are limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under the Appreciation Note Indenture, result in the obligations of such Subsidiary Guarantor under its Guarantee of the Appreciation Notes not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. Each Subsidiary Guarantor that makes a payment or distribution under a Guarantee of the Appreciation Notes shall be entitled to a contribution from each other Subsidiary Guarantor in a PRO RATA amount based on the Adjusted Net Assets of each Subsidiary Guarantor. Each Subsidiary Guarantor may consolidate with or merge into or sell its assets to the Issuer or another Subsidiary Guarantor without limitation. Upon the sale or disposition of a Subsidiary Guarantor (or all or substantially all of its assets) to a Person which is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be deemed released from all its obligations under the Appreciation Note Indenture and its Guarantee of the Appreciation Notes and such Guarantee shall terminate; PROVIDED, HOWEVER, that any such termination shall occur only to the extent that all obligations of such Subsidiary Guarantor under all of its Guarantees of, and under all of its pledges of assets or other security interests which secure any other Indebtedness of the Issuer shall also terminate upon such release, sale or transfer. Subsequent to the Issue Date, separate financial information for the Subsidiary Guarantors will not be provided except to the extent required by Regulation S-X under the Securities Act. CERTAIN COVENANTS The Appreciation Note Indenture contains certain covenants including, among others, the following: MERGER AND CONSOLIDATION. The Issuer shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its assets to, any Person, unless: (i) the resulting, surviving or transferee Person (the "Successor Company") shall be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Issuer) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Issuer under the Appreciation Notes and the Appreciation Note Indenture; (ii) immediately after giving effect to such transaction, the Successor Company shall have a Consolidated Net Worth equal or greater to the Consolidated Net Worth of the Issuer immediately prior to such transaction; (iii) the Issuer shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the Appreciation Note Indenture; and (iv) there has been delivered to the Trustee an Opinion of Counsel to the effect that holders of Appreciation Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such consolidation, merger, conveyance, transfer or lease and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such consolidation, merger, conveyance, transfer or lease had not occurred. 127 The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under the Appreciation Note Indenture, but, in the case of a lease of all or substantially all its assets, the Issuer will not be released from the obligation to pay the principal of and interest on the Appreciation Notes. AMENDMENTS AND WAIVERS Subject to certain exceptions, the Appreciation Note Indenture may be amended with the consent of the holders of a majority in principal amount of all outstanding series of Appreciation Notes then outstanding and any past default or compliance with any provisions may be waived with the consent of the holders of a majority in principal amount of all outstanding series of Appreciation Notes. However, without the consent of each holder of an outstanding Appreciation Note affected, no amendment may, among other things, (i) reduce the amount of Appreciation Notes whose holders must consent to an amendment, (ii) reduce the stated rate of or extend the stated time for payment of interest on any Appreciation Note, (iii) reduce the principal of or extend the Stated Maturity of any Appreciation Note, (iv) reduce the premium payable upon the redemption or repurchase of any Appreciation Note or change the time at which any Appreciation Note may be redeemed as described above, (v) make any Appreciation Note payable in money other than that stated in the Appreciation Note, (vi) impair the right of any holder to receive payment of principal of and interest on such holder's Appreciation Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such holder's Appreciation Notes or (vii) make any change in the amendment provisions which require each holder's consent or in the waiver provisions. Without the consent of any holder, the Issuer and the Trustee may amend the Appreciation Note Indenture to cure any ambiguity, omission, defect or inconsistency, to provide for the assumption by a successor corporation, partnership, trust or limited liability company of the obligations of the Issuer under the Appreciation Note Indenture (provided that there has been delivered to the Trustee an Opinion of Counsel to the effect that holders of Appreciation Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such assumption and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such assumption had not occurred), to provide for uncertificated Appreciation Notes in addition to or in place of certificated Appreciation Notes (provided that the uncertificated Appreciation Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Appreciation Notes are described in Section 163 (f) (2) (B) of the Code), to the Appreciation Notes, to secure the Appreciation Notes, to add to the covenants of the Issuer for the benefit of the holders or to surrender any right or power conferred upon the Issuer, to make any change that does not adversely affect the rights of any holder or to comply with any requirement of the Commission in connection with the qualification of the Appreciation Note Indenture under the Trust Indenture Act. The consent of the holders is not necessary under the Appreciation Note Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment. After an amendment under the Appreciation Note Indenture becomes effective, the Issuer is required to mail to the holders a notice briefly describing such amendment. However, the failure to give such notice to all the holders or any defect therein, will not impair or affect the validity of the amendment. SATISFACTION AND DISCHARGE OF THE APPRECIATION NOTE INDENTURE The Appreciation Note Indenture will cease to be of further effect (except as otherwise expressly provided for in the Appreciation Note Indenture) when either (i) all outstanding Appreciation Notes have been delivered (other than lost, stolen or destroyed Appreciation Notes which have been replaced) to the Trustee for cancellation or (ii) all outstanding Appreciation Notes have become due and payable, whether 128 at maturity or as a result of the mailing of a notice of redemption pursuant to the terms of the Appreciation Note Indenture and the Issuer has irrevocably deposited with the Trustee funds sufficient to pay at maturity or upon redemption all outstanding Appreciation Notes, including interest thereon (other than lost, stolen, mutilated or destroyed Appreciation Notes which have been replaced), and, in either case, the Issuer has paid all other sums payable under the Appreciation Note Indenture. The Trustee is required to acknowledge satisfaction and discharge of the Appreciation Note Indenture on demand of the Issuer accompanied by an Officer's Certificate and an Opinion of Counsel at the cost and expense of the Issuer. TRANSFER AND EXCHANGE Upon any transfer of an Appreciation Note, the registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents, and to pay any taxes and fees required by law or permitted by the Appreciation Note Indenture. The registrar is not required to transfer or exchange any Appreciation Notes selected for redemption nor is the registrar required to transfer or exchange any Appreciation Notes for a period of 15 days before a selection of Appreciation Notes to be redeemed. The registered holder of an Appreciation Note may be treated as the owner of it for all purposes. CONCERNING THE TRUSTEE United States Trust Company of New York is to be the Trustee under the Appreciation Note Indenture and has been appointed by the Issuer as Registrar and Paying Agent with regard to the Appreciation Notes. The Trustee's current address is 114 West 47th Street, New York, New York. The Appreciation Note Indenture contains certain limitations on the rights of the Trustee, should it become a creditor of the Issuer, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim, as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest (as defined) it must eliminate such conflict or resign. The holders of a majority in aggregate principal amount of the then outstanding Appreciation Notes issued under the Appreciation Note Indenture will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee. The Appreciation Note Indenture provides that in case a default shall occur (which shall not be cured) the Trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs would use. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Appreciation Note Indenture at the request of any of the holders of the Appreciation Notes issued thereunder unless they shall have offered to the Trustee security and indemnity satisfactory to it. GOVERNING LAW The Appreciation Note Indenture provides that it and the Appreciation Notes will be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. CERTAIN DEFINITIONS "Board of Directors" means, as to the Issuer (i) so long as BMC or any successor to BMC is a limited liability company or partnership, the board of directors of Brill Media Management, Inc. which is the manager of BMC and (ii) at any other time the Board of Directors of the Issuer. 129 "Capital Stock" of any Person means any and all shares, membership and other interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity. "Capitalized Lease Obligations" means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty. "Cash Equivalents" means (i) United States dollars, (ii) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof, (iii) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of $500 million, (iv) repurchase obligations for underlying securities of the types described in clauses (ii) and (iii) entered into with any financial institution meeting the qualifications specified in clause (iii) above, (v) commercial paper rated A-1 or the equivalent thereof by Moody's or S&P and in each case maturing within one year after the date of acquisition, (vi) investment funds investing 95% of their assets in securities of the types described in clauses (i)-(v) above, (vii) readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moody's or S&P and (viii) Indebtedness or preferred stock issued by Persons with a rating of "A" or higher from S&P or "A2" or higher from Moody's. "Consolidated EBITDA" means, for any period an amount equal to Consolidated Net Income for such period, plus the following to the extent deducted in calculating such Consolidated Net Income: (i) the provision for taxes for such period based on income or profits and any provision for taxes utilized in computing net loss, (ii) Consolidated Interest Expense, (iii) depreciation expense, (iv) amortization expense (including the amortization of debt issuance costs), (v) all other non-cash items reducing Consolidated Net Income for such period (excluding any non-cash item to the extent it represents an accrual of or reserve for cash disbursements for any subsequent period prior to the Stated Maturity of the Appreciation Notes or amortization of a pre-paid cash expense that was paid in a prior period), minus (b) all non-cash items increasing Consolidated Net Income for such period, in each case for the Issuer and its Subsidiaries for such period determined in accordance with GAAP. "Consolidated Interest Expense" means, for any period, the total interest expense of the Issuer and its Subsidiaries determined in accordance with GAAP, PLUS, to the extent not included in such interest expense (i) interest expense attributable to Capitalized Lease Obligations, (ii) capitalized interest, (iii) non-cash interest expense, (iv) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing, (v) interest actually paid by the Issuer or any such Subsidiary under any Guarantee of Indebtedness or other obligation of any other Person, (vi) net payments (whether positive or negative) pursuant to Interest Rate Agreements and (vii) the cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than the Issuer) in connection with Indebtedness incurred by such plan or trust and less (a) to the extent included in such interest expense, the amortization of capitalized debt issuance costs and (b) interest income. "Consolidated Net Income" means, for any period, the consolidated net income (loss) of the Issuer and its consolidated Subsidiaries determined in accordance with GAAP. "Consolidated Net Worth" means the total of the amounts shown on the balance sheet of the Issuer and its consolidated Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of the 130 end of the most recent fiscal quarter of the Issuer ending prior to the taking of any action for the purpose of which the determination is being made and for which financial statements are available (but in no event ending more than 135 days prior to the taking of such action), as (i) the par or stated value of all outstanding Capital Stock of the Issuer plus (ii) paid in capital or capital surplus relating to such Capital Stock plus (iii) any retained earnings or earned surplus less (A) any accumulated deficit and (B) any amounts attributable to Disqualified Stock. "Designated Senior Indebtedness" means any Senior Indebtedness in the case of the Issuer, or Guarantor Senior Indebtedness in the case of a Subsidiary Guarantor which, at the date of determination, has an aggregate principal amount outstanding of, or under which, at the date of determination, the holders thereof, are committed to lend up to, at least $5 million and is specifically designated by the Issuer or such Subsidiary Guarantor in the instrument evidencing or governing such Senior Indebtedness or Guarantor Senior Indebtedness as "Designated Senior Indebtedness" for purposes of the Appreciation Note Indenture; PROVIDED, HOWEVER, that the Indebtedness of the Company under the Notes, and the Subsidiary Guarantee of each Subsidiary Guarantor under its Subsidiary Guarantee, shall always constitute Designated Senior Indebtedness. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, or any successor statute or statutes thereto. "fair market value" means, with respect to any asset or property, the price which could be negotiated in an arm's-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair market value shall be determined by the Board of Directors of the Issuer acting reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Issuer delivered to the Trustee. "GAAP" means generally accepted accounting principles in the United States of America as in effect as of the date of the Appreciation Note Indenture, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. All computations based on GAAP contained in the Indenture shall be computed in conformity with GAAP. "Group" means any "group" for purposes of Section 13(d) of the Exchange Act. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); PROVIDED, HOWEVER, that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guarantee" used as a verb has a corresponding meaning. "Guarantor Senior Indebtedness" means, with respect to a Subsidiary Guarantor, whether outstanding on the Issue Date or thereafter issued, all Guarantees by such Subsidiary Guarantor of Senior Indebtedness of the Issuer and all other Indebtedness of such Subsidiary Guarantor, including interest and fees thereon, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is expressly provided that the obligations of such Subsidiary Guarantor in respect of such Indebtedness are not superior in right of payment to the obligations of such Subsidiary Guarantor under the Guarantee of the Appreciation Notes; PROVIDED, HOWEVER, that Guarantor Senior Indebtedness shall not include (1) any obligations of such Subsidiary Guarantor to the Issuer or any other Subsidiary of the Issuer 131 or (2) any Indebtedness, Guarantee or obligation of such Subsidiary Guarantor that is expressly subordinate or junior in right of payment to any other Indebtedness, Guarantee or obligation of such Subsidiary Guarantor, including any Guarantor Subordinated Indebtedness of such Subsidiary Guarantor. "Guarantor Subordinated Indebtedness" means, with respect to a Subsidiary Guarantor, the obligations of such Subsidiary Guarantor under the Guarantee of the Appreciation Notes and any other Indebtedness of such Subsidiary Guarantor that specifically provides that such Indebtedness is to rank PARI PASSU in right of payment with the obligations of such Subsidiary Guarantor under the Guarantee of the Appreciation Notes. "Incur" means issue, assume, guarantee, incur or otherwise become liable for. "Indebtedness" means, with respect to any Person on any date of determination (without duplication), (i) the principal of and premium (if any) in respect of indebtedness of such Person for borrowed money, (ii) the principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto) (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (i), (ii) and (v) ) entered into in the ordinary course of business of such Person to the extent that such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the third business day following receipt by such Person of a demand for reimbursement following payment on the letter of credit), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services (except (x) trade payables and accrued expenses (including accrued management fees under the Administrative Managment Agreements) incurred in the ordinary course of business and (y) contingent or "earnout" payment obligations in respect of any business acquired by the Issuer or any Restricted Subsidiary), which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, (v) all Capitalized Lease Obligations and all Attributable Indebtedness of such Person, (vi) all Indebtedness of other Persons secured by a lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, (vii) all Indebtedness of other Persons to the extent Guaranteed by such Person, (viii) the amount of all obligations of such Person with respect to the redemption, repayment or other and (viii) to the extent not otherwise included in this definition, obligations under Currency Agreements and Interest Rate Agreements. "Interest Rate Agreement" means with respect to any Person any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement as to which such Person is party or a beneficiary. "Initial Public Offering" means an offering or offerings of Capital Stock of the Issuer under one or more effective registration statements under the Securities Act such that, after giving effect thereto, such offerings result in aggregate cash proceeds being received by the Issuer and the persons selling such Capital Stock of at least $25 million before deduction of underwriter's discounts and other expenses, as a result of such Capital Stock is listed or admitted to trading on a national securities exchange or quoted by NASDAQ. "Issue Date" means the date on which the Appreciation Notes are originally issued. "Managed Affiliate," solely for purposes of this Description of Appreciation Notes, means a Person at least 90% of the Capital Stock of which is owned, directly or indirectly, by Alan R. Brill. "Managed Affiliate Notes" mean any promissory notes of a Managed Affiliate, issued to the Issuer or a Subsidiary. 132 "Media Cashflow" for any period means for any Person an amount equal to Consolidated EBITDA for such period plus interest income received in respect of the Managed Affiliate Notes during such period and the following to the extent deducted in calculating such Consolidated EBITDA (i) management fees charged by BMCLP under the Administrative Management Agreements, (ii) expenses accruing under Performance Compensation Agreements , (iii) consulting fees payable in connection with acquisitions and (iv) fees paid under Time Brokerage Agreements. "Membership Interests" means ownership interests in BMC. "Officer" means the Chairman of the Board, the Vice-Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice-President, the Treasurer or the Secretary of the Issuer. "Officer's Certificate" means a certificate signed by two Officers of the Issuer at least one of whom shall be the principal executive, financial or accounting officer of the Issuer. "Opinion of Counsel" means a written opinion, in form and substance acceptable to the Trustee, from legal counsel who is acceptable to the Trustee. "Paying Agent" means United States Trust Company of New York. "Performance Compensation Agreement" means any agreements between the Issuer or any Restricted Subsidiary and any executive officer of such Subsidiary pursuant to which such Subsidiary provides deferred compensation to such officer by crediting amounts (as determined under a formula set forth in such agreement) to an identified account for the benefit of such executive officer. "Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "Related Brill Party" means (A) the spouse or immediate family member of Alan R. Brill or (B) any trust, corporation, partnership or other entity, the beneficiaries, shareholders, partners, members, owners or Persons beneficially holding an 80% or more controlling interest of which consist of Alan R. Brill and/or such other Persons referred to in the immediately preceding clause (A). "Representative" means the trustee, agent or representative (if any) for an issue of Senior Indebtedness. "Sale/Leaseback Transaction" means an arrangement relating to property now owned or hereafter acquired whereby the Issuer or a Subsidiary transfers such property to a Person and the Issuer or a Subsidiary leases it from such Person. "Sale of the Company" means (i) any sale, lease, exchange or other transfer (in one transaction or in a series of transactions) of all or substantially all of the assets of the Issuer or the Issuer and its Subsidiaries on a consolidated basis or (ii) the acquisition by any Person or Group (other than Alan R. Brill or any Related Brill Party) of the power, directly or indirectly, to vote or direct the voting of securities having more than 50% of the ordinary voting power for the election of directors of the Issuer, or any direct or indirect holding company thereof. "Senior Indebtedness" in the case of the Appreciation Notes means, whether outstanding on the Issue Date or thereafter issued, all obligations under the Notes and all other Indebtedness of the Issuer, including interest and fees thereon, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that the obligations in respect of such Indebtedness are not superior in right of payment to the Appreciation Notes; PROVIDED, HOWEVER, that Senior Indebtedness will not include any obligation of the Issuer to any Subsidiary or any Subordinated Obligations. 133 "Specified Event Purchase Price" means for an Appreciation Note a redemption price equal to (i) in the case of a redemption with respect to an Initial Public Offering, the price at which Membership Interests are sold in such Initial Public Offering (less underwriting discounts and commissions, if any), which represent a percentage interest in BMC equal to the Specified Percentage of such Appreciation Note, (ii) in the case of a Sale of the Company as defined in clause (i) of the definition thereof, the amount equal to the Specified Percentage of such Appreciation Note of the sum of the aggregate fair market value of all consideration received by the Issuer and its Subsidiaries, net of any debt repaid therewith, net of ordinary and customary transaction expenses of the related transfer and the fair market value of the Issuer as determined after giving effect to such sale, and (iii) in the case of a redemption with respect to Sale of the Company defined in clause (ii) of the definition thereof, the price at which Membership Interests are sold in such Sale of the Company or in the transaction which resulted in such Sale of the Company, which represent a percentage interest in BMC equal to the Specified Percentage of such Appreciation Notes, and (iv) in the case of a redemption with respect to a liquidation of the Company, an amount equal to the fair market value of the distribution received by Membership Interests in an amount equal to the Specified Percentage of such Appreciation Note in connection with such liquidation. "Stated Maturity" means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision. "Subordinated Obligations" means, with respect to the Issuer or any Subsidiary Guarantor, any Indebtedness of the Issuer or such Subsidiary Guarantor, as the case may be (whether outstanding on the Issue Date or thereafter incurred) which is expressly subordinate or junior in right of payment to the Appreciation Notes or such Subsidiary Guarantor's Guarantee of the Appreciation Notes, as the case may be, in each case pursuant to a written agreement. "Subsidiary" of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a Subsidiary shall refer to a Subsidiary of the Issuer. 134 CERTAIN FEDERAL INCOME TAX CONSIDERATIONS In the opinion of Carter, Ledyard & Milburn, the following summary describes the material United States federal income tax consequences of the ownership and disposition of the Securities. This summary is based on the Internal Revenue Code of 1986, as amended to the date hereof (the "Code"), administrative pronouncements, judicial decisions and existing and proposed United States Treasury Regulations, changes to any of which subsequent to the date of this Prospectus may affect the tax consequences described herein (possibly retroactively). This summary discusses only Securities held as capital assets within the meaning of Section 1221 of the Code. It does not discuss all of the tax consequences that may be relevant to a holder in light of its particular circumstances or to holders subject to special rules such as certain financial institutions, insurance companies, tax-exempt organizations, dealers or traders in securities or currencies, holders who hold Securities as a position in a "straddle" or as part of a "hedging," "conversion" or "integrated" transaction, holders whose functional currency is other than the U.S. dollar or holders that are not U.S. Holders (as defined below). Persons considering the Exchange Offer should consult their own tax advisors with regard to the application of the United States federal income tax laws to their particular situations as well as any tax consequences arising under the laws of any state, local or foreign taxing jurisdiction. As used herein, the term "U.S. Holder" means a holder of a Note or Appreciation Note, as the case may be, that for United States federal income tax purposes is (i) a citizen or resident of the United States, (ii) a corporation or partnership created or organized in or under the laws of the United States or of any State thereof (including the District of Columbia), (iii) an estate the income of which is subject to United States federal income taxation regardless of its source or (iv) a trust if (A) a U.S. court is able to exercise primary supervision over the trust's administration and (B) one or more United States persons have the authority to control all of the trust's substantial decisions. Notwithstanding the preceding sentence, to the extent provided in United States Treasury Regulations, certain trusts in existence on August 20, 1996, and treated as United States persons prior to such dates, that elect to continue to be treated as United States persons also will be U.S. Holders. ALLOCATION OF THE ISSUE PRICE BETWEEN A NOTE AND AN APPRECIATION NOTE The Original Notes and Original Appreciation Notes initially were issued together as units (the "Units"). The "issue price" of a Unit for United States federal income tax purposes was $922. the Company intends to treat $899.63 of the issue price of a Unit as allocable to the Note (which amount the Company will therefore treat as its "issue price" for United States federal income tax purposes) and $22.37 as allocable to the Appreciation Note (which amount the Company will therefore treat as its "issue price" for United States federal income tax purposes). The Company intends to file information returns with the Internal Revenue Service (the "IRS") based on such allocation. The Company's allocation of the issue price is binding on a U.S. Holder for United States federal income tax purposes unless the holder discloses the use of a different allocation in its United States federal income tax return for the year in which the Unit was acquired. However, the Company's allocation is not binding on the IRS, and there can be no assurance that the IRS will not challenge such allocation. EXCHANGE OFFER The exchange of Original Securities for Exchange Securities by a U.S. Holder pursuant to the Exchange Offer will not constitute a taxable exchange for United States federal income tax purposes. A U.S. Holder will not recognize gain or loss upon the receipt of an Exchange Security pursuant to the Exchange Offer and should be required to continue to include interest on the Exchange Security in gross income for United States federal income tax purposes in the manner and to the extent described below. A U.S. Holder's holding period for an Exchange will include the holding period for the original note 135 exchanged pursuant to the Exchange Offer and such holder's adjusted basis in an Exchange Security will be the same as such holder's adjusted basis in such Original Security. ORIGINAL ISSUE DISCOUNT BMC agrees, and each holder of an Appreciation Note by acceptance of an Appreciation Note will agree, to treat the Appreciation Notes as indebtedness for all United States federal income tax purposes and the following discussion assumes that the classification of the Appreciation Notes as indebtedness will be respected for United States federal income tax purposes. Due to significant legal and factual uncertainties, Carter, Ledyard & Milburn have not opined as to such classification. See "--Potential Classification as Membership Interests." Solely for purposes of the rules regarding original issue discount ("OID"), as such term is defined in the Internal Revenue Code of 1986, as amended, and the U.S. Treasury Regulations issued thereunder, the Notes and the Appreciation Notes will likely be aggregated and treated as a single debt instrument (the "Aggregated Note"). For all other purposes under the Code, the Notes and the Appreciation Notes will be treated as separate instruments. The Aggregated Note will be considered to be issued with OID. As a result, a U.S. Holder generally will be required to include in gross income (as interest) the sum of the "daily portions" of OID on such Aggregated Note calculated under a constant yield method for all days during the taxable year that the U.S. Holder owns such Note. In addition, a U.S. Holder will be required to include "qualified stated interest" (defined below) on such Aggregated Note in gross income (as interest) under such U.S. Holder's regular method of tax accounting. The amount of OID on the Aggregated Note allocable to an accrual period generally is determined by multiplying the "adjusted issue price" (as defined below) of such Note at the beginning of the accrual period by the yield to maturity of such Note (adjusting the yield to take into account the length of the particular accrual period) and subtracting from that product the amount payable as qualified stated interest during such accrual period. Generally, an accrual period is any period elected by a U.S. Holder, provided that each accrual period is no longer than one year and that each interest payment date is the first or last day of the accrual period. The "adjusted issue price" of the Aggregated Note at the beginning of any accrual period will be the sum of its issue price and the amount of OID allocable to all prior accrual periods, reduced by the amount of all payments other than qualified stated interest payments made with respect to such Note in all prior accrual periods. The "issue price" of the Aggregated Note for this purpose generally is the first price at which a substantial amount of the Units are sold to the public (excluding bond houses, brokers or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers). "Qualified stated interest" generally is stated interest that is unconditionally payable in cash or property (other than debt instruments of the issuer) at least annually at a single fixed rate during the entire term of the debt instrument. The "stated redemption price at maturity" of the Aggregated Note will be the sum of all payments provided for under such Note other than qualified stated interest payments. Accordingly, a U.S. Holder will be required to include in gross income (as interest), in the manner set forth above, (i) qualified stated interest payments on the Aggregated Note and (ii) OID accruing on such Note. Stated interest on the Aggregated Note should be treated as qualified stated interest for United States federal income tax purposes to the extent of 7.5% per annum on the Note ("QSI"). The total amount of OID on the Aggregated Note will equal the total of (i) the amount by which the issue price of the Note is less than the principal amount thereof and (ii) the amount by which stated interest payments payable under the Aggregated Note exceed QSI. BMC believes that it is significantly more likely than not that the call option on the Appreciation Notes will be exercised on June 15, 1999. Accordingly, the yield to maturity of the Aggregated Note will be determined as if such option were exercised on such date, thus ignoring possible payments in excess of $3 million. If such call is not exercised, solely for purposes of the OID rules, the Appreciation Notes would be treated as retired and then reissued on such date at the adjusted issue price thereof and the amount of OID on the Aggregated Note would increase substantially. 136 Moreover, due to the interaction of the put and call provisions, if an Appreciation Note remains outstanding after June 15, 2002, a deemed disposition of such Note could occur for U.S. federal income tax purposes. A U.S. Holder's tax basis in a Note will be increased by the amount of any OID included in the U.S. Holder's gross income with respect to such Note under the rules discussed above and decreased by the amount of any payment with respect to such Note other than qualified stated interest payments. While each U.S. Holder will be required to accrue OID income under a constant yield method, as described above, a U.S. Holder may also elect to include in gross income all income that accrues on the Aggregated Note (including stated interest and OID) under a constant yield method. It is possible that the Internal Revenue Service (the "IRS") could assert that the Additional Interest which BMC would be obligated to pay if the Exchange Offer Registration Statement is not filed or declared effective within the time periods set forth herein (or certain other actions are not taken) (as described above under "Exchange Offer and Registration Rights") are "contingent payments" for United States federal income tax purposes. If so treated, the Aggregated Note would be treated as a contingent payment debt instrument and certain adverse United States federal income tax consequences could result. However, the United States Treasury Regulations issued by the IRS regarding debt instruments that provide for one or more contingent payments provide that, for purposes of determining whether a debt instrument is a contingent payment debt instrument, remote or incidental contingencies are ignored. BMC believes that the possibility of the payment of Additional Interest is remote and, accordingly, does not intend to treat the Aggregated Note as a contingent payment debt instrument. BMC does not intend to treat the possibility of an optional or provisional redemption or repurchase of the Notes or the Appreciation Notes as giving rise to any additional accrual of OID or recognition of ordinary income upon redemption, sale of exchange. SALE, EXCHANGE OR RETIREMENT Subject to the discussion of the Exchange Offer below, upon the sale, exchange or retirement of a Note or an Appreciation Note (other than a redemption of an Appreciation Note by BMC), a U.S. Holder would recognize gain or loss, if any, equal to the difference between the amount realized on the sale, exchange or retirement and the holder's adjusted tax basis in such Note. Gain or loss recognized on the sale, exchange or retirement of such a Note will generally be capital gain or loss. In the case of a noncorporate U.S. Holder, the maximum marginal United States federal income tax rate applicable to such gain will be lower than the maximum marginal United States federal income tax rate applicable to ordinary income if such U.S. Holder's holding period for such Notes exceeds one year and will be further reduced if such Notes were held for more than 18 months. The use of capital losses by a U.S. Holder may be limited. POTENTIAL CLASSIFICATION AS EQUITY INTERESTS The IRS may assert that an Appreciation Note represents an equity interest in BMC. In such case, a U.S. Holder of an Appreciation Note would be required to include in gross income such U.S. Holder's distributive share of income, gain, loss or deduction of BMC. Any amount so included in such U.S. Holder's gross income will increase its adjusted tax basis in its equity interest and any amount distributed to such U.S. Holder will reduce its adjusted tax basis. Alternatively, payments under an Appreciation Note may be treated as a "guaranteed payment" within the meaning of Section 707(c) of the Code. A member receiving a "guaranteed payment" must include in gross income as ordinary income the amount of such payment. U.S. Holders should consult their tax advisors regarding the complex rules addressing United States federal income taxation regarding interests in a partnership. 137 Holders of Appreciation Notes that are tax-exempt entities should note that if the Appreciation Notes are treated as an equity interest in BMC for United States federal income tax purposes that, as holders of a membership interest, they may be subject to United States federal income tax on their distributive share of BMC's income due to the application of Section 512 of the Code. BACKUP WITHHOLDING AND INFORMATION REPORTING A 31% backup withholding tax and information reporting requirements apply to certain payments of principal of, and premium, if any, and interest on, a security and to the proceeds of the sale or redemption of an obligation, to certain non-corporate U.S. Holders. Backup withholding will apply only if a U.S. Holder (other than an exempt recipient, such as a corporation) (i) fails to furnish its Taxpayer Identification Number ("TIN") which, in the case of an individual, would be his or her Social Security number, (ii) furnishes an incorrect TIN, (iii) is notified by the IRS that is has failed to properly report payments of interest and dividends or (iv) under certain circumstances, fails to certify, under penalty of perjury, that it has furnished a correct TIN and has not been notified by the IRS that it is subject to backup withholding. The amounts withheld under the backup withholding rules are not an additional tax and may be refunded, or credited against the U.S. Holder's United States federal income tax liability provided that the required information is furnished to the IRS. THE FOREGOING SUMMARY IS INCLUDED FOR GENERAL INFORMATION ONLY. HOLDERS OF ORIGINAL SECURITIES SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO SPECIFIC CONSEQUENCES TO SUCH PURCHASER OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF SECURITIES INCLUDING THE APPLICATION AND EFFECT OF FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS. PLAN OF DISTRIBUTION Each Participating Broker-Dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used by a Participating Broker-Dealer in connection with resales of Exchange Securities received in exchange for Original Securities where such Original Securities were acquired as a result of market-making activities or other trading activities. The Issuer has agreed that, for a period of 180 days after consummation of the Exchange Offer, it will make this Prospectus, as amended or supplemented, available to any Participating Broker-Dealer for use in connection with any such resale. In addition, for a period of 90 days after the date of this Prospectus, all dealers effecting transactions in the Exchange Securities may be required to deliver a prospectus. The Issuer will not receive any proceeds from any sales of Exchange Securities by Participating Broker-Dealers. Exchange Securities received by Participating Broker-Dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the- counter market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such Participating Broker-Dealer and/or the purchasers of any such Exchange Securities. Any Participating Broker-Dealer that resells the Exchange Securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Securities may be deemed to be an "underwriter" within the meaning of the Securities Act, and any profit on any such resale of Exchange Securities and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letters of Transmittal state that, by acknowledging that it will deliver and by delivering a prospectus, a 138 Participating Broker-Dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. For a period of 180 days after the Expiration Date, the Issuer will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any Participating Broker-Dealer that requests such documents in the Letters of Transmittal. BOOK-ENTRY; DELIVERY AND FORM The Original Securities were each issued in part as single, permanent global certificates in definitive, fully registered form (the "Original Global Securities") and in part in registered certificated form ("Certificated Securities"). Except for Exchange Securities issued to Non-Global Purchasers (as defined below), the Exchange Securities will each initially be issued in the form of one or more global certificates (collectively, the "Exchange Global Securities"). The Original Global Securities were deposited on the date of the closing of the Offering, and the Exchange Global Securities will be deposited on the date of closing of the Exchange Offer with, or on behalf of, the Depository and registered in the name of a nominee of DTC. Securities (i) originally purchased by or transferred to foreign purchasers or Accredited Investors who are not QIBs or (ii) held by QIBs who elect to take physical delivery of their certificates instead of holding their interest through Global Securities (and which are thus ineligible to trade through DTC) (collectively referred to herein as the "Non-Global Purchasers") will be issued as Certificated Securities. Upon the transfer to a QIB of any Certificated Security initially issued to a Non-Global Purchaser, such Certificated Security will, unless the transferee requests otherwise or such Global Security has previously been exchanged in whole for Certificated Securities, be exchanged for an interest in such Global Security. "Global Securities" means the Original Global Securities or the Exchange Global Securities, as the case may be. THE GLOBAL SECURITIES The Company expects that pursuant to procedures established by DTC (i) upon the issuance of the Global Securities, DTC or its custodian will credit, on its internal system, the principal amount of Notes or Appreciation Notes, as the case may be, of the individual beneficial interest represented by such Global Security to the respective accounts for persons who have accounts with DTC and (ii) ownership of beneficial interests in the Global Securities will be shown on, and the transfer of such ownership will be effected only through, records maintained by DTC or its nominee (with respect to interests of persons who have accounts with DTC ("Participants")) and the records of Participants (with respect to interests of persons other than Participants). Ownership of beneficial interests in the Global Securities will be limited to Participants or persons who hold interests through Participants. QIBs may hold their interests in the Global Securities directly through DTC, if they are Participants in such system, or indirectly through organizations which are Participants in such system. So long as DTC or its nominee is the registered owner or holder of any of the Global Securities, DTC or such nominee, as the case may be, will be considered the sole owner or holder of the Note or Appreciation Note represented by the applicable Global Security for all purposes under the Indenture or Appreciation Note Indenture, as the case may be. No beneficial owner of an interest in the Global Securities will be able to transfer that interest except in accordance with DTC's procedures, in addition to those provided for under the Indenture or Appreciation Note Indenture, as the case may be. Payments on the Global Securities will be made to DTC or its nominee, as the case may be, as the registered owner thereof. None of the Company, the Trustee or the Transfer Agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interest. 139 The Company expects that DTC or its nominee, upon receipt of any payment in respect of a Global Security, will credit Participants' accounts with payments in amounts proportionate to their respective beneficial interests in the applicable Global Security as shown on the records of DTC or its nominee. The Company also expects that payments by Participants to owners of beneficial interests in the Global Securities held through such Participants will be governed by standing instructions and customary practice, as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers. Such payments will be the responsibility of such Participants. Transfers between Participants in DTC will be effected in the ordinary way in accordance with DTC rules and will be settled in clearinghouse funds. If a holder requires physical delivery of a Certificated Security for any reason, including to sell such Security to persons in states which require physical delivery of Certificated Securities, or to pledge such securities, such holder must transfer its interest in the applicable Global Security in accordance with the normal procedures of DTC. DTC has advised the Company that it will take any action permitted to be taken by a holder of Securities (including the presentation of the Securities for exchange as described below) only at the direction of one or more Participants to whose account the DTC interests in the Global Securities are credited and only in respect of such portion of the Securities as to which such Participant or Participants has or have given such direction. However, if there is an Event of Default under the Indenture, DTC will exchange the Global Securities representing Notes for Certificated Securities, which it will distribute to its Participants. DTC has advised the Company as follows: DTC is a limited purpose trust company organized under the laws of the State of New York, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the Uniform Commercial Code and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities for its Participants and facilitate the clearance and settlement of securities transactions between Participants through electronic book-entry changes in accounts of its Participants, thereby eliminating the need for physical movement of certificates. Participants include securities brokers and dealers, banks, trust companies and clearing corporations and certain other organizations. Indirect access to the DTC system is available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly. Although DTC has agreed to the foregoing procedures in order to facilitate transfers of interests in the Global Securities among Participants of DTC, it is under no obligation to perform such procedures, and such procedures may be discontinued at any time. None of the Company, the Initial Purchaser or any other person will have any responsibility for the performance by DTC or its Participants or indirect participants of their respective obligations under the rules and procedures governing their operations. CERTIFICATED SECURITIES If DTC is at any time unwilling or unable to continue as depositary for the Global Securities and a successor depositary is not appointed by the Company within 90 days, Certificated Securities will be issued in exchange for the Global Securities. LEGAL MATTERS Certain legal matters with respect to the Exchange Notes and the Exchange Appreciation Notes offered hereby, including federal income tax consequences, will be passed upon for the Issuer by Carter, Ledyard & Milburn, New York, New York. As to matters of Virginia law, Carter, Ledyard & Milburn will rely upon the opinion of Thompson & McMullan, P.C., Richmond, Virginia. 140 EXPERTS The balance sheet of BMC as of November 30, 1997 and the combined financial statements of The Radio and Newspaper Businesses of Alan R. Brill at February 28, 1997 and February 29, 1996, and for each of the three years in the period ended February 28, 1997, appearing in this Prospectus and Registration Statement have been audited by Ernst & Young LLP, independent auditors, as set forth in their reports thereon appearing elsewhere herein, and are included in reliance upon such reports given upon the authority of such firm as experts in accounting and auditing. AVAILABLE INFORMATION The Issuer has filed with the Commission a Registration Statement on Form S-4 (together with all amendments and exhibits thereto, the "Registration Statement") under the Securities Act with respect to the Exchange Securities offered hereby. This Prospectus does not contain all the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission, and to which reference is hereby made. Statements contained in this Prospectus as to the contents of any contract, agreement or any other document referred to are not necessarily complete. With respect to each such contract, agreement or other document filed as an exhibit to the Registration Statement, reference is made to such exhibit to the Registration Statement for a more complete description of the matter involved, and each such statement shall be deemed qualified in its entirety by such reference. The Registration Statement can be inspected and copied at the Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at Seven World Trade Center, Suite 1300, New York, New York 10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of the Registration Statement can be obtained from the Public Reference Section of the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20459, at prescribed rates. The Issuer is filing the Registration Statement with the Commission electronically. The Commission maintains a web site that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Commission. The address of that Web site is http://www.sec.gov. The Issuer intends, and is required by the terms of the Indenture and the Appreciation Note Indenture as long as the Securities are outstanding to furnish the holders of the Exchange Notes and Exchange Appreciation Notes, respectively, with annual reports containing consolidated financial statements audited by its independent certified public accountants and with quarterly reports containing unaudited condensed consolidated financial statements for each of the first three quarters of each fiscal year. 141 BRILL MEDIA COMPANY, LLC INDEX OF FINANCIAL STATEMENTS
PAGE --------- BRILL MEDIA COMPANY, LLC FINANCIAL STATEMENTS--NOVEMBER 30, 1997 Report of Independent Auditors............................................................................. F-2 Balance Sheet.............................................................................................. F-3 Notes to Balance Sheet..................................................................................... F-4 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL CONDENSED COMBINED FINANCIAL STATEMENTS--NOVEMBER 30, 1996 AND 1997 (UNAUDITED) Condensed Combined Statements of Financial Position (February 28 and November 30, 1997).................... F-5 Condensed Combined Statements of Operations................................................................ F-6 Condensed Combined Statement of Stockholder's and Members' Deficiency...................................... F-7 Condensed Combined Statements of Cash Flows................................................................ F-8 Notes to Condensed Combined Financial Statements........................................................... F-9 COMBINED FINANCIAL STATEMENTS--FEBRUARY 28, 1995, FEBRUARY 29, 1996 AND FEBRUARY 28, 1997 Report of Independent Auditors............................................................................. F-11 Combined Statements of Financial Position.................................................................. F-12 Combined Statements of Operations.......................................................................... F-13 Combined Statements of Stockholder's and Members' Deficiency............................................... F-14 Combined Statements of Cash Flows.......................................................................... F-15 Notes to Combined Financial Statements..................................................................... F-16
F-1 REPORT OF INDEPENDENT AUDITORS THE BOARD OF DIRECTORS AND MEMBERS BRILL MEDIA COMPANY, LLC We have audited the accompanying balance sheet of Brill Media Company, LLC (the Company), as of November 30, 1997. This balance sheet is the responsibility of the Company's management. Our responsibility is to express an opinion on this balance sheet based on our audit. We conducted our audit in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the balance sheet is free of material misstatement. An audit includes examining on a test basis, evidence supporting the amounts and disclosures in the balance sheet. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall balance sheet presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the balance sheet referred to above presents fairly, in all material respects, the financial position of the Company at November 30, 1997, in conformity with generally accepted accounting principles. ERNST & YOUNG LLP Chicago, Illinois March 16, 1998 F-2 BRILL MEDIA COMPANY, LLC BALANCE SHEET NOVEMBER 30, 1997 ASSETS Total Assets....................................................................... $ -- --------- --------- LIABILITIES AND MEMBERS' EQUITY Members' equity.................................................................... $ 1,000 Notes receivable from members (Note 2)............................................. (1,000) --------- Total Liabilities and Members' Equity.............................................. $ -- --------- ---------
See accompanying notes. F-3 BRILL MEDIA COMPANY, LLC NOTES TO BALANCE SHEET NOVEMBER 30, 1997 1. BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES FORMATION AND OWNERSHIP Brill Media Company, LLC (the Company) was formed November 5, 1997 to effect the transactions described in Note 3. Through November 30, 1997 the Company had no operations. The Company's members are BH One, LLC and BH Two, LLC, which are both indirectly wholly owned by Alan R. Brill. ACCOUNTING PERIOD The Company's fiscal year is the last day of February. 2. NOTE RECEIVABLE In conjunction with the original issuance of the membership interests, notes due from the original members for $1,000 in total were issued and have been presented as a reduction to members' equity. 3. SUBSEQUENT EVENTS Effective December 30, 1997, certain radio and newspaper businesses of Alan R. Brill were contributed, at historical cost, to a newly formed limited liability company, BMC Holdings, LLC, which is a wholly-owned subsidiary of the Company. F-4 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL CONDENSED COMBINED STATEMENTS OF FINANCIAL POSITION
FEBRUARY 28, 1997 NOVEMBER 30, 1997 ---------------- ----------------- (UNAUDITED) ASSETS Current assets: Cash and cash equivalents................................................. $ 775,363 $ 109,155 Accounts receivable, net.................................................. 3,165,668 4,026,176 Inventories............................................................... 323,483 483,374 Other current assets...................................................... 208,598 412,553 ---------------- ----------------- Total current assets........................................................ 4,473,112 5,031,258 Notes receivable from managed affiliates.................................... 412,007 15,423,339 Property and equipment...................................................... 16,398,115 17,383,715 Less: Accumulated depreciation.............................................. 7,831,300 8,561,054 ---------------- ----------------- Net property and equipment.................................................. 8,566,815 8,822,661 Goodwill and FCC licenses, net.............................................. 5,407,598 6,670,508 Covenants not to compete, net............................................... 284,414 3,650,786 Other assets, net........................................................... 1,891,090 1,852,769 Other....................................................................... 271,553 223,349 ---------------- ----------------- 7,854,655 12,397,412 Due from affiliates......................................................... 5,135,648 -- ---------------- ----------------- $ 26,442,237 $ 41,674,670 ---------------- ----------------- ---------------- ----------------- LIABILITIES AND NET CAPITAL DEFICIENCY Current liabilities: Short-term note........................................................... $ 500,000 $ 500,000 Amounts payable to stockholder and affiliates............................. 378,637 110,245 Accounts payable.......................................................... 701,826 1,199,183 Accrued expenses.......................................................... 996,319 617,254 Current maturities of long-term obligations............................... 882,439 745,855 ---------------- ----------------- Total current liabilities................................................... 3,459,221 3,172,537 Long-term obligations....................................................... 49,592,989 80,360,378 Capital deficiency: Capital................................................................... 4,960 7,770 Additional paid-in capital................................................ 15,984,309 1,792,852 Accumulated deficit....................................................... (42,599,242) (43,658,867) ---------------- ----------------- Net capital deficiency...................................................... (26,609,973) (41,858,245) ---------------- ----------------- $ 26,442,237 $ 41,674,670 ---------------- ----------------- ---------------- -----------------
See accompanying notes. F-5 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL CONDENSED COMBINED STATEMENTS OF OPERATIONS (UNAUDITED)
NINE MONTHS ENDED NOVEMBER 30 ---------------------------- 1996 1997 ------------- ------------- Revenues........................................................................... $ 20,941,200 $ 22,975,007 Operating expenses: Operating departments............................................................ 14,641,072 15,685,093 Incentive plan................................................................... 470,975 545,000 Management fees.................................................................. 1,502,202 1,598,431 Time brokerage agreement fee, net................................................ (66,500) 36,000 Consulting....................................................................... 83,661 180,994 Depreciation..................................................................... 738,159 772,720 Amortization..................................................................... 283,876 525,165 ------------- ------------- 17,653,445 19,343,403 ------------- ------------- Operating income................................................................... 3,287,755 3,631,604 Other income (expense): Interest--managed affiliates..................................................... -- 1,220,225 Interest--stockholder and affiliates, net........................................ 153,864 193,318 Interest--other, net............................................................. (5,303,735) (7,450,455) Amortization of deferred financing costs......................................... (415,487) (481,824) Gain (loss) on sale of assets, net............................................... 1,066,215 (6,592) Other, net....................................................................... (48,145) (44,808) ------------- ------------- (4,547,288) (6,570,136) ------------- ------------- Loss before income taxes........................................................... (1,259,533) (2,938,532) Income tax provision............................................................... 121,018 102,750 ------------- ------------- Net loss........................................................................... $ (1,380,551) $ (3,041,282) ------------- ------------- ------------- -------------
See accompanying notes. F-6 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL CONDENSED COMBINED STATEMENT OF STOCKHOLDER'S AND MEMBERS' DEFICIENCY (UNAUDITED) NINE MONTHS ENDED NOVEMBER 30, 1997
ADDITIONAL NET PAID-IN ACCUMULATED CAPITAL CAPITAL CAPITAL DEFICIT DEFICIENCY --------- -------------- -------------- -------------- Balance at February 28, 1997........................... $ 4,960 $ 15,984,309 $ (42,599,242) $ (26,609,973) Capital contributions.................................. 3,010 -- -- 3,010 Net loss............................................... -- -- (3,041,282) (3,041,282) Liquidation of combined companies...................... (200) (14,191,457) 14,191,657 -- Dividends.............................................. -- -- (12,210,000) (12,210,000) --------- -------------- -------------- -------------- Balance at November 30, 1997........................... $ 7,770 $ 1,792,852 $ (43,658,867) $ (41,858,245) --------- -------------- -------------- -------------- --------- -------------- -------------- --------------
See accompanying notes. F-7 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL CONDENSED COMBINED STATEMENTS OF CASH FLOWS (UNAUDITED)
NINE MONTHS ENDED NOVEMBER 30 ----------------------------- 1996 1997 ------------- -------------- OPERATING ACTIVITIES Net loss........................................................................... $ (1,380,551) $ (3,041,282) Adjustments to reconcile net loss to net cash provided by (used in) operating activities: Depreciation and amortization.................................................. 1,437,522 1,779,709 Management fees accrual........................................................ (844,474) 553,933 Affiliate interest accrual..................................................... (142,289) (198,235) Additional interest accrual.................................................... 1,276,115 2,020,592 Incentive plan accrual......................................................... 470,975 545,000 (Gain) loss on sale of assets, net............................................. (1,066,215) 6,592 Changes in operating assets and liabilities: Accounts receivable............................................................ (664,544) (720,295) Other current assets........................................................... 56,548 (344,196) Accounts payable............................................................... (178,857) 445,010 Other accrued expenses......................................................... (464,462) (392,971) ------------- -------------- Net cash provided by (used in) operating activities................................ (1,500,232) 653,857 INVESTING ACTIVITIES Purchase of property and equipment................................................. (543,423) (609,885) Purchase of newspaper, net of cash acquired........................................ (17,222) (899,642) Proceeds from sale of radio station................................................ 1,917,544 -- Proceeds from sale of assets....................................................... 12,190 30,415 Payment for non-competition agreement.............................................. -- (3,000,000) Increase in other assets........................................................... (428,594) (127,295) Loans to managed affiliates........................................................ -- (14,585,868) Decrease in amounts due from affiliates............................................ -- 4,157,453 ------------- -------------- Net cash provided by (used in) investing activities................................ 940,495 (15,034,822) FINANCING ACTIVITIES Increase (decrease) in amounts due to stockholder and affiliates................... (143,494) 353,108 Increase in deferred financing costs............................................... (304,077) (518,025) Principal payments on long-term obligations........................................ (614,203) (695,324) Proceeds from long-term borrowings................................................. 113,890 26,781,988 Capital contributions.............................................................. 200 3,010 Distributions...................................................................... -- (12,210,000) ------------- -------------- Net cash provided by (used in) financing activities................................ (947,684) 13,714,757 ------------- -------------- Net decrease in cash and cash equivalents.......................................... (1,507,421) (666,208) Cash and cash equivalents at beginning of period................................... 2,074,739 775,363 ------------- -------------- Cash and cash equivalents at end of period......................................... $ 567,318 $ 109,155 ------------- -------------- ------------- -------------- Supplemental disclosures of cash flow information: Interest paid.................................................................... $ 2,665,156 $ 5,363,589 Income taxes paid................................................................ 40,018 97,800
See accompanying notes. F-8 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS (UNAUDITED) 1. BASIS OF PRESENTATION The accompanying condensed combined financial statements as of November 30, 1996 and 1997, and for the periods then ended are unaudited and include the accounts of the following radio and newspaper businesses (collectively referred to herein as the Company) which are owned directly or indirectly by Alan R. Brill (Stockholder). The radio businesses include: Brill Radio, Inc. and its subsidiary, Reading Radio, Inc.; Northland Broadcasting, Inc.; Northland Broadcasting, LLC; Northland Holdings, LLC; NB II, Inc.; Fargo-Moorhead Radio, Inc.; Central Missouri Broadcasting, Inc.; CMB II, Inc.; Northern Colorado Radio, Inc.; NCR II, Inc.; Northern Colorado Holdings, LLC; NCH II, LLC; NCR III, LLC; and Tri-State Broadcasting, Inc. The newspaper businesses (collectively referred to herein as News) include St. Johns Newspapers, Inc.; Huron P.S., LLC; Huron Newspapers, LLC; Huron Holdings, LLC; Brill Newspapers, Inc., and its subsidiaries, which include CMN Holding, Inc., Central Michigan Distribution Co., L.P., and Central Michigan Newspapers, Inc. and its subsidiaries which include Cadillac Newspapers, Inc.; CMN Associated Publications, Inc.; Gladwin Newspapers, Inc.; Midland Buyer's Guide, Inc.; Central Michigan Distribution Co., Inc.; and Graph Ads Printing, Inc. All significant intercompany balances and transactions have been eliminated in combination. These statements have been prepared in accordance with the rules and regulations of the Securities and Exchange Commission. These statements should be read in conjunction with the Company's audited combined financial statements for the year ended February 28, 1997, and the notes therein. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant to such rules and regulations. In the opinion of the Company's management, the condensed combined financial statements for the unaudited interim periods presented include all adjustments of a normal recurring nature necessary to fairly present the results of such interim periods and the financial position as of the end of said periods. Results for such interim periods are not necessarily indicative of the results for the respective entire years. 2. SUBSEQUENT EVENTS On December 30, 1997, Brill Media Company, LLC (BMC) and Brill Media Management, Inc. issued $105,000,000 of 12% Senior Notes (Senior Notes) due in 2007 and $3,000,000 of Appreciation Notes (Appreciation Notes) due in 2007. The Senior Notes bear cash interest, payable semiannually, at a rate of 7 1/2% through December 15, 1999, and at 12% after such date until maturity. The Appreciation Notes entitle the holder to a cash payment, at maturity, equal to the principal amount plus the amount by which the Specified Percentage, as defined, of the Value, as defined, of BMC at maturity, exceeds the principal amount. The Specified Percentage is approximately 5% and the Value of BMC is equal to 12 times Media Cashflow, as defined, for the most recent four fiscal quarters plus the cash and cash equivalents less the aggregate amount of Indebtedness, as defined, of BMC and its subsidiaries. In conjunction with the issuance of the Senior Notes and the Appreciation Notes, the radio and newspaper businesses were contributed, at historical cost, to a newly formed limited liability company, BMC Holdings, LLC (Holdings), which is a wholly owned subsidiary of another newly formed limited liability company, BMC. BMC is indirectly owned by the Stockholder. BMC and Holdings were formed with minimal capital contributions and had no operations prior to the contribution of the radio and newspaper businesses. BMC received proceeds of approximately $96.8 million from the issuance of the Senior Notes and the Appreciation Notes. BMC subsequently loaned the $96.8 million to Holdings which loaned the $96.8 F-9 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS (CONTINUED) (UNAUDITED) 2. SUBSEQUENT EVENTS (CONTINUED) million to the Company. The loans between BMC and Holdings and Holdings and the Company are due in 2007, bear cash interest at 7 1/2% through December 15, 1999, and at 12% after such date until maturity. The Company used approximately $5.5 million of the proceeds for fees and expenses associated with the Senior Notes and the Appreciation Notes and $74.7 million of the proceeds to refinance its existing senior note of $70 million, pay accrued interest of approximately $1.9 million and pay a prepayment penalty of $2.8 million. The Senior Notes are senior unsecured obligations of BMC and Brill Media Management, Inc. (combined - the Issuer). The Senior Notes are unconditionally guaranteed, fully, jointly and severally, by each of the Issuer's subsidiaries (the Guarantors). BMC is a holding company and has no operations, assets or cash flows separate from its investments in its subsidiaries. Accordingly, separate financial statements and other disclosures concerning the Guarantors have not been presented because management has determined that they would not be material to investors. On February 24, 1998 the Company completed the asset acquisition of certain newspaper, printing and distribution operations located in northern Michigan. Total consideration amounted to approximately $8.5 million and included cash of $5.5 million and seller notes of $3.0 million. In addition, the Company entered into a non-compete agreement totaling approximately $365,000. The acquisition will be accounted for as a purchase and the Company's financial statements will include the respective results of operations of the newly acquired entities from February 24, 1998. In conjunction with such acquisition, the Company formed six new wholly-owned subsidiaries of Holdings, all of which are guarantors of the Senior Notes and Appreciation Notes. F-10 REPORT OF INDEPENDENT AUDITORS Alan R. Brill We have audited the accompanying combined statements of financial position of The Radio and Newspaper Businesses of Alan R. Brill as of February 28, 1997 and February 29, 1996, and the related combined statements of operations, stockholder's and members' deficiency, and cash flows for each of the three years in the period ended February 28, 1997. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the combined financial statements referred to above present fairly, in all material respects, the combined financial position of The Radio and Newspaper Businesses of Alan R. Brill at February 28, 1997 and February 29, 1996, and the combined results of their operations and their cash flows for each of the three years in the period ended February 28, 1997, in conformity with generally accepted accounting principles. ERNST & YOUNG LLP Chicago, Illinois November 14, 1997, except for Note 2 as to which the date is December 12, 1997 and Note 10 and Note 12, as to which the date is December 30, 1997 F-11 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL COMBINED STATEMENTS OF FINANCIAL POSITION
FEBRUARY 29 FEBRUARY 28 1996 1997 ------------- ------------- ASSETS Current assets: Cash and cash equivalents........................................................ $ 2,074,739 $ 775,363 Accounts receivable, net of allowance for doubtful accounts of 1996-- $184,902 and 1997--$112,192............................................................. 2,967,540 3,165,668 Inventories...................................................................... 443,678 323,483 Other current assets............................................................. 193,249 208,598 ------------- ------------- Total current assets............................................................... 5,679,206 4,473,112 Notes receivable from managed affiliates........................................... -- 412,007 Property and equipment............................................................. 17,991,335 16,398,115 Less: Accumulated depreciation..................................................... 9,177,746 7,831,300 ------------- ------------- Net property and equipment......................................................... 8,813,589 8,566,815 Goodwill and FCC licenses, net of accumulated amortization of 1996-- $1,619,481 and 1997--$1,779,785................................................................. 5,298,744 5,407,598 Covenants not to compete, net of accumulated amortization of 1996-- $147,714 and 1997--$236,706................................................................... 247,575 284,414 Other assets, net of accumulated amortization of 1996--$831,843 and 1997--$1,250,740................................................................. 1,827,844 1,891,090 Other.............................................................................. 37,032 271,553 ------------- ------------- 7,411,195 7,854,655 Due from affiliates................................................................ 4,106,551 5,135,648 ------------- ------------- $ 26,010,541 $ 26,442,237 ------------- ------------- ------------- ------------- LIABILITIES AND NET CAPITAL DEFICIENCY Current liabilities: Short-term note.................................................................. $ 500,000 $ 500,000 Notes payable to stockholder..................................................... 209,000 378,637 Accounts payable................................................................. 1,122,273 701,826 Accrued payroll and related expenses............................................. 397,362 399,131 Accrued interest................................................................. 327,853 372,394 Other accrued expenses........................................................... 172,516 224,794 Current maturities of long-term obligations...................................... 552,358 882,439 ------------- ------------- Total current liabilities.......................................................... 3,281,362 3,459,221 Long-term obligations: Senior notes..................................................................... 42,253,160 44,502,075 Obligations under capital leases................................................. 906,905 971,966 Unsecured and subordinated obligations........................................... 915,555 846,387 Incentive plan liability......................................................... 3,527,034 4,155,000 Less:Current maturities of long-term obligations................................. (552,358) (882,439) ------------- ------------- 47,050,296 49,592,989 Due to affiliates.................................................................. 14,033,350 -- Capital deficiency: Capital.......................................................................... 3,750 4,960 Additional paid-in capital....................................................... 948,852 15,984,309 Accumulated deficit.............................................................. (39,307,069) (42,599,242) ------------- ------------- Net capital deficiency............................................................. (38,354,467) (26,609,973) ------------- ------------- $ 26,010,541 $ 26,442,237 ------------- ------------- ------------- -------------
See accompanying notes. F-12 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL COMBINED STATEMENTS OF OPERATIONS
YEAR ENDED ---------------------------------------------- FEBRUARY 28 FEBRUARY 29 FEBRUARY 28 1995 1996 1997 -------------- -------------- -------------- Revenues......................................................... $ 23,186,957 $ 25,312,931 $ 27,036,215 Operating expenses: Operating departments.......................................... 17,530,406 18,639,701 19,042,885 Incentive plan................................................. 633,688 1,467,034 627,966 Management fees................................................ 1,678,771 1,832,703 1,944,699 Time brokerage agreement fee, net.............................. -- -- (54,500) Consulting..................................................... -- 37,493 140,992 Depreciation................................................... 896,885 995,414 1,025,543 Amortization................................................... 214,223 316,558 369,484 -------------- -------------- -------------- 20,953,973 23,288,903 23,097,069 -------------- -------------- -------------- Operating income................................................. 2,232,984 2,024,028 3,939,146 Other income (expense): Interest--stockholder and affiliates, net...................... (348,399) (293,956) 246,909 Interest--other, net........................................... (5,287,211) (6,338,941) (7,190,504) Amortization of deferred financing costs....................... (205,851) (497,198) (488,712) Gain (loss) on sale of assets, net............................. (55,783) 3,780 1,076,181 Other, net..................................................... (88,419) (84,067) (68,689) -------------- -------------- -------------- (5,985,663) (7,210,382) (6,424,815) -------------- -------------- -------------- Loss before income taxes and extraordinary item.................. (3,752,679) (5,186,354) (2,485,669) Income tax provision (benefit)................................... 68,324 (38,869) 286,504 -------------- -------------- -------------- Loss before extraordinary item................................... (3,821,003) (5,147,485) (2,772,173) Extraordinary item............................................... -- 6,915,435 -- -------------- -------------- -------------- Net income (loss)................................................ $ (3,821,003) $ 1,767,950 $ (2,772,173) -------------- -------------- -------------- -------------- -------------- --------------
See accompanying notes. F-13 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL COMBINED STATEMENTS OF STOCKHOLDER'S AND MEMBERS' DEFICIENCY YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997
ADDITIONAL NET PAID-IN ACCUMULATED CAPITAL CAPITAL CAPITAL DEFICIT DEFICIENCY --------- ------------- -------------- -------------- Balance at February 28, 1994............................ $ 3,550 $ 948,852 $ (37,254,016) $ (36,301,614) Capital contribution.................................... 100 -- -- 100 Net loss................................................ -- -- (3,821,003) (3,821,003) --------- ------------- -------------- -------------- Balance at February 28, 1995............................ 3,650 948,852 (41,075,019) (40,122,517) Capital contribution.................................... 100 -- -- 100 Net income.............................................. -- -- 1,767,950 1,767,950 --------- ------------- -------------- -------------- Balance at February 29, 1996............................ 3,750 948,852 (39,307,069) (38,354,467) Capital contributions................................... 1,210 15,035,457 -- 15,036,667 Net loss................................................ -- -- (2,772,173) (2,772,173) Dividends............................................... -- -- (520,000) (520,000) --------- ------------- -------------- -------------- Balance at February 28, 1997............................ $ 4,960 $ 15,984,309 $ (42,599,242) $ (26,609,973) --------- ------------- -------------- -------------- --------- ------------- -------------- --------------
See accompanying notes. F-14 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL COMBINED STATEMENTS OF CASH FLOWS
YEAR ENDED ------------------------------------- FEBRUARY 28 FEBRUARY 29 FEBRUARY 28 1995 1996 1997 ----------- ----------- ----------- OPERATING ACTIVITIES Net income (loss)......................................................... ($3,821,003) $ 1,767,950 ($2,772,173) Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: Depreciation and amortization........................................... 1,111,108 1,311,972 1,395,027 Amortization of deferred financing costs................................ 205,851 313,481 488,712 Management fees accrual................................................. 590,851 293,806 (620,451) Affiliate interest accrual.............................................. 599,216 463,594 1,842 Additional interest accrual............................................. 1,864,997 2,215,159 1,817,674 Incentive plan accrual.................................................. 633,688 1,467,034 627,966 (Gain) loss on sale of assets, net...................................... 55,783 (3,780) (1,076,181) Extraordinary item...................................................... -- (6,915,435) -- Changes in operating assets and liabilities: Accounts receivable................................................... (190,587) (251,820) (135,593) Other current assets.................................................. (260,546) (192,561) 109,418 Accounts payable...................................................... 304,899 (480,039) (440,686) Other accrued expenses................................................ (174,393) 47,805 91,521 ----------- ----------- ----------- Net cash provided by (used in) operating activities....................... 919,864 37,166 (512,924) INVESTING ACTIVITIES Change in restricted cash................................................. 1,157,955 -- -- Insurance proceeds on destroyed assets.................................... 2,674,326 -- 244,293 Purchase of replacement assets............................................ (2,654,623) -- -- Purchase of property and equipment........................................ (973,805) (976,938) (1,268,847) Purchase of newspaper, net of cash acquired............................... -- -- (17,222) Purchase of radio stations................................................ -- (55,000) -- Proceeds from sale of radio station....................................... -- -- 1,917,544 Proceeds from sale of assets.............................................. 25,096 13,280 44,003 Loans to managed affiliates............................................... -- -- (408,401) Increase in other assets.................................................. (349,225) (147,904) (452,554) ----------- ----------- ----------- Net cash provided by (used in) investing activities....................... (120,276) (1,166,562) 58,816 FINANCING ACTIVITIES Increase (decrease) in amounts due to stockholder and affiliates.......... (592,216) 32,254 (79,309) Increase in deferred financing costs...................................... -- (1,616,923) (491,168) Principal payments on long-term obligations............................... (1,038,824) (36,241,465) (742,698) Proceeds from long-term borrowings........................................ 1,179,247 40,479,877 142,697 Capital contributions..................................................... 100 100 845,210 Dividends................................................................. -- -- (520,000) ----------- ----------- ----------- Net cash provided by (used in) financing activities....................... (451,693) 2,653,843 (845,268) ----------- ----------- ----------- Net increase (decrease) in cash and cash equivalents...................... 347,895 1,524,447 (1,299,376) Cash and cash equivalents at beginning of year............................ 202,397 550,292 2,074,739 ----------- ----------- ----------- Cash and cash equivalents at end of year.................................. $ 550,292 $ 2,074,739 $ 775,363 ----------- ----------- ----------- ----------- ----------- ----------- Supplemental disclosures of cash flow information: Interest paid........................................................... $4,099,643 $ 4,161,993 $6,116,898 Income taxes paid: Federal............................................................... -- 646 80,000 State................................................................. 68,085 117,485 136,046
See accompanying notes. F-15 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 1. SIGNIFICANT ACCOUNTING POLICIES BASIS OF PRESENTATION The combined financial statements include the accounts of the following radio and newspaper businesses (collectively referred to herein as the Company) which are owned directly or indirectly by Alan R. Brill (Stockholder). The radio businesses (collectively referred to herein as Radio) include: Brill Radio, Inc. (BRI) and its subsidiary, Reading Radio, Inc. (RRI); Northland Broadcasting, Inc. (NBI); Northland Broadcasting, LLC (NBL); Northland Holdings, LLC (NHL); NB II, Inc. (NB2); Fargo-Moorhead Radio, Inc. (FMR); Central Missouri Broadcasting, Inc. (CMB); CMB II, Inc. (CB2); Northern Colorado Radio, Inc. (NCR); NCR II, Inc. (NR2); and Tri-State Broadcasting, Inc. (TSB). The newspaper businesses (collectively referred to herein as News) include St. Johns Newspapers, Inc. (SJN); Brill Newspapers, Inc. (BNI) and its subsidiaries, which include CMN Holding, Inc. (CMNH), Central Michigan Distribution Co., L.P. (CMDLP), and Central Michigan Newspapers, Inc. (CMN) and its subsidiaries which include Cadillac Newspapers, Inc.; CMN Associated Publications, Inc.; Gladwin Newspapers, Inc.; Midland Buyer's Guide, Inc.; Central Michigan Distribution Co., Inc.; and Graph Ads Printing, Inc. News publishes one daily newspaper with circulation of approximately 12,000 and eleven separate weekly publications with circulation exceeding 185,000. All significant intercompany balances and transactions have been eliminated in combination. CASH AND CASH EQUIVALENTS The Company considers all highly liquid investments purchased with a maturity of three months or less to be cash equivalents. INVENTORIES Inventories, consisting primarily of newsprint, are stated at the lower of cost (first in, first out) or market. PROPERTY AND EQUIPMENT Property and equipment are stated at cost. Depreciation is provided under the straight-line method over the estimated useful lives of the various assets as follows: 10 to 40 Buildings and improvements................................... years 10 to 40 Leasehold improvements....................................... years Towers and antennae.......................................... 20 years Machinery and equipment...................................... 3 to 12 years Broadcast equipment.......................................... 3 to 13 years Furniture and fixtures....................................... 3 to 10 years
INTANGIBLE ASSETS Goodwill and FCC licenses are being amortized as required by generally accepted accounting principles. Amortization is calculated on the straight-line basis over a period of 40 years. Covenants not to compete are being amortized on the straight-line basis over the agreements' terms of three to five years. F-16 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) Deferred financing costs and favorable leasehold rights are being amortized on the straight-line basis over the terms of the underlying debt (36 to 44 months) or leases (3-20 years). LONG-LIVED ASSETS The Company annually considers whether indicators of impairment of long-lived assets held for use (including intangibles) are present, determines that if such indicators are present whether the sum of the estimated undiscounted future cash flows attributable to such assets is less than their carrying amounts, and if so, would recognize an impairment loss based on the excess of the carrying amount of the assets over their fair value. The Company evaluated the ongoing value of its property and equipment and other long-lived assets as of February 28, 1997. From this evaluation, the Company determined that there were no indications of impairment and as such, no impairment loss has been recognized for the year ended February 28, 1997. USE OF ESTIMATES The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates. ADVERTISING Advertising costs are expensed as incurred and totaled $783,879, $801,356, and $838,534 for the years ended February 28, 1995, February 29, 1996, and February 28, 1997, respectively. REVENUE RECOGNITION The Company recognizes advertising revenue when an ad is aired by Radio or printed by News. Radio also receives fees under time brokerage agreements, which are recognized based on a stated amount per month. RECLASSIFICATIONS Certain amounts in the 1995 and 1996 financial statements have been reclassified to conform to the 1997 presentation. 2. DESCRIPTION OF THE COMPANY, ACQUISITIONS AND DISPOSITIONS The businesses of the Company are operating entities affiliated with Brill Media Company, L.P. (BMCLP), a group executive management operation which provides supervisory activities and certain corporate-wide services to the operating units. The management operation is compensated on a fee basis by the operating units under standard contractual arrangements. The Company was organized by the Stockholder in 1980 to own and operate media properties including radio stations, television stations, newspapers and related businesses, with a medium-market emphasis. The Company is structured with each operating unit self-contained in its own entity with respect to its assets, operations, and management. F-17 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 2. DESCRIPTION OF THE COMPANY, ACQUISITIONS AND DISPOSITIONS (CONTINUED) On May 1, 1995, CB2, a newly formed corporation owned by the Stockholder, acquired radio station KZMO-FM located in California, Missouri. CB2 paid cash of $25,000 and entered into note payable agreements with the seller of $250,000 and $149,500. CB2 also entered into a covenant not to compete agreement with the previous owner for $300,000, discounted at 11% to $165,290 for financial statement purposes -- see Note 7. The acquisition was accounted for as a purchase. Assets acquired include goodwill, FCC license, and tower lease of $50,000, $274,500, and $100,000, respectively. The financial statements include the results of operations of CB2 from May 1, 1995. On November 1, 1995, NB2, a newly formed corporation owned by the Stockholder, acquired radio station KLXK-FM located in Duluth, Minnesota. NB2 paid cash of $30,000 and entered into a note payable with the seller of $670,000. The acquisition was accounted for as a purchase. Assets acquired include goodwill, FCC license, and equipment of $50,000, $550,000, and $100,000, respectively. The financial statements include the results of operations of NB2 from November 1, 1995. On July 9, 1996, SJN, a newly formed corporation owned by the Stockholder, acquired the common stock of Clinton Distribution, Inc. (Clinton), which owned and operated the St. Johns Reminder, a weekly newspaper located in St. Johns, Michigan. SJN paid cash of $50,000 and entered into a note payable with the seller of $340,704. SJN also entered into a covenant not to compete with the Seller for $200,000, discounted at 12% to $127,430 for financial statement purposes -- see Note 7. On July 31, 1996, Clinton was merged into SJN under a tax-free liquidation. The acquisition of Clinton was accounted for as a purchase. The financial statements include the results of operations of Clinton/SJN from July 9, 1996. Pro forma combined operating results reflecting these acquisitions as if they had occurred at the beginning of the respective periods would not have been materially different from reported amounts. In February, 1996, FMR entered into a contract to sell all operating assets of its radio stations KQWB-FM and KQFN-AM located in Fargo, North Dakota, and Moorhead, Minnesota, for $2,000,000 in cash. The pretax gain was approximately $1,065,000, net of related expenses. FMR further contracted to lease the programming of the radio stations to the buyer under a time brokerage agreement (TBA) beginning March 1, 1996, for $15,000 per month, until transfer of the FCC license on August 13, 1996. Accordingly, no broadcast revenue or operating expense is recorded for FMR subsequent to February 29, 1996. On June 27, 1996, NR2, a newly formed corporation owned by the Stockholder executed a TBA effective August 5, 1996, to operate radio station KTRR-FM located in Loveland, Colorado. The financial statements include the results of operations of NR2 from August 5, 1996. The TBA also gives the Company an option to purchase KTRR-FM. In connection with this option, NR2 made a nonrefundable deposit of $200,000 to the owner of KTRR-FM. In May 1997, NR2 exercised its option to purchase KTRR-FM for $2,000,000. The purchase price includes the $200,000 already on deposit, $550,000 in cash payable at closing, and a note payable to the seller in the amount of $1,250,000. NR2 will also enter into a five-year, $500,000 covenant not to compete. The purchase is pending various approvals. On July 25, 1997 the Company paid $3,000,000 for a non-competition agreement among the Company, one of the managed affiliates (see Note 10) and the seller of the related radio stations. F-18 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 2. DESCRIPTION OF THE COMPANY, ACQUISITIONS AND DISPOSITIONS (CONTINUED) On October 1, 1997, Huron P.S., LLC (HPL) and Huron Newspapers, LLC (HNL), newly formed limited liability companies owned principally by the Stockholder, entered into contracts to purchase the assets of Huron Postal Service, Inc., which owned and operated a 40,000-household distribution system for advertising supplements, newspapers, and shopping guides located in Tawas City, Michigan, and Northeastern Printers, Inc., which owned and operated two editions of the Northeastern Shopper, distributed to 40,000 households located in Tawas City, Michigan (collectively, Tawas) for $1,600,000. HPL and HNL paid combined cash of $900,000 at closing and entered into notes payable with the seller totaling $700,000. The notes bear interest at 10% and are due in October 2004. HPL and HNL also entered into six-year covenants not to compete, totaling $1,200,000. On October 24, 1997, CMB and CB2 entered into contracts to sell the operating assets of radio stations KTXY-FM and KLIK-AM located in Jefferson City, Missouri, and radio station KATI-FM located in California, Missouri, (the Missouri Properties) for a net cash price of $7,419,000, plus assumed liabilities of $256,000. The expected pretax gain will be approximately $5 million, net of related expenses. CMB and CB2 further contracted to lease the programming of the combined radio stations to the buyer under a TBA beginning November 1, 1997, for $50,000 per month, until transfer of the FCC licenses is complete. Accordingly, no broadcast revenue or operating expenses will be recorded for CMB or CB2 subsequent to October 31, 1997. The gain will be recognized upon transfer of the FCC licenses. Applications for transfer of the broadcast licenses of the Missouri Properties have been filed with the FCC by the buyers. A local market competitor has objected to the transfer of the licenses and on December 12, 1997, filed with the FCC a Petition to Deny the license transfers and to terminate the TBA. No action has been taken on the Petition to Deny by the FCC, and the Company believes that, even if the Petition to Deny were granted, the consequences to the Company would not be material. 3. PROPERTY AND EQUIPMENT Property and equipment consists of the following at February 29, 1996 and February 28, 1997:
1996 1997 ------------- ------------- Land............................................................................... $ 748,255 $ 646,647 Buildings and improvements......................................................... 2,564,698 1,604,922 Leasehold improvements............................................................. 846,826 989,586 Towers and antennae................................................................ 1,939,158 1,962,264 Machinery and equipment............................................................ 3,771,769 4,162,151 Broadcast equipment................................................................ 4,968,828 4,106,725 Furniture and fixtures............................................................. 2,907,508 2,425,820 Construction in progress........................................................... 244,293 500,000 ------------- ------------- $ 17,991,335 $ 16,398,115 ------------- ------------- ------------- -------------
F-19 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 3. PROPERTY AND EQUIPMENT (CONTINUED) Property and equipment includes the following assets under capital leases at February 28, 1997: Buildings and improvements...................................................... $ 828,337 Towers and antennae............................................................. 1,050,000 Machinery and equipment......................................................... 277,661 Broadcast equipment............................................................. 212,168 Furniture and fixtures.......................................................... 180,559 --------- $2,548,725 --------- ---------
4. INCOME TAXES The Company accounts for income taxes using the liability method. Under the liability method, deferred tax assets and liabilities are determined based on differences between financial reporting and tax basis of assets and liabilities and are measured using the enacted tax rates and laws that will be in effect when the differences are expected to reverse. NCR, TSB, CB2, NB2, NR2, and SJN are "S" corporations whose taxable income or loss for federal and state income tax purposes is passed through to the Stockholder. NBL and NHL are limited liability companies whose taxable income or loss for federal and state income tax purposes is passed through to their members. CMDLP is a limited partnership whose taxable income or loss for federal and state income tax purposes is passed through to its partners. BRI, RRI, NBI, FMR, CMB, BNI, CMNH, and CMN are "C" corporations. RRI is included in the consolidated income tax return of BRI. CMNH and CMN are included in the consolidated income tax return of BNI. NBI and FMR are included in the consolidated income tax return of their parent. The Company calculates its current and deferred income tax provisions for NBI and FMR on a separate return basis (i.e., as if the corporations had not been included in the consolidated income tax return of their parent). At February 28, 1997, the "C" corporations noted above had net operating loss carryforwards of approximately $13 million for federal income tax purposes which expire in fiscal years 1998 through 2012. F-20 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 4. INCOME TAXES (CONTINUED) As a result of net operating loss carryforwards and temporary differences, the Company has net deferred tax assets and has established a valuation allowance at February 29, 1996 and February 28, 1997, as follows:
1996 1997 -------------- ------------- Gross deferred tax assets: Incentive plan expense........................................................... $ 1,448,043 $ 1,685,877 Net operating loss carryforwards................................................. 9,720,061 5,281,599 Other............................................................................ 281,472 313,814 -------------- ------------- 11,449,576 7,281,290 Gross deferred tax liabilities: Deferred gain on replacement assets.............................................. (1,154,401) (1,154,401) Other............................................................................ (255,113) (104,786) -------------- ------------- (1,409,514) (1,259,187) -------------- ------------- Net deferred tax asset............................................................. 10,040,062 6,022,103 Valuation allowance................................................................ (10,040,062) (6,022,103) -------------- ------------- Net deferred tax asset recognized in the balance sheet............................. $ -- $ -- -------------- ------------- -------------- -------------
Deferred income taxes reflect the net tax effect of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. The provision (benefit) for income taxes for the "C" corporations differs from the amount of income tax benefit computed by applying the United States federal income tax rate to loss before income taxes and extraordinary item. A reconciliation of the differences is as follows:
YEAR ENDED ------------------------------------------- FEBRUARY 28 FEBRUARY 29 FEBRUARY 28 1995 1996 1997 ------------- ------------- ------------- "C" corporations income tax benefit at statutory federal tax rate.... $ (1,366,137) $ (1,838,365) $ (870,606) Increase (decrease) resulting from: State income taxes, net of federal benefit......................... (195,989) (350,071) (17,343) Change in valuation allowance...................................... 1,607,220 2,162,782 1,024,242 Other, net......................................................... 23,230 (13,215) 150,211 ------------- ------------- ------------- Income tax provision (benefit)....................................... $ 68,324 $ (38,869) $ 286,504 ------------- ------------- ------------- ------------- ------------- -------------
F-21 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 5. OTHER ASSETS Other assets consist of the following at February 29, 1996 and February 28, 1997:
1996 1997 ------------ ------------ Deferred financing costs.............................................................. $ 1,614,046 $ 2,105,218 Broadcasting contracts................................................................ 120,000 -- Favorable leasehold rights............................................................ 434,728 384,728 Other................................................................................. 490,913 651,884 ------------ ------------ 2,659,687 3,141,830 Less:Accumulated amortization......................................................... 831,843 1,250,740 ------------ ------------ $ 1,827,844 $ 1,891,090 ------------ ------------ ------------ ------------
6. SHORT-TERM NOTE Short-term note at February 29, 1996 and February 28, 1997, consists of the following:
1996 1997 ---------- ---------- Note payable, interest payable annually at 6.85%.......................................... $ 500,000 $ 500,000
F-22 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 7. LONG-TERM OBLIGATIONS Senior notes payable at February 29, 1996 and February 28, 1997, consist of the following:
1996 1997 ------------- ------------- Senior note, interest only payable monthly at 12%, due September 30, 1999. Includes additional interest accrued at 5.5%, payable September 30, 1999.................. $ 40,000,000 $ 41,824,718 Mortgage note, payable in monthly installments of $7,645, including interest at 8% through September 1, 1997, then interest adjusted to prime lending rate plus 2%, due September 1, 2001............................................................ 723,500 688,367 Mortgage note, interest at 11%..................................................... 113,683 -- Senior note, payable in monthly installments of $3,033 including interest at 8%, due May 1, 2005.................................................................. 237,369 219,307 Senior note, payable in monthly installments of $3,850, including interest at bank prime lending rate plus 1%, due February 28, 2002................................ 197,690 168,870 Senior note, payable in monthly installments of $9,074, including interest at 9%, due October 31, 2005............................................................. 670,000 653,622 Senior note, interest only payable monthly at 8% until July 9, 1997, thereafter payable in monthly installments of $4,436, including interest, due July 9, 2006............................................................................. -- 340,010 Senior secured noncompetition agreement, payable in quarterly installments of $6,250, including imputed interest at 12%, due July 1, 2004...................... -- 122,503 Other.............................................................................. 310,918 484,678 ------------- ------------- $ 42,253,160 $ 44,502,075 ------------- ------------- ------------- -------------
The bank prime lending rate at February 28, 1997, was 8.25%. In February 1996, the Company and two managed affiliates under common control (collectively referred to herein as the Borrowers) jointly entered into a senior note agreement which provided $40 million of borrowings. In September 1996, the senior note was extended to September 1999. The note bears interest at 12%, payable monthly. Beginning May 1996, additional interest accrues at 5.5% and is payable in September 1999. At February 28, 1997, $1,824,718 of additional interest was accrued by the Company. On September 30, 1996, the Company entered into a $16 million line of credit to provide acquisition financing. The line has the same terms as the $41,824,718 senior note described above. In May 1997 and July 1997, the Company borrowed against the $16 million line of credit. On September 30, 1997, the Company refinanced its outstanding senior note with its existing lender and received additional financing of $14 million. The refinanced senior note bears interest at 10%, payable monthly. Additional interest accrues at 7.5%. Principal and additional interest are payable in September 1999. The Company is required to pay a 4% penalty in the event of prepayment of the outstanding senior note. The Borrowers are jointly and individually responsible for the full amount of the senior note. Accordingly, the Company has recorded the entire amount of the senior note in the accompanying statement of financial position and has recorded notes receivable from managed affiliates for the managed F-23 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 7. LONG-TERM OBLIGATIONS (CONTINUED) affiliates' portion of the borrowings under the agreement. The note restricts the Borrowers from the following: (a) sale or disposition of a subsidiary or significant assets other than in the normal course of business; (b) incurring additional indebtedness in excess of limitations; (c) payment of management fees, dividends, and payments to affiliates in excess of certain limitations and; (d) making aggregate capital expenditures or aggregate lease payments in excess of annual limitations. The note also requires attaining minimum cumulative operating cash flows, as defined. The common stock, membership interest, and assets of each operating entity and ARB Finance-One, Inc. (an affiliate) are pledged as security for the senior note. In addition, the Company's Stockholder has personally guaranteed the senior note. Obligations under capital leases relate to certain operating facilities and equipment. The future minimum lease payments and the present value of capital lease payments are as follows:
FISCAL YEAR AMOUNT - -------------------------------------------------------------------------------- ------------ 1998............................................................................ $ 394,202 1999............................................................................ 322,483 2000............................................................................ 259,862 2001............................................................................ 144,391 2002............................................................................ 62,979 ------------ Total minimum obligations....................................................... 1,183,917 Less: Interest.................................................................. 211,951 ------------ Present value of future minimum lease payments.................................. $ 971,966 ------------ ------------
During fiscal 1997, the Company entered into new capital leases totaling approximately $347,000. The present value of obligations under capital leases at February 28, 1997, includes $606,884 in amounts due to affiliates of the Company. Unsecured and subordinated obligations at February 29, 1996 and February 28, 1997, consist of the following:
1996 1997 ---------- ---------- Subordinated notes, payable in monthly installments including interest at 9%, due November 3, 2000................................................................................. $ 458,131 $ 401,448 Unsecured noncompetition agreement, payable in monthly installments of $1,666 through May 1, 2000, then beginning June 1, 2000, payable in monthly installments of $3,333, including imputed interest at 11%, due May 1, 2005...................................... 163,881 161,814 Unsecured note, payable in monthly installments of $3,790, including interest at 8%, due October 1, 2004......................................................................... 200,717 170,192 Other..................................................................................... 92,826 112,933 ---------- ---------- $ 915,555 $ 846,387 ---------- ---------- ---------- ----------
In conjunction with the $40 million senior note refinancing in February 1996, the Company paid $3,250,000 to a subordinated note holder. This payment reflected the original principal only, and $7,046,813 of contingent interest which had been accrued at the maximum rate was reduced at maturity pursuant to the terms of an alternative valuation formula, as defined in the agreement. The Company also F-24 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 7. LONG-TERM OBLIGATIONS (CONTINUED) wrote off certain previously deferred financing costs at the time of the refinancing totaling $131,378. The net gain of $6,915,435 related to these transactions has been reflected as an extraordinary item in the accompanying 1996 statement of operations. The Company has performance incentive plans with certain executives. Such plans accumulate value based on certain defined performance factors. The executives were vested to the extent of $3,527,034, and $4,155,000 as of February 29, 1996 and February 28, 1997, respectively, which was recorded as a long-term obligation. Payments under the terms of the plans would commence only upon the death, disability, retirement, or termination of employment of an executive, and can be made at the discretion of the Company in amounts and on terms no less favorable to the executive than quarterly payments of 2.5% of the vested amount. Aggregate maturities of long-term obligations during the next five years are as follows:
OBLIGATIONS UNSECURED UNDER AND SENIOR CAPITAL SUBORDINATED FISCAL YEAR NOTES LEASES OBLIGATIONS TOTAL - -------------------------------------------------------- ------------- ----------- ------------ ------------- 1998.................................................... $ 531,531 $ 279,576 $ 71,332 $ 882,439 1999.................................................... 349,219 246,617 74,310 670,146 2000.................................................... 41,363,333 220,314 81,290 41,664,937 2001.................................................... 285,949 125,329 220,481 631,759 2002.................................................... 246,736 53,655 98,697 399,088
8. COMMITMENTS The Company leases certain land, buildings, and equipment. Rent expense for fiscal years 1995, 1996, and 1997 was $119,998, $210,998, and $247,328, respectively. Future minimum lease payments under operating leases that have initial or remaining noncancelable terms in excess of one year as of February 28, 1997, are as follows:
FISCAL YEAR AMOUNT - ---------------------------------------------------------------------------------- ---------- 1998.............................................................................. $ 181,388 1999.............................................................................. 127,789 2000.............................................................................. 40,477 2001.............................................................................. 16,093 2002.............................................................................. 8,792 ---------- Total minimum payments required................................................... $ 374,539 ---------- ----------
F-25 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 9. CAPITAL The authorized and issued common stock and membership interest of the individual companies included in the combined financial statements consists of the following at February 28, 1997:
NUMBER OF SHARES -------------------------- ADDITIONAL ISSUED AND PAID-IN AUTHORIZED OUTSTANDING AMOUNT CAPITAL ----------- ------------- --------- ------------- Northland Broadcasting, Inc.: Common, $1 par value......................................... 1,000 100 $ 100 $ 5,653,505 Northland Broadcasting, LLC: Membership interest.......................................... N/A N/A 10 -- Northland Holdings, LLC: Membership interest.......................................... N/A N/A 1,000 -- NB II, Inc.: Common, $1 par value......................................... 1,000 100 100 63,000 Fargo-Moorhead Radio, Inc.: Common, $1 par value......................................... 1,000 100 100 8,537,952 Central Missouri Broadcasting, Inc.: Common, $1 par value......................................... 1,000 1,000 1,000 -- CMB II, Inc.: Common, $1 par value......................................... 1,000 100 100 -- Northern Colorado Radio, Inc.: Common, $1 par value......................................... 1,000 100 100 1,064,500 NCR II, Inc.: Common, $1 par value......................................... 5,000 100 100 16,000 St. Johns Newspapers, Inc.: Common, $1 par value......................................... 5,000 100 100 -- Tri-State Broadcasting, Inc.: Common, $1 par value......................................... 5,000 100 100 40,000 Brill Radio, Inc.: Common, $1 par value......................................... 1,000 1,000 1,000 -- Brill Newspapers, Inc.: Class A common stock, $1 par value, voting................... 1,000 1,000 1,000 -- Class B common stock, $1 par value, nonvoting................ 2,000 150 150 609,352 --------- ------------- $ 4,960 $ 15,984,309 --------- ------------- --------- -------------
CMB II, Inc. was organized during the year ended February 28, 1995; NB II, Inc. was organized during the year ended February 29, 1996, Northland Broadcasting, LLC, Northland Holdings, LLC, NCR II, Inc., and St. Johns Newspapers, Inc. were organized during the year ended February 28, 1997. During the year ended February 28, 1997, the Company received capital contributions of $15,036,667 (Northland Broadcasting, LLC--$10, Northland Holdings, LLC--$1,000, NBII, Inc.--$63,000, Northern Colorado Radio, Inc.--$725,000, NRII, Inc.--$16,100, Tri-State Broadcasting, Inc.--$40,000, St. Johns Newspapers, Inc.--$100, Northland Broadcasting, Inc.--$5,653,505, and Fargo-Moorhead Radio, Inc.-- $8,537,952), primarily from BMCLP, of which $14,191,457 were outstanding affiliate receivables owed to F-26 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 9. CAPITAL (CONTINUED) BMCLP and were offset by affiliate payables to Media. During 1997, Brill Newspapers, Inc. paid dividends of $520,000. There were no other changes to capital for each of the three years in the period ended February 28, 1997. 10. TRANSACTIONS WITH AFFILIATES BMCLP provides certain administrative services to the Company for which it receives a management fee based on a percentage of revenue. The Company incurred management fees to BMCLP in fiscal years 1995, 1996, and 1997 of approximately $1,679,000, $1,833,000, and $1,945,000, respectively. The Company has operating management agreements and loans with managed affiliates who operate radio stations in the same markets as the Company. In accordance with the operating management agreements, the managed affiliates pay management fees based on a fixed amount plus a variable fee based on performance, as defined. The Company earned $40,000 in management fees from these managed affiliates for the year ended February 28, 1997, which is included in due from affiliates in the accompanying statement of financial position. At February 28, 1997, notes receivable from these managed affiliates include notes totaling $408,401 plus additional accrued interest of $3,606. The notes receivable bear interest at 12%, payable monthly. Additional interest accrues at 5.5%. Principal and additional interest are payable in September 1999. In connection with the borrowings under the $16 million line of credit subsequent to February 28, 1997--see Note 7, the Company made additional loans to managed affiliates totaling $13,903,955. In connection with the Company's refinancing of its outstanding senior note on September 30, 1997--see Note 7, the Company refinanced the outstanding notes receivable from managed affiliates. The refinanced notes receivable from managed affiliates bear interest at 10%, payable monthly. Additional interest accrues at 7.5%. Principal and additional interest are payable in September 1999. Through December 1997, the Company made additional loans to managed affiliates totaling $2 million. On December 30, 1997, the Company refinanced notes receivable from managed affiliates totaling approximately $16.3 million. The refinanced notes receivable from managed affiliates bear interest at 12%, payable semi-annually, and are due January 1, 2001. At February 29, 1996 and February 28, 1997, notes payable to stockholder include notes payable of $206,000 and $374,779, respectively, plus accrued interest of $3,000 and $3,858, respectively. At February 28, 1997, notes totaling $74,779 bear interest at 12% and notes totaling $300,000 bear interest at prime plus 1%. Notes payable to stockholder are subordinated to the notes payable to the respective senior lenders. At February 29, 1996 and February 28, 1997, due from affiliates includes notes receivable from stockholder totaling $4,106,551 and $3,966,194, respectively, plus accrued interest of $84,244 at February 28, 1997. The notes receivable bear interest at 5.5% and are due at various dates through 2001. At February 28, 1997, due from affiliates also includes $1,886,909 of affiliate notes receivable plus accrued interest of $28,840, accrued management fees payable of $144,153, and operating payables due to affiliates of $726,386. F-27 THE RADIO AND NEWSPAPER BUSINESSES OF ALAN R. BRILL NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED) YEARS ENDED FEBRUARY 28, 1995, FEBRUARY 29, 1996, AND FEBRUARY 28, 1997 10. TRANSACTIONS WITH AFFILIATES (CONTINUED) At February 29, 1996, due to affiliates includes accrued management fees payable of $2,972,870, various notes payable of $8,821,031 plus accrued interest on these notes totaling $4,923,144, affiliate notes receivable of $1,888,909 plus accrued interest on these notes of $115,541, and operating receivables due from affiliates of $679,245. 11. BUSINESS SEGMENTS The Company has been engaged in two principal businesses: operation of AM and FM radio stations (Radio) and publication of daily and weekly newspapers and shoppers (News). Information for the years ended February 28, 1995, February 29, 1996, and February 28, 1997, regarding the Company's major business segments is presented in the following table:
RADIO NEWS TOTAL ------------- ------------- ------------- Revenues: 1995.............................................................. $ 12,649,594 $ 10,537,363 $ 23,186,957 1996.............................................................. 13,095,663 12,217,268 25,312,931 1997.............................................................. 13,595,820 13,440,395 27,036,215 Operating income: 1995.............................................................. 999,703 1,233,281 2,232,984 1996.............................................................. 883,897 1,140,131 2,024,028 1997.............................................................. 1,897,712 2,041,434 3,939,146 Identifiable assets: 1995.............................................................. 11,195,756 10,588,032 21,783,788 1996.............................................................. 14,499,338 11,511,203 26,010,541 1997.............................................................. 11,074,545 15,367,692 26,442,237 Depreciation and amortization expense: 1995.............................................................. 751,407 359,701 1,111,108 1996.............................................................. 807,917 504,055 1,311,972 1997.............................................................. 917,438 477,589 1,395,027 Capital expenditures: 1995.............................................................. 276,427 697,378 973,805 1996.............................................................. 819,440 157,498 976,938 1997.............................................................. 336,952 931,895 1,268,847
12. SUBSEQUENT EVENT Effective December 30, 1997, the radio and newspaper businesses were contributed, at historical cost, to a newly formed limited liability company, BMC Holdings, LLC (Holdings), which is a wholly-owned subsidiary of another newly formed limited liability company, Brill Media Company, LLC (BMC). BMC is indirectly owned by the Stockholder. BMC and Holdings were formed with minimal capital contributions and had no operations prior to the contribution of the radio and newspaper businesses. F-28 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY PERSON OR BY ANYONE IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE SUCH DATE. ------------------------ TABLE OF CONTENTS
PAGE ----- Prospectus Summary.................... 1 Risk Factors.......................... 24 Use of Proceeds....................... 36 Capitalization........................ 37 Pro Forma Financial Information....... 38 Selected Combined Financial Data...... 47 Management's Discussion and Analysis of Financial Condition and Results of Operations....................... 49 Business.............................. 55 Legal Proceedings..................... 77 Management............................ 77 Executive Compensation................ 78 Certain Transactions.................. 80 Recent or Pending Transactions........ 82 The Exchange Offer.................... 83 Description of Notes.................. 93 Description of Appreciation Notes..... 124 Certain Federal Income Tax Considerations...................... 135 Plan of Distribution.................. 138 Book-Entry; Delivery and Form......... 139 Legal Matters......................... 140 Experts............................... 141 Available Information................. 141 Index of Financial Statements......... F-1
[LOGO] BRILL MEDIA COMPANY, LLC BRILL MEDIA MANAGEMENT, INC. OFFER TO EXCHANGE 12% SENIOR NOTES DUE 2007 FOR 12% SERIES B SENIOR NOTES DUE 2007 AND APPRECIATION NOTES DUE 2007 FOR SERIES B APPRECIATION NOTES DUE 2007 ------------------------ PROSPECTUS --------------------- , 1998 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 13.1-697 of the Virginia Stock Corporation Act (the "SCA") empowers a corporation to indemnify an individual made a party to a proceeding because he is or was a director against liability incurred in the proceeding if: (i) he conducted himself in good faith; and (ii) he believed: (a) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests; and (b) in all other cases, that his conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. The termination of a proceeding by judgment, order, settlement or conviction is not, of itself, determinative that the director did not act in good faith and believed that his conduct was not in the corporation's best interests or that his conduct was opposed to the corporation's best interests, or with respect to any criminal proceeding, that he had reasonable cause to believe his conduct was unlawful. A corporation may not indemnify a director in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. Indemnification with respect to a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding. Section 13.1-698 of the SCA also requires a corporation, unless limited by its articles of incorporation, to indemnify a director who entirely prevails in the defense of any proceeding to which he was a party because he is or was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding. Section 13.1-699 of the SCA provides that a corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if: (i) the director furnishes the corporation a written statement of his good faith belief that he has met the standard of conduct described in SCA Section 13.1-697 above; (ii) the director furnishes the corporation a written undertaking, executed personally or on his behalf, to repay the advance if it is ultimately determined that he did not meet the standard of conduct; and (iii) a determination is made that the facts then known to those making the determination would not preclude indemnification under this article. The undertaking required in clause (ii) above shall be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment. Furthermore, determinations and authorizations of payments under this Section 13.1-699 shall be made in the manner specified in SCA Section 13.1-701 below. Section 13.1-700.1 provides that an individual who is made a party to a proceeding because he is or was a director of a corporation may apply to a court for an order directing the corporation to make advances or reimbursement for expenses or to provide indemnification. Such application may be made to the court conducting the proceeding or to another court of competent jurisdiction. The court shall order the corporation to make advances and/or reimbursement for expenses or to provide indemnification if it determines that the director is entitled to such advances, reimbursement or indemnification and shall also order the corporation to pay the director's reasonable expenses incurred to obtain the order. With respect to a proceeding by or in the right of the corporation, the court may (i) order indemnification of the director to the extent of his reasonable expenses if it determines that, considering all the relevant circumstances, the director is entitled to indemnification even though he was adjudged liable II-1 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS. (CONTINUED) to the corporation and (ii) also order the corporation to pay the director's reasonable expenses incurred to obtain the order of indemnification. Neither (i) the failure of the corporation, including its board of directors, its independent legal counsel and its shareholders, to have made an independent determination prior to the commencement of any action permitted by this section that the applying director is entitled to receive advances and/or reimbursement nor (ii) the determination by the corporation, including its board of directors, its independent legal counsel and its shareholders, that the applying director is not entitled to receive advances and/or reimbursement or indemnification shall create a presumption to that effect or otherwise of itself be a defense to that director's application for advances for expenses, reimbursement or indemnification. Section 13.1-701 of the SCA provides that a corporation may not indemnify a director unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because he has conducted himself in good faith and he believed: (a) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests; and (b) in all other cases, that his conduct was at least not opposed to its best interests; and in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. Such determination shall be made: (i) by the board of directors by a majority vote of a quorum consisting of directors not at the time parties to the proceeding; (ii) if a quorum cannot be obtained under paragraph 1 of this subsection, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the proceeding; (iii) by special legal counsel: (a) selected by the board of directors or its committee in the manner prescribed in paragraph 1 or 2 of this subsection; or (b) if a quorum of the board of directors cannot be obtained under paragraph 1 of this subsection and a committee cannot be designated under paragraph 2 of this subsection, selected by majority vote of the full board of directors, in which selection directors who are parties may participate; or (iv) by the shareholders, but shares owned by or voted under the control of directors who are the time parties to the proceeding may not be voted on the determination. Authorization of indemnification and evaluation as to reasonable-ness of expenses shall be made in the same manner as the determination that indemnification is permissible except that if the determination is made by special legal counsel, authorization or indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under clause (a) and (b) above to select counsel. Section 13.01-702 of the SCA provides that unless limited by a corporation's articles of incorporation, (i) an officer of the corporation is entitled to mandatory indemnification under Section 13.1-698, and is entitled to apply for court-ordered indemnification under Section 13.1-700, in each case to the same extent as a director; and (ii) the corporation may indemnify and advance expenses under this article to an officer, employee, or agent of the corporation to the same extent as to a director. Section 13.1-703 of the SCA provides that a corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the corporation, or who, while a director, officer, employee, or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by him in that capacity or arising from his status as a director, officer, employee, or agent, whether or not the corporation would have power to indemnify him against the same liability under Section 13.1-697 or Section 13.1-698 above. Section 13.1-704 of the SCA provides that any corporation shall have power to make any further indemnity, including indemnity with respect to a proceeding by or in the right of the corporation, and to II-2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS. (CONTINUED) make additional provision for advances and reimbursement of expenses, to any director, officer, employee or agent that may be authorized by the articles of incorporation or any bylaw made by the shareholders or any resolution adopted, before or after the event, by the shareholders, except an indemnity against (i) his willful misconduct, or (ii) a knowing violation of the criminal law. Unless the articles of incorporation, or any such bylaw or resolution expressly provide otherwise, any determination as to the right to any further indemnity shall be made in accordance with Section13.1-701B. Each such indemnity may continue as to a person who has ceased to have the capacity referred to above and may inure to the benefit of the heirs, executors and administrators of such a person. Article X of the Bylaws of Brill Media Management, Inc. provides as follows: Any person (the "indemnitee") who, because he is or was an officer or director of the corporation, is, was, or is threatened to be made a party to any threatened, pending, or completed action, suit, proceeding, or appeal whether civil, criminal, administrative, or investigative and whether formal or informal (the "proceeding") (including any proceeding by or in the right of the corporation) shall be indemnified by the corporation against all liability (including the obligation to pay all or any part of a judgment, decree, settlement, penalty, fine or other such obligation) and reasonable expenses (including counsel fees, expert witness fees, and costs of investigation, litigation, and appeal, as well as any amounts expended in asserting any counterclaim or claim for indemnification from others) incurred in or as a result of the proceeding except such liability and expenses as are incurred because of his willful misconduct or a knowing violation of the criminal law. The corporation shall pay for or reimburse the reasonable expenses incurred by any indemnitee in advance of final disposition of any proceeding upon receipt of an unsecured undertaking from him to repay the sums if ultimately it is determined that he is not entitled to indemnification. A director shall be so indemnified without the necessity of any further determination or authorization, but in the case of an officer, the determination that indemnification is permissible and an evaluation as to the reasonableness of expenses in a specific case shall be made as authorized from time to time by general or specific actions of the board of directors. The termination of a proceeding by a judgment, decree, order, settlement, or conviction, or upon a plea of NOLO CONTENDERE or its equivalent shall not of itself create a presumption that an indemnitee acted in such a manner as to make him ineligible for indemnification. In any proceeding brought by a shareholder in the right of the corporation or brought by or on behalf of shareholders of the corporation, the aggregate amount of all damages that may be assessed against an officer or director of the corporation arising out of any single transaction, occurrence, or course of conduct shall be limited to one dollar. This bylaw is adopted by the shareholders as a limitation on the liability of the corporation's officers and directors, and this limitation shall not apply if the officer or director engaged in willful misconduct or a knowing violation of the criminal law or of any state securities law. This Article shall be applicable in and to all proceedings commenced after its adoption even though arising, in whole or in part, from conduct, actions, or events occurring or taken before its adoption. No amendment, modification, or repeal of this Article shall diminish the rights provided hereby with respect to any claim, issue, or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act occurring prior to such amendment, modification, or repeal. Reference herein to any director or officer shall include a former director or officer who has ceased to have the capacity of director or officer, as the case may be, and his heirs, executors, and administrators. The corporation may purchase and maintain insurance to indemnify it against all or any part of the liability to indemnify assumed by it in accordance with this Article. II-3 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 22. UNDERTAKINGS. The Registrants hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities act, each such post-effective amendment shall be deemed to be a registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of other securities being registered which remain unsold at the termination of the offering. (4) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the Registration Statement through the date of responding to the request. (5) To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the Registration Statement when it became effective. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing provisions, or otherwise, the Registrants have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of the Registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities registered, the Registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act, BRILL MEDIA COMPANY, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. BRILL MEDIA COMPANY, LLC By: BRILL MEDIA MANAGEMENT, INC., Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Officer) Donald C. TenBarge By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-5 Pursuant to the requirements of the Securities Act, BRILL MEDIA MANAGEMENT, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. BRILL MEDIA MANAGEMENT, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Officer) Donald C. TenBarge By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-6 Pursuant to the requirements of the Securities Act, ADVERTISERS P.S., LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. ADVERTISERS P.S., LLC By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-7 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Donald C. TenBarge Officer) By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-8 Pursuant to the requirements of the Securities Act, BMC HOLDINGS, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. BMC HOLDINGS, LLC By: BRILL MEDIA COMPANY, LLC, Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Officer) Donald C. TenBarge By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-9 Pursuant to the requirements of the Securities Act, BRILL NEWSPAPERS, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. BRILL NEWSPAPERS, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-10 Pursuant to the requirements of the Securities Act, BRILL RADIO, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. BRILL RADIO, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-11 Pursuant to the requirements of the Securities Act, CADILLAC NEWSPAPERS, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. CADILLAC NEWSPAPERS, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-12 Pursuant to the requirements of the Securities Act, CENTRAL MICHIGAN DISTRIBUTION CO., INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. CENTRAL MICHIGAN DISTRIBUTION CO., INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-13 Pursuant to the requirements of the Securities Act, CENTRAL MICHIGAN DISTRIBUTION CO., L.P. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evanville, in the State of Indiana, on March 24, 1998. CENTRAL MICHIGAN DISTRIBUTION CO., L.P. By: CENTRAL MICHIGAN DISTRIBUTION CO., INC. General Partner By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-14 Pursuant to the requirements of the Securities Act, CENTRAL MICHIGAN NEWSPAPERS, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. CENTRAL MICHIGAN NEWSPAPERS, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-15 Pursuant to the requirements of the Securities Act, CENTRAL MISSOURI BROADCASTING, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. CENTRAL MISSOURI BROADCASTING, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-16 Pursuant to the requirements of the Securities Act, CENTRAL PRINTING SERVICE, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. CENTRAL PRINTING SERVICE, LLC By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-17 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Donald C. TenBarge Officer) By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-18 Pursuant to the requirements of the Securities Act, CMB II, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. CMB II, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-19 Pursuant to the requirements of the Securities Act, CMN ASSOCIATED PUBLICATIONS, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. CMN ASSOCIATED PUBLICATIONS, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-20 Pursuant to the requirements of the Securities Act, CMN HOLDING, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. CMN HOLDING, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-21 Pursuant to the requirements of the Securities Act, GLADWIN NEWSPAPERS, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. GLADWIN NEWSPAPERS, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-22 Pursuant to the requirements of the Securities Act, GRAPH ADS PRINTING, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. GRAPH ADS PRINTING, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-23 Pursuant to the requirements of the Securities Act, HURON HOLDINGS, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. HURON HOLDINGS, LLC By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC., Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Donald C. TenBarge Officer) By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-24 Pursuant to the requirements of the Securities Act, HURON NEWSPAPERS, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. HURON NEWSPAPERS, LLC By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-25 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Donald C. TenBarge Officer) By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-26 Pursuant to the requirements of the Securities Act, HURON P.S., LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. HURON P.S., LLC By: HURON HOLDINGS, LLC Manager By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-27 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Donald C. TenBarge Officer) By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-28 Pursuant to the requirements of the Securities Act, MIDLAND BUYERS GUIDE, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. MIDLAND BUYERS GUIDE, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-29 Pursuant to the requirements of the Securities Act, NB II, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NB II, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-30 Pursuant to the requirements of the Securities Act, NCH II, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NCH II, LLC By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-31 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Donald C. TenBarge Officer) By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-32 Pursuant to the requirements of the Securities Act, NCR II, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NCR II, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-33 Pursuant to the requirements of the Securities Act, NCR III, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NCR III, LLC By: NCH II, LLC Manager By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-34 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Donald C. TenBarge Officer) By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-35 Pursuant to the requirements of the Securities Act, NORTHERN COLORADO HOLDINGS, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NORTHERN COLORADO HOLDINGS, LLC By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Officer) Donald C. TenBarge By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-36 Pursuant to the requirements of the Securities Act, NORTHERN COLORADO RADIO, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NORTHERN COLORADO RADIO, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-37 Pursuant to the requirements of the Securities Act, NORTHLAND BROADCASTING, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NORTHLAND BROADCASTING, LLC By: NORTHLAND HOLDINGS, LLC, Manager By: BMC HOLDINGS, LLC, Manager By: BRILL MEDIA COMPANY, LLC, Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-38 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Officer) Donald C. TenBarge By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-39 Pursuant to the requirements of the Securities Act, NORTHLAND HOLDINGS, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NORTHLAND HOLDINGS, LLC By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-40 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ----------------------------------------------------------------- ------------------------------------------------------ By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Officer) Donald C. TenBarge By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-41 Pursuant to the requirements of the Securities Act, READING RADIO, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. READING RADIO, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer ------------------------------------------ (Principal Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-42 Pursuant to the requirements of the Securities Act, ST. JOHNS NEWSPAPERS, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. ST. JOHNS NEWSPAPERS, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-43 Pursuant to the requirements of the Securities Act, TRI-STATE BROADCASTING, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. TRI-STATE BROADCASTING, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-44 Pursuant to the requirements of the Securities Act, UPPER MICHIGAN HOLDINGS, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. UPPER MICHIGAN HOLDINGS, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-45 Pursuant to the requirements of the Securities Act, UPPER MICHIGAN HOLDINGS, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. UPPER MICHIGAN HOLDINGS, LLC By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC. Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-46 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Donald C. TenBarge Officer) By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-47 Pursuant to the requirements of the Securities Act, UPPER MICHIGAN MANAGEMENT, INC. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. UPPER MICHIGAN MANAGEMENT, INC. By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, Vice President and Treasurer (Principal ------------------------------------------ Executive Officer) Alan R. Brill By * Assistant Treasurer (Principal Financial and ------------------------------------------ Accounting Officer) Donald C. TenBarge *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-48 Pursuant to the requirements of the Securities Act, UPPER MICHIGAN NEWSPAPERS, LLC has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. UPPER MICHIGAN NEWSPAPERS, LLC By: BMC HOLDINGS, LLC Manager By: BRILL MEDIA COMPANY, LLC Manager By: BRILL MEDIA MANAGEMENT, INC., Manager By /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER II-49 Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE - ---------------------------------------------------------------- ----------------------------------------------------- By /s/ ALAN R. BRILL Director, President, Chief Executive Officer and ------------------------------------------ Treasurer (Principal Executive Officer) Alan R. Brill By * Vice President, Controller, Secretary and Assistant ------------------------------------------ Treasurer (Principal Financial and Accounting Donald C. TenBarge Officer) By * Director ------------------------------------------ Robert M. Leich By * Director ------------------------------------------ Philip C. Fisher By * Director, Vice President, and Assistant Secretary ------------------------------------------ Clifton E. Forrest By * Director ------------------------------------------ Charles W. Laughlin *By /s/ ALAN R. BRILL Attorney-in-Fact ------------------------------------------ Alan R. Brill
II-50 Pursuant to the requirements of the Securities Act, BMC Holdings, Inc. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. BMC HOLDINGS, INC. By: /s/ ALAN R. BRILL ----------------------------------------- Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER
POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Alan R. Brill his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE ------------------------------------------------------ ---------------------------------------------------- By /s/ ALAN R. BRILL ------------------------------------------- Director, Vice President and Treasurer Alan R. Brill (Principal Executive Officer By /s/ DONALD C. TENBARGE ------------------------------------------- Assistant Treasurer (Principal Financial and Donald C. TenBarge Accounting Officer)
II-51 Pursuant to the requirements of the Securities Act, Huron Holdings Management, Inc. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. HURON HOLDINGS MANAGEMENT, INC. By: /s/ ALAN R. BRILL ----------------------------------------- Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER
POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Alan R. Brill his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE ------------------------------------------------------ ---------------------------------------------------- By /s/ ALAN R. BRILL ------------------------------------------- Director, Vice President and Treasurer Alan R. Brill (Principal Executive Officer By /s/ DONALD C. TENBARGE ------------------------------------------- Assistant Treasurer (Principal Financial and Donald C. TenBarge Accounting Officer)
II-52 Pursuant to the requirements of the Securities Act, Huron Newspapers Management, Inc. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. HURON NEWSPAPERS MANAGEMENT, INC. By: /s/ ALAN R. BRILL ----------------------------------------- Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER
POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Alan R. Brill his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE ------------------------------------------------------ ---------------------------------------------------- By /s/ ALAN R. BRILL ------------------------------------------- Director, Vice President and Treasurer Alan R. Brill (Principal Executive Officer By /s/ DONALD C. TENBARGE ------------------------------------------- Assistant Treasurer (Principal Financial and Donald C. TenBarge Accounting Officer)
II-53 Pursuant to the requirements of the Securities Act, Huron P.S. Management, Inc. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. HURON P.S. MANAGEMENT, INC. By: /s/ ALAN R. BRILL ----------------------------------------- Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER
POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Alan R. Brill his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE ------------------------------------------------------ ---------------------------------------------------- By /s/ ALAN R. BRILL ------------------------------------------- Director, Vice President and Treasurer Alan R. Brill (Principal Executive Officer By /s/ DONALD C. TENBARGE ------------------------------------------- Assistant Treasurer (Principal Financial and Donald C. TenBarge Accounting Officer)
II-54 Pursuant to the requirements of the Securities Act, Northern Colorado Holdings Management, Inc. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NORTHERN COLORADO HOLDINGS MANAGEMENT, INC. By: /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER
POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Alan R. Brill his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE ------------------------------------------------------ ---------------------------------------------------- By /s/ ALAN R. BRILL ------------------------------------------- Director, Vice President and Treasurer Alan R. Brill (Principal Executive Officer By /s/ DONALD C. TENBARGE ------------------------------------------- Assistant Treasurer (Principal Financial and Donald C. TenBarge Accounting Officer)
II-55 Pursuant to the requirements of the Securities Act, Northland Broadcasting Management, Inc. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NORTHLAND BROADCASTING MANAGEMENT, INC. By: /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER
POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Alan R. Brill his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE ------------------------------------------------------ ---------------------------------------------------- By /s/ ALAN R. BRILL ------------------------------------------- Director, Vice President and Treasurer Alan R. Brill (Principal Executive Officer By /s/ DONALD C. TENBARGE ------------------------------------------- Assistant Treasurer (Principal Financial and Donald C. TenBarge Accounting Officer)
II-56 Pursuant to the requirements of the Securities Act, Northland Holdings Management, Inc. has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Evansville, in the State of Indiana, on March 24, 1998. NORTHLAND HOLDINGS MANAGEMENT, INC. By: /s/ ALAN R. BRILL ------------------------------------------ Alan R. Brill DIRECTOR, VICE PRESIDENT AND TREASURER
POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Alan R. Brill his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the Registration Statement and the foregoing Power of Attorney has been signed by the following persons in the capacities indicated on March 24, 1998.
SIGNATURE TITLE ------------------------------------------------------ ---------------------------------------------------- By /s/ ALAN R. BRILL ------------------------------------------- Director, Vice President and Treasurer Alan R. Brill (Principal Executive Officer By /s/ DONALD C. TENBARGE ------------------------------------------- Assistant Treasurer (Principal Financial and Donald C. TenBarge Accounting Officer)
II-57 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - -------------- -------------------------------------------------------------------------------------------------- 3(i)(a) Articles of Organization of Brill Media Company, LLC* 3(i)(b) Articles of Incorporation of Brill Media Management, Inc.* 3(i)(c) Articles of Organization of BMC Holdings, LLC* 3(i)(d) Articles of Incorporation of Reading Radio, Inc.* 3(i)(e) Articles of Incorporation of Tri-State Broadcasting, Inc.* 3(i)(f) Articles of Incorporation of Northern Colorado Radio, Inc.* 3(i)(g) Articles of Incorporation of NCR II, Inc.* 3(i)(h) Articles of Incorporation of Central Missouri Broadcasting, Inc.* 3(i)(i) Articles of Incorporation of CMB II, Inc.* 3(i)(j) Articles of Organization of Northland Broadcasting, LLC* 3(i)(k) Articles of Incorporation of NB II, Inc.* 3(i)(l) Articles of Incorporation of Central Michigan Newspapers, Inc.* 3(i)(m) Articles of Incorporation of Cadillac Newspapers, Inc.* 3(i)(n) Articles of Incorporation of CMN Associated Publications, Inc.* 3(i)(o) Articles of Limited Partnership of Central Michigan Distribution Co., L.P.* 3(i)(p) Articles of Incorporation of Central Michigan Distribution Co., Inc.* 3(i)(q) Articles of Incorporation of Gladwin Newspapers, Inc.* 3(i)(r) Articles of Incorporation of Graph Ads Printing, Inc.* 3(i)(s) Articles of Incorporation of Midland Buyers Guide, Inc.* 3(i)(t) Articles of Incorporation of St. Johns Newspapers, Inc.* 3(i)(u) Articles of Organization of Huron P.S., LLC* 3(i)(v) Articles of Organization of Huron Newspapers, LLC* 3(i)(w) Articles of Organization of Huron Holdings, LLC* 3(i)(x) Articles of Organization of Northern Colorado Holdings, LLC* 3(i)(y) Articles of Organization of NCR III, LLC* 3(i)(z) Articles of Organization of NCH II, LLC* 3(i)(aa) Articles of Organization of Northland Holdings, LLC* 3(i)(bb) Articles of Incorporation of CMN Holding, Inc.* 3(i)(cc) Articles of Incorporation of Brill Radio, Inc.* 3(i)(dd) Articles of Incorporation of Brill Newspapers, Inc.* 3(i)(ee) Articles of Organization of Advertisers P.S., LLC* 3(i)(ff) Articles of Organization of Central Printing Service, LLC* 3(i)(gg) Articles of Incorporation of Upper Michigan Management, Inc.* 3(i)(hh) Articles of Organization of Upper Michigan Holdings, LLC* 3(i)(ii) Articles of Incorporation of Upper Michigan Holdings, Inc.*
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - -------------- -------------------------------------------------------------------------------------------------- 3(i)(jj) Articles of Organization of Upper Michigan Newspapers, LLC* 3(i)(kk) Articles of Incorporation of BMC Holdings, Inc.** 3(i)(ll) Articles of Incorporation of Huron Holdings Management, Inc.** 3(i)(mm) Articles of Incorporation Huron Newspapers Management, Inc.** 3(i)(nn) Articles of Incorporation of Huron P.S. Management, Inc.** 3(i)(oo) Articles of Incorporation of Northern Colorado Holdings Management, Inc.** 3(i)(pp) Articles of Incorporation of Northland Broadcasting Management, Inc.** 3(i)(qq) Articles of Incorporation of Northland Holdings Management, Inc.** 3(ii)(a) Operating Agreement of Brill Media Company, LLC* 3(ii)(b) By-laws of Brill Media Management, Inc.* 3(ii)(c) Operating Agreement of BMC Holdings, LLC** 3(ii)(d) By-laws of Reading Radio, Inc.* 3(ii)(e) By-laws of Tri-State Broadcasting, Inc.* 3(ii)(f) By-laws of Northern Colorado Radio, Inc.* 3(ii)(g) By-laws of NCR II, Inc.* 3(ii)(h) By-laws of Central Missouri Broadcasting, Inc.* 3(ii)(i) By-laws of CMB II, Inc.* 3(ii)(j) Operating Agreement of Northland Broadcasting, LLC** 3(ii)(k) By-laws of NB II, Inc.* 3(ii)(l) By-laws of Central Michigan Newspapers, Inc.* 3(ii)(m) By-laws of Cadillac Newspapers, Inc.* 3(ii)(n) By-laws of CMN Associated Publications, Inc.* 3(ii)(o) Partnership Agreement of Central Michigan Distribution Co., L.P.* 3(ii)(p) By-laws of Central Michigan Distribution Co., Inc.* 3(ii)(q) By-laws of Gladwin Newspapers, Inc.* 3(ii)(r) By-laws of Graph Ads Printing, Inc.* 3(ii)(s) By-laws of Midland Buyers Guide, Inc.* 3(ii)(t) By-laws of St. Johns Newspapers, Inc.* 3(ii)(u) Operating Agreement of Huron P.S., LLC** 3(ii)(v) Operating Agreement of Huron Newspapers, LLC** 3(ii)(w) Operating Agreement of Huron Holdings, LLC** 3(ii)(x) Operating Agreement of Northern Colorado Holdings, LLC** 3(ii)(y) Operating Agreement of NCR III, LLC** 3(ii)(z) Operating Agreement of NCH II, LLC** 3(ii)(aa) Operating Agreement of Northland Holdings, LLC** 3(ii)(bb) By-laws of CMN Holding, Inc.* 3(ii)(cc) By-laws of Brill Radio, Inc.*
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - -------------- -------------------------------------------------------------------------------------------------- 3(ii)(dd) By-laws of Brill Newspapers, Inc.* 3(ii)(ee) Operating Agreement of Advertisers P.S., LLC* 3(ii)(ff) Operating Agreement of Central Printing Service, LLC* 3(ii)(gg) By-laws of Upper Michigan Management, Inc.* 3(ii)(hh) Operating Agreement of Upper Michigan Holdings, LLC* 3(ii)(ii) By-laws of Michigan Holdings, Inc.* 3(ii)(jj) Operating Agreement of Upper Michigan Newspapers, LLC* 3(ii)(kk) By-laws of BMC Holdings, Inc.** 3(ii)(ll) By-laws of Huron Holdings Management, Inc.** 3(ii)(mm) By-laws of Huron Newspapers Management, Inc.** 3(ii)(nn) By-laws of Huron P.S. Management, Inc.** 3(ii)(oo) By-laws of Northern Colorado Holdings Management, Inc.** 3(ii)(pp) By-laws of Northland Broadcasting Management, Inc.** 3(ii)(qq) By-laws of Northland Holdings Management, Inc.** 4.1 Indenture dated as of December 30, 1997 among Brill Media Company, LLC, Brill Media Management, Inc., the Subsidiary Guarantors named therein, and United States Trust Company of New York, as Trustee, with the forms of 12% Senior Notes due 2007 and Series B 12% Senior Notes due 2007 included therein* 4.2 Indenture dated as of December 30, 1997 among Brill Media Company, LLC, Brill Media Management, Inc., the Subsidiary Guarantors named therein, and United States Trust Company of New York, as Trustee, with the forms of Appreciation Notes due 2007 and Series B Appreciation Notes due 2007 included therein* 4.3 First Supplemental Indenture among Brill Media Company, LLC, Brill Media Management, Inc., the Subsidiary Guarantors named therein, and United States Trust Company of New York, as Trustee, relating to the Appreciation Notes due 2007** 4.4 First Supplemental Indenture among Brill Media Company, LLC, Brill Media Management, Inc., the Subsidiary Guarantors named therein, and United States Trust Company of New York, as Trustee, relating to the 12% Senior Notes due 2007** 5.1 Opinion of Carter, Ledyard & Milburn including consent* 5.2 Opinion of Thompson & McMullan, P.C. including consent* 8 Opinion of Carter, Ledyard & Milburn regarding certain Federal income tax matters, including consent* 10.1(a) Performance Incentive Plan Agreement dated November 26, 1985 between Central Michigan Newspapers, Inc. and Clifton E. Forrest* 10.1(b) Performance Incentive Plan Agreement dated November 26, 1985 between WIOV, Inc. and Alan L. Beck* 10.2 Managed Affiliates Subordination Agreement dated December 30, 1997 among Brill Media Company, L.P. and certain Subsidiaries* 10.3 Management Agreements dated December 30, 1987 between various subsidiaries of Brill Media Company, LLC and Brill Media Company, L.P.* 10.4(a) Managed Affiliate Management Agreement dated December 30, 1997 between Tri-State Broadcasting, Inc. and TSB III, LLC*
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - -------------- -------------------------------------------------------------------------------------------------- 10.4(b) Managed Affiliate Management Agreement dated December 30, 1997 between Tri-State Broadcasting, Inc. and TSB IV, LLC* 10.5(a) Managed Affiliate Promissory Note dated December 30, 1997 of TSB III, LLC in favor of Tri-State Broadcasting, Inc.* 10.5(b) Managed Affiliate Promissory Note dated December 30, 1997 of TSB IV, LLC in favor of Tri-State Broadcasting, Inc.* 10.6(a) Asset Purchase Agreement dated October 24, 1997 between CMBH, Inc. and MVP Radio, Inc.* 10.6(b) Asset Purchase Agreement dated October 24, 1997 between Central Missouri Broadcasting, Inc. and Zimmer Radio of Mid-Missouri, Inc.* 10.7 Amended and Restated Credit Agreement dated as of September 30, 1997 by and among the Borrowers named therein, Amresco Funding Corporation and Goldman Sachs Credit Partners L.P.** 10.8(a) Time Brokerage Agreement dated November 1, 1997 between CMB II, Inc. and MVP Radio, Inc.* 10.8(b) Time Brokerage Agreement dated November 1, 1997 between Central Missouri Broadcasting, Inc. and Zimmer Radio of Mid-Missouri, Inc.* 10.8(c) Time Brokerage Agreement dated June 27, 1996 between NCR II, Inc. and Onyx, Inc.* 10.9 Purchase Agreement dated December 22, 1997 by and among Brill Media Company, LLC, Brill Media Management, Inc., the Subsidiary Guarantors named therein, and NatWest Capital Markets Limited* 10.10(a) Registration Rights Agreement dated as of December 30, 1997 by and among Brill Media Company, LLC, Brill Media Management, Inc., the Subsidiary Guarantors named therein, and NatWest Capital Markets Limited* 10.10(b) Appreciation Notes Registration Rights Agreement dated as of December 30, 1997 by and among Brill Media Company, LLC, Brill Media Management, Inc., the Subsidiary Guarantors named therein, and NatWest Capital Markets Limited* 10.11(a) Revolving Credit Agreement dated December 30, 1997 between various Subsidiary Guarantors and BMC Holdings, LLC* 10.11(b) Revolving Credit Note dated December 30, 1997 between various Subsidiary Guarantors and BMC Holdings, LLC* 10.11(c) Promissory Note dated December 30, 1997 between BMC Holdings, LLC and Brill Media Company, LLC* 12.1 Ratio of Earnings to Fixed Charges** 21 Subsidiaries of Brill Media Company, LLC** 23.1 Consent of Carter, Ledyard & Milburn (included in its opinions filed as Exhibits 5.1 and 8)* 23.2 Consent of Ernst & Young LLP** 23.3 Consent of Thompson & McMullan, P.C. (included in its opinion filed as Exhibit 5.2)* 24 Power of Attorney (included on signature page)* 25.1 Statement of Eligibility on Form T-1 of Trustee (Series B 12% Senior Notes Due 2007)** 25.2 Statement of Eligibility on Form T-1 of Trustee (Series B Appreciation Notes Due 2007)** 27 Financial Data Schedule*
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - -------------- -------------------------------------------------------------------------------------------------- 99.1 Form of Letter of Transmittal to Tender for Exchange 12% Senior Notes due 2007* 99.2 Form of Letter of Transmittal to Tender for Exchange Appreciation Notes due 2007* 99.3 Form of Exchange Agency Agreement among Brill Media Company, LLC, Brill Media Management, Inc., the Subsidiary Guarantors named therein and United States Trust Company of New York, as Exchange Agent*
- ------------------------ * Previously filed ** Filed herewith EX-3.(I)(KK) 2 EXHIBIT 3(I)(KK) Exhibit 3(i)(kk) ARTICLES OF INCORPORATION OF BMC HOLDINGS, INC. 1. The name of the corporation is "BMC Holdings, Inc." 2. The number of shares that the corporation is authorized to issue is 25,000 shares of common stock. 3. The post office address of the corporation's initial registered office is 100 Shockoe Slip, 3rd Floor, Richmond, Virginia 23219, located in the City of Richmond, Virginia, and the name of the corporation's initial registered agent at the aforesaid office is Charles W. Laughlin, who is a resident of Virginia and a member of the Virginia State Bar. BMC HOLDINGS, INC. Date:__________ By: --------------------------------- Charles W. Laughlin, Incorporator EX-3.(I)(LL) 3 EXHIBIT 3(I)(LL) Exhibit 3(i)(ll) ARTICLES OF INCORPORATION OF HURON HOLDINGS MANAGEMENT, INC. 1. The name of the corporation is "Huron Holdings Management, Inc." 2. The number of shares that the corporation is authorized to issue is 5000 shares of common stock. 3. The post office address of the corporation's initial registered office is 100 Shockoe Slip, 3rd Floor, Richmond, Virginia 23219, located in the City of Richmond, Virginia, and the name of the corporation's initial registered agent at the aforesaid office is Charles W. Laughlin, who is a resident of Virginia and a member of the Virginia State Bar. HURON HOLDINGS MANAGEMENT, INC. Date: By: --------------- ---------------------------------- Charles W. Laughlin, Incorporator EX-3.(I)(MM) 4 EXHIBIT 3(I)(MM) Exhibit 3(i)(mm) ARTICLES OF INCORPORATION OF HURON NEWSPAPERS MANAGEMENT, INC. 1. The name of the corporation is "Huron Newspapers Management, Inc." 2. The number of shares that the corporation is authorized to issue is 5000 shares of common stock. 3. The post office address of the corporation's initial registered office is 100 Shockoe Slip, 3rd Floor, Richmond, Virginia 23219, located in the City of Richmond, Virginia, and the name of the corporation's initial registered agent at the aforesaid office is Charles W. Laughlin, who is a resident of Virginia and a member of the Virginia State Bar. HURON NEWSPAPERS MANAGEMENT, INC. Date:__________ By: --------------------------------- Charles W. Laughlin, Incorporator EX-3.(I)(NN) 5 EXHIBIT 3(I)(NN) Exhibit 3(i)(nn) ARTICLES OF INCORPORATION OF HURON P.S. MANAGEMENT, INC. 1. The name of the corporation is "Huron P.S. Management, Inc." 2. The number of shares that the corporation is authorized to issue is 5000 shares of common stock. 3. The post office address of the corporation's initial registered office is 100 Shockoe Slip, 3rd Floor, Richmond, Virginia 23219, located in the City of Richmond, Virginia, and the name of the corporation's initial registered agent at the aforesaid office is Charles W. Laughlin, who is a resident of Virginia and a member of the Virginia State Bar. HURON P.S. MANAGEMENT, INC. Date:__________ By: --------------------------------- Charles W. Laughlin, Incorporator EX-3.(I)(OO) 6 EXHIBIT 3(I)(OO) Exhibit 3(i)(oo) ARTICLES OF INCORPORATION OF NORTHERN COLORADO HOLDINGS MANAGEMENT, INC. 1. The name of the corporation is "Northern Colorado Holdings Management, Inc." 2. The number of shares that the corporation is authorized to issue is 5000 shares of common stock. 3. The post office address of the corporation's initial registered office is 100 Shockoe Slip, 3rd Floor, Richmond, Virginia 23219, located in the City of Richmond, Virginia, and the name of the corporation's initial registered agent at the aforesaid office is Charles W. Laughlin, who is a resident of Virginia and a member of the Virginia State Bar. NORTHERN COLORADO HOLDINGS MANAGEMENT, INC. Date:__________ By:_________________________________ Charles W. Laughlin, Incorporator EX-3.(I)(PP) 7 EXHIBIT 3(I)(PP) Exhibit 3(i)(pp) ARTICLES OF INCORPORATION OF NORTHLAND BROADCASTING MANAGEMENT, INC. 1. The name of the corporation is "Northland Broadcasting Management, Inc." 2. The number of shares that the corporation is authorized to issue is 5000 shares of common stock. 3. The post office address of the corporation's initial registered office is 100 Shockoe Slip, 3rd Floor, Richmond, Virginia 23219, located in the City of Richmond, Virginia, and the name of the corporation's initial registered agent at the aforesaid office is Charles W. Laughlin, who is a resident of Virginia and a member of the Virginia State Bar. NORTHLAND BROADCSTING MANAGEMENT, INC. By:________________________________ Charles W. Laughlin Incorporator EX-3.(I)(QQ) 8 EXHIBIT 3(I)(QQ) Exhibit 3(i)(qq) ARTICLES OF INCORPORATION OF NORTHLAND HOLDINGS MANAGEMENT, INC. 1. The name of the corporation is "Northland Holdings Management, Inc." 2. The number of shares that the corporation is authorized to issue is 5,000 shares of common stock. 3. The post office address of the corporation's initial registered office is 100 Shockoe Slip, 3rd Floor, Richmond, Virginia 23219, located in the City of Richmond, Virginia, and the name of the corporation's initial registered agent at the aforesaid office is Charles W. Laughlin, who is a resident of Virginia and a member of the Virginia State Bar. March 18, 1998 Northland Holdings Management, Inc. By:________________________________ Incorporator EX-3.(II)(C) 9 EXHIBIT 3(II)(C) EX-3.(ii)(c) Amended Operating Agreement AMENDED OPERATING AGREEMENT of BMC HOLDINGS, LLC This is the Amended Operating Agreement of BMC Holdings, LLC, a Virginia limited liability company (the "Company"), entered into as of this 10th day of December, 1997, by Brill Media Company, LLC, a Virginia limited liability company, the Company's member [each (and each other person or entity while hereafter admitted as a Member) a "Member", and collectively with each other Member, the "Members"]. 1. Name. The name of the Company is BMC Holdings, LLC. The business of the Company may be conducted under such trade or fictitious name or names as the Members may select from time to time. 2. Principal Office. The Company's principal office, where the Company's principal executive offices are located and at which the records required to be maintained by the Act (hereinafter defined) are to be kept shall be located at 420 NW Fifth Street, Suite 3-B, Evansville, Indiana 47708, or at such other place or places as the Members may determine from time to time. 3. Capital Accounts. (a) Capital Contributions. The amount of the Members' capital contributions (to be made simultaneously with their execution of this agreement) are set forth on Exhibit A; such Members shall not be required to lend or make any additional capital contribution. (b) Capital Accounts; Allocations. A separate capital account (singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be established and maintained for each Member. As of any date, the amount of a Member's Capital Account shall be adjusted and any allocations of the Company's income, gain, loss, deductions, or credits (or items thereof) shall be determined and made as hereinafter provided and in accordance with the Company's records and, to the extent consistent herewith, applicable provisions of the Virginia Limited Liability Company Act as it may be amended or superseded from time to time (the "Act"): (i) Each Member's Capital Account (a) shall be increased by (i) the cash amount or agreed fair market value of all contributions hereafter made by such Member to the Company, (ii) any net income allocated (but not distributed) to such Member pursuant to this Section 3, and any items in the nature of income or gain that are specially allocated (but not distributed) to such Member, and (iii) the amount of any Company liabilities assumed by such Member or secured by any property of the Company distributed to such Member, and (b) shall be decreased by (i) the cash amount or agreed fair market value of all actual or deemed distributions of cash or property made to such Member pursuant to this agreement, (ii) any net loss allocated to such Member pursuant to this Section 3, and any items in the nature of expenses or losses that are specially allocated to such Member, and (iii) the amount of any liabilities of such Member assumed or secured by the Company. In determining the amount of any such liabilities, there shall be taken into account the provisions of ss. 752(c), and any other applicable provisions, of the Internal Revenue Code as amended from time to time (the "Code") and any applicable regulations (the "Regulations"; singly, a "Regulation") thereunder. (ii) In accordance with Regulation ss. 1.704, at appropriate times, the Capital Accounts of all Members and the carrying values of all Company properties shall be adjusted upwards or downwards to reflect any unrealized gain or loss attributable to each Company property, as if such unrealized gain or loss had been recognized upon an actual sale of each such property at such time and had been allocated to the Members pursuant to this Section 3. Similarly, in accordance with such Regulation, immediately prior to the distribution in kind of any Company property to a Member (including pursuant to a liquidation of the Company) the Capital Accounts of the Members shall be adjusted to reflect any unrealized gain or loss attributable to such property as if such unrealized gain or loss had been recognized upon an actual sale of such property at such time and had been allocated to the Members pursuant to this Section 3. Such unrealized gain or loss shall be determined using such methods of valuation as the Members in their sole discretion deem appropriate. (iii) For purposes of this agreement, net income, gross income and net loss shall be computed in the same manner as determined for federal income tax purposes, with the modifications set forth in Regulation ss. 1.704. (iv) Should any Member's adjusted capital account balance become negative as a result of any adjustment, allocation, or distribution, thereafter, acting as rapidly as is possible, from time to time such Member's 2 share of the Company's income and gain, if any, shall be separately allocated to such Member's Capital Account until such time as such Member's Capital Account deficit is eliminated. 3 (v) Non-recourse deductions shall be allocated in a manner that is reasonably consistent with other allocations of items of income, gain, or loss attributable to the property securing the non-recourse liabilities. In the first year in which the Company has non-recourse deductions or makes distributions attributable to an increase in minimum gain as defined in the Regulations, this agreement shall be deemed to include a "minimum gain chargeback" in accordance with the Regulations. 4. Members. No person or entity shall be or become a Member of the Company unless named as a Member herein or hereafter admitted as a Member of the Company with the prior written consent of all then Members. The time of admission of any such new Member shall begin when such Member's status is first reflected in writing in the Company's records, and not before. Any Member may resign, but (unless the Members agree otherwise in writing) any such resignation shall first become effective thirty (30) calendar days after the Company shall have received written notice thereof, and not before. 5. Transfer of Interests. Other than with the prior, written consent of all Members, an assignee or other transferee of an interest in the Company (by operation of law or otherwise) shall not thereby become a Member of the Company nor thereby acquire any proprietary right in nor right to become a Member or to participate in the affairs or management of the Company. Any attempted assignment or other transfer of a Member's rights in violation of this agreement shall be void. Without such prior written consent, by any written assignment, pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a Member may assign and transfer to and entitle the assignee or transferee to receive only (as and to the extent expressly so assigned or transferred) any share of the profits or losses or asset distributions of the Company that the assignor or transferor Member thereafter otherwise would have been or become entitled to hereunder, and nothing more. 6. Ceasing to be a Member. Upon any Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy, such person or entity shall cease to be a Member. Any payment made to a Member's successor in interest, personal representative, executor, or administrator shall acquit the Company of any and all liability to such Member and to any such person as may be interested in any such payment by reason of such Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy. 4 7. Certificate; Membership; Voting Rights of Members; Transfer. Each Member shall be entitled to a membership certificate (the "Certificate") evidencing such Member's interest in the Company and the number of votes entitled to be cast by such Member in voting by the Members, which Certificate shall be in such form and contain such substance as may be agreed upon by the Members or required by law. The Company shall maintain a Certificate register (the "Certificate Register") recording ownership of all Certificates then outstanding and the number of votes entitled to be cast by each Member in voting by the Members, which register, at all times, shall be conclusive evidence of each Member's interest in the Company and voting rights. Any transfer of a Member's interest in the Company, in whole or in part, other than a Transfer of an interest in a Member's share of the Company's profits or losses or assets on distribution as provided for in Section 5, shall become effective only upon (i) surrender of each Certificate representing the Member's interest then being transferred accompanied by a written assignment applicable thereto, all in form and substance satisfactory to the Company, and duly executed by the transferor, and (ii) recordation of such transfer on the Company's Certificate Register. 8. Management. The Company's business is to be managed by the Members, who shall have the exclusive right to manage the Company in their capacity as Members. The Members shall, however, have the authority from time to time to delegate specific day-to-day management functions to one or more of such persons, employees, agents, or consultants (including any affiliate of a Member) as they unanimously shall select at any time, or from time to time. Any instrument or agreement may be executed and delivered on behalf of the Company by a Member or by the Company's agent or delegate as expressly designated in writing by the Members for such purpose, including any deed or deed of trust purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, any note or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument, and no other signature shall be required for any such instrument, conveyance, or agreement to be valid, binding and enforceable against the Company in accordance with its terms. 9. Compensation and Reimbursement of Members. Members may receive compensation for the reasonable value of any services rendered in managing the Company, and the Company shall pay, or reimburse all expenses reasonably incurred by any Member in connection with managing the Company. 5 10. Certain Actions, Taxes. On the Company's behalf, the Members may make any election permitted by Section 754 of the Code with respect to adjustments to basis of the Company's property. 11. Authority of the Members to Engage in Other Businesses. Any Member, or any affiliate of a Member may engage in and/or possess an interest in other business ventures of any nature and description, independently or with others, including but not limited to the ownership, financing, leasing, operation, management, and development of businesses that may compete with the Company; and neither the Company nor the Members shall have any right by virtue of this agreement in or to any other venture or to any income or profits derived therefrom. No Member, or any affiliate of any Member shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and each of them shall have the right to take for its own account (individually or otherwise) or to recommend to others any such particular investment opportunity. 12. Authority of Persons to Deal with the Company. The Company may, but shall not be required to, transact business with, borrow money from, or lend money to any Member, or any affiliate thereof, and such person or entity shall, subject to applicable law, have the same rights and obligations with respect thereto as would a person who was not such a Member or affiliate. 13. Profits and Losses, Distributions, Books, Records, Reports, etc. (a) As and to the extent permitted and not prohibited by the Act, and as determined by a majority vote of the Members, the Company's profits and losses (and any then distributions of the Company's cash or other assets) shall be allocated and distributed among the Members at least annually in proportion to their then Capital Accounts as reflected in the Company's records. (b) The Company shall maintain and keep at its principal office described in Section 2 complete and accurate books of account as required pursuant to the Act. Each Member shall have access thereto at all reasonable times and the right to inspect and copy such books and records either directly or through a person designated by such Member. (c) The Company shall send to all Members an annual report, containing a balance sheet, income statement, and statement 6 of changes in financial position, and all information necessary for each Member to prepare its federal income tax return. 14. Exculpation. Except by reason of acts or omissions of the Member found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct or a knowing violation of the criminal law, in any proceeding brought by or in the right of the Company or by or on behalf of any Member, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee or transferee of the Company or of any Member, for any losses, claims, damages or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Member by this agreement, (ii) the performance by the Member of, or the omission to perform, any acts on advice of legal counsel, accountants or other professional consultants to the Company; or (iii) the negligence, dishonesty or bad faith of any consultant, employee, or agent of the Company selected or engaged by the Member in good faith. 15. Exoneration. No Member or agent of the Company, jointly or severally, shall be liable or have any obligation for any liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being such Member or agent of the Company. 16. Indemnification and Advances. (a) To the full extent permitted by law, the Company shall indemnify, defend and hold each Member harmless from and against, and may, with the approval of a majority vote of the Members, indemnify, defend and hold the Company's and the Member's respective affiliates, agents, employees, advisors, consultants and other independent contractors, harmless from and against, any loss, liability, damage, fine, judgment, penalty, attachment, cost or expense, including reasonable attorneys' fees, arising from any demands, claims or lawsuits against the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors, in or as a result of or relating to its capacity, actions or omissions as Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims or lawsuits initiated by a Member; provided that the acts or omissions of the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor seeking indemnification are not found by a court of competent jurisdiction 7 upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law by the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall not be entitled to indemnification hereunder or that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors did not act in good faith and in a manner that it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) Subject to the limitations herein, a Member shall be entitled to receive, upon application therefor, and the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall be entitled to receive, with the approval of a majority vote of the Members, advances from the Company to cover the costs of defending any claim or action against them relating to their acts or omissions as a Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company or a Member or otherwise relating to the Company; provided, however, that such advances shall be repaid to the Company (with Interest thereon at an annual rate equal to the prime rate in effect from time to time as reflected in The Wall Street Journal but not to exceed the maximum permitted by applicable law), if the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor that receives such advance is found by a court of competent jurisdiction upon entry of a final judgment to have violated any of the standards that preclude indemnification hereunder. All rights of the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors to indemnification as herein provided shall survive the dissolution of the Company and the death, resignation, expulsion, incompetency, dissolution, liquidation or Bankruptcy of the Member or any such other person, and shall inure to the benefit of their heirs, personal representatives, successors and assigns. (c) In the event the indemnification obligation of this Section shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section to the fullest extent permitted by law. 8 (d) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that the Member or any of its affiliates may have. Nothing contained in this Section shall limit any lawful right to indemnification existing independently of this Section. (e) Any amount that a Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors is entitled to receive hereunder shall be paid only out of and to the extent of the Company's then assets, including any insurance proceeds available to the Company for such purposes. No Member shall be liable for the payment of any amount that a Member or an affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or the Member is entitled to receive hereunder, nor to make any capital contribution to the Company, or return any capital distribution made to such person or entity by the Company, nor to restore any negative capital account balance of that Member in order to enable the Company to make any payment hereunder. 17. Dissolution. The Company shall be dissolved upon the earliest to occur of (i) the Members' unanimous written consent, (ii) entry of a decree of judicial dissolution under the Act, or (iii) the date set forth in the Articles of Organization. The death, expulsion, resignation, dissolution, incompetency, or bankruptcy of a Member or any other event that terminates the continued membership of a Member shall not cause a dissolution of the Company, because the remaining Members hereby unanimously consent to continue the business of the Company upon the happening of such event. Upon any dissolution, the Company's business shall be wound up, its liabilities satisfied, and any balance, less reasonable reserves, shall be distributed to the Members in accordance with their positive capital accounts. 18. Miscellaneous Provisions. (a) Governing Law. This agreement and the rights and liabilities of the parties shall be determined in accordance with the laws of the Commonwealth of Virginia. (b) Captions. Captions contained in this agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope or intent of this agreement or any Section or provision hereof. (c) Construction. Whenever the context may require, each pronoun used herein shall include the corresponding masculine, 9 feminine, or neuter forms, and the singular form of each noun or pronoun shall include the plural, and vice versa. (d) Severability. Every provision of this agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the terms or provisions of this agreement. (e) Successors. Subject to the limitations on transferability contained herein, each and all of the terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the personal representatives, successors, heirs, and assigns (including an assignee of all or part of any interest in the Company) of the parties hereto. (f) Execution and Counterparts. This agreement and any amendment hereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one agreement. In addition, this agreement may be executed through the use of counterpart signature pages. The signature of any party on any counterpart agreement or counterpart signature page shall be deemed to be a signature to, and may be appended to, one document. (g) Third Party Beneficiary. No provision of this agreement is intended to be for the benefit of any creditor or other person to which any debt, liability, or obligation is owed by (or that otherwise has any claim against) the Company or any Member, and no creditor or other person shall obtain any right under any of the foregoing provisions, nor shall any such person solely by reason of any of the foregoing provisions make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. (h) Investment Representation. By executing this agreement, each Member represents and warrants that such Member's interest in the Company is being acquired by it for its own account for investment and not with a view to resale or distribution thereof and that the Member is fully aware that each other Member and the Company are relying upon the truth and accuracy of this representation and warranty. (i) Entire Agreement. This agreement constitutes the sole operating agreement among the Members, and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Members relating to the affairs of the Company and the conduct of the Company's 10 business. No amendment or modification of this agreement shall be effective unless approved in writing as provided herein. 19. Notices; Consents, etc. Any notice, consent, election, approval, payment, demand, or communication required or permitted to be given by this agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes only when delivered personally to or actually received by the party or an officer of the entity to which directed or ten (10) days after having been sent by registered or certified mail, postage and charges prepaid, addressed to the address for the notified party contained in the Company's records. Any Member may change its address for purposes of this agreement by giving the Company and each other Member notice of such change, in the manner set forth above. 20. Amendment. This agreement may be amended at any time upon a unanimous vote of the Members, but such amendment shall be effective only when reduced to writing and signed by all Members. 21. This Amendment. The Operating Agreement of the Company previously entered into as of the 19th day of November, 1997 is hereby amended in its entirety to read as above, effective as of the date of this agreement. 11 IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed as of the day, month, and year first above written. Member: Brill Media Company, LLC By: Brill Media Management, Inc. Its Manager By: --------------------------- a duly authorized officer 12 EXHIBIT A Capital Name Contribution - ---- ------------ Brill Media Company, LLC $1,000.00 This is Exhibit A to the Amended Operating Agreement of BMC Holdings, LLC as of the 10th day of December, 1997. Member: Brill Media Company, LLC, By: Brill Media Management, Inc. Manager By: --------------------------- a duly authorized officer 13 BMC HOLDINGS, LLC CERTIFICATE REGISTER
=========================================================================================== Certi- Number ficate Shares/ Date Transfer To Whom Number Owner Votes Issued Date Transferred - ------------------------------------------------------------------------------------------- Brill Media Company, 1 LLC 1,000 12/22/97 - ------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------- ===========================================================================================
14 EX-3.(II)(J) 10 OPERATING AGREEMENT OF NORTHLAND BROADCASTING Exhibit 3(ii)(j) AMENDED OPERATING AGREEMENT of NORTHLAND BROADCASTING, LLC This is the Amended Operating Agreement of Northland Broadcasting, LLC, a Virginia limited liability company (the "Company"), entered into as of this __ day of ________________, 199_, by Northland Holdings, LLC, a Virginia limited liability company, and Northland Management, Inc., a Virginia corporation, the Company's members [each (and each other person or entity while hereafter admitted as a Member) a "Member", and collectively with each other Member, the "Members"]. 1. Name. The name of the Company is Northland Broadcasting, LLC. The business of the Company may be conducted under such trade or fictitious name or names as the Members may select from time to time. 2. Principal Office. The Company's principal office, where the Company's principal executive offices are located and at which the records required to be maintained by the Act (hereinafter defined) are to be kept shall be located at 420 NW Fifth Street, Suite 3-B, Evansville, Indiana 47708, or at such other place or places as the Members may determine from time to time. 3. Capital Accounts. (a) Capital Contributions. The amount of the Members' capital contributions (to be made simultaneously with their execution of this agreement) are set forth on Exhibit A; such Members shall not be required to lend or make any additional capital contribution. (b) Capital Accounts; Allocations. A separate capital account (singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be established and maintained for each Member. As of any date, the amount of a Member's Capital Account shall be adjusted and any allocations of the Company's income, gain, loss, deductions, or credits (or items thereof) shall be determined and made as hereinafter provided and in accordance with the Company's records and, to the extent consistent herewith, applicable provisions of the Virginia Limited Liability Company Act as it may be amended or superseded from time to time (the "Act"): (i) Each Member's Capital Account (a) shall be increased by (i) the cash amount or agreed fair market value of all contributions hereafter made by such Member to the Company, (ii) any net income allocated (but not distributed) to such Member pursuant to this Section 3, and any items in the nature of income or gain that are specially allocated (but not distributed) to such Member, and (iii) the amount of any Company liabilities assumed by such Member or secured by any property of the Company distributed to such Member, and (b) shall be decreased by (i) the cash amount or agreed fair market value of all actual or deemed distributions of cash or property made to such Member pursuant to this agreement, (ii) any net loss allocated to such Member pursuant to this Section 3, and any items in the nature of expenses or losses that are specially allocated to such Member, and (iii) the amount of any liabilities of such Member assumed or secured by the Company. In determining the amount of any such liabilities, there shall be taken into account the provisions of ss. 752(c), and any other applicable provisions, of the Internal Revenue Code as amended from time to time (the "Code") and any applicable regulations (the "Regulations"; singly, a "Regulation") thereunder. (ii) In accordance with Regulation ss. 1.704, at appropriate times, the Capital Accounts of all Members and the carrying values of all Company properties shall be adjusted upwards or downwards to reflect any unrealized gain or loss attributable to each Company property, as if such unrealized gain or loss had been recognized upon an actual sale of each such property at such time and had been allocated to the Members pursuant to this Section 3. Similarly, in accordance with such Regulation, immediately prior to the distribution in kind of any Company property to a Member (including pursuant to a liquidation of the Company) the Capital Accounts of the Members shall be adjusted to reflect any unrealized gain or loss attributable to such property as if such unrealized gain or loss had been recognized upon an actual sale of such property at such time and had been allocated to the Members pursuant to this Section 3. Such unrealized gain or loss shall be determined using such methods of valuation as the Members in their sole discretion deem appropriate. (iii) For purposes of this agreement, net income, gross income and net loss shall be computed in the same manner as determined for federal income tax purposes, with the modifications set forth in Regulation ss. 1.704. (iv) Should any Member's adjusted capital account balance become negative as a result of any adjustment, allocation, or distribution, thereafter, acting as 2 rapidly as is possible, from time to time such Member's share of the Company's income and gain, if any, shall be separately allocated to such Member's Capital Account until such time as such Member's Capital Account deficit is eliminated. 3 (v) Non-recourse deductions shall be allocated in a manner that is reasonably consistent with other allocations of items of income, gain, or loss attributable to the property securing the non-recourse liabilities. In the first year in which the Company has non-recourse deductions or makes distributions attributable to an increase in minimum gain as defined in the Regulations, this agreement shall be deemed to include a "minimum gain chargeback" in accordance with the Regulations. 4. Members. No person or entity shall be or become a Member of the Company unless named as a Member herein or hereafter admitted as a Member of the Company with the prior written consent of all then Members. The time of admission of any such new Member shall begin when such Member's status is first reflected in writing in the Company's records, and not before. Any Member may resign, but (unless the Members agree otherwise in writing) any such resignation shall first become effective thirty (30) calendar days after the Company shall have received written notice thereof, and not before. 5. Transfer of Interests. Other than with the prior, written consent of all Members, an assignee or other transferee of an interest in the Company (by operation of law or otherwise) shall not thereby become a Member of the Company nor thereby acquire any proprietary right in nor right to become a Member or to participate in the affairs or management of the Company. Any attempted assignment or other transfer of a Member's rights in violation of this agreement shall be void. Without such prior written consent, by any written assignment, pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a Member may assign and transfer to and entitle the assignee or transferee to receive only (as and to the extent expressly so assigned or transferred) any share of the profits or losses or asset distributions of the Company that the assignor or transferor Member thereafter otherwise would have been or become entitled to hereunder, and nothing more. 6. Ceasing to be a Member. Upon any Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy, such person or entity shall cease to be a Member. Any payment made to a Member's successor in interest, personal representative, executor, or administrator shall acquit the Company of any and all liability to such Member and to any such person as may be interested in any such payment by reason of such Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy. 4 7. Certificate; Membership; Voting Rights of Members; Transfer. Each Member shall be entitled to a membership certificate (the "Certificate") evidencing such Member's interest in the Company and the number of votes entitled to be cast by such Member in voting by the Members, which Certificate shall be in such form and contain such substance as may be agreed upon by the Members or required by law. The Company shall maintain a Certificate register (the "Certificate Register") recording ownership of all Certificates then outstanding and the number of votes entitled to be cast by each Member in voting by the Members, which register, at all times, shall be conclusive evidence of each Member's interest in the Company and voting rights. Any transfer of a Member's interest in the Company, in whole or in part, other than a Transfer of an interest in a Member's share of the Company's profits or losses or assets on distribution as provided for in Section 5, shall become effective only upon (i) surrender of each Certificate representing the Member's interest then being transferred accompanied by a written assignment applicable thereto, all in form and substance satisfactory to the Company, and duly executed by the transferor, and (ii) recordation of such transfer on the Company's Certificate Register. 8. Management. The Company's business is to be managed by a manager (the "Manager") who shall be Northland Holdings, LLC, who shall have the exclusive right to manage the Company. The Manager shall have the sole and exclusive right to manage the Company and to make all decisions regarding the Company's business, including the right, power, and authority to do in the name of, and acting solely on behalf of and for, the Company all lawful things that the Company might do that in the Manager's sole good faith business judgment of the best interests of the Company are necessary, proper, convenient, or desirable to carry out the purposes of the Company. Any instrument or agreement may be executed and delivered on behalf of the Company by the Manager, including any deed or deed of trust purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, any note or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument. 9. Compensation and Reimbursement of Members. Members may receive compensation for the reasonable value of any services rendered in managing the Company, and the Company shall pay, or reimburse all expenses reasonably incurred by any Member in connection with managing the Company. 5 10. Certain Actions, Taxes. On the Company's behalf, the Members may make any election permitted by Section 754 of the Code with respect to adjustments to basis of the Company's property. 11. Authority of the Members to Engage in Other Businesses. Any Member, or any affiliate of a Member may engage in and/or possess an interest in other business ventures of any nature and description, independently or with others, including but not limited to the ownership, financing, leasing, operation, 6 management, and development of businesses that may compete with the Company; and neither the Company nor the Members shall have any right by virtue of this agreement in or to any other venture or to any income or profits derived therefrom. No Member, or any affiliate of any Member shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and each of them shall have the right to take for its own account (individually or otherwise) or to recommend to others any such particular investment opportunity. 12. Authority of Persons to Deal with the Company. The Company may, but shall not be required to, transact business with, borrow money from, or lend money to any Member, or any affiliate thereof, and such person or entity shall, subject to applicable law, have the same rights and obligations with respect thereto as would a person who was not such a Member or affiliate. 13. Profits and Losses, Distributions, Books, Records, Reports, etc. (a) As and to the extent permitted and not prohibited by the Act, and as determined by a majority vote of the Members, the Company's profits and losses (and any then distributions of the Company's cash or other assets) shall be allocated and distributed among the Members at least annually in proportion to their then Capital Accounts as reflected in the Company's records. (b) The Company shall maintain and keep at its principal office described in Section 2 complete and accurate books of account as required pursuant to the Act. Each Member shall have access thereto at all reasonable times and the right to inspect and copy such books and records either directly or through a person designated by such Member. (c) The Company shall send to all Members an annual report, containing a balance sheet, income statement, and statement of changes in financial position, and all information necessary for each Member to prepare its federal income tax return. 14. Exculpation. Except by reason of acts or omissions of the Member found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct or a knowing violation of the criminal law, in any proceeding brought by or in the right of the Company or by or on behalf of any Member, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee or transferee of the Company or of any Member, 7 for any losses, claims, damages or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Member by this agreement, (ii) the performance by the Member of, or the omission to perform, any acts on advice of legal counsel, accountants or other professional consultants to the Company; or (iii) the negligence, dishonesty or bad faith of any consultant, employee, or agent of the Company selected or engaged by the Member in good faith. 15. Exoneration. No Member or agent of the Company, jointly or severally, shall be liable or have any obligation for any liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being such Member or agent of the Company. 16. Indemnification and Advances. (a) To the full extent permitted by law, the Company shall indemnify, defend and hold each Member harmless from and against, and may, with the approval of a majority vote of the Members, indemnify, defend and hold the Company's and the Member's respective affiliates, agents, employees, advisors, consultants and other independent contractors, harmless from and against, any loss, liability, damage, fine, judgment, penalty, attachment, cost or expense, including reasonable attorneys' fees, arising from any demands, claims or lawsuits against the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors, in or as a result of or relating to its capacity, actions or omissions as Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims or lawsuits initiated by a Member; provided that the acts or omissions of the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor seeking indemnification are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law by the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall not be entitled to indemnification hereunder or that the Member or the Company's or 8 the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors did not act in good faith and in a manner that it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) Subject to the limitations herein, a Member shall be entitled to receive, upon application therefor, and the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall be entitled to receive, with the approval of a majority vote of the Members, advances from the Company to cover the costs of defending any claim or action against them relating to their acts or omissions as a Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company or a Member or otherwise relating to the Company; provided, however, that such advances shall be repaid to the Company (with Interest thereon at an annual rate equal to the prime rate in effect from time to time as reflected in The Wall Street Journal but not to exceed the maximum permitted by applicable law), if the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor that receives such advance is found by a court of competent jurisdiction upon entry of a final judgment to have violated any of the standards that preclude indemnification hereunder. All rights of the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors to indemnification as herein provided shall survive the dissolution of the Company and the death, resignation, expulsion, incompetency, dissolution, liquidation or Bankruptcy of the Member or any such other person, and shall inure to the benefit of their heirs, personal representatives, successors and assigns. (c) In the event the indemnification obligation of this Section shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section to the fullest extent permitted by law. (d) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that the Member or any of its affiliates may have. Nothing contained in this Section shall limit any lawful right to indemnification existing independently of this Section. (e) Any amount that a Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors is entitled to receive hereunder shall be paid only out of and to the extent of the 9 Company's then assets, including any insurance proceeds available to the Company for such purposes. No Member shall be liable for the payment of any amount that a Member or an affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or the Member is entitled to receive hereunder, nor to make any capital contribution to the Company, or return any capital distribution made to such person or entity by the Company, nor to restore any negative capital account balance of that Member in order to enable the Company to make any payment hereunder. 17. Dissolution. The Company shall be dissolved upon the earliest to occur of (i) the Members' unanimous written consent, (ii) entry of a decree of judicial dissolution under the Act, or (iii) the date set forth in the Articles of Organization. The death, expulsion, resignation, dissolution, incompetency, or bankruptcy of a Member or any other event that terminates the continued membership of a Member shall not cause a dissolution of the Company, because the remaining Members hereby unanimously consent to continue the business of the Company upon the happening of such event. Upon any dissolution, the Company's business shall be wound up, its liabilities satisfied, and any balance, less reasonable reserves, shall be distributed to the Members in accordance with their positive capital accounts. 18. Miscellaneous Provisions. (a) Governing Law. This agreement and the rights and liabilities of the parties shall be determined in accordance with the laws of the Commonwealth of Virginia. (b) Captions. Captions contained in this agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope or intent of this agreement or any Section or provision hereof. (c) Construction. Whenever the context may require, each pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of each noun or pronoun shall include the plural, and vice versa. (d) Severability. Every provision of this agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the terms or provisions of this agreement. (e) Successors. Subject to the limitations on transferability contained herein, each and all of the terms, 10 provisions and agreements herein contained shall be binding upon and inure to the benefit of the personal representatives, successors, heirs, and assigns (including an assignee of all or part of any interest in the Company) of the parties hereto. (f) Execution and Counterparts. This agreement and any amendment hereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one agreement. In addition, this agreement may be executed through the use of counterpart signature pages. The signature of any party on any counterpart agreement or counterpart signature page shall be deemed to be a signature to, and may be appended to, one document. (g) Third Party Beneficiary. No provision of this agreement is intended to be for the benefit of any creditor or other person to which any debt, liability, or obligation is owed by (or that otherwise has any claim against) the Company or any Member, and no creditor or other person shall obtain any right under any of the foregoing provisions, nor shall any such person solely by reason of any of the foregoing provisions make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. (h) Investment Representation. By executing this agreement, each Member represents and warrants that such Member's interest in the Company is being acquired by it for its own account for investment and not with a view to resale or distribution thereof and that the Member is fully aware that each other Member and the Company are relying upon the truth and accuracy of this representation and warranty. (i) Entire Agreement. This agreement constitutes the sole operating agreement among the Members, and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Members relating to the affairs of the Company and the conduct of the Company's business. No amendment or modification of this agreement shall be effective unless approved in writing as provided herein. 19. Notices; Consents, etc. Any notice, consent, election, approval, payment, demand, or communication required or permitted to be given by this agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes only when delivered personally to or actually received by the party or an officer of the entity to which directed or ten (10) days after having been sent by registered or certified mail, postage and charges prepaid, addressed to the address for the notified party 11 contained in the Company's records. Any Member may change its address for purposes of this agreement by giving the Company and each other Member notice of such change, in the manner set forth above. 20. Amendment. This agreement may be amended at any time upon a unanimous vote of the Members, but such amendment shall be effective only when reduced to writing and signed by all Members. 21. This Amendment. The Operating Agreement of the Company previously entered into as of the 24th day of February 1997 is hereby amended in its entirety to read as above, effective as of the date of this agreement. 12 IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed as of the day, month, and year first above written. Member: Northland Holdings, LLC, By: Northland Management, Inc. Manager By:___________________________ a duly authorized officer Member: Northland Management, Inc. By:_________________________________ a duly authorized officer 13 EXHIBIT A Capital Name Contribution - ---- ------------ Northland Holdings, LLC $990.00 Northland Management, Inc. $ 10.00 This is Exhibit A to the Amended Operating Agreement of Northland Broadcasting, LLC as of the ___ day of ___________, 199_. Member: Northland Holdings, LLC, By: Northland Management, Inc. Manager By:___________________________ a duly authorized officer Member: Northland Management, Inc. By:_________________________________ a duly authorized officer 14 NORTHLAND BROADCASTING, LLC CERTIFICATE REGISTER ================================================================================ Certi- Number ficate Shares/ Date Transfer To Whom Number Owner Votes Issued Date Transferred - -------------------------------------------------------------------------------- Northland Holdings, 1 LLC 990 12/___/97 - -------------------------------------------------------------------------------- 2 Northland Management 10 12/___/97 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ================================================================================ 15 EX-3.(II)(U) 11 AMENDED OPERATING AGREEMENT HURON P.S. LLC Exhibit 3(ii)(u) AMENDED OPERATING AGREEMENT of HURON P.S., LLC This is the Amended Operating Agreement of Huron P.S., LLC, a Virginia limited liability company (the "Company"), entered into as of this __ day of ________________, 199_, by Huron Holdings, LLC, a Virginia limited liability company, and Huron Management, Inc., a Virginia corporation, the Company's members [each (and each other person or entity while hereafter admitted as a Member) a "Member", and collectively with each other Member, the "Members"]. 1. Name. The name of the Company is Huron P.S., LLC. The business of the Company may be conducted under such trade or fictitious name or names as the Members may select from time to time. 2. Principal Office. The Company's principal office, where the Company's principal executive offices are located and at which the records required to be maintained by the Act (hereinafter defined) are to be kept shall be located at 420 NW Fifth Street, Suite 3-B, Evansville, Indiana 47708, or at such other place or places as the Members may determine from time to time. 3. Capital Accounts. (a) Capital Contributions. The amount of the Members' capital contributions (to be made simultaneously with their execution of this agreement) are set forth on Exhibit A; such Members shall not be required to lend or make any additional capital contribution. (b) Capital Accounts; Allocations. A separate capital account (singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be established and maintained for each Member. As of any date, the amount of a Member's Capital Account shall be adjusted and any allocations of the Company's income, gain, loss, deductions, or credits (or items thereof) shall be determined and made as hereinafter provided and in accordance with the Company's records and, to the extent consistent herewith, applicable provisions of the Virginia Limited Liability Company Act as it may be amended or superseded from time to time (the "Act"): (i) Each Member's Capital Account (a) shall be increased by (i) the cash amount or agreed fair market value of all contributions hereafter made by such Member to the Company, (ii) any net income allocated (but not distributed) to such Member pursuant to this Section 3, and any items in the nature of income or gain that are specially allocated (but not distributed) to such Member, and (iii) the amount of any Company liabilities assumed by such Member or secured by any property of the Company distributed to such Member, and (b) shall be decreased by (i) the cash amount or agreed fair market value of all actual or deemed distributions of cash or property made to such Member pursuant to this agreement, (ii) any net loss allocated to such Member pursuant to this Section 3, and any items in the nature of expenses or losses that are specially allocated to such Member, and (iii) the amount of any liabilities of such Member assumed or secured by the Company. In determining the amount of any such liabilities, there shall be taken into account the provisions of ss. 752(c), and any other applicable provisions, of the Internal Revenue Code as amended from time to time (the "Code") and any applicable regulations (the "Regulations"; singly, a "Regulation") thereunder. (ii) In accordance with Regulation ss. 1.704, at appropriate times, the Capital Accounts of all Members and the carrying values of all Company properties shall be adjusted upwards or downwards to reflect any unrealized gain or loss attributable to each Company property, as if such unrealized gain or loss had been recognized upon an actual sale of each such property at such time and had been allocated to the Members pursuant to this Section 3. Similarly, in accordance with such Regulation, immediately prior to the distribution in kind of any Company property to a Member (including pursuant to a liquidation of the Company) the Capital Accounts of the Members shall be adjusted to reflect any unrealized gain or loss attributable to such property as if such unrealized gain or loss had been recognized upon an actual sale of such property at such time and had been allocated to the Members pursuant to this Section 3. Such unrealized gain or loss shall be determined using such methods of valuation as the Members in their sole discretion deem appropriate. (iii) For purposes of this agreement, net income, gross income and net loss shall be computed in the same manner as determined for federal income tax purposes, with the modifications set forth in Regulation ss. 1.704. (iv) Should any Member's adjusted capital account balance become negative as a result of any adjustment, allocation, or distribution, thereafter, acting as rapidly as is possible, from time to time such Member's 2 share of the Company's income and gain, if any, shall be separately allocated to such Member's Capital Account until such time as such Member's Capital Account deficit is eliminated. 3 (v) Non-recourse deductions shall be allocated in a manner that is reasonably consistent with other allocations of items of income, gain, or loss attributable to the property securing the non-recourse liabilities. In the first year in which the Company has non-recourse deductions or makes distributions attributable to an increase in minimum gain as defined in the Regulations, this agreement shall be deemed to include a "minimum gain chargeback" in accordance with the Regulations. 4. Members. No person or entity shall be or become a Member of the Company unless named as a Member herein or hereafter admitted as a Member of the Company with the prior written consent of all then Members. The time of admission of any such new Member shall begin when such Member's status is first reflected in writing in the Company's records, and not before. Any Member may resign, but (unless the Members agree otherwise in writing) any such resignation shall first become effective thirty (30) calendar days after the Company shall have received written notice thereof, and not before. 5. Transfer of Interests. Other than with the prior, written consent of all Members, an assignee or other transferee of an interest in the Company (by operation of law or otherwise) shall not thereby become a Member of the Company nor thereby acquire any proprietary right in nor right to become a Member or to participate in the affairs or management of the Company. Any attempted assignment or other transfer of a Member's rights in violation of this agreement shall be void. Without such prior written consent, by any written assignment, pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a Member may assign and transfer to and entitle the assignee or transferee to receive only (as and to the extent expressly so assigned or transferred) any share of the profits or losses or asset distributions of the Company that the assignor or transferor Member thereafter otherwise would have been or become entitled to hereunder, and nothing more. 6. Ceasing to be a Member. Upon any Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy, such person or entity shall cease to be a Member. Any payment made to a Member's successor in interest, personal representative, executor, or administrator shall acquit the Company of any and all liability to such Member and to any such person as may be interested in any such payment by reason of such Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy. 4 7. Certificate; Membership; Voting Rights of Members; Transfer. Each Member shall be entitled to a membership certificate (the "Certificate") evidencing such Member's interest in the Company and the number of votes entitled to be cast by such Member in voting by the Members, which Certificate shall be in such form and contain such substance as may be agreed upon by the Members or required by law. The Company shall maintain a Certificate register (the "Certificate Register") recording ownership of all Certificates then outstanding and the number of votes entitled to be cast by each Member in voting by the Members, which register, at all times, shall be conclusive evidence of each Member's interest in the Company and voting rights. Any transfer of a Member's interest in the Company, in whole or in part, other than a Transfer of an interest in a Member's share of the Company's profits or losses or assets on distribution as provided for in Section 5, shall become effective only upon (i) surrender of each Certificate representing the Member's interest then being transferred accompanied by a written assignment applicable thereto, all in form and substance satisfactory to the Company, and duly executed by the transferor, and (ii) recordation of such transfer on the Company's Certificate Register. 8. Management. The Company's business is to be managed by a manager (the "Manager") who shall be Huron Holdings, LLC, who shall have the exclusive right to manage the Company. The Manager shall have the sole and exclusive right to manage the Company and to make all decisions regarding the Company's business, including the right, power, and authority to do in the name of, and acting solely on behalf of and for, the Company all lawful things that the Company might do that in the Manager's sole good faith business judgment of the best interests of the Company are necessary, proper, convenient, or desirable to carry out the purposes of the Company. Any instrument or agreement may be executed and delivered on behalf of the Company by the Manager, including any deed or deed of trust purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, any note or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument. 9. Compensation and Reimbursement of Members. Members may receive compensation for the reasonable value of any services rendered in managing the Company, and the Company shall pay, or reimburse all expenses reasonably incurred by any Member in connection with managing the Company. 5 10. Certain Actions, Taxes. On the Company's behalf, the Members may make any election permitted by Section 754 of the Code with respect to adjustments to basis of the Company's property. 11. Authority of the Members to Engage in Other Businesses. Any Member, or any affiliate of a Member may engage in and/or possess an interest in other business ventures of any nature and description, independently or with others, including but not limited to the ownership, financing, leasing, operation, 6 management, and development of businesses that may compete with the Company; and neither the Company nor the Members shall have any right by virtue of this agreement in or to any other venture or to any income or profits derived therefrom. No Member, or any affiliate of any Member shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and each of them shall have the right to take for its own account (individually or otherwise) or to recommend to others any such particular investment opportunity. 12. Authority of Persons to Deal with the Company. The Company may, but shall not be required to, transact business with, borrow money from, or lend money to any Member, or any affiliate thereof, and such person or entity shall, subject to applicable law, have the same rights and obligations with respect thereto as would a person who was not such a Member or affiliate. 13. Profits and Losses, Distributions, Books, Records, Reports, etc. (a) As and to the extent permitted and not prohibited by the Act, and as determined by a majority vote of the Members, the Company's profits and losses (and any then distributions of the Company's cash or other assets) shall be allocated and distributed among the Members at least annually in proportion to their then Capital Accounts as reflected in the Company's records. (b) The Company shall maintain and keep at its principal office described in Section 2 complete and accurate books of account as required pursuant to the Act. Each Member shall have access thereto at all reasonable times and the right to inspect and copy such books and records either directly or through a person designated by such Member. (c) The Company shall send to all Members an annual report, containing a balance sheet, income statement, and statement of changes in financial position, and all information necessary for each Member to prepare its federal income tax return. 14. Exculpation. Except by reason of acts or omissions of the Member found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct or a knowing violation of the criminal law, in any proceeding brought by or in the right of the Company or by or on behalf of any Member, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee or transferee of the Company or of any Member, 7 for any losses, claims, damages or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Member by this agreement, (ii) the performance by the Member of, or the omission to perform, any acts on advice of legal counsel, accountants or other professional consultants to the Company; or (iii) the negligence, dishonesty or bad faith of any consultant, employee, or agent of the Company selected or engaged by the Member in good faith. 15. Exoneration. No Member or agent of the Company, jointly or severally, shall be liable or have any obligation for any liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being such Member or agent of the Company. 16. Indemnification and Advances. (a) To the full extent permitted by law, the Company shall indemnify, defend and hold each Member harmless from and against, and may, with the approval of a majority vote of the Members, indemnify, defend and hold the Company's and the Member's respective affiliates, agents, employees, advisors, consultants and other independent contractors, harmless from and against, any loss, liability, damage, fine, judgment, penalty, attachment, cost or expense, including reasonable attorneys' fees, arising from any demands, claims or lawsuits against the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors, in or as a result of or relating to its capacity, actions or omissions as Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims or lawsuits initiated by a Member; provided that the acts or omissions of the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor seeking indemnification are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law by the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall not be entitled to indemnification hereunder or that the Member or the Company's or 8 the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors did not act in good faith and in a manner that it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) Subject to the limitations herein, a Member shall be entitled to receive, upon application therefor, and the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall be entitled to receive, with the approval of a majority vote of the Members, advances from the Company to cover the costs of defending any claim or action against them relating to their acts or omissions as a Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company or a Member or otherwise relating to the Company; provided, however, that such advances shall be repaid to the Company (with Interest thereon at an annual rate equal to the prime rate in effect from time to time as reflected in The Wall Street Journal but not to exceed the maximum permitted by applicable law), if the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor that receives such advance is found by a court of competent jurisdiction upon entry of a final judgment to have violated any of the standards that preclude indemnification hereunder. All rights of the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors to indemnification as herein provided shall survive the dissolution of the Company and the death, resignation, expulsion, incompetency, dissolution, liquidation or Bankruptcy of the Member or any such other person, and shall inure to the benefit of their heirs, personal representatives, successors and assigns. (c) In the event the indemnification obligation of this Section shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section to the fullest extent permitted by law. (d) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that the Member or any of its affiliates may have. Nothing contained in this Section shall limit any lawful right to indemnification existing independently of this Section. (e) Any amount that a Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors is entitled to receive hereunder shall be paid only out of and to the extent of the 9 Company's then assets, including any insurance proceeds available to the Company for such purposes. No Member shall be liable for the payment of any amount that a Member or an affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or the Member is entitled to receive hereunder, nor to make any capital contribution to the Company, or return any capital distribution made to such person or entity by the Company, nor to restore any negative capital account balance of that Member in order to enable the Company to make any payment hereunder. 17. Dissolution. The Company shall be dissolved upon the earliest to occur of (i) the Members' unanimous written consent, (ii) entry of a decree of judicial dissolution under the Act, or (iii) the date set forth in the Articles of Organization. The death, expulsion, resignation, dissolution, incompetency, or bankruptcy of a Member or any other event that terminates the continued membership of a Member shall not cause a dissolution of the Company, because the remaining Members hereby unanimously consent to continue the business of the Company upon the happening of such event. Upon any dissolution, the Company's business shall be wound up, its liabilities satisfied, and any balance, less reasonable reserves, shall be distributed to the Members in accordance with their positive capital accounts. 18. Miscellaneous Provisions. (a) Governing Law. This agreement and the rights and liabilities of the parties shall be determined in accordance with the laws of the Commonwealth of Virginia. (b) Captions. Captions contained in this agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope or intent of this agreement or any Section or provision hereof. (c) Construction. Whenever the context may require, each pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of each noun or pronoun shall include the plural, and vice versa. (d) Severability. Every provision of this agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the terms or provisions of this agreement. (e) Successors. Subject to the limitations on transferability contained herein, each and all of the terms, 10 provisions and agreements herein contained shall be binding upon and inure to the benefit of the personal representatives, successors, heirs, and assigns (including an assignee of all or part of any interest in the Company) of the parties hereto. (f) Execution and Counterparts. This agreement and any amendment hereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one agreement. In addition, this agreement may be executed through the use of counterpart signature pages. The signature of any party on any counterpart agreement or counterpart signature page shall be deemed to be a signature to, and may be appended to, one document. (g) Third Party Beneficiary. No provision of this agreement is intended to be for the benefit of any creditor or other person to which any debt, liability, or obligation is owed by (or that otherwise has any claim against) the Company or any Member, and no creditor or other person shall obtain any right under any of the foregoing provisions, nor shall any such person solely by reason of any of the foregoing provisions make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. (h) Investment Representation. By executing this agreement, each Member represents and warrants that such Member's interest in the Company is being acquired by it for its own account for investment and not with a view to resale or distribution thereof and that the Member is fully aware that each other Member and the Company are relying upon the truth and accuracy of this representation and warranty. (i) Entire Agreement. This agreement constitutes the sole operating agreement among the Members, and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Members relating to the affairs of the Company and the conduct of the Company's business. No amendment or modification of this agreement shall be effective unless approved in writing as provided herein. 19. Notices; Consents, etc. Any notice, consent, election, approval, payment, demand, or communication required or permitted to be given by this agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes only when delivered personally to or actually received by the party or an officer of the entity to which directed or ten (10) days after having been sent by registered or certified mail, postage and charges prepaid, addressed to the address for the notified party 11 contained in the Company's records. Any Member may change its address for purposes of this agreement by giving the Company and each other Member notice of such change, in the manner set forth above. 20. Amendment. This agreement may be amended at any time upon a unanimous vote of the Members, but such amendment shall be effective only when reduced to writing and signed by all Members. 21. This Amendment. The Operating Agreement of the Company previously entered into as of the 15th day of September 1997 is hereby amended in its entirety to read as above, effective as of the date of this agreement. 12 IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed as of the day, month, and year first above written. Member: Huron Holdings, LLC, By: Huron Management, Inc. Manager By: -------------------------- a duly authorized officer Member: Huron Management, Inc. By: -------------------------- a duly authorized officer 13 EXHIBIT A Capital Name Contribution - ---- ------------ Huron Holdings, LLC $990.00 Huron Management, Inc. $ 10.00 This is Exhibit A to the Amended Operating Agreement of Huron P.S., LLC as of the ___ day of ___________, 199_. Member: Huron Holdings, LLC, By: Huron Management, Inc. Manager By: -------------------------- a duly authorized officer Member: Huron Management, Inc. By: -------------------------- a duly authorized officer 14 HURON P.S., LLC CERTIFICATE REGISTER ================================================================================ Certi- Number ficate Shares/ Date Transfer To Whom Number Owner Votes Issued Date Transferred - -------------------------------------------------------------------------------- 1 Huron Holdings, LLC 990 12/___/97 - -------------------------------------------------------------------------------- Huron Management, 2 Inc. 10 12/___/97 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ================================================================================ 15 EX-3.(II)(V) 12 AMENDED OPERATING AGREEMENT HURON NEWSPAPERS Exhibit 3(ii)(v) AMENDED OPERATING AGREEMENT of HURON NEWSPAPERS, LLC This is the Amended Operating Agreement of Huron Newspapers, LLC, a Virginia limited liability company (the "Company"), entered into as of this __ day of ________________, 199_, by Huron Holdings, LLC, a Virginia limited liability company, and Huron Management, Inc., a Virginia corporation, the Company's members [each (and each other person or entity while hereafter admitted as a Member) a "Member", and collectively with each other Member, the "Members"]. 1. Name. The name of the Company is Huron Newspapers, LLC. The business of the Company may be conducted under such trade or fictitious name or names as the Members may select from time to time. 2. Principal Office. The Company's principal office, where the Company's principal executive offices are located and at which the records required to be maintained by the Act (hereinafter defined) are to be kept shall be located at 420 NW Fifth Street, Suite 3-B, Evansville, Indiana 47708, or at such other place or places as the Members may determine from time to time. 3. Capital Accounts. (a) Capital Contributions. The amount of the Members' capital contributions (to be made simultaneously with their execution of this agreement) are set forth on Exhibit A; such Members shall not be required to lend or make any additional capital contribution. (b) Capital Accounts; Allocations. A separate capital account (singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be established and maintained for each Member. As of any date, the amount of a Member's Capital Account shall be adjusted and any allocations of the Company's income, gain, loss, deductions, or credits (or items thereof) shall be determined and made as hereinafter provided and in accordance with the Company's records and, to the extent consistent herewith, applicable provisions of the Virginia Limited Liability Company Act as it may be amended or superseded from time to time (the "Act"): (i) Each Member's Capital Account (a) shall be increased by (i) the cash amount or agreed fair market value of all contributions hereafter made by such Member to the Company, (ii) any net income allocated (but not distributed) to such Member pursuant to this Section 3, and any items in the nature of income or gain that are specially allocated (but not distributed) to such Member, and (iii) the amount of any Company liabilities assumed by such Member or secured by any property of the Company distributed to such Member, and (b) shall be decreased by (i) the cash amount or agreed fair market value of all actual or deemed distributions of cash or property made to such Member pursuant to this agreement, (ii) any net loss allocated to such Member pursuant to this Section 3, and any items in the nature of expenses or losses that are specially allocated to such Member, and (iii) the amount of any liabilities of such Member assumed or secured by the Company. In determining the amount of any such liabilities, there shall be taken into account the provisions of ss. 752(c), and any other applicable provisions, of the Internal Revenue Code as amended from time to time (the "Code") and any applicable regulations (the "Regulations"; singly, a "Regulation") thereunder. (ii) In accordance with Regulation ss. 1.704, at appropriate times, the Capital Accounts of all Members and the carrying values of all Company properties shall be adjusted upwards or downwards to reflect any unrealized gain or loss attributable to each Company property, as if such unrealized gain or loss had been recognized upon an actual sale of each such property at such time and had been allocated to the Members pursuant to this Section 3. Similarly, in accordance with such Regulation, immediately prior to the distribution in kind of any Company property to a Member (including pursuant to a liquidation of the Company) the Capital Accounts of the Members shall be adjusted to reflect any unrealized gain or loss attributable to such property as if such unrealized gain or loss had been recognized upon an actual sale of such property at such time and had been allocated to the Members pursuant to this Section 3. Such unrealized gain or loss shall be determined using such methods of valuation as the Members in their sole discretion deem appropriate. (iii) For purposes of this agreement, net income, gross income and net loss shall be computed in the same manner as determined for federal income tax purposes, with the modifications set forth in Regulation ss. 1.704. (iv) Should any Member's adjusted capital account balance become negative as a result of any adjustment, allocation, or distribution, thereafter, acting as 2 rapidly as is possible, from time to time such Member's share of the Company's income and gain, if any, shall be separately allocated to such Member's Capital Account until such time as such Member's Capital Account deficit is eliminated. 3 (v) Non-recourse deductions shall be allocated in a manner that is reasonably consistent with other allocations of items of income, gain, or loss attributable to the property securing the non-recourse liabilities. In the first year in which the Company has non-recourse deductions or makes distributions attributable to an increase in minimum gain as defined in the Regulations, this agreement shall be deemed to include a "minimum gain chargeback" in accordance with the Regulations. 4. Members. No person or entity shall be or become a Member of the Company unless named as a Member herein or hereafter admitted as a Member of the Company with the prior written consent of all then Members. The time of admission of any such new Member shall begin when such Member's status is first reflected in writing in the Company's records, and not before. Any Member may resign, but (unless the Members agree otherwise in writing) any such resignation shall first become effective thirty (30) calendar days after the Company shall have received written notice thereof, and not before. 5. Transfer of Interests. Other than with the prior, written consent of all Members, an assignee or other transferee of an interest in the Company (by operation of law or otherwise) shall not thereby become a Member of the Company nor thereby acquire any proprietary right in nor right to become a Member or to participate in the affairs or management of the Company. Any attempted assignment or other transfer of a Member's rights in violation of this agreement shall be void. Without such prior written consent, by any written assignment, pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a Member may assign and transfer to and entitle the assignee or transferee to receive only (as and to the extent expressly so assigned or transferred) any share of the profits or losses or asset distributions of the Company that the assignor or transferor Member thereafter otherwise would have been or become entitled to hereunder, and nothing more. 6. Ceasing to be a Member. Upon any Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy, such person or entity shall cease to be a Member. Any payment made to a Member's successor in interest, personal representative, executor, or administrator shall acquit the Company of any and all liability to such Member and to any such person as may be interested in any such payment by reason of such Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy. 4 7. Certificate; Membership; Voting Rights of Members; Transfer. Each Member shall be entitled to a membership certificate (the "Certificate") evidencing such Member's interest in the Company and the number of votes entitled to be cast by such Member in voting by the Members, which Certificate shall be in such form and contain such substance as may be agreed upon by the Members or required by law. The Company shall maintain a Certificate register (the "Certificate Register") recording ownership of all Certificates then outstanding and the number of votes entitled to be cast by each Member in voting by the Members, which register, at all times, shall be conclusive evidence of each Member's interest in the Company and voting rights. Any transfer of a Member's interest in the Company, in whole or in part, other than a Transfer of an interest in a Member's share of the Company's profits or losses or assets on distribution as provided for in Section 5, shall become effective only upon (i) surrender of each Certificate representing the Member's interest then being transferred accompanied by a written assignment applicable thereto, all in form and substance satisfactory to the Company, and duly executed by the transferor, and (ii) recordation of such transfer on the Company's Certificate Register. 8. Management. The Company's business is to be managed by a manager (the "Manager") who shall be Huron Holdings, LLC, who shall have the exclusive right to manage the Company. The Manager shall have the sole and exclusive right to manage the Company and to make all decisions regarding the Company's business, including the right, power, and authority to do in the name of, and acting solely on behalf of and for, the Company all lawful things that the Company might do that in the Manager's sole good faith business judgment of the best interests of the Company are necessary, proper, convenient, or desirable to carry out the purposes of the Company. Any instrument or agreement may be executed and delivered on behalf of the Company by the Manager, including any deed or deed of trust purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, any note or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument. 9. Compensation and Reimbursement of Members. Members may receive compensation for the reasonable value of any services rendered in managing the Company, and the Company shall pay, or reimburse all expenses reasonably incurred by any Member in connection with managing the Company. 5 10. Certain Actions, Taxes. On the Company's behalf, the Members may make any election permitted by Section 754 of the Code with respect to adjustments to basis of the Company's property. 11. Authority of the Members to Engage in Other Businesses. Any Member, or any affiliate of a Member may engage in and/or possess an interest in other business ventures of any nature and description, independently or with others, including but not limited to the ownership, financing, leasing, operation, 6 management, and development of businesses that may compete with the Company; and neither the Company nor the Members shall have any right by virtue of this agreement in or to any other venture or to any income or profits derived therefrom. No Member, or any affiliate of any Member shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and each of them shall have the right to take for its own account (individually or otherwise) or to recommend to others any such particular investment opportunity. 12. Authority of Persons to Deal with the Company. The Company may, but shall not be required to, transact business with, borrow money from, or lend money to any Member, or any affiliate thereof, and such person or entity shall, subject to applicable law, have the same rights and obligations with respect thereto as would a person who was not such a Member or affiliate. 13. Profits and Losses, Distributions, Books, Records, Reports, etc. (a) As and to the extent permitted and not prohibited by the Act, and as determined by a majority vote of the Members, the Company's profits and losses (and any then distributions of the Company's cash or other assets) shall be allocated and distributed among the Members at least annually in proportion to their then Capital Accounts as reflected in the Company's records. (b) The Company shall maintain and keep at its principal office described in Section 2 complete and accurate books of account as required pursuant to the Act. Each Member shall have access thereto at all reasonable times and the right to inspect and copy such books and records either directly or through a person designated by such Member. (c) The Company shall send to all Members an annual report, containing a balance sheet, income statement, and statement of changes in financial position, and all information necessary for each Member to prepare its federal income tax return. 14. Exculpation. Except by reason of acts or omissions of the Member found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct or a knowing violation of the criminal law, in any proceeding brought by or in the right of the Company or by or on behalf of any Member, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee or transferee of the Company or of any Member, 7 for any losses, claims, damages or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Member by this agreement, (ii) the performance by the Member of, or the omission to perform, any acts on advice of legal counsel, accountants or other professional consultants to the Company; or (iii) the negligence, dishonesty or bad faith of any consultant, employee, or agent of the Company selected or engaged by the Member in good faith. 15. Exoneration. No Member or agent of the Company, jointly or severally, shall be liable or have any obligation for any liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being such Member or agent of the Company. 16. Indemnification and Advances. (a) To the full extent permitted by law, the Company shall indemnify, defend and hold each Member harmless from and against, and may, with the approval of a majority vote of the Members, indemnify, defend and hold the Company's and the Member's respective affiliates, agents, employees, advisors, consultants and other independent contractors, harmless from and against, any loss, liability, damage, fine, judgment, penalty, attachment, cost or expense, including reasonable attorneys' fees, arising from any demands, claims or lawsuits against the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors, in or as a result of or relating to its capacity, actions or omissions as Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims or lawsuits initiated by a Member; provided that the acts or omissions of the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor seeking indemnification are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law by the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall not be entitled to indemnification hereunder or that the Member or the Company's or 8 the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors did not act in good faith and in a manner that it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) Subject to the limitations herein, a Member shall be entitled to receive, upon application therefor, and the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall be entitled to receive, with the approval of a majority vote of the Members, advances from the Company to cover the costs of defending any claim or action against them relating to their acts or omissions as a Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company or a Member or otherwise relating to the Company; provided, however, that such advances shall be repaid to the Company (with Interest thereon at an annual rate equal to the prime rate in effect from time to time as reflected in The Wall Street Journal but not to exceed the maximum permitted by applicable law), if the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor that receives such advance is found by a court of competent jurisdiction upon entry of a final judgment to have violated any of the standards that preclude indemnification hereunder. All rights of the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors to indemnification as herein provided shall survive the dissolution of the Company and the death, resignation, expulsion, incompetency, dissolution, liquidation or Bankruptcy of the Member or any such other person, and shall inure to the benefit of their heirs, personal representatives, successors and assigns. (c) In the event the indemnification obligation of this Section shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section to the fullest extent permitted by law. (d) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that the Member or any of its affiliates may have. Nothing contained in this Section shall limit any lawful right to indemnification existing independently of this Section. (e) Any amount that a Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors is entitled to receive hereunder shall be paid only out of and to the extent of the 9 Company's then assets, including any insurance proceeds available to the Company for such purposes. No Member shall be liable for the payment of any amount that a Member or an affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or the Member is entitled to receive hereunder, nor to make any capital contribution to the Company, or return any capital distribution made to such person or entity by the Company, nor to restore any negative capital account balance of that Member in order to enable the Company to make any payment hereunder. 17. Dissolution. The Company shall be dissolved upon the earliest to occur of (i) the Members' unanimous written consent, (ii) entry of a decree of judicial dissolution under the Act, or (iii) the date set forth in the Articles of Organization. The death, expulsion, resignation, dissolution, incompetency, or bankruptcy of a Member or any other event that terminates the continued membership of a Member shall not cause a dissolution of the Company, because the remaining Members hereby unanimously consent to continue the business of the Company upon the happening of such event. Upon any dissolution, the Company's business shall be wound up, its liabilities satisfied, and any balance, less reasonable reserves, shall be distributed to the Members in accordance with their positive capital accounts. 18. Miscellaneous Provisions. (a) Governing Law. This agreement and the rights and liabilities of the parties shall be determined in accordance with the laws of the Commonwealth of Virginia. (b) Captions. Captions contained in this agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope or intent of this agreement or any Section or provision hereof. (c) Construction. Whenever the context may require, each pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of each noun or pronoun shall include the plural, and vice versa. (d) Severability. Every provision of this agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the terms or provisions of this agreement. (e) Successors. Subject to the limitations on transferability contained herein, each and all of the terms, 10 provisions and agreements herein contained shall be binding upon and inure to the benefit of the personal representatives, successors, heirs, and assigns (including an assignee of all or part of any interest in the Company) of the parties hereto. (f) Execution and Counterparts. This agreement and any amendment hereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one agreement. In addition, this agreement may be executed through the use of counterpart signature pages. The signature of any party on any counterpart agreement or counterpart signature page shall be deemed to be a signature to, and may be appended to, one document. (g) Third Party Beneficiary. No provision of this agreement is intended to be for the benefit of any creditor or other person to which any debt, liability, or obligation is owed by (or that otherwise has any claim against) the Company or any Member, and no creditor or other person shall obtain any right under any of the foregoing provisions, nor shall any such person solely by reason of any of the foregoing provisions make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. (h) Investment Representation. By executing this agreement, each Member represents and warrants that such Member's interest in the Company is being acquired by it for its own account for investment and not with a view to resale or distribution thereof and that the Member is fully aware that each other Member and the Company are relying upon the truth and accuracy of this representation and warranty. (i) Entire Agreement. This agreement constitutes the sole operating agreement among the Members, and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Members relating to the affairs of the Company and the conduct of the Company's business. No amendment or modification of this agreement shall be effective unless approved in writing as provided herein. 19. Notices; Consents, etc. Any notice, consent, election, approval, payment, demand, or communication required or permitted to be given by this agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes only when delivered personally to or actually received by the party or an officer of the entity to which directed or ten (10) days after having been sent by registered or certified mail, postage and charges prepaid, addressed to the address for the notified party 11 contained in the Company's records. Any Member may change its address for purposes of this agreement by giving the Company and each other Member notice of such change, in the manner set forth above. 20. Amendment. This agreement may be amended at any time upon a unanimous vote of the Members, but such amendment shall be effective only when reduced to writing and signed by all Members. 21. This Amendment. The Operating Agreement of the Company previously entered into as of the 15th day of September 1997 is hereby amended in its entirety to read as above, effective as of the date of this agreement. 12 IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed as of the day, month, and year first above written. Member: Huron Holdings, LLC, By: Huron Management, Inc. Manager By:___________________________ a duly authorized officer Member: Huron Management, Inc. By:_________________________________ a duly authorized officer 13 EXHIBIT A Capital Name Contribution - ---- ------------ Huron Holdings, LLC $990.00 Huron Management, Inc. $ 10.00 This is Exhibit A to the Amended Operating Agreement of Huron Newspapers, LLC as of the ___ day of ___________, 199_. Member: Huron Holdings, LLC By: Huron Management, Inc. Manager By:___________________________ a duly authorized officer Member: Huron Management, Inc. By:_________________________________ a duly authorized officer 14 HURON NEWSPAPERS, LLC CERTIFICATE REGISTER
========================================================================================== Certi- Number ficate Shares/ Date Transfer To Whom Number Owner Votes Issued Date Transferred - ------------------------------------------------------------------------------------------ 1 Huron Holdings, LLC 990 12/___/97 - ------------------------------------------------------------------------------------------ 2 Huron Management, Inc. 10 12/___/97 - ------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------ ==========================================================================================
15 EX-3.(II)(W) 13 EXHIBIT 3(II)(W) Exhibit 3(ii)(w) AMENDED OPERATING AGREEMENT of HURON HOLDINGS, LLC This is the Amended Operating Agreement of Huron Holdings, LLC, a Virginia limited liability company (the "Company"), entered into as of this __ day of ________________, 199_, by and among Brill Media Holdings, LLC, a Virginia limited liability company, and Huron Management, Inc., a Virginia corporation, the Company's members [each (and each other person or entity while hereafter admitted as a Member) a "Member", and collectively with each other Member, the "Members"]. 1. Name. The name of the Company is Huron Holdings, LLC. The business of the Company may be conducted under such trade or fictitious name or names as the Members may select from time to time. 2. Principal Office. The Company's principal office, where the Company's principal executive offices are located and at which the records required to be maintained by the Act (hereinafter defined) are to be kept shall be located at 420 NW Fifth Street, Suite 3-B, Evansville, Indiana 47708, or at such other place or places as the Members may determine from time to time. 3. Capital Accounts. (a) Capital Contributions. The amount of the Members' capital contributions (to be made simultaneously with their execution of this agreement) are set forth on Exhibit A; such Members shall not be required to lend or make any additional capital contribution. (b) Capital Accounts; Allocations. A separate capital account (singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be established and maintained for each Member. As of any date, the amount of a Member's Capital Account shall be adjusted and any allocations of the Company's income, gain, loss, deductions, or credits (or items thereof) shall be determined and made as hereinafter provided and in accordance with the Company's records and, to the extent consistent herewith, applicable provisions of the Virginia Limited Liability Company Act as it may be amended or superseded from time to time (the "Act"): (i) Each Member's Capital Account (a) shall be increased by (i) the cash amount or agreed fair market value of all contributions hereafter made by such Member to the Company, (ii) any net income allocated (but not distributed) to such Member pursuant to this Section 3, and any items in the nature of income or gain that are specially allocated (but not distributed) to such Member, and (iii) the amount of any Company liabilities assumed by such Member or secured by any property of the Company distributed to such Member, and (b) shall be decreased by (i) the cash amount or agreed fair market value of all actual or deemed distributions of cash or property made to such Member pursuant to this agreement, (ii) any net loss allocated to such Member pursuant to this Section 3, and any items in the nature of expenses or losses that are specially allocated to such Member, and (iii) the amount of any liabilities of such Member assumed or secured by the Company. In determining the amount of any such liabilities, there shall be taken into account the provisions of ss. 752(c), and any other applicable provisions, of the Internal Revenue Code as amended from time to time (the "Code") and any applicable regulations (the "Regulations"; singly, a "Regulation") thereunder. (ii) In accordance with Regulation ss. 1.704, at appropriate times, the Capital Accounts of all Members and the carrying values of all Company properties shall be adjusted upwards or downwards to reflect any unrealized gain or loss attributable to each Company property, as if such unrealized gain or loss had been recognized upon an actual sale of each such property at such time and had been allocated to the Members pursuant to this Section 3. Similarly, in accordance with such Regulation, immediately prior to the distribution in kind of any Company property to a Member (including pursuant to a liquidation of the Company) the Capital Accounts of the Members shall be adjusted to reflect any unrealized gain or loss attributable to such property as if such unrealized gain or loss had been recognized upon an actual sale of such property at such time and had been allocated to the Members pursuant to this Section 3. Such unrealized gain or loss shall be determined using such methods of valuation as the Members in their sole discretion deem appropriate. (iii) For purposes of this agreement, net income, gross income and net loss shall be computed in the same manner as determined for federal income tax purposes, with the modifications set forth in Regulation ss. 1.704. (iv) Should any Member's adjusted capital account balance become negative as a result of any adjustment, allocation, or distribution, thereafter, acting as 2 rapidly as is possible, from time to time such Member's share of the Company's income and gain, if any, shall be separately allocated to such Member's Capital Account until such time as such Member's Capital Account deficit is eliminated. 3 (v) Non-recourse deductions shall be allocated in a manner that is reasonably consistent with other allocations of items of income, gain, or loss attributable to the property securing the non-recourse liabilities. In the first year in which the Company has non-recourse deductions or makes distributions attributable to an increase in minimum gain as defined in the Regulations, this agreement shall be deemed to include a "minimum gain chargeback" in accordance with the Regulations. 4. Members. No person or entity shall be or become a Member of the Company unless named as a Member herein or hereafter admitted as a Member of the Company with the prior written consent of all then Members. The time of admission of any such new Member shall begin when such Member's status is first reflected in writing in the Company's records, and not before. Any Member may resign, but (unless the Members agree otherwise in writing) any such resignation shall first become effective thirty (30) calendar days after the Company shall have received written notice thereof, and not before. 5. Transfer of Interests. Other than with the prior, written consent of all Members, an assignee or other transferee of an interest in the Company (by operation of law or otherwise) shall not thereby become a Member of the Company nor thereby acquire any proprietary right in nor right to become a Member or to participate in the affairs or management of the Company. Any attempted assignment or other transfer of a Member's rights in violation of this agreement shall be void. Without such prior written consent, by any written assignment, pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a Member may assign and transfer to and entitle the assignee or transferee to receive only (as and to the extent expressly so assigned or transferred) any share of the profits or losses or asset distributions of the Company that the assignor or transferor Member thereafter otherwise would have been or become entitled to hereunder, and nothing more. 6. Ceasing to be a Member. Upon any Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy, such person or entity shall cease to be a Member. Any payment made to a Member's successor in interest, personal representative, executor, or administrator shall acquit the Company of any and all liability to such Member and to any such person as may be interested in any such payment by reason of such Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy. 4 7. Certificate; Membership; Voting Rights of Members; Transfer. Each Member shall be entitled to a membership certificate (the "Certificate") evidencing such Member's interest in the Company and the number of votes entitled to be cast by such Member in voting by the Members, which Certificate shall be in such form and contain such substance as may be agreed upon by the Members or required by law. The Company shall maintain a Certificate register (the "Certificate Register") recording ownership of all Certificates then outstanding and the number of votes entitled to be cast by each Member in voting by the Members, which register, at all times, shall be conclusive evidence of each Member's interest in the Company and voting rights. Any transfer of a Member's interest in the Company, in whole or in part, other than a Transfer of an interest in a Member's share of the Company's profits or losses or assets on distribution as provided for in Section 5, shall become effective only upon (i) surrender of each Certificate representing the Member's interest then being transferred accompanied by a written assignment applicable thereto, all in form and substance satisfactory to the Company, and duly executed by the transferor, and (ii) recordation of such transfer on the Company's Certificate Register. 8. Management. The Company's business is to be managed by a manager (the "Manager") who shall be BMC Holdings, LLC, who shall have the exclusive right to manage the Company. The Manager shall have the sole and exclusive right to manage the Company and to make all decisions regarding the Company's business, including the right, power, and authority to do in the name of, and acting solely on behalf of and for, the Company all lawful things that the Company might do that in the Manager's sole good faith business judgment of the best interests of the Company are necessary, proper, convenient, or desirable to carry out the purposes of the Company. Any instrument or agreement may be executed and delivered on behalf of the Company by the Manager, including any deed or deed of trust purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, any note or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument. 9. Compensation and Reimbursement of Members. Members may receive compensation for the reasonable value of any services rendered in managing the Company, and the Company shall pay, or reimburse all expenses reasonably incurred by any Member in connection with managing the Company. 5 10. Certain Actions, Taxes. On the Company's behalf, the Members may make any election permitted by Section 754 of the Code with respect to adjustments to basis of the Company's property. 11. Authority of the Members to Engage in Other Businesses. Any Member, or any affiliate of a Member may engage in and/or possess an interest in other business ventures of any nature and description, independently or with others, including but not limited to the ownership, financing, leasing, operation, 6 management, and development of businesses that may compete with the Company; and neither the Company nor the Members shall have any right by virtue of this agreement in or to any other venture or to any income or profits derived therefrom. No Member, or any affiliate of any Member shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and each of them shall have the right to take for its own account (individually or otherwise) or to recommend to others any such particular investment opportunity. 12. Authority of Persons to Deal with the Company. The Company may, but shall not be required to, transact business with, borrow money from, or lend money to any Member, or any affiliate thereof, and such person or entity shall, subject to applicable law, have the same rights and obligations with respect thereto as would a person who was not such a Member or affiliate. 13. Profits and Losses, Distributions, Books, Records, Reports, etc. (a) As and to the extent permitted and not prohibited by the Act, and as determined by a majority vote of the Members, the Company's profits and losses (and any then distributions of the Company's cash or other assets) shall be allocated and distributed among the Members at least annually in proportion to their then Capital Accounts as reflected in the Company's records. (b) The Company shall maintain and keep at its principal office described in Section 2 complete and accurate books of account as required pursuant to the Act. Each Member shall have access thereto at all reasonable times and the right to inspect and copy such books and records either directly or through a person designated by such Member. (c) The Company shall send to all Members an annual report, containing a balance sheet, income statement, and statement of changes in financial position, and all information necessary for each Member to prepare its federal income tax return. 14. Exculpation. Except by reason of acts or omissions of the Member found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct or a knowing violation of the criminal law, in any proceeding brought by or in the right of the Company or by or on behalf of any Member, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee or transferee of the Company or of any Member, 7 for any losses, claims, damages or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Member by this agreement, (ii) the performance by the Member of, or the omission to perform, any acts on advice of legal counsel, accountants or other professional consultants to the Company; or (iii) the negligence, dishonesty or bad faith of any consultant, employee, or agent of the Company selected or engaged by the Member in good faith. 15. Exoneration. No Member or agent of the Company, jointly or severally, shall be liable or have any obligation for any liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being such Member or agent of the Company. 16. Indemnification and Advances. (a) To the full extent permitted by law, the Company shall indemnify, defend and hold each Member harmless from and against, and may, with the approval of a majority vote of the Members, indemnify, defend and hold the Company's and the Member's respective affiliates, agents, employees, advisors, consultants and other independent contractors, harmless from and against, any loss, liability, damage, fine, judgment, penalty, attachment, cost or expense, including reasonable attorneys' fees, arising from any demands, claims or lawsuits against the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors, in or as a result of or relating to its capacity, actions or omissions as Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims or lawsuits initiated by a Member; provided that the acts or omissions of the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor seeking indemnification are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law by the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall not be entitled to indemnification hereunder or that the Member or the Company's or 8 the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors did not act in good faith and in a manner that it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) Subject to the limitations herein, a Member shall be entitled to receive, upon application therefor, and the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall be entitled to receive, with the approval of a majority vote of the Members, advances from the Company to cover the costs of defending any claim or action against them relating to their acts or omissions as a Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company or a Member or otherwise relating to the Company; provided, however, that such advances shall be repaid to the Company (with Interest thereon at an annual rate equal to the prime rate in effect from time to time as reflected in The Wall Street Journal but not to exceed the maximum permitted by applicable law), if the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor that receives such advance is found by a court of competent jurisdiction upon entry of a final judgment to have violated any of the standards that preclude indemnification hereunder. All rights of the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors to indemnification as herein provided shall survive the dissolution of the Company and the death, resignation, expulsion, incompetency, dissolution, liquidation or Bankruptcy of the Member or any such other person, and shall inure to the benefit of their heirs, personal representatives, successors and assigns. (c) In the event the indemnification obligation of this Section shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section to the fullest extent permitted by law. (d) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that the Member or any of its affiliates may have. Nothing contained in this Section shall limit any lawful right to indemnification existing independently of this Section. (e) Any amount that a Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors is entitled to receive hereunder shall be paid only out of and to the extent of the 9 Company's then assets, including any insurance proceeds available to the Company for such purposes. No Member shall be liable for the payment of any amount that a Member or an affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or the Member is entitled to receive hereunder, nor to make any capital contribution to the Company, or return any capital distribution made to such person or entity by the Company, nor to restore any negative capital account balance of that Member in order to enable the Company to make any payment hereunder. 17. Dissolution. The Company shall be dissolved upon the earliest to occur of (i) the Members' unanimous written consent, (ii) entry of a decree of judicial dissolution under the Act, or (iii) the date set forth in the Articles of Organization. The death, expulsion, resignation, dissolution, incompetency, or bankruptcy of a Member or any other event that terminates the continued membership of a Member shall not cause a dissolution of the Company, because the remaining Members hereby unanimously consent to continue the business of the Company upon the happening of such event. Upon any dissolution, the Company's business shall be wound up, its liabilities satisfied, and any balance, less reasonable reserves, shall be distributed to the Members in accordance with their positive capital accounts. 18. Miscellaneous Provisions. (a) Governing Law. This agreement and the rights and liabilities of the parties shall be determined in accordance with the laws of the Commonwealth of Virginia. (b) Captions. Captions contained in this agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope or intent of this agreement or any Section or provision hereof. (c) Construction. Whenever the context may require, each pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of each noun or pronoun shall include the plural, and vice versa. (d) Severability. Every provision of this agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the terms or provisions of this agreement. (e) Successors. Subject to the limitations on transferability contained herein, each and all of the terms, 10 provisions and agreements herein contained shall be binding upon and inure to the benefit of the personal representatives, successors, heirs, and assigns (including an assignee of all or part of any interest in the Company) of the parties hereto. (f) Execution and Counterparts. This agreement and any amendment hereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one agreement. In addition, this agreement may be executed through the use of counterpart signature pages. The signature of any party on any counterpart agreement or counterpart signature page shall be deemed to be a signature to, and may be appended to, one document. (g) Third Party Beneficiary. No provision of this agreement is intended to be for the benefit of any creditor or other person to which any debt, liability, or obligation is owed by (or that otherwise has any claim against) the Company or any Member, and no creditor or other person shall obtain any right under any of the foregoing provisions, nor shall any such person solely by reason of any of the foregoing provisions make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. (h) Investment Representation. By executing this agreement, each Member represents and warrants that such Member's interest in the Company is being acquired by it for its own account for investment and not with a view to resale or distribution thereof and that the Member is fully aware that each other Member and the Company are relying upon the truth and accuracy of this representation and warranty. (i) Entire Agreement. This agreement constitutes the sole operating agreement among the Members, and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Members relating to the affairs of the Company and the conduct of the Company's business. No amendment or modification of this agreement shall be effective unless approved in writing as provided herein. 19. Notices; Consents, etc. Any notice, consent, election, approval, payment, demand, or communication required or permitted to be given by this agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes only when delivered personally to or actually received by the party or an officer of the entity to which directed or ten (10) days after having been sent by registered or certified mail, postage and charges prepaid, addressed to the address for the notified party 11 contained in the Company's records. Any Member may change its address for purposes of this agreement by giving the Company and each other Member notice of such change, in the manner set forth above. 20. Amendment. This agreement may be amended at any time upon a unanimous vote of the Members, but such amendment shall be effective only when reduced to writing and signed by all Members. 21. This Amendment. The Operating Agreement of the Company previously entered into as of the 15th day of September 1997 is hereby amended in its entirety to read as above, effective as of the date of this agreement. 12 IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed as of the day, month, and year first above written. Member: Brill Media Holdings, LLC By: Brill Media Holdings, Inc. Manager By: ---------------------------- a duly authorized officer Member: Huron Management, Inc. By: ---------------------------- a duly authorized officer 13 EXHIBIT A Capital Name Contribution - ---- ------------ Brill Media Holdings, LLC $990.00 Huron Management, Inc. $ 10.00 This is Exhibit A to the Amended Operating Agreement of Huron Holdings, LLC as of the ___ day of ___________, 199_. Member: Brill Media Holdings, LLC By: Brill Media Holdings, Inc. Manager By: ---------------------------- a duly authorized officer Member: Huron Management, Inc. By: ---------------------------- a duly authorized officer 14 HURON HOLDINGS, LLC CERTIFICATE REGISTER ================================================================================ Certi- Number ficate Shares/ Date Transfer To Whom Number Owner Votes Issued Date Transferred - -------------------------------------------------------------------------------- 1 BMC Holdings, LLC 990 12/___/97 - -------------------------------------------------------------------------------- 2 Huron Management, Inc. 10 12/___/97 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ================================================================================ 15 EX-3.(II)(X) 14 EXHIBIT 3(II)(X) EXHIBIT 3(ii)(x) AMENDED OPERATING AGREEMENT of NORTHERN COLORADO HOLDINGS, LLC This is the Amended Operating Agreement of Northland Holdings, LLC, a Virginia limited liability company (the "Company"), entered into as of this __ day of ________________, 199_, by and among BMC Holdings, LLC, a Virginia limited liability company, and Northern Colorado Management, Inc., a Virginia corporation, the Company's members [each (and each other person or entity while hereafter admitted as a Member) a "Member", and collectively with each other Member, the "Members"]. 1. Name. The name of the Company is Northern Colorado Holdings, LLC. The business of the Company may be conducted under such trade or fictitious name or names as the Members may select from time to time. 2. Principal Office. The Company's principal office, where the Company's principal executive offices are located and at which the records required to be maintained by the Act (hereinafter defined) are to be kept shall be located at 420 NW Fifth Street, Suite 3-B, Evansville, Indiana 47708, or at such other place or places as the Members may determine from time to time. 3. Capital Accounts. (a) Capital Contributions. The amount of the Members' capital contributions (to be made simultaneously with their execution of this agreement) are set forth on Exhibit A; such Members shall not be required to lend or make any additional capital contribution. (b) Capital Accounts; Allocations. A separate capital account (singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be established and maintained for each Member. As of any date, the amount of a Member's Capital Account shall be adjusted and any allocations of the Company's income, gain, loss, deductions, or credits (or items thereof) shall be determined and made as hereinafter provided and in accordance with the Company's records and, to the extent consistent herewith, applicable provisions of the Virginia Limited Liability Company Act as it may be amended or superseded from time to time (the "Act"): (i) Each Member's Capital Account (a) shall be increased by (i) the cash amount or agreed fair market value of all contributions hereafter made by such Member to the Company, (ii) any net income allocated (but not distributed) to such Member pursuant to this Section 3, and any items in the nature of income or gain that are specially allocated (but not distributed) to such Member, and (iii) the amount of any Company liabilities assumed by such Member or secured by any property of the Company distributed to such Member, and (b) shall be decreased by (i) the cash amount or agreed fair market value of all actual or deemed distributions of cash or property made to such Member pursuant to this agreement, (ii) any net loss allocated to such Member pursuant to this Section 3, and any items in the nature of expenses or losses that are specially allocated to such Member, and (iii) the amount of any liabilities of such Member assumed or secured by the Company. In determining the amount of any such liabilities, there shall be taken into account the provisions of ss. 752(c), and any other applicable provisions, of the Internal Revenue Code as amended from time to time (the "Code") and any applicable regulations (the "Regulations"; singly, a "Regulation") thereunder. (ii) In accordance with Regulation ss. 1.704, at appropriate times, the Capital Accounts of all Members and the carrying values of all Company properties shall be adjusted upwards or downwards to reflect any unrealized gain or loss attributable to each Company property, as if such unrealized gain or loss had been recognized upon an actual sale of each such property at such time and had been allocated to the Members pursuant to this Section 3. Similarly, in accordance with such Regulation, immediately prior to the distribution in kind of any Company property to a Member (including pursuant to a liquidation of the Company) the Capital Accounts of the Members shall be adjusted to reflect any unrealized gain or loss attributable to such property as if such unrealized gain or loss had been recognized upon an actual sale of such property at such time and had been allocated to the Members pursuant to this Section 3. Such unrealized gain or loss shall be determined using such methods of valuation as the Members in their sole discretion deem appropriate. (iii) For purposes of this agreement, net income, gross income and net loss shall be computed in the same manner as determined for federal income tax purposes, with the modifications set forth in Regulation ss. 1.704. (iv) Should any Member's adjusted capital account balance become negative as a result of any adjustment, allocation, or distribution, thereafter, acting as 2 rapidly as is possible, from time to time such Member's share of the Company's income and gain, if any, shall be separately allocated to such Member's Capital Account until such time as such Member's Capital Account deficit is eliminated. 3 (v) Non-recourse deductions shall be allocated in a manner that is reasonably consistent with other allocations of items of income, gain, or loss attributable to the property securing the non-recourse liabilities. In the first year in which the Company has non-recourse deductions or makes distributions attributable to an increase in minimum gain as defined in the Regulations, this agreement shall be deemed to include a "minimum gain chargeback" in accordance with the Regulations. 4. Members. No person or entity shall be or become a Member of the Company unless named as a Member herein or hereafter admitted as a Member of the Company with the prior written consent of all then Members. The time of admission of any such new Member shall begin when such Member's status is first reflected in writing in the Company's records, and not before. Any Member may resign, but (unless the Members agree otherwise in writing) any such resignation shall first become effective thirty (30) calendar days after the Company shall have received written notice thereof, and not before. 5. Transfer of Interests. Other than with the prior, written consent of all Members, an assignee or other transferee of an interest in the Company (by operation of law or otherwise) shall not thereby become a Member of the Company nor thereby acquire any proprietary right in nor right to become a Member or to participate in the affairs or management of the Company. Any attempted assignment or other transfer of a Member's rights in violation of this agreement shall be void. Without such prior written consent, by any written assignment, pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a Member may assign and transfer to and entitle the assignee or transferee to receive only (as and to the extent expressly so assigned or transferred) any share of the profits or losses or asset distributions of the Company that the assignor or transferor Member thereafter otherwise would have been or become entitled to hereunder, and nothing more. 6. Ceasing to be a Member. Upon any Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy, such person or entity shall cease to be a Member. Any payment made to a Member's successor in interest, personal representative, executor, or administrator shall acquit the Company of any and all liability to such Member and to any such person as may be interested in any such payment by reason of such Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy. 4 7. Certificate; Membership; Voting Rights of Members; Transfer. Each Member shall be entitled to a membership certificate (the "Certificate") evidencing such Member's interest in the Company and the number of votes entitled to be cast by such Member in voting by the Members, which Certificate shall be in such form and contain such substance as may be agreed upon by the Members or required by law. The Company shall maintain a Certificate register (the "Certificate Register") recording ownership of all Certificates then outstanding and the number of votes entitled to be cast by each Member in voting by the Members, which register, at all times, shall be conclusive evidence of each Member's interest in the Company and voting rights. Any transfer of a Member's interest in the Company, in whole or in part, other than a Transfer of an interest in a Member's share of the Company's profits or losses or assets on distribution as provided for in Section 5, shall become effective only upon (i) surrender of each Certificate representing the Member's interest then being transferred accompanied by a written assignment applicable thereto, all in form and substance satisfactory to the Company, and duly executed by the transferor, and (ii) recordation of such transfer on the Company's Certificate Register. 8. Management. The Company's business is to be managed by a manager (the "Manager") who shall be BMC Holdings, LLC, who shall have the exclusive right to manage the Company. The Manager shall have the sole and exclusive right to manage the Company and to make all decisions regarding the Company's business, including the right, power, and authority to do in the name of, and acting solely on behalf of and for, the Company all lawful things that the Company might do that in the Manager's sole good faith business judgment of the best interests of the Company are necessary, proper, convenient, or desirable to carry out the purposes of the Company. Any instrument or agreement may be executed and delivered on behalf of the Company by the Manager, including any deed or deed of trust purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, any note or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument. 9. Compensation and Reimbursement of Members. Members may receive compensation for the reasonable value of any services rendered in managing the Company, and the Company shall pay, or reimburse all expenses reasonably incurred by any Member in connection with managing the Company. 5 10. Certain Actions, Taxes. On the Company's behalf, the Members may make any election permitted by Section 754 of the Code with respect to adjustments to basis of the Company's property. 11. Authority of the Members to Engage in Other Businesses. Any Member, or any affiliate of a Member may engage in and/or possess an interest in other business ventures of any nature and description, independently or with others, including but not limited to the ownership, financing, leasing, operation, 6 management, and development of businesses that may compete with the Company; and neither the Company nor the Members shall have any right by virtue of this agreement in or to any other venture or to any income or profits derived therefrom. No Member, or any affiliate of any Member shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and each of them shall have the right to take for its own account (individually or otherwise) or to recommend to others any such particular investment opportunity. 12. Authority of Persons to Deal with the Company. The Company may, but shall not be required to, transact business with, borrow money from, or lend money to any Member, or any affiliate thereof, and such person or entity shall, subject to applicable law, have the same rights and obligations with respect thereto as would a person who was not such a Member or affiliate. 13. Profits and Losses, Distributions, Books, Records, Reports, etc. (a) As and to the extent permitted and not prohibited by the Act, and as determined by a majority vote of the Members, the Company's profits and losses (and any then distributions of the Company's cash or other assets) shall be allocated and distributed among the Members at least annually in proportion to their then Capital Accounts as reflected in the Company's records. (b) The Company shall maintain and keep at its principal office described in Section 2 complete and accurate books of account as required pursuant to the Act. Each Member shall have access thereto at all reasonable times and the right to inspect and copy such books and records either directly or through a person designated by such Member. (c) The Company shall send to all Members an annual report, containing a balance sheet, income statement, and statement of changes in financial position, and all information necessary for each Member to prepare its federal income tax return. 14. Exculpation. Except by reason of acts or omissions of the Member found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct or a knowing violation of the criminal law, in any proceeding brought by or in the right of the Company or by or on behalf of any Member, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee or transferee of the Company or of any Member, 7 for any losses, claims, damages or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Member by this agreement, (ii) the performance by the Member of, or the omission to perform, any acts on advice of legal counsel, accountants or other professional consultants to the Company; or (iii) the negligence, dishonesty or bad faith of any consultant, employee, or agent of the Company selected or engaged by the Member in good faith. 15. Exoneration. No Member or agent of the Company, jointly or severally, shall be liable or have any obligation for any liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being such Member or agent of the Company. 16. Indemnification and Advances. (a) To the full extent permitted by law, the Company shall indemnify, defend and hold each Member harmless from and against, and may, with the approval of a majority vote of the Members, indemnify, defend and hold the Company's and the Member's respective affiliates, agents, employees, advisors, consultants and other independent contractors, harmless from and against, any loss, liability, damage, fine, judgment, penalty, attachment, cost or expense, including reasonable attorneys' fees, arising from any demands, claims or lawsuits against the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors, in or as a result of or relating to its capacity, actions or omissions as Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims or lawsuits initiated by a Member; provided that the acts or omissions of the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor seeking indemnification are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law by the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall not be entitled to indemnification hereunder or that the Member or the Company's or 8 the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors did not act in good faith and in a manner that it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) Subject to the limitations herein, a Member shall be entitled to receive, upon application therefor, and the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall be entitled to receive, with the approval of a majority vote of the Members, advances from the Company to cover the costs of defending any claim or action against them relating to their acts or omissions as a Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company or a Member or otherwise relating to the Company; provided, however, that such advances shall be repaid to the Company (with Interest thereon at an annual rate equal to the prime rate in effect from time to time as reflected in The Wall Street Journal but not to exceed the maximum permitted by applicable law), if the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor that receives such advance is found by a court of competent jurisdiction upon entry of a final judgment to have violated any of the standards that preclude indemnification hereunder. All rights of the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors to indemnification as herein provided shall survive the dissolution of the Company and the death, resignation, expulsion, incompetency, dissolution, liquidation or Bankruptcy of the Member or any such other person, and shall inure to the benefit of their heirs, personal representatives, successors and assigns. (c) In the event the indemnification obligation of this Section shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section to the fullest extent permitted by law. (d) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that the Member or any of its affiliates may have. Nothing contained in this Section shall limit any lawful right to indemnification existing independently of this Section. (e) Any amount that a Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors is entitled to receive hereunder shall be paid only out of and to the extent of the 9 Company's then assets, including any insurance proceeds available to the Company for such purposes. No Member shall be liable for the payment of any amount that a Member or an affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or the Member is entitled to receive hereunder, nor to make any capital contribution to the Company, or return any capital distribution made to such person or entity by the Company, nor to restore any negative capital account balance of that Member in order to enable the Company to make any payment hereunder. 17. Dissolution. The Company shall be dissolved upon the earliest to occur of (i) the Members' unanimous written consent, (ii) entry of a decree of judicial dissolution under the Act, or (iii) the date set forth in the Articles of Organization. The death, expulsion, resignation, dissolution, incompetency, or bankruptcy of a Member or any other event that terminates the continued membership of a Member shall not cause a dissolution of the Company, because the remaining Members hereby unanimously consent to continue the business of the Company upon the happening of such event. Upon any dissolution, the Company's business shall be wound up, its liabilities satisfied, and any balance, less reasonable reserves, shall be distributed to the Members in accordance with their positive capital accounts. 18. Miscellaneous Provisions. (a) Governing Law. This agreement and the rights and liabilities of the parties shall be determined in accordance with the laws of the Commonwealth of Virginia. (b) Captions. Captions contained in this agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope or intent of this agreement or any Section or provision hereof. (c) Construction. Whenever the context may require, each pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of each noun or pronoun shall include the plural, and vice versa. (d) Severability. Every provision of this agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the terms or provisions of this agreement. (e) Successors. Subject to the limitations on transferability contained herein, each and all of the terms, 10 provisions and agreements herein contained shall be binding upon and inure to the benefit of the personal representatives, successors, heirs, and assigns (including an assignee of all or part of any interest in the Company) of the parties hereto. (f) Execution and Counterparts. This agreement and any amendment hereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one agreement. In addition, this agreement may be executed through the use of counterpart signature pages. The signature of any party on any counterpart agreement or counterpart signature page shall be deemed to be a signature to, and may be appended to, one document. (g) Third Party Beneficiary. No provision of this agreement is intended to be for the benefit of any creditor or other person to which any debt, liability, or obligation is owed by (or that otherwise has any claim against) the Company or any Member, and no creditor or other person shall obtain any right under any of the foregoing provisions, nor shall any such person solely by reason of any of the foregoing provisions make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. (h) Investment Representation. By executing this agreement, each Member represents and warrants that such Member's interest in the Company is being acquired by it for its own account for investment and not with a view to resale or distribution thereof and that the Member is fully aware that each other Member and the Company are relying upon the truth and accuracy of this representation and warranty. (i) Entire Agreement. This agreement constitutes the sole operating agreement among the Members, and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Members relating to the affairs of the Company and the conduct of the Company's business. No amendment or modification of this agreement shall be effective unless approved in writing as provided herein. 19. Notices; Consents, etc. Any notice, consent, election, approval, payment, demand, or communication required or permitted to be given by this agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes only when delivered personally to or actually received by the party or an officer of the entity to which directed or ten (10) days after having been sent by registered or certified mail, postage and charges prepaid, addressed to the address for the notified party 11 contained in the Company's records. Any Member may change its address for purposes of this agreement by giving the Company and each other Member notice of such change, in the manner set forth above. 20. Amendment. This agreement may be amended at any time upon a unanimous vote of the Members, but such amendment shall be effective only when reduced to writing and signed by all Members. 21. This Amendment. The Operating Agreement of the Company previously entered into as of the 24th day of February 1997 is hereby amended in its entirety to read as above, effective as of the date of this agreement. 12 IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed as of the day, month, and year first above written. Member: BMC Holdings, LLC By: Brill Media Company, LLC Manager By: -------------------------------- a duly authorized officer Member: Northern Colorado Management, Inc. By: ------------------------------------- a duly authorized officer 13 EXHIBIT A Capital Name Contribution - ---- ------------ BMC Holdings, LLC $990.00 Northern Colorado Management, Inc. $ 10.00 This is Exhibit A to the Amended Operating Agreement of Northern Colorado Holdings, LLC as of the ___ day of ___________, 199_. Member: BMC Holdings, LLC By: Brill Media Company, LLC Manager By: ------------------------------------- a duly authorized officer Member: Northern Colorado Management, Inc., a Virginia corporation By: ------------------------------------------- a duly authorized officer 14 NORTHERN COLORADO HOLDINGS, LLC CERTIFICATE REGISTER ================================================================================ Certi- Number ficate Shares/ Date Transfer To Whom Number Owner Votes Issued Date Transferred - -------------------------------------------------------------------------------- 1 BMC Holdings, LLC 990 12/__/97 - -------------------------------------------------------------------------------- Northern Colorado 2 Management, Inc. 10 12/__/97 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ================================================================================ 15 EX-3.(II)(Y) 15 EXHIBIT 3(II)(Y) Exhibit 3(ii)(y) AMENDED OPERATING AGREEMENT of NCR III, LLC This is the Amended Operating Agreement of NCR III, LLC, a Virginia limited liability company (the "Company"), entered into as of this __ day of ________________, 199_, by and among NCH II, LLC, a Virginia limited liability company, and NCR II, Inc., a Virginia corporation, the Company's members [each (and each other person or entity while hereafter admitted as a Member) a "Member", and collectively with each other Member, the "Members"]. 1. Name. The name of the Company is NCR III, LLC. The business of the Company may be conducted under such trade or fictitious name or names as the Members may select from time to time. 2. Principal Office. The Company's principal office, where the Company's principal executive offices are located and at which the records required to be maintained by the Act (hereinafter defined) are to be kept shall be located at 420 NW Fifth Street, Suite 3-B, Evansville, Indiana 47708, or at such other place or places as the Members may determine from time to time. 3. Capital Accounts. (a) Capital Contributions. The amount of the Members' capital contributions (to be made simultaneously with their execution of this agreement) are set forth on Exhibit A; such Members shall not be required to lend or make any additional capital contribution. (b) Capital Accounts; Allocations. A separate capital account (singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be established and maintained for each Member. As of any date, the amount of a Member's Capital Account shall be adjusted and any allocations of the Company's income, gain, loss, deductions, or credits (or items thereof) shall be determined and made as hereinafter provided and in accordance with the Company's records and, to the extent consistent herewith, applicable provisions of the Virginia Limited Liability Company Act as it may be amended or superseded from time to time (the "Act"): (i) Each Member's Capital Account (a) shall be increased by (i) the cash amount or agreed fair market value of all contributions hereafter made by such Member to the Company, (ii) any net income allocated (but not distributed) to such Member pursuant to this Section 3, and any items in the nature of income or gain that are specially allocated (but not distributed) to such Member, and (iii) the amount of any Company liabilities assumed by such Member or secured by any property of the Company distributed to such Member, and (b) shall be decreased by (i) the cash amount or agreed fair market value of all actual or deemed distributions of cash or property made to such Member pursuant to this agreement, (ii) any net loss allocated to such Member pursuant to this Section 3, and any items in the nature of expenses or losses that are specially allocated to such Member, and (iii) the amount of any liabilities of such Member assumed or secured by the Company. In determining the amount of any such liabilities, there shall be taken into account the provisions of ss. 752(c), and any other applicable provisions, of the Internal Revenue Code as amended from time to time (the "Code") and any applicable regulations (the "Regulations"; singly, a "Regulation") thereunder. (ii) In accordance with Regulation ss. 1.704, at appropriate times, the Capital Accounts of all Members and the carrying values of all Company properties shall be adjusted upwards or downwards to reflect any unrealized gain or loss attributable to each Company property, as if such unrealized gain or loss had been recognized upon an actual sale of each such property at such time and had been allocated to the Members pursuant to this Section 3. Similarly, in accordance with such Regulation, immediately prior to the distribution in kind of any Company property to a Member (including pursuant to a liquidation of the Company) the Capital Accounts of the Members shall be adjusted to reflect any unrealized gain or loss attributable to such property as if such unrealized gain or loss had been recognized upon an actual sale of such property at such time and had been allocated to the Members pursuant to this Section 3. Such unrealized gain or loss shall be determined using such methods of valuation as the Members in their sole discretion deem appropriate. (iii) For purposes of this agreement, net income, gross income and net loss shall be computed in the same manner as determined for federal income tax purposes, with the modifications set forth in Regulation ss. 1.704. (iv) Should any Member's adjusted capital account balance become negative as a result of any adjustment, allocation, or distribution, thereafter, acting as rapidly as is possible, from time to time such Member's 2 share of the Company's income and gain, if any, shall be separately allocated to such Member's Capital Account until such time as such Member's Capital Account deficit is eliminated. 3 (v) Non-recourse deductions shall be allocated in a manner that is reasonably consistent with other allocations of items of income, gain, or loss attributable to the property securing the non-recourse liabilities. In the first year in which the Company has non-recourse deductions or makes distributions attributable to an increase in minimum gain as defined in the Regulations, this agreement shall be deemed to include a "minimum gain chargeback" in accordance with the Regulations. 4. Members. No person or entity shall be or become a Member of the Company unless named as a Member herein or hereafter admitted as a Member of the Company with the prior written consent of all then Members. The time of admission of any such new Member shall begin when such Member's status is first reflected in writing in the Company's records, and not before. Any Member may resign, but (unless the Members agree otherwise in writing) any such resignation shall first become effective thirty (30) calendar days after the Company shall have received written notice thereof, and not before. 5. Transfer of Interests. Other than with the prior, written consent of all Members, an assignee or other transferee of an interest in the Company (by operation of law or otherwise) shall not thereby become a Member of the Company nor thereby acquire any proprietary right in nor right to become a Member or to participate in the affairs or management of the Company. Any attempted assignment or other transfer of a Member's rights in violation of this agreement shall be void. Without such prior written consent, by any written assignment, pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a Member may assign and transfer to and entitle the assignee or transferee to receive only (as and to the extent expressly so assigned or transferred) any share of the profits or losses or asset distributions of the Company that the assignor or transferor Member thereafter otherwise would have been or become entitled to hereunder, and nothing more. 6. Ceasing to be a Member. Upon any Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy, such person or entity shall cease to be a Member. Any payment made to a Member's successor in interest, personal representative, executor, or administrator shall acquit the Company of any and all liability to such Member and to any such person as may be interested in any such payment by reason of such Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy. 4 7. Certificate; Membership; Voting Rights of Members; Transfer. Each Member shall be entitled to a membership certificate (the "Certificate") evidencing such Member's interest in the Company and the number of votes entitled to be cast by such Member in voting by the Members, which Certificate shall be in such form and contain such substance as may be agreed upon by the Members or required by law. The Company shall maintain a Certificate register (the "Certificate Register") recording ownership of all Certificates then outstanding and the number of votes entitled to be cast by each Member in voting by the Members, which register, at all times, shall be conclusive evidence of each Member's interest in the Company and voting rights. Any transfer of a Member's interest in the Company, in whole or in part, other than a Transfer of an interest in a Member's share of the Company's profits or losses or assets on distribution as provided for in Section 5, shall become effective only upon (i) surrender of each Certificate representing the Member's interest then being transferred accompanied by a written assignment applicable thereto, all in form and substance satisfactory to the Company, and duly executed by the transferor, and (ii) recordation of such transfer on the Company's Certificate Register. 8. Management. The Company's business is to be managed by a manager (the "Manager") who shall be NCH II, LLC, who shall have the exclusive right to manage the Company. The Manager shall have the sole and exclusive right to manage the Company and to make all decisions regarding the Company's business, including the right, power, and authority to do in the name of, and acting solely on behalf of and for, the Company all lawful things that the Company might do that in the Manager's sole good faith business judgment of the best interests of the Company are necessary, proper, convenient, or desirable to carry out the purposes of the Company. Any instrument or agreement may be executed and delivered on behalf of the Company by the Manager, including any deed or deed of trust purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, any note or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument. 9. Compensation and Reimbursement of Members. Members may receive compensation for the reasonable value of any services rendered in managing the Company, and the Company shall pay, or reimburse all expenses reasonably incurred by any Member in connection with managing the Company. 5 10. Certain Actions, Taxes. On the Company's behalf, the Members may make any election permitted by Section 754 of the Code with respect to adjustments to basis of the Company's property. 11. Authority of the Members to Engage in Other Businesses. Any Member, or any affiliate of a Member may engage in and/or possess an interest in other business ventures of any nature and description, independently or with others, including but not limited to the ownership, financing, leasing, operation, 6 management, and development of businesses that may compete with the Company; and neither the Company nor the Members shall have any right by virtue of this agreement in or to any other venture or to any income or profits derived therefrom. No Member, or any affiliate of any Member shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and each of them shall have the right to take for its own account (individually or otherwise) or to recommend to others any such particular investment opportunity. 12. Authority of Persons to Deal with the Company. The Company may, but shall not be required to, transact business with, borrow money from, or lend money to any Member, or any affiliate thereof, and such person or entity shall, subject to applicable law, have the same rights and obligations with respect thereto as would a person who was not such a Member or affiliate. 13. Profits and Losses, Distributions, Books, Records, Reports, etc. (a) As and to the extent permitted and not prohibited by the Act, and as determined by a majority vote of the Members, the Company's profits and losses (and any then distributions of the Company's cash or other assets) shall be allocated and distributed among the Members at least annually in proportion to their then Capital Accounts as reflected in the Company's records. (b) The Company shall maintain and keep at its principal office described in Section 2 complete and accurate books of account as required pursuant to the Act. Each Member shall have access thereto at all reasonable times and the right to inspect and copy such books and records either directly or through a person designated by such Member. (c) The Company shall send to all Members an annual report, containing a balance sheet, income statement, and statement of changes in financial position, and all information necessary for each Member to prepare its federal income tax return. 14. Exculpation. Except by reason of acts or omissions of the Member found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct or a knowing violation of the criminal law, in any proceeding brought by or in the right of the Company or by or on behalf of any Member, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee or transferee of the Company or of any Member, 7 for any losses, claims, damages or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Member by this agreement, (ii) the performance by the Member of, or the omission to perform, any acts on advice of legal counsel, accountants or other professional consultants to the Company; or (iii) the negligence, dishonesty or bad faith of any consultant, employee, or agent of the Company selected or engaged by the Member in good faith. 15. Exoneration. No Member or agent of the Company, jointly or severally, shall be liable or have any obligation for any liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being such Member or agent of the Company. 16. Indemnification and Advances. (a) To the full extent permitted by law, the Company shall indemnify, defend and hold each Member harmless from and against, and may, with the approval of a majority vote of the Members, indemnify, defend and hold the Company's and the Member's respective affiliates, agents, employees, advisors, consultants and other independent contractors, harmless from and against, any loss, liability, damage, fine, judgment, penalty, attachment, cost or expense, including reasonable attorneys' fees, arising from any demands, claims or lawsuits against the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors, in or as a result of or relating to its capacity, actions or omissions as Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims or lawsuits initiated by a Member; provided that the acts or omissions of the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor seeking indemnification are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law by the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall not be entitled to indemnification hereunder or that the Member or the Company's or 8 the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors did not act in good faith and in a manner that it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) Subject to the limitations herein, a Member shall be entitled to receive, upon application therefor, and the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall be entitled to receive, with the approval of a majority vote of the Members, advances from the Company to cover the costs of defending any claim or action against them relating to their acts or omissions as a Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company or a Member or otherwise relating to the Company; provided, however, that such advances shall be repaid to the Company (with Interest thereon at an annual rate equal to the prime rate in effect from time to time as reflected in The Wall Street Journal but not to exceed the maximum permitted by applicable law), if the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor that receives such advance is found by a court of competent jurisdiction upon entry of a final judgment to have violated any of the standards that preclude indemnification hereunder. All rights of the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors to indemnification as herein provided shall survive the dissolution of the Company and the death, resignation, expulsion, incompetency, dissolution, liquidation or Bankruptcy of the Member or any such other person, and shall inure to the benefit of their heirs, personal representatives, successors and assigns. (c) In the event the indemnification obligation of this Section shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section to the fullest extent permitted by law. (d) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that the Member or any of its affiliates may have. Nothing contained in this Section shall limit any lawful right to indemnification existing independently of this Section. (e) Any amount that a Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors is entitled to receive hereunder shall be paid only out of and to the extent of the 9 Company's then assets, including any insurance proceeds available to the Company for such purposes. No Member shall be liable for the payment of any amount that a Member or an affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or the Member is entitled to receive hereunder, nor to make any capital contribution to the Company, or return any capital distribution made to such person or entity by the Company, nor to restore any negative capital account balance of that Member in order to enable the Company to make any payment hereunder. 17. Dissolution. The Company shall be dissolved upon the earliest to occur of (i) the Members' unanimous written consent, (ii) entry of a decree of judicial dissolution under the Act, or (iii) the date set forth in the Articles of Organization. The death, expulsion, resignation, dissolution, incompetency, or bankruptcy of a Member or any other event that terminates the continued membership of a Member shall not cause a dissolution of the Company, because the remaining Members hereby unanimously consent to continue the business of the Company upon the happening of such event. Upon any dissolution, the Company's business shall be wound up, its liabilities satisfied, and any balance, less reasonable reserves, shall be distributed to the Members in accordance with their positive capital accounts. 18. Miscellaneous Provisions. (a) Governing Law. This agreement and the rights and liabilities of the parties shall be determined in accordance with the laws of the Commonwealth of Virginia. (b) Captions. Captions contained in this agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope or intent of this agreement or any Section or provision hereof. (c) Construction. Whenever the context may require, each pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of each noun or pronoun shall include the plural, and vice versa. (d) Severability. Every provision of this agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the terms or provisions of this agreement. (e) Successors. Subject to the limitations on transferability contained herein, each and all of the terms, 10 provisions and agreements herein contained shall be binding upon and inure to the benefit of the personal representatives, successors, heirs, and assigns (including an assignee of all or part of any interest in the Company) of the parties hereto. (f) Execution and Counterparts. This agreement and any amendment hereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one agreement. In addition, this agreement may be executed through the use of counterpart signature pages. The signature of any party on any counterpart agreement or counterpart signature page shall be deemed to be a signature to, and may be appended to, one document. (g) Third Party Beneficiary. No provision of this agreement is intended to be for the benefit of any creditor or other person to which any debt, liability, or obligation is owed by (or that otherwise has any claim against) the Company or any Member, and no creditor or other person shall obtain any right under any of the foregoing provisions, nor shall any such person solely by reason of any of the foregoing provisions make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. (h) Investment Representation. By executing this agreement, each Member represents and warrants that such Member's interest in the Company is being acquired by it for its own account for investment and not with a view to resale or distribution thereof and that the Member is fully aware that each other Member and the Company are relying upon the truth and accuracy of this representation and warranty. (i) Entire Agreement. This agreement constitutes the sole operating agreement among the Members, and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Members relating to the affairs of the Company and the conduct of the Company's business. No amendment or modification of this agreement shall be effective unless approved in writing as provided herein. 19. Notices; Consents, etc. Any notice, consent, election, approval, payment, demand, or communication required or permitted to be given by this agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes only when delivered personally to or actually received by the party or an officer of the entity to which directed or ten (10) days after having been sent by registered or certified mail, postage and charges prepaid, addressed to the address for the notified party 11 contained in the Company's records. Any Member may change its address for purposes of this agreement by giving the Company and each other Member notice of such change, in the manner set forth above. 20. Amendment. This agreement may be amended at any time upon a unanimous vote of the Members, but such amendment shall be effective only when reduced to writing and signed by all Members. 21. This Amendment. The Operating Agreement of the Company previously entered into as of the 23rd day of May 1997 is hereby amended in its entirety to read as above, effective as of the date of this agreement. 12 IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed as of the day, month, and year first above written. Member: NCH II, LLC By: NCR II, Inc. Manager By:___________________________ a duly authorized officer Member: NCR II, Inc. By:________________________________ a duly authorized officer 13 EXHIBIT A Capital Name Contribution - ---- ------------ NCH II, LLC $990.00 NCR II, Inc. $ 10.00 This is Exhibit A to the Amended Operating Agreement of NCR III, LLC as of the ___ day of ___________, 199_. Member: NCH II, LLC By: NCR II, Inc. Manager By:___________________________ a duly authorized officer Member: NCR II, Inc. By:________________________________ a duly authorized officer 14 NCR III, LLC CERTIFICATE REGISTER
========================================================================================== Certi- Number ficate Shares/ Date Transfer To Whom Number Owner Votes Issued Date Transferred - ------------------------------------------------------------------------------------------ 1 NCH II, LLC 990 12/___/97 - ------------------------------------------------------------------------------------------ 2 NCR II, Inc. 10 12/___/97 ==========================================================================================
15 EX-3.(II)(Z) 16 EXHIBIT 3(II)(Z) Exhibit 3(ii)(z) AMENDED OPERATING AGREEMENT of NCH II, LLC This is the Amended Operating Agreement of NCH II, LLC, a Virginia limited liability company (the "Company"), entered into as of this __ day of ________________, 199_, by and among Brill Media Holdings, LLC, a Virginia limited liability company, and NCR II, Inc., a Virginia corporation, the Company's members [each (and each other person or entity while hereafter admitted as a Member) a "Member", and collectively with each other Member, the "Members"]. 1. Name. The name of the Company is NCH II, LLC. The business of the Company may be conducted under such trade or fictitious name or names as the Members may select from time to time. 2. Principal Office. The Company's principal office, where the Company's principal executive offices are located and at which the records required to be maintained by the Act (hereinafter defined) are to be kept shall be located at 420 NW Fifth Street, Suite 3-B, Evansville, Indiana 47708, or at such other place or places as the Members may determine from time to time. 3. Capital Accounts. (a) Capital Contributions. The amount of the Members' capital contributions (to be made simultaneously with their execution of this agreement) are set forth on Exhibit A; such Members shall not be required to lend or make any additional capital contribution. (b) Capital Accounts; Allocations. A separate capital account (singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be established and maintained for each Member. As of any date, the amount of a Member's Capital Account shall be adjusted and any allocations of the Company's income, gain, loss, deductions, or credits (or items thereof) shall be determined and made as hereinafter provided and in accordance with the Company's records and, to the extent consistent herewith, applicable provisions of the Virginia Limited Liability Company Act as it may be amended or superseded from time to time (the "Act"): (i) Each Member's Capital Account (a) shall be increased by (i) the cash amount or agreed fair market value of all contributions hereafter made by such Member to the Company, (ii) any net income allocated (but not distributed) to such Member pursuant to this Section 3, and any items in the nature of income or gain that are specially allocated (but not distributed) to such Member, and (iii) the amount of any Company liabilities assumed by such Member or secured by any property of the Company distributed to such Member, and (b) shall be decreased by (i) the cash amount or agreed fair market value of all actual or deemed distributions of cash or property made to such Member pursuant to this agreement, (ii) any net loss allocated to such Member pursuant to this Section 3, and any items in the nature of expenses or losses that are specially allocated to such Member, and (iii) the amount of any liabilities of such Member assumed or secured by the Company. In determining the amount of any such liabilities, there shall be taken into account the provisions of ss. 752(c), and any other applicable provisions, of the Internal Revenue Code as amended from time to time (the "Code") and any applicable regulations (the "Regulations"; singly, a "Regulation") thereunder. (ii) In accordance with Regulation ss. 1.704, at appropriate times, the Capital Accounts of all Members and the carrying values of all Company properties shall be adjusted upwards or downwards to reflect any unrealized gain or loss attributable to each Company property, as if such unrealized gain or loss had been recognized upon an actual sale of each such property at such time and had been allocated to the Members pursuant to this Section 3. Similarly, in accordance with such Regulation, immediately prior to the distribution in kind of any Company property to a Member (including pursuant to a liquidation of the Company) the Capital Accounts of the Members shall be adjusted to reflect any unrealized gain or loss attributable to such property as if such unrealized gain or loss had been recognized upon an actual sale of such property at such time and had been allocated to the Members pursuant to this Section 3. Such unrealized gain or loss shall be determined using such methods of valuation as the Members in their sole discretion deem appropriate. (iii) For purposes of this agreement, net income, gross income and net loss shall be computed in the same manner as determined for federal income tax purposes, with the modifications set forth in Regulation ss. 1.704. (iv) Should any Member's adjusted capital account balance become negative as a result of any adjustment, allocation, or distribution, thereafter, acting as rapidly as is possible, from time to time such Member's 2 share of the Company's income and gain, if any, shall be separately allocated to such Member's Capital Account until such time as such Member's Capital Account deficit is eliminated. 3 (v) Non-recourse deductions shall be allocated in a manner that is reasonably consistent with other allocations of items of income, gain, or loss attributable to the property securing the non-recourse liabilities. In the first year in which the Company has non-recourse deductions or makes distributions attributable to an increase in minimum gain as defined in the Regulations, this agreement shall be deemed to include a "minimum gain chargeback" in accordance with the Regulations. 4. Members. No person or entity shall be or become a Member of the Company unless named as a Member herein or hereafter admitted as a Member of the Company with the prior written consent of all then Members. The time of admission of any such new Member shall begin when such Member's status is first reflected in writing in the Company's records, and not before. Any Member may resign, but (unless the Members agree otherwise in writing) any such resignation shall first become effective thirty (30) calendar days after the Company shall have received written notice thereof, and not before. 5. Transfer of Interests. Other than with the prior, written consent of all Members, an assignee or other transferee of an interest in the Company (by operation of law or otherwise) shall not thereby become a Member of the Company nor thereby acquire any proprietary right in nor right to become a Member or to participate in the affairs or management of the Company. Any attempted assignment or other transfer of a Member's rights in violation of this agreement shall be void. Without such prior written consent, by any written assignment, pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a Member may assign and transfer to and entitle the assignee or transferee to receive only (as and to the extent expressly so assigned or transferred) any share of the profits or losses or asset distributions of the Company that the assignor or transferor Member thereafter otherwise would have been or become entitled to hereunder, and nothing more. 6. Ceasing to be a Member. Upon any Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy, such person or entity shall cease to be a Member. Any payment made to a Member's successor in interest, personal representative, executor, or administrator shall acquit the Company of any and all liability to such Member and to any such person as may be interested in any such payment by reason of such Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy. 4 7. Certificate; Membership; Voting Rights of Members; Transfer. Each Member shall be entitled to a membership certificate (the "Certificate") evidencing such Member's interest in the Company and the number of votes entitled to be cast by such Member in voting by the Members, which Certificate shall be in such form and contain such substance as may be agreed upon by the Members or required by law. The Company shall maintain a Certificate register (the "Certificate Register") recording ownership of all Certificates then outstanding and the number of votes entitled to be cast by each Member in voting by the Members, which register, at all times, shall be conclusive evidence of each Member's interest in the Company and voting rights. Any transfer of a Member's interest in the Company, in whole or in part, other than a Transfer of an interest in a Member's share of the Company's profits or losses or assets on distribution as provided for in Section 5, shall become effective only upon (i) surrender of each Certificate representing the Member's interest then being transferred accompanied by a written assignment applicable thereto, all in form and substance satisfactory to the Company, and duly executed by the transferor, and (ii) recordation of such transfer on the Company's Certificate Register. 8. Management. The Company's business is to be managed by a manager (the "Manager") who shall be BMC Holdings, LLC, who shall have the exclusive right to manage the Company. The Manager shall have the sole and exclusive right to manage the Company and to make all decisions regarding the Company's business, including the right, power, and authority to do in the name of, and acting solely on behalf of and for, the Company all lawful things that the Company might do that in the Manager's sole good faith business judgment of the best interests of the Company are necessary, proper, convenient, or desirable to carry out the purposes of the Company. Any instrument or agreement may be executed and delivered on behalf of the Company by the Manager, including any deed or deed of trust purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, any note or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument. 9. Compensation and Reimbursement of Members. Members may receive compensation for the reasonable value of any services rendered in managing the Company, and the Company shall pay, or reimburse all expenses reasonably incurred by any Member in connection with managing the Company. 5 10. Certain Actions, Taxes. On the Company's behalf, the Members may make any election permitted by Section 754 of the Code with respect to adjustments to basis of the Company's property. 11. Authority of the Members to Engage in Other Businesses. Any Member, or any affiliate of a Member may engage in and/or possess an interest in other business ventures of any nature and description, independently or with others, including but not limited to the ownership, financing, leasing, operation, 6 management, and development of businesses that may compete with the Company; and neither the Company nor the Members shall have any right by virtue of this agreement in or to any other venture or to any income or profits derived therefrom. No Member, or any affiliate of any Member shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and each of them shall have the right to take for its own account (individually or otherwise) or to recommend to others any such particular investment opportunity. 12. Authority of Persons to Deal with the Company. The Company may, but shall not be required to, transact business with, borrow money from, or lend money to any Member, or any affiliate thereof, and such person or entity shall, subject to applicable law, have the same rights and obligations with respect thereto as would a person who was not such a Member or affiliate. 13. Profits and Losses, Distributions, Books, Records, Reports, etc. (a) As and to the extent permitted and not prohibited by the Act, and as determined by a majority vote of the Members, the Company's profits and losses (and any then distributions of the Company's cash or other assets) shall be allocated and distributed among the Members at least annually in proportion to their then Capital Accounts as reflected in the Company's records. (b) The Company shall maintain and keep at its principal office described in Section 2 complete and accurate books of account as required pursuant to the Act. Each Member shall have access thereto at all reasonable times and the right to inspect and copy such books and records either directly or through a person designated by such Member. (c) The Company shall send to all Members an annual report, containing a balance sheet, income statement, and statement of changes in financial position, and all information necessary for each Member to prepare its federal income tax return. 14. Exculpation. Except by reason of acts or omissions of the Member found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct or a knowing violation of the criminal law, in any proceeding brought by or in the right of the Company or by or on behalf of any Member, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee or transferee of the Company or of any Member, 7 for any losses, claims, damages or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Member by this agreement, (ii) the performance by the Member of, or the omission to perform, any acts on advice of legal counsel, accountants or other professional consultants to the Company; or (iii) the negligence, dishonesty or bad faith of any consultant, employee, or agent of the Company selected or engaged by the Member in good faith. 15. Exoneration. No Member or agent of the Company, jointly or severally, shall be liable or have any obligation for any liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being such Member or agent of the Company. 16. Indemnification and Advances. (a) To the full extent permitted by law, the Company shall indemnify, defend and hold each Member harmless from and against, and may, with the approval of a majority vote of the Members, indemnify, defend and hold the Company's and the Member's respective affiliates, agents, employees, advisors, consultants and other independent contractors, harmless from and against, any loss, liability, damage, fine, judgment, penalty, attachment, cost or expense, including reasonable attorneys' fees, arising from any demands, claims or lawsuits against the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors, in or as a result of or relating to its capacity, actions or omissions as Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims or lawsuits initiated by a Member; provided that the acts or omissions of the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor seeking indemnification are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law by the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall not be entitled to indemnification hereunder or that the Member or the Company's or 8 the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors did not act in good faith and in a manner that it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) Subject to the limitations herein, a Member shall be entitled to receive, upon application therefor, and the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall be entitled to receive, with the approval of a majority vote of the Members, advances from the Company to cover the costs of defending any claim or action against them relating to their acts or omissions as a Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company or a Member or otherwise relating to the Company; provided, however, that such advances shall be repaid to the Company (with Interest thereon at an annual rate equal to the prime rate in effect from time to time as reflected in The Wall Street Journal but not to exceed the maximum permitted by applicable law), if the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor that receives such advance is found by a court of competent jurisdiction upon entry of a final judgment to have violated any of the standards that preclude indemnification hereunder. All rights of the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors to indemnification as herein provided shall survive the dissolution of the Company and the death, resignation, expulsion, incompetency, dissolution, liquidation or Bankruptcy of the Member or any such other person, and shall inure to the benefit of their heirs, personal representatives, successors and assigns. (c) In the event the indemnification obligation of this Section shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section to the fullest extent permitted by law. (d) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that the Member or any of its affiliates may have. Nothing contained in this Section shall limit any lawful right to indemnification existing independently of this Section. (e) Any amount that a Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors is entitled to receive hereunder shall be paid only out of and to the extent of the 9 Company's then assets, including any insurance proceeds available to the Company for such purposes. No Member shall be liable for the payment of any amount that a Member or an affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or the Member is entitled to receive hereunder, nor to make any capital contribution to the Company, or return any capital distribution made to such person or entity by the Company, nor to restore any negative capital account balance of that Member in order to enable the Company to make any payment hereunder. 17. Dissolution. The Company shall be dissolved upon the earliest to occur of (i) the Members' unanimous written consent, (ii) entry of a decree of judicial dissolution under the Act, or (iii) the date set forth in the Articles of Organization. The death, expulsion, resignation, dissolution, incompetency, or bankruptcy of a Member or any other event that terminates the continued membership of a Member shall not cause a dissolution of the Company, because the remaining Members hereby unanimously consent to continue the business of the Company upon the happening of such event. Upon any dissolution, the Company's business shall be wound up, its liabilities satisfied, and any balance, less reasonable reserves, shall be distributed to the Members in accordance with their positive capital accounts. 18. Miscellaneous Provisions. (a) Governing Law. This agreement and the rights and liabilities of the parties shall be determined in accordance with the laws of the Commonwealth of Virginia. (b) Captions. Captions contained in this agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope or intent of this agreement or any Section or provision hereof. (c) Construction. Whenever the context may require, each pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of each noun or pronoun shall include the plural, and vice versa. (d) Severability. Every provision of this agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the terms or provisions of this agreement. (e) Successors. Subject to the limitations on transferability contained herein, each and all of the terms, 10 provisions and agreements herein contained shall be binding upon and inure to the benefit of the personal representatives, successors, heirs, and assigns (including an assignee of all or part of any interest in the Company) of the parties hereto. (f) Execution and Counterparts. This agreement and any amendment hereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one agreement. In addition, this agreement may be executed through the use of counterpart signature pages. The signature of any party on any counterpart agreement or counterpart signature page shall be deemed to be a signature to, and may be appended to, one document. (g) Third Party Beneficiary. No provision of this agreement is intended to be for the benefit of any creditor or other person to which any debt, liability, or obligation is owed by (or that otherwise has any claim against) the Company or any Member, and no creditor or other person shall obtain any right under any of the foregoing provisions, nor shall any such person solely by reason of any of the foregoing provisions make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. (h) Investment Representation. By executing this agreement, each Member represents and warrants that such Member's interest in the Company is being acquired by it for its own account for investment and not with a view to resale or distribution thereof and that the Member is fully aware that each other Member and the Company are relying upon the truth and accuracy of this representation and warranty. (i) Entire Agreement. This agreement constitutes the sole operating agreement among the Members, and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Members relating to the affairs of the Company and the conduct of the Company's business. No amendment or modification of this agreement shall be effective unless approved in writing as provided herein. 19. Notices; Consents, etc. Any notice, consent, election, approval, payment, demand, or communication required or permitted to be given by this agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes only when delivered personally to or actually received by the party or an officer of the entity to which directed or ten (10) days after having been sent by registered or certified mail, postage and charges prepaid, addressed to the address for the notified party 11 contained in the Company's records. Any Member may change its address for purposes of this agreement by giving the Company and each other Member notice of such change, in the manner set forth above. 20. Amendment. This agreement may be amended at any time upon a unanimous vote of the Members, but such amendment shall be effective only when reduced to writing and signed by all Members. 21. This Amendment. The Operating Agreement of the Company previously entered into as of the 23rd day of May 1997 is hereby amended in its entirety to read as above, effective as of the date of this agreement. 12 IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed as of the day, month, and year first above written. Member: Brill Media Holdings, LLC By: Brill Media Holdings, Inc. Manager By: ------------------------------- a duly authorized officer Member: NCR II, Inc. By: ------------------------------------- a duly authorized officer 13 EXHIBIT A Capital Name Contribution - ---- ------------ Brill Media Holdings, LLC $990.00 NCR II, Inc. $ 10.00 This is Exhibit A to the Amended Operating Agreement of NCH II, LLC as of the ___ day of ___________, 199_. Member: Brill Media Holdings, LLC By: Brill Media Holdings, Inc. Manager By: ------------------------------ a duly authorized officer Member: NCR II, Inc. By: ------------------------------------ a duly authorized officer 14 NCH II, LLC CERTIFICATE REGISTER ================================================================================ Certi- Number ficate Shares/ Date Transfer To Whom Number Owner Votes Issued Date Transferred - -------------------------------------------------------------------------------- 1 BMC Holdings, LLC 990 12/___/97 - -------------------------------------------------------------------------------- 2 NCR II, Inc. 10 12/___/97 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ================================================================================ 15 EX-3.(II)(AA) 17 EXHIBIT 3(II)(AA) Exhibit 3(ii)(aa) AMENDED OPERATING AGREEMENT of NORTHLAND HOLDINGS, LLC This is the Amended Operating Agreement of Northland Holdings, LLC, a Virginia limited liability company (the "Company"), entered into as of this __ day of ________________, 199_, by and among Brill Media Holdings, LLC, a Virginia limited liability company, and Northland Management, Inc., a Virginia corporation, the Company's members [each (and each other person or entity while hereafter admitted as a Member) a "Member", and collectively with each other Member, the "Members"]. 1. Name. The name of the Company is Northland Holdings, LLC. The business of the Company may be conducted under such trade or fictitious name or names as the Members may select from time to time. 2. Principal Office. The Company's principal office, where the Company's principal executive offices are located and at which the records required to be maintained by the Act (hereinafter defined) are to be kept shall be located at 420 NW Fifth Street, Suite 3-B, Evansville, Indiana 47708, or at such other place or places as the Members may determine from time to time. 3. Capital Accounts. (a) Capital Contributions. The amount of the Members' capital contributions (to be made simultaneously with their execution of this agreement) are set forth on Exhibit A; such Members shall not be required to lend or make any additional capital contribution. (b) Capital Accounts; Allocations. A separate capital account (singly, a "Capital Account"; collectively, the "Capital Accounts"), shall be established and maintained for each Member. As of any date, the amount of a Member's Capital Account shall be adjusted and any allocations of the Company's income, gain, loss, deductions, or credits (or items thereof) shall be determined and made as hereinafter provided and in accordance with the Company's records and, to the extent consistent herewith, applicable provisions of the Virginia Limited Liability Company Act as it may be amended or superseded from time to time (the "Act"): (i) Each Member's Capital Account (a) shall be increased by (i) the cash amount or agreed fair market value of all contributions hereafter made by such Member to the Company, (ii) any net income allocated (but not distributed) to such Member pursuant to this Section 3, and any items in the nature of income or gain that are specially allocated (but not distributed) to such Member, and (iii) the amount of any Company liabilities assumed by such Member or secured by any property of the Company distributed to such Member, and (b) shall be decreased by (i) the cash amount or agreed fair market value of all actual or deemed distributions of cash or property made to such Member pursuant to this agreement, (ii) any net loss allocated to such Member pursuant to this Section 3, and any items in the nature of expenses or losses that are specially allocated to such Member, and (iii) the amount of any liabilities of such Member assumed or secured by the Company. In determining the amount of any such liabilities, there shall be taken into account the provisions of ss. 752(c), and any other applicable provisions, of the Internal Revenue Code as amended from time to time (the "Code") and any applicable regulations (the "Regulations"; singly, a "Regulation") thereunder. (ii) In accordance with Regulation ss. 1.704, at appropriate times, the Capital Accounts of all Members and the carrying values of all Company properties shall be adjusted upwards or downwards to reflect any unrealized gain or loss attributable to each Company property, as if such unrealized gain or loss had been recognized upon an actual sale of each such property at such time and had been allocated to the Members pursuant to this Section 3. Similarly, in accordance with such Regulation, immediately prior to the distribution in kind of any Company property to a Member (including pursuant to a liquidation of the Company) the Capital Accounts of the Members shall be adjusted to reflect any unrealized gain or loss attributable to such property as if such unrealized gain or loss had been recognized upon an actual sale of such property at such time and had been allocated to the Members pursuant to this Section 3. Such unrealized gain or loss shall be determined using such methods of valuation as the Members in their sole discretion deem appropriate. (iii) For purposes of this agreement, net income, gross income and net loss shall be computed in the same manner as determined for federal income tax purposes, with the modifications set forth in Regulation ss. 1.704. (iv) Should any Member's adjusted capital account balance become negative as a result of any adjustment, allocation, or distribution, thereafter, acting as 2 rapidly as is possible, from time to time such Member's share of the Company's income and gain, if any, shall be separately allocated to such Member's Capital Account until such time as such Member's Capital Account deficit is eliminated. 3 (v) Non-recourse deductions shall be allocated in a manner that is reasonably consistent with other allocations of items of income, gain, or loss attributable to the property securing the non-recourse liabilities. In the first year in which the Company has non-recourse deductions or makes distributions attributable to an increase in minimum gain as defined in the Regulations, this agreement shall be deemed to include a "minimum gain chargeback" in accordance with the Regulations. 4. Members. No person or entity shall be or become a Member of the Company unless named as a Member herein or hereafter admitted as a Member of the Company with the prior written consent of all then Members. The time of admission of any such new Member shall begin when such Member's status is first reflected in writing in the Company's records, and not before. Any Member may resign, but (unless the Members agree otherwise in writing) any such resignation shall first become effective thirty (30) calendar days after the Company shall have received written notice thereof, and not before. 5. Transfer of Interests. Other than with the prior, written consent of all Members, an assignee or other transferee of an interest in the Company (by operation of law or otherwise) shall not thereby become a Member of the Company nor thereby acquire any proprietary right in nor right to become a Member or to participate in the affairs or management of the Company. Any attempted assignment or other transfer of a Member's rights in violation of this agreement shall be void. Without such prior written consent, by any written assignment, pledge, encumbrance, or other transfer (jointly and severally, a "Transfer") a Member may assign and transfer to and entitle the assignee or transferee to receive only (as and to the extent expressly so assigned or transferred) any share of the profits or losses or asset distributions of the Company that the assignor or transferor Member thereafter otherwise would have been or become entitled to hereunder, and nothing more. 6. Ceasing to be a Member. Upon any Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy, such person or entity shall cease to be a Member. Any payment made to a Member's successor in interest, personal representative, executor, or administrator shall acquit the Company of any and all liability to such Member and to any such person as may be interested in any such payment by reason of such Member's death, expulsion, resignation, dissolution, incompetency, or bankruptcy. 4 7. Certificate; Membership; Voting Rights of Members; Transfer. Each Member shall be entitled to a membership certificate (the "Certificate") evidencing such Member's interest in the Company and the number of votes entitled to be cast by such Member in voting by the Members, which Certificate shall be in such form and contain such substance as may be agreed upon by the Members or required by law. The Company shall maintain a Certificate register (the "Certificate Register") recording ownership of all Certificates then outstanding and the number of votes entitled to be cast by each Member in voting by the Members, which register, at all times, shall be conclusive evidence of each Member's interest in the Company and voting rights. Any transfer of a Member's interest in the Company, in whole or in part, other than a Transfer of an interest in a Member's share of the Company's profits or losses or assets on distribution as provided for in Section 5, shall become effective only upon (i) surrender of each Certificate representing the Member's interest then being transferred accompanied by a written assignment applicable thereto, all in form and substance satisfactory to the Company, and duly executed by the transferor, and (ii) recordation of such transfer on the Company's Certificate Register. 8. Management. The Company's business is to be managed by a manager (the "Manager") who shall be BMC Holdings, LLC, who shall have the exclusive right to manage the Company. The Manager shall have the sole and exclusive right to manage the Company and to make all decisions regarding the Company's business, including the right, power, and authority to do in the name of, and acting solely on behalf of and for, the Company all lawful things that the Company might do that in the Manager's sole good faith business judgment of the best interests of the Company are necessary, proper, convenient, or desirable to carry out the purposes of the Company. Any instrument or agreement may be executed and delivered on behalf of the Company by the Manager, including any deed or deed of trust purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, any note or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument. 9. Compensation and Reimbursement of Members. Members may receive compensation for the reasonable value of any services rendered in managing the Company, and the Company shall pay, or reimburse all expenses reasonably incurred by any Member in connection with managing the Company. 5 10. Certain Actions, Taxes. On the Company's behalf, the Members may make any election permitted by Section 754 of the Code with respect to adjustments to basis of the Company's property. 11. Authority of the Members to Engage in Other Businesses. Any Member, or any affiliate of a Member may engage in and/or possess an interest in other business ventures of any nature and description, independently or with others, including but not limited to the ownership, financing, leasing, operation, 6 management, and development of businesses that may compete with the Company; and neither the Company nor the Members shall have any right by virtue of this agreement in or to any other venture or to any income or profits derived therefrom. No Member, or any affiliate of any Member shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and each of them shall have the right to take for its own account (individually or otherwise) or to recommend to others any such particular investment opportunity. 12. Authority of Persons to Deal with the Company. The Company may, but shall not be required to, transact business with, borrow money from, or lend money to any Member, or any affiliate thereof, and such person or entity shall, subject to applicable law, have the same rights and obligations with respect thereto as would a person who was not such a Member or affiliate. 13. Profits and Losses, Distributions, Books, Records, Reports, etc. (a) As and to the extent permitted and not prohibited by the Act, and as determined by a majority vote of the Members, the Company's profits and losses (and any then distributions of the Company's cash or other assets) shall be allocated and distributed among the Members at least annually in proportion to their then Capital Accounts as reflected in the Company's records. (b) The Company shall maintain and keep at its principal office described in Section 2 complete and accurate books of account as required pursuant to the Act. Each Member shall have access thereto at all reasonable times and the right to inspect and copy such books and records either directly or through a person designated by such Member. (c) The Company shall send to all Members an annual report, containing a balance sheet, income statement, and statement of changes in financial position, and all information necessary for each Member to prepare its federal income tax return. 14. Exculpation. Except by reason of acts or omissions of the Member found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct or a knowing violation of the criminal law, in any proceeding brought by or in the right of the Company or by or on behalf of any Member, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee or transferee of the Company or of any Member, 7 for any losses, claims, damages or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Member by this agreement, (ii) the performance by the Member of, or the omission to perform, any acts on advice of legal counsel, accountants or other professional consultants to the Company; or (iii) the negligence, dishonesty or bad faith of any consultant, employee, or agent of the Company selected or engaged by the Member in good faith. 15. Exoneration. No Member or agent of the Company, jointly or severally, shall be liable or have any obligation for any liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being such Member or agent of the Company. 16. Indemnification and Advances. (a) To the full extent permitted by law, the Company shall indemnify, defend and hold each Member harmless from and against, and may, with the approval of a majority vote of the Members, indemnify, defend and hold the Company's and the Member's respective affiliates, agents, employees, advisors, consultants and other independent contractors, harmless from and against, any loss, liability, damage, fine, judgment, penalty, attachment, cost or expense, including reasonable attorneys' fees, arising from any demands, claims or lawsuits against the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors, in or as a result of or relating to its capacity, actions or omissions as Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims or lawsuits initiated by a Member; provided that the acts or omissions of the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor seeking indemnification are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law by the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall not be entitled to indemnification hereunder or that the Member or the Company's or 8 the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors did not act in good faith and in a manner that it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) Subject to the limitations herein, a Member shall be entitled to receive, upon application therefor, and the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors shall be entitled to receive, with the approval of a majority vote of the Members, advances from the Company to cover the costs of defending any claim or action against them relating to their acts or omissions as a Member, or as an affiliate, agent, employee, advisor, consultant or other independent contractor of the Company or a Member or otherwise relating to the Company; provided, however, that such advances shall be repaid to the Company (with Interest thereon at an annual rate equal to the prime rate in effect from time to time as reflected in The Wall Street Journal but not to exceed the maximum permitted by applicable law), if the Member or the Company's or the Member's affiliate, agent, employee, advisor, consultant or other independent contractor that receives such advance is found by a court of competent jurisdiction upon entry of a final judgment to have violated any of the standards that preclude indemnification hereunder. All rights of the Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors to indemnification as herein provided shall survive the dissolution of the Company and the death, resignation, expulsion, incompetency, dissolution, liquidation or Bankruptcy of the Member or any such other person, and shall inure to the benefit of their heirs, personal representatives, successors and assigns. (c) In the event the indemnification obligation of this Section shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section to the fullest extent permitted by law. (d) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that the Member or any of its affiliates may have. Nothing contained in this Section shall limit any lawful right to indemnification existing independently of this Section. (e) Any amount that a Member or the Company's or the Member's respective affiliates, agents, employees, advisors, consultants or other independent contractors is entitled to receive hereunder shall be paid only out of and to the extent of the 9 Company's then assets, including any insurance proceeds available to the Company for such purposes. No Member shall be liable for the payment of any amount that a Member or an affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or the Member is entitled to receive hereunder, nor to make any capital contribution to the Company, or return any capital distribution made to such person or entity by the Company, nor to restore any negative capital account balance of that Member in order to enable the Company to make any payment hereunder. 17. Dissolution. The Company shall be dissolved upon the earliest to occur of (i) the Members' unanimous written consent, (ii) entry of a decree of judicial dissolution under the Act, or (iii) the date set forth in the Articles of Organization. The death, expulsion, resignation, dissolution, incompetency, or bankruptcy of a Member or any other event that terminates the continued membership of a Member shall not cause a dissolution of the Company, because the remaining Members hereby unanimously consent to continue the business of the Company upon the happening of such event. Upon any dissolution, the Company's business shall be wound up, its liabilities satisfied, and any balance, less reasonable reserves, shall be distributed to the Members in accordance with their positive capital accounts. 18. Miscellaneous Provisions. (a) Governing Law. This agreement and the rights and liabilities of the parties shall be determined in accordance with the laws of the Commonwealth of Virginia. (b) Captions. Captions contained in this agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope or intent of this agreement or any Section or provision hereof. (c) Construction. Whenever the context may require, each pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of each noun or pronoun shall include the plural, and vice versa. (d) Severability. Every provision of this agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the terms or provisions of this agreement. (e) Successors. Subject to the limitations on transferability contained herein, each and all of the terms, 10 provisions and agreements herein contained shall be binding upon and inure to the benefit of the personal representatives, successors, heirs, and assigns (including an assignee of all or part of any interest in the Company) of the parties hereto. (f) Execution and Counterparts. This agreement and any amendment hereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one agreement. In addition, this agreement may be executed through the use of counterpart signature pages. The signature of any party on any counterpart agreement or counterpart signature page shall be deemed to be a signature to, and may be appended to, one document. (g) Third Party Beneficiary. No provision of this agreement is intended to be for the benefit of any creditor or other person to which any debt, liability, or obligation is owed by (or that otherwise has any claim against) the Company or any Member, and no creditor or other person shall obtain any right under any of the foregoing provisions, nor shall any such person solely by reason of any of the foregoing provisions make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. (h) Investment Representation. By executing this agreement, each Member represents and warrants that such Member's interest in the Company is being acquired by it for its own account for investment and not with a view to resale or distribution thereof and that the Member is fully aware that each other Member and the Company are relying upon the truth and accuracy of this representation and warranty. (i) Entire Agreement. This agreement constitutes the sole operating agreement among the Members, and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Members relating to the affairs of the Company and the conduct of the Company's business. No amendment or modification of this agreement shall be effective unless approved in writing as provided herein. 19. Notices; Consents, etc. Any notice, consent, election, approval, payment, demand, or communication required or permitted to be given by this agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes only when delivered personally to or actually received by the party or an officer of the entity to which directed or ten (10) days after having been sent by registered or certified mail, postage and charges prepaid, addressed to the address for the notified party 11 contained in the Company's records. Any Member may change its address for purposes of this agreement by giving the Company and each other Member notice of such change, in the manner set forth above. 20. Amendment. This agreement may be amended at any time upon a unanimous vote of the Members, but such amendment shall be effective only when reduced to writing and signed by all Members. 21. This Amendment. The Operating Agreement of the Company previously entered into as of the 24th day of February 1997 is hereby amended in its entirety to read as above, effective as of the date of this agreement. 12 IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed as of the day, month, and year first above written. Member: Brill Media Holdings, LLC By: Brill Media Holdings, Inc. Manager By:___________________________ a duly authorized officer Member: Northland Management, Inc. By:________________________________ a duly authorized officer 13 EXHIBIT A Capital Name Contribution - ---- ------------ Brill Media Holdings, LLC $990.00 Northland Management, Inc. $ 10.00 This is Exhibit A to the Amended Operating Agreement of Northland Holdings, LLC as of the ___ day of ___________, 199_. Member: Brill Media Holdings, LLC By: Brill Media Holdings, Inc. Manager By:___________________________ a duly authorized officer Member: Northland Management, Inc. Virginia corporation By:________________________________ a duly authorized officer 14 NORTHLAND HOLDINGS, LLC CERTIFICATE REGISTER ================================================================================ Certi- Number ficate Shares/ Date Transfer To Whom Number Owner Votes Issued Date Transferred - -------------------------------------------------------------------------------- 1 BMC Holdings, LLC 990 12/__/97 Northland - -------------------------------------------------------------------------------- 2 Management, Inc. 10 12/__/97 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ================================================================================ 15 EX-3.(II)(KK) 18 EXHIBIT 3(II)(KK) Exhibit 3(ii)(kk) Exhibit A BYLAWS OF BMC HOLDINGS, INC. ARTICLE I - CORPORATE SEAL The corporation need not have a seal. Should the secretary of the corporation determine that a seal is desirable, the seal of the corporation shall be circular and shall have inscribed thereon, within and around the circumference, the corporation's name, and in the center shall be the word "SEAL". ARTICLE II - FISCAL YEAR The fiscal year of the corporation shall be determined by the board of directors, but in the absence of such a determination it shall be the calendar year. ARTICLE III - RECORD DATE Unless the board of directors shall have fixed some other future date as the record date, the record date for determining the corporation's shareholders entitled to a distribution or to a share dividend shall be the date and time the board of directors authorizes the distribution or share dividend. The record date for any other determination of the corporation's shareholders (except for actions taken by consent as hereinafter provided in Article IV, Section 8) shall be 5:00 o'clock p.m. local time in Richmond, Virginia on the date that is the thirtieth (30th) day prior to the date of the meeting or action then requiring a determination of shareholders. A determination of shareholders entitled to notice of and to vote at a shareholders' meeting shall be effective for any adjournment of the meeting unless the board of directors fixes a new record date, which it shall do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. ARTICLE IV - SHAREHOLDERS' MEETINGS Section 1. Place of Meetings - Each shareholders' meeting shall be held at such place, in or out of the Commonwealth of Virginia, as may be provided in the meeting notice. Section 2. Annual Meeting - The corporation shall hold the annual shareholders' meeting on the second (2nd) Tuesday in February of each year commencing at 10:00 o'clock a.m. local time at the meeting place. If the aforesaid date shall fall on a legal holiday, the annual shareholders' meeting shall be held on the next following business day, and if for any other reason the annual shareholders' meeting shall not be held on such day, it may be called in accordance with the provisions of Article IV, Section 3, and a meeting called and held with this as a purpose shall be specifically designated as the annual meeting. Section 3. Special Meetings - The corporation shall hold a special shareholders' meeting on call of the chairman of the board of directors, the president, the board of directors, or (upon due execution and delivery of one or more written demands as required by and in compliance with Section 13.1-655 of the Code of Virginia (1950), as amended (the "Code")) the holders of not less than twenty percent (20%) of all votes entitled to be cast on any issue proposed to be considered at the special meeting. Only business within the purpose or purposes described in the required meeting notice may be conducted at a special shareholders' meeting. Section 4. Notice of Meeting - For each shareholders' meeting, not less than ten (10) nor more than sixty (60) days before the meeting date (except as a different time is specified in the second paragraph of this Section or by Virginia law), written notice stating the date, time, and place of the meeting and, in case of a special shareholders' meeting, the purpose or purposes for which the meeting is called, shall be given to each shareholder entitled to vote at such meeting either personally or by mail by or at the direction of the president, the secretary, or the persons calling the meeting. If mailed, each such notice shall be deemed to have been given when deposited in the United States mail, postage prepaid, addressed to a shareholder at such shareholder's address as it appears on the share transfer records of the corporation. Notice of a shareholders' meeting to act on an amendment of the articles of incorporation, on a plan of merger or share exchange, or on dissolution of the corporation, or to authorize a proposed sale of assets pursuant to Section 13.1-724 of the Code, shall be given in the form and manner provided above for a special meeting but not less than twenty-five (25) nor more than sixty (60) days before the meeting date. Section 5. Adjournment - If an annual or special sharehold ers' meeting is adjourned to a different date, time, or place, notice need not be given if the new date, time, and place are announced at the meeting before adjournment. Section 6. Quorum - Shareholders may take action on a matter at a shareholders' meeting only if a quorum exists with respect to that matter. A majority of the votes entitled to be cast by the shareholders in any voting group shall constitute a 2 quorum as to each matter considered by such voting group at each shareholders' meeting. Once a share is represented for any purpose at a shareholders' meeting, it is deemed present for quorum purposes for the remainder of that meeting and for any adjournment of that meeting unless a new record date is set for that adjourned meeting pursuant to Article III. If a quorum exists the affirmative vote of a majority of the votes cast within a voting group on the matter being voted upon shall be the act of the voting group, unless the affirmative vote of a greater number is required by law or by the articles of incorporation, and except that in any election of directors those receiving a plurality of the votes cast by the shares entitled to vote in the election shall be elected, though not receiving a majority. Less than a quorum may adjourn a meeting. Section 7. Voting - Except as may otherwise be provided in the articles of incorporation or by Section 13.1-662 of the Code, each outstanding share of the corporation, regardless of class, is entitled to one vote on each matter to be voted on at a shareholders' meeting. As and to the extent provided by Section 13.1-662 of the Code, redeemable shares (after a notice of redemption has been mailed and a deposit made as provided in such section) shall not vote and shall not be outstanding shares. Shares of the corporation held by another corporation, domestic or foreign, shall not be entitled to vote at any meeting and shall not be counted in determining the total number of outstanding shares at any given time entitled to vote if a majority of the shares entitled to vote for the election of directors of the other corporation is owned, directly or indirectly, by this corporation. A shareholder entitled to vote may vote his shares in person or by a proxy and may appoint such a proxy to vote or otherwise act for him by signing an appointment form, either personally or by his attorney-in-fact, and filing the appointment form with the secretary of the corporation. Any proxy may be revoked as permitted by law and, unless sooner revoked, shall be valid for eleven (11) months from the date the appointment form is received by the secretary of the corporation, unless a longer period is expressly provided in the appointment form. Section 8. Shareholders' Action Without a Meeting - Any action required or permitted to be taken at a shareholders' meeting may be taken without such a meeting, without notice to voting shareholders, and without action by the board of directors if the action is taken by all shareholders entitled to vote thereon and is evidenced by one or more written consents describing the action taken, at least one such approving consent to have been signed by each shareholder entitled to vote on the action, and delivered to the secretary of the corporation for inclusion 3 in the minutes or for filing with the corporate records. As and when required by Section 13.1-657D of the Code nonvoting shareholders shall be given at least ten (10) days written notice of any proposed action before the action is taken by unanimous consent of the voting shareholders. Any action taken by such unanimous written consent shall be effective according to its terms when a signed consent for each shareholder entitled to vote thereon is in the possession of the corporation, unless such consents all specify the same effective date and each specifies the date of execution by each executing shareholder, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote of voting shareholders at a duly called and held shareholders' meeting and may be described as such in any document filed with the State Corporation Commission. A shareholder may withdraw a consent theretofore delivered to the corporation only by delivering to the corporation a written notice of withdrawal as to such consent prior to the time that all other like consents are in possession of the corporation. Unless otherwise required by law, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs a consent as to such action. Section 9. Waiver of Notice - Any other provision of these bylaws notwithstanding, a shareholder may waive any notice required by these bylaws, the corporation's articles of incorporation, or any law by signing a written waiver of such notice (whether such waiver is executed before or after the date and time of the event that is the subject of such required notice) and delivering such signed waiver to the secretary of the corporation for inclusion in the minutes or filing with the corporate records. A shareholder who attends a shareholders' meeting (i) waives all objections to lack of notice or defective notice of that meeting, unless at the beginning of the meeting the shareholder objects to holding the meeting or to transacting business at the meeting, and (ii) waives all objection to consideration at that meeting of a particular matter that is not within the purpose or purposes described in the meeting notice, unless that shareholder objects to considering the matter when it is presented. Section 10. Minutes - The corporation shall keep as a permanent record minutes of all meetings of its shareholders and a record of all actions taken by its shareholders without a meeting. ARTICLE V - BOARD OF DIRECTORS 4 Section 1. General Powers - All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its board of directors, subject to any limitation set forth in its articles of incorporation. Section 2. Number, Term, and Qualification - Until such time as this bylaw shall be amended to specify or fix a different number, the number of directors of the corporation shall be one (1). The term of each director shall expire at the next annual shareholders' meeting following his election, but despite the expiration of a director's term, he shall continue to serve until his successor is duly elected and qualifies or until there is a decrease in the number of directors. A decrease in the number of directors shall not shorten an incumbent director's term. A director need not be a resident of the Commonwealth of Virginia or a shareholder of the corporation. Section 3. Election of Board of Directors - Except under the conditions described in Sections 4 and 5 of this Article V, the board of directors shall be elected annually at the annual share-holders' meeting. Section 4. Removal - Any director may be removed, with or without cause, if at a shareholders' meeting duly called and held the number of votes cast to remove him constitutes a majority of the votes then entitled to be cast and counted together in an election of such director at a shareholders' meeting. Notice of such a meeting must state that the purpose, or a purpose, of the meeting is removal of the director. If any director is so removed, a new director may be elected in his place at the same shareholders' meeting. Section 5. Resignation - A director may resign at any time by delivering written notice thereof to the board of directors, its chairman, the corporation's president, or the corporation's secretary. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date, in which case the board of directors may fill the pending vacancy before the effective date, but a successor so elected shall not take office until the effective date. Section 6. Vacancies - Any vacancy occurring in the board of directors (including a vacancy resulting from an increase in the number of directors) may be filled by a vote of the board of directors (and if the directors then remaining in office constitute fewer than a quorum the board of directors may fill the vacancy by the affirmative vote of a majority of the then direc- 5 tors) unless the vacant office was held by a director elected by a voting group of shareholders, in which event such vacancy may be filled only by the affirmative vote of a majority of the shareholders in such voting group. Section 7. Compensation - The board of directors may compensate each director for his service as such and may provide for the payment of all expenses incurred by each director in attending meetings of the board of directors. ARTICLE VI - MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings, Minutes - Regular meetings of the board of directors shall be held annually (immediately following each annual shareholders' meeting) to elect officers and to carry on such other business as may properly come before such meeting and immediately following each special shareholders' meeting to carry on such business as may properly come before such meeting. Any such regular meeting of the board of directors shall be held at the place where the immediately preceding shareholders' meeting was held. Special meetings of the board of directors may be called by any member of the board of directors. Any meeting of the board of directors may be held in or out of the Commonwealth of Virginia. The corporation shall keep as a permanent record minutes of all meetings of the board of directors, a record of all actions taken by the board of directors without a meeting, and a record of all actions taken on behalf of the corporation by each committee of the board of directors. Section 2. Method of Meeting - Any or all directors may participate in any regular or special meeting of the board of directors by, or may conduct the meeting through the use of, any means of communication by which all participating directors may simultaneously hear each other during the meeting. Section 3. Notice - No notice need be given of any regular meeting of the board of directors. Notice of each special meeting of the board of directors stating the date, time, and place of the meeting shall be mailed to each director at least three (3) days or telegraphed or telefaxed at least two (2) days prior to the date of the meeting. Unless otherwise required by these bylaws, the notice need not describe the purpose of a special meeting of the board of directors. Section 4. Quorum - A majority of the number of directors fixed herein, or one director if that is the number of directors fixed herein, shall constitute the quorum for each meeting of the 6 board of directors. If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present at a board of directors' meeting, or of the sole director if the corporation shall have but one director, shall be the act of the board of directors unless the vote of a greater number of directors is required by the articles of incorporation. Section 5. Action Without a Meeting - Any action required or permitted to be taken at a meeting of the board of directors may be taken without such a meeting and without notice if the action is taken by all members of the board of directors and is evidenced by one or more written consents stating the action taken, signed by each director either before or after the action taken, and included in the corporate minutes or filed with the corporate records reflecting the action taken. Any action taken by such unanimous, written consent shall be effective when the last director of the board of directors signs an approving consent, unless such consents all specify the same effective date and each specifies the date of execution by each executing director, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote at a duly called and held meeting of the board of directors and may be described as such in any document. Section 6. Waiver of Notice - Any other provision of these bylaws notwithstanding, whenever any notice is required to be given to a director, a waiver thereof in writing signed by the director entitled to such notice, whether executed before or after the time stated therein, and filed with the corporate minutes or records shall be equivalent to the giving of such notice to such director. A director's attendance at or participation in a board of directors' meeting waives any required notice to him of the meeting unless that director at the beginning of the meeting or promptly upon his arrival objects to holding the meeting or transacting business at the meeting and thereafter does not vote for or assent to action taken at the meeting. ARTICLE VII - COMMITTEES From time to time the board of directors may create one or more committees (comprised only of members of the board of directors) that may exercise powers of the board of directors as and to the extent provided in the creating resolution, except as may be limited by Section 13.1-689 of the Code. ARTICLE VIII - OFFICERS 7 Section 1. Election, Removal, and Duties - Promptly after its election in each year the board of directors shall appoint a president (who need not be a director) and a secretary. From time to time the board of directors may appoint such other officers as it may deem proper, as evidenced by their appointment. A duly appointed officer may appoint or remove (at any time and with or without cause) one or more assistant officers for his office. Any officer may simultaneously hold more than one office in the corporation. Each officer shall be appointed for a term continuing, unless sooner terminated, until the date of the next ensuing annual meeting of the board of directors and until his successor is appointed; provided, however, that any officer may resign, and any officer may be removed by the board of directors, in each case, at any time, and with or without cause, and such officer's then term shall terminate effective with the date of such resignation or removal. Each vacancy among the officers shall be filled by the board of directors. Each officer of the corporation shall have such authority and shall perform such duties as generally pertain to his office, as well as such other authority and duties as may be prescribed for such officer from time to time by the board of directors. Section 2. Bonds - The board of directors may require that each officer, agent, or employee of the corporation give bond to the corporation, with sufficient surety, conditioned on the faithful performance of the duties of his office or position and upon compliance with such other conditions as may from time to time be imposed by the board of directors. ARTICLE IX - SHARE CERTIFICATES; RECORDS Section 1. Form - Each shareholder shall be entitled to a share certificate evidencing the share or shares in the corporation owned by such shareholder, which certificate shall be in such form as may be required by law and shall be approved by the board of directors and signed by the corporation's president or a vice president and by its secretary or an assistant secretary. Section 2. Transfers - A transfer of any share or shares of the corporation may be made only upon registration of the share transfer in the share transfer records of the corporation, and then only upon surrender of each certificate for each share then being transferred accompanied by a satisfactory written assignment applicable thereto duly executed by the then shareholder thereof or by such shareholder's duly authorized attorney-in-fact. 8 Section 3. Replacements - In case of the loss, mutilation, or destruction of a share certificate, a duplicate certificate may be issued upon such terms not in conflict with law as the board of directors may prescribe. Section 4. Records - The corporation or its agent shall maintain a record of the corporation's shareholders in the manner required by law, and the corporation's share transfer records shall constitute conclusive proof of the ownership of the then issued and outstanding shares of the corporation at any given time. ARTICLE X - INDEMNITY Section 1. Indemnity - Any person (hereinafter in this Article, "indemnitee") who, because he is or was an officer or director of the corporation, is, was, or is threatened to be made a party to any threatened, pending, or completed action, suit, proceeding, or appeal whether civil, criminal, administrative, or investigative and whether formal or informal (hereinafter "proceeding") (including any proceeding by or in the right of the corporation) shall be indemnified by the corporation against all liability (including the obligation to pay all or any part of a judgment, decree, settlement, penalty, fine or other such obligation) and reasonable expenses (including counsel fees, expert witness fees, and costs of investigation, litigation, and appeal, as well as any amounts expended in asserting any counterclaim or claim for indemnification from others) incurred in or as a result of the proceeding except such liability and expenses as are incurred because of his willful misconduct or a knowing violation of the criminal law. The corporation shall pay for or reimburse the reasonable expenses incurred by any indemnitee in advance of final disposition of any proceeding upon receipt of an unsecured undertaking from him to repay the sums if ultimately it is determined that he is not entitled to indemnification. A director shall be so indemnified without the necessity of any further determination or authorization, but in the case of an officer, the determination that indemnification is permissible and an evaluation as to the reasonableness of expenses in a specific case shall be made as authorized from time to time by general or specific actions of the board of directors. The termination of a proceeding by a judgment, decree, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that an indemnitee acted in such a manner as to make him ineligible for indemnification. Section 2. Limitation - In any proceeding brought by a shareholder in the right of the corporation or brought by or on 9 behalf of shareholders of the corporation, the aggregate amount of all damages that may be assessed against an officer or director of the corporation arising out of any single transaction, occurrence, or course of conduct shall be limited to one dollar. This bylaw is adopted by the shareholders as a limitation on the liability of the corporation's officers and directors, and this limitation shall not apply if the officer or director engaged in willful misconduct or a knowing violation of the criminal law or of any state securities law. Section 3. Application - This Article shall be applicable in and to all proceedings commenced after its adoption even though arising, in whole or in part, from conduct, actions, or events occurring or taken before its adoption. No amendment, modification, or repeal of this Article shall diminish the rights provided hereby with respect to any claim, issue, or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act occurring prior to such amendment, modification, or repeal. Reference herein to any director or officer shall include a former director or officer who has ceased to have the capacity of director or officer, as the case may be, and his heirs, executors, and administrators. The corporation may purchase and maintain insurance to indemnify it against all or any part of the liability to indemnify assumed by it in accordance with this Article. ARTICLE XI - AMENDMENTS Section 1. New Bylaws and Repeal - These bylaws may be amended or repealed and new bylaws may be made by the board of directors or the shareholders at any time. Each bylaw made by the board of directors, however, may be amended or repealed, and a new bylaw made, by the shareholders, and the shareholders may provide that any bylaw made by them shall not be amended or repealed by the board of directors, which proviso shall control. Section 2. Legislative Amendment - If any portion of these bylaws is subsequently rendered invalid by an Act of the General Assembly of Virginia, those portions hereof that are not affected by such legislation shall remain in full force and effect until and unless amended or repealed in accordance with the terms hereof. ARTICLE XII - MISCELLANEOUS Shares in another corporation held in the name of this corporation may be voted only by the president or secretary of this corporation, either in person or by proxy. 10 Each use of a masculine pronoun herein shall be read to include both the feminine and neuter pronouns as applicable. Adopted by the Shareholders; As of ________________________ 11 EX-3.(II)(LL) 19 EXHIBIT 3(II)(LL) Exhibit 3(ii)(ll) Exhibit A BYLAWS OF HURON HOLDINGS MANAGEMENT, INC. ARTICLE I - CORPORATE SEAL The corporation need not have a seal. Should the secretary of the corporation determine that a seal is desirable, the seal of the corporation shall be circular and shall have inscribed thereon, within and around the circumference, the corporation's name, and in the center shall be the word "SEAL". ARTICLE II - FISCAL YEAR The fiscal year of the corporation shall be determined by the board of directors, but in the absence of such a determination it shall be the calendar year. ARTICLE III - RECORD DATE Unless the board of directors shall have fixed some other future date as the record date, the record date for determining the corporation's shareholders entitled to a distribution or to a share dividend shall be the date and time the board of directors authorizes the distribution or share dividend. The record date for any other determination of the corporation's shareholders (except for actions taken by consent as hereinafter provided in Article IV, Section 8) shall be 5:00 o'clock p.m. local time in Richmond, Virginia on the date that is the thirtieth (30th) day prior to the date of the meeting or action then requiring a determination of shareholders. A determination of shareholders entitled to notice of and to vote at a shareholders' meeting shall be effective for any adjournment of the meeting unless the board of directors fixes a new record date, which it shall do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. ARTICLE IV - SHAREHOLDERS' MEETINGS Section 1. Place of Meetings - Each shareholders' meeting shall be held at such place, in or out of the Commonwealth of Virginia, as may be provided in the meeting notice. Section 2. Annual Meeting - The corporation shall hold the annual shareholders' meeting on the second (2nd) Tuesday in February of each year commencing at 10:00 o'clock a.m. local time at the meeting place. If the aforesaid date shall fall on a legal holiday, the annual shareholders' meeting shall be held on the next following business day, and if for any other reason the annual shareholders' meeting shall not be held on such day, it may be called in accordance with the provisions of Article IV, Section 3, and a meeting called and held with this as a purpose shall be specifically designated as the annual meeting. Section 3. Special Meetings - The corporation shall hold a special shareholders' meeting on call of the chairman of the board of directors, the president, the board of directors, or (upon due execution and delivery of one or more written demands as required by and in compliance with Section 13.1-655 of the Code of Virginia (1950), as amended (the "Code")) the holders of not less than twenty percent (20%) of all votes entitled to be cast on any issue proposed to be considered at the special meeting. Only business within the purpose or purposes described in the required meeting notice may be conducted at a special shareholders' meeting. Section 4. Notice of Meeting - For each shareholders' meeting, not less than ten (10) nor more than sixty (60) days before the meeting date (except as a different time is specified in the second paragraph of this Section or by Virginia law), written notice stating the date, time, and place of the meeting and, in case of a special shareholders' meeting, the purpose or purposes for which the meeting is called, shall be given to each shareholder entitled to vote at such meeting either personally or by mail by or at the direction of the president, the secretary, or the persons calling the meeting. If mailed, each such notice shall be deemed to have been given when deposited in the United States mail, postage prepaid, addressed to a shareholder at such shareholder's address as it appears on the share transfer records of the corporation. Notice of a shareholders' meeting to act on an amendment of the articles of incorporation, on a plan of merger or share exchange, or on dissolution of the corporation, or to authorize a proposed sale of assets pursuant to Section 13.1-724 of the Code, shall be given in the form and manner provided above for a special meeting but not less than twenty-five (25) nor more than sixty (60) days before the meeting date. Section 5. Adjournment - If an annual or special shareholders' meeting is adjourned to a different date, time, or place, notice need not be given if the new date, time, and place are announced at the meeting before adjournment. Section 6. Quorum - Shareholders may take action on a matter at a shareholders' meeting only if a quorum exists with respect to that matter. A majority of the votes entitled to be cast by the shareholders in any voting group shall constitute a 2 quorum as to each matter considered by such voting group at each shareholders' meeting. Once a share is represented for any purpose at a shareholders' meeting, it is deemed present for quorum purposes for the remainder of that meeting and for any adjournment of that meeting unless a new record date is set for that adjourned meeting pursuant to Article III. If a quorum exists the affirmative vote of a majority of the votes cast within a voting group on the matter being voted upon shall be the act of the voting group, unless the affirmative vote of a greater number is required by law or by the articles of incorporation, and except that in any election of directors those receiving a plurality of the votes cast by the shares entitled to vote in the election shall be elected, though not receiving a majority. Less than a quorum may adjourn a meeting. Section 7. Voting - Except as may otherwise be provided in the articles of incorporation or by Section 13.1-662 of the Code, each outstanding share of the corporation, regardless of class, is entitled to one vote on each matter to be voted on at a shareholders' meeting. As and to the extent provided by Section 13.1-662 of the Code, redeemable shares (after a notice of redemption has been mailed and a deposit made as provided in such section) shall not vote and shall not be outstanding shares. Shares of the corporation held by another corporation, domestic or foreign, shall not be entitled to vote at any meeting and shall not be counted in determining the total number of outstanding shares at any given time entitled to vote if a majority of the shares entitled to vote for the election of directors of the other corporation is owned, directly or indirectly, by this corporation. A shareholder entitled to vote may vote his shares in person or by a proxy and may appoint such a proxy to vote or otherwise act for him by signing an appointment form, either personally or by his attorney-in-fact, and filing the appointment form with the secretary of the corporation. Any proxy may be revoked as permitted by law and, unless sooner revoked, shall be valid for eleven (11) months from the date the appointment form is received by the secretary of the corporation, unless a longer period is expressly provided in the appointment form. Section 8. Shareholders' Action Without a Meeting - Any action required or permitted to be taken at a shareholders' meeting may be taken without such a meeting, without notice to voting shareholders, and without action by the board of directors if the action is taken by all shareholders entitled to vote thereon and is evidenced by one or more written consents describing the action taken, at least one such approving consent to have been signed by each shareholder entitled to vote on the action, and delivered to the secretary of the corporation for inclusion 3 in the minutes or for filing with the corporate records. As and when required by Section 13.1-657D of the Code nonvoting share holders shall be given at least ten (10) days written notice of any proposed action before the action is taken by unanimous consent of the voting shareholders. Any action taken by such unanimous written consent shall be effective according to its terms when a signed consent for each shareholder entitled to vote thereon is in the possession of the corporation, unless such consents all specify the same effective date and each specifies the date of execution by each executing shareholder, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote of voting shareholders at a duly called and held shareholders' meeting and may be described as such in any document filed with the State Corporation Commission. A shareholder may withdraw a consent theretofore delivered to the corporation only by delivering to the corporation a written notice of withdrawal as to such consent prior to the time that all other like consents are in possession of the corporation. Unless otherwise required by law, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs a consent as to such action. Section 9. Waiver of Notice - Any other provision of these bylaws notwithstanding, a shareholder may waive any notice required by these bylaws, the corporation's articles of incorporation, or any law by signing a written waiver of such notice (whether such waiver is executed before or after the date and time of the event that is the subject of such required notice) and delivering such signed waiver to the secretary of the corporation for inclusion in the minutes or filing with the corporate records. A shareholder who attends a shareholders' meeting (i) waives all objections to lack of notice or defective notice of that meeting, unless at the beginning of the meeting the share holder objects to holding the meeting or to transacting business at the meeting, and (ii) waives all objection to consideration at that meeting of a particular matter that is not within the purpose or purposes described in the meeting notice, unless that shareholder objects to considering the matter when it is presented. Section 10. Minutes - The corporation shall keep as a permanent record minutes of all meetings of its shareholders and a record of all actions taken by its shareholders without a meeting. ARTICLE V - BOARD OF DIRECTORS 4 Section 1. General Powers - All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its board of directors, subject to any limitation set forth in its articles of incorporation. Section 2. Number, Term, and Qualification - Until such time as this bylaw shall be amended to specify or fix a different number, the number of directors of the corporation shall be one (1). The term of each director shall expire at the next annual shareholders' meeting following his election, but despite the expiration of a director's term, he shall continue to serve until his successor is duly elected and qualifies or until there is a decrease in the number of directors. A decrease in the number of directors shall not shorten an incumbent director's term. A director need not be a resident of the Commonwealth of Virginia or a shareholder of the corporation. Section 3. Election of Board of Directors - Except under the conditions described in Sections 4 and 5 of this Article V, the board of directors shall be elected annually at the annual share-holders' meeting. Section 4. Removal - Any director may be removed, with or without cause, if at a shareholders' meeting duly called and held the number of votes cast to remove him constitutes a majority of the votes then entitled to be cast and counted together in an election of such director at a shareholders' meeting. Notice of such a meeting must state that the purpose, or a purpose, of the meeting is removal of the director. If any director is so removed, a new director may be elected in his place at the same shareholders' meeting. Section 5. Resignation - A director may resign at any time by delivering written notice thereof to the board of directors, its chairman, the corporation's president, or the corporation's secretary. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date, in which case the board of directors may fill the pending vacancy before the effective date, but a successor so elected shall not take office until the effective date. Section 6. Vacancies - Any vacancy occurring in the board of directors (including a vacancy resulting from an increase in the number of directors) may be filled by a vote of the board of directors (and if the directors then remaining in office constitute fewer than a quorum the board of directors may fill the vacancy by the affirmative vote of a majority of the then direc- 5 tors) unless the vacant office was held by a director elected by a voting group of shareholders, in which event such vacancy may be filled only by the affirmative vote of a majority of the shareholders in such voting group. Section 7. Compensation - The board of directors may compensate each director for his service as such and may provide for the payment of all expenses incurred by each director in attending meetings of the board of directors. ARTICLE VI - MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings, Minutes - Regular meetings of the board of directors shall be held annually (immediately following each annual shareholders' meeting) to elect officers and to carry on such other business as may properly come before such meeting and immediately following each special shareholders' meeting to carry on such business as may properly come before such meeting. Any such regular meeting of the board of directors shall be held at the place where the immediately preceding shareholders' meeting was held. Special meetings of the board of directors may be called by any member of the board of directors. Any meeting of the board of directors may be held in or out of the Commonwealth of Virginia. The corporation shall keep as a permanent record minutes of all meetings of the board of directors, a record of all actions taken by the board of directors without a meeting, and a record of all actions taken on behalf of the corporation by each committee of the board of directors. Section 2. Method of Meeting - Any or all directors may participate in any regular or special meeting of the board of directors by, or may conduct the meeting through the use of, any means of communication by which all participating directors may simultaneously hear each other during the meeting. Section 3. Notice - No notice need be given of any regular meeting of the board of directors. Notice of each special meeting of the board of directors stating the date, time, and place of the meeting shall be mailed to each director at least three (3) days or telegraphed or telefaxed at least two (2) days prior to the date of the meeting. Unless otherwise required by these bylaws, the notice need not describe the purpose of a special meeting of the board of directors. Section 4. Quorum - A majority of the number of directors fixed herein, or one director if that is the number of directors fixed herein, shall constitute the quorum for each meeting of the 6 board of directors. If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present at a board of directors' meeting, or of the sole director if the corporation shall have but one director, shall be the act of the board of directors unless the vote of a greater number of directors is required by the articles of incorporation. Section 5. Action Without a Meeting - Any action required or permitted to be taken at a meeting of the board of directors may be taken without such a meeting and without notice if the action is taken by all members of the board of directors and is evidenced by one or more written consents stating the action taken, signed by each director either before or after the action taken, and included in the corporate minutes or filed with the corporate records reflecting the action taken. Any action taken by such unanimous, written consent shall be effective when the last director of the board of directors signs an approving consent, unless such consents all specify the same effective date and each specifies the date of execution by each executing director, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote at a duly called and held meeting of the board of directors and may be described as such in any document. Section 6. Waiver of Notice - Any other provision of these bylaws notwithstanding, whenever any notice is required to be given to a director, a waiver thereof in writing signed by the director entitled to such notice, whether executed before or after the time stated therein, and filed with the corporate minutes or records shall be equivalent to the giving of such notice to such director. A director's attendance at or participation in a board of directors' meeting waives any required notice to him of the meeting unless that director at the beginning of the meeting or promptly upon his arrival objects to holding the meeting or transacting business at the meeting and thereafter does not vote for or assent to action taken at the meeting. ARTICLE VII - COMMITTEES From time to time the board of directors may create one or more committees (comprised only of members of the board of directors) that may exercise powers of the board of directors as and to the extent provided in the creating resolution, except as may be limited by Section 13.1-689 of the Code. ARTICLE VIII - OFFICERS 7 Section 1. Election, Removal, and Duties - Promptly after its election in each year the board of directors shall appoint a president (who need not be a director) and a secretary. From time to time the board of directors may appoint such other officers as it may deem proper, as evidenced by their appointment. A duly appointed officer may appoint or remove (at any time and with or without cause) one or more assistant officers for his office. Any officer may simultaneously hold more than one office in the corporation. Each officer shall be appointed for a term continuing, unless sooner terminated, until the date of the next ensuing annual meeting of the board of directors and until his successor is appointed; provided, however, that any officer may resign, and any officer may be removed by the board of directors, in each case, at any time, and with or without cause, and such officer's then term shall terminate effective with the date of such resignation or removal. Each vacancy among the officers shall be filled by the board of directors. Each officer of the corporation shall have such authority and shall perform such duties as generally pertain to his office, as well as such other authority and duties as may be prescribed for such officer from time to time by the board of directors. Section 2. Bonds - The board of directors may require that each officer, agent, or employee of the corporation give bond to the corporation, with sufficient surety, conditioned on the faithful performance of the duties of his office or position and upon compliance with such other conditions as may from time to time be imposed by the board of directors. ARTICLE IX - SHARE CERTIFICATES; RECORDS Section 1. Form - Each shareholder shall be entitled to a share certificate evidencing the share or shares in the corporation owned by such shareholder, which certificate shall be in such form as may be required by law and shall be approved by the board of directors and signed by the corporation's president or a vice president and by its secretary or an assistant secretary. Section 2. Transfers - A transfer of any share or shares of the corporation may be made only upon registration of the share transfer in the share transfer records of the corporation, and then only upon surrender of each certificate for each share then being transferred accompanied by a satisfactory written assignment applicable thereto duly executed by the then shareholder thereof or by such shareholder's duly authorized attorney-in-fact. 8 Section 3. Replacements - In case of the loss, mutilation, or destruction of a share certificate, a duplicate certificate may be issued upon such terms not in conflict with law as the board of directors may prescribe. Section 4. Records - The corporation or its agent shall maintain a record of the corporation's shareholders in the manner required by law, and the corporation's share transfer records shall constitute conclusive proof of the ownership of the then issued and outstanding shares of the corporation at any given time. ARTICLE X - INDEMNITY Section 1. Indemnity - Any person (hereinafter in this Article, "indemnitee") who, because he is or was an officer or director of the corporation, is, was, or is threatened to be made a party to any threatened, pending, or completed action, suit, proceeding, or appeal whether civil, criminal, administrative, or investigative and whether formal or informal (hereinafter "proceeding") (including any proceeding by or in the right of the corporation) shall be indemnified by the corporation against all liability (including the obligation to pay all or any part of a judgment, decree, settlement, penalty, fine or other such obligation) and reasonable expenses (including counsel fees, expert witness fees, and costs of investigation, litigation, and appeal, as well as any amounts expended in asserting any counterclaim or claim for indemnification from others) incurred in or as a result of the proceeding except such liability and expenses as are incurred because of his willful misconduct or a knowing violation of the criminal law. The corporation shall pay for or reimburse the reasonable expenses incurred by any indemnitee in advance of final disposition of any proceeding upon receipt of an unsecured undertaking from him to repay the sums if ultimately it is determined that he is not entitled to indemnification. A director shall be so indemnified without the necessity of any further determination or authorization, but in the case of an officer, the determination that indemnification is permissible and an evaluation as to the reasonableness of expenses in a specific case shall be made as authorized from time to time by general or specific actions of the board of directors. The termination of a proceeding by a judgment, decree, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that an indemnitee acted in such a manner as to make him ineligible for indemnification. Section 2. Limitation - In any proceeding brought by a shareholder in the right of the corporation or brought by or on 9 behalf of shareholders of the corporation, the aggregate amount of all damages that may be assessed against an officer or director of the corporation arising out of any single transaction, occurrence, or course of conduct shall be limited to one dollar. This bylaw is adopted by the shareholders as a limitation on the liability of the corporation's officers and directors, and this limitation shall not apply if the officer or director engaged in willful misconduct or a knowing violation of the criminal law or of any state securities law. Section 3. Application - This Article shall be applicable in and to all proceedings commenced after its adoption even though arising, in whole or in part, from conduct, actions, or events occurring or taken before its adoption. No amendment, modification, or repeal of this Article shall diminish the rights provided hereby with respect to any claim, issue, or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act occur ring prior to such amendment, modification, or repeal. Reference herein to any director or officer shall include a former director or officer who has ceased to have the capacity of director or officer, as the case may be, and his heirs, executors, and administrators. The corporation may purchase and maintain insurance to indemnify it against all or any part of the liability to indemnify assumed by it in accordance with this Article. ARTICLE XI - AMENDMENTS Section 1. New Bylaws and Repeal - These bylaws may be amended or repealed and new bylaws may be made by the board of directors or the shareholders at any time. Each bylaw made by the board of directors, however, may be amended or repealed, and a new bylaw made, by the shareholders, and the shareholders may provide that any bylaw made by them shall not be amended or repealed by the board of directors, which proviso shall control. Section 2. Legislative Amendment - If any portion of these bylaws is subsequently rendered invalid by an Act of the General Assembly of Virginia, those portions hereof that are not affected by such legislation shall remain in full force and effect until and unless amended or repealed in accordance with the terms hereof. ARTICLE XII - MISCELLANEOUS Shares in another corporation held in the name of this corporation may be voted only by the president or secretary of this corporation, either in person or by proxy. 10 Each use of a masculine pronoun herein shall be read to include both the feminine and neuter pronouns as applicable. Adopted by the Shareholders; As of ________________________ 11 EX-3.(II)(MM) 20 EXHIBIT 3(II)(MM) Exhibit 3(ii)(mm) Exhibit A BYLAWS OF HURON NEWSPAPERS MANAGEMENT, INC. ARTICLE I - CORPORATE SEAL The corporation need not have a seal. Should the secretary of the corporation determine that a seal is desirable, the seal of the corporation shall be circular and shall have inscribed thereon, within and around the circumference, the corporation's name, and in the center shall be the word "SEAL". ARTICLE II - FISCAL YEAR The fiscal year of the corporation shall be determined by the board of directors, but in the absence of such a determination it shall be the calendar year. ARTICLE III - RECORD DATE Unless the board of directors shall have fixed some other future date as the record date, the record date for determining the corporation's shareholders entitled to a distribution or to a share dividend shall be the date and time the board of directors authorizes the distribution or share dividend. The record date for any other determination of the corporation's shareholders (except for actions taken by consent as hereinafter provided in Article IV, Section 8) shall be 5:00 o'clock p.m. local time in Richmond, Virginia on the date that is the thirtieth (30th) day prior to the date of the meeting or action then requiring a determination of shareholders. A determination of shareholders entitled to notice of and to vote at a shareholders' meeting shall be effective for any adjournment of the meeting unless the board of directors fixes a new record date, which it shall do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. ARTICLE IV - SHAREHOLDERS' MEETINGS Section 1. Place of Meetings - Each shareholders' meeting shall be held at such place, in or out of the Commonwealth of Virginia, as may be provided in the meeting notice. Section 2. Annual Meeting - The corporation shall hold the annual shareholders' meeting on the second (2nd) Tuesday in February of each year commencing at 10:00 o'clock a.m. local time at the meeting place. If the aforesaid date shall fall on a legal holiday, the annual shareholders' meeting shall be held on the next following business day, and if for any other reason the annual shareholders' meeting shall not be held on such day, it may be called in accordance with the provisions of Article IV, Section 3, and a meeting called and held with this as a purpose shall be specifically designated as the annual meeting. Section 3. Special Meetings - The corporation shall hold a special shareholders' meeting on call of the chairman of the board of directors, the president, the board of directors, or (upon due execution and delivery of one or more written demands as required by and in compliance with Section 13.1-655 of the Code of Virginia (1950), as amended (the "Code")) the holders of not less than twenty percent (20%) of all votes entitled to be cast on any issue proposed to be considered at the special meeting. Only business within the purpose or purposes described in the required meeting notice may be conducted at a special shareholders' meeting. Section 4. Notice of Meeting - For each shareholders' meeting, not less than ten (10) nor more than sixty (60) days before the meeting date (except as a different time is specified in the second paragraph of this Section or by Virginia law), written notice stating the date, time, and place of the meeting and, in case of a special shareholders' meeting, the purpose or purposes for which the meeting is called, shall be given to each shareholder entitled to vote at such meeting either personally or by mail by or at the direction of the president, the secretary, or the persons calling the meeting. If mailed, each such notice shall be deemed to have been given when deposited in the United States mail, postage prepaid, addressed to a shareholder at such shareholder's address as it appears on the share transfer records of the corporation. Notice of a shareholders' meeting to act on an amendment of the articles of incorporation, on a plan of merger or share exchange, or on dissolution of the corporation, or to authorize a proposed sale of assets pursuant to Section 13.1-724 of the Code, shall be given in the form and manner provided above for a special meeting but not less than twenty-five (25) nor more than sixty (60) days before the meeting date. Section 5. Adjournment - If an annual or special shareholders' meeting is adjourned to a different date, time, or place, notice need not be given if the new date, time, and place are announced at the meeting before adjournment. Section 6. Quorum - Shareholders may take action on a matter at a shareholders' meeting only if a quorum exists with respect to that matter. A majority of the votes entitled to be cast by the shareholders in any voting group shall constitute a 2 quorum as to each matter considered by such voting group at each shareholders' meeting. Once a share is represented for any purpose at a shareholders' meeting, it is deemed present for quorum purposes for the remainder of that meeting and for any adjournment of that meeting unless a new record date is set for that adjourned meeting pursuant to Article III. If a quorum exists the affirmative vote of a majority of the votes cast within a voting group on the matter being voted upon shall be the act of the voting group, unless the affirmative vote of a greater number is required by law or by the articles of incorporation, and except that in any election of directors those receiving a plurality of the votes cast by the shares entitled to vote in the election shall be elected, though not receiving a majority. Less than a quorum may adjourn a meeting. Section 7. Voting - Except as may otherwise be provided in the articles of incorporation or by Section 13.1-662 of the Code, each outstanding share of the corporation, regardless of class, is entitled to one vote on each matter to be voted on at a shareholders' meeting. As and to the extent provided by Section 13.1-662 of the Code, redeemable shares (after a notice of redemption has been mailed and a deposit made as provided in such section) shall not vote and shall not be outstanding shares. Shares of the corporation held by another corporation, domestic or foreign, shall not be entitled to vote at any meeting and shall not be counted in determining the total number of outstanding shares at any given time entitled to vote if a majority of the shares entitled to vote for the election of directors of the other corporation is owned, directly or indirectly, by this corporation. A shareholder entitled to vote may vote his shares in person or by a proxy and may appoint such a proxy to vote or otherwise act for him by signing an appointment form, either personally or by his attorney-in-fact, and filing the appointment form with the secretary of the corporation. Any proxy may be revoked as permitted by law and, unless sooner revoked, shall be valid for eleven (11) months from the date the appointment form is received by the secretary of the corporation, unless a longer period is expressly provided in the appointment form. Section 8. Shareholders' Action Without a Meeting - Any action required or permitted to be taken at a shareholders' meeting may be taken without such a meeting, without notice to voting shareholders, and without action by the board of directors if the action is taken by all shareholders entitled to vote thereon and is evidenced by one or more written consents describing the action taken, at least one such approving consent to have been signed by each shareholder entitled to vote on the action, and delivered to the secretary of the corporation for inclusion 3 in the minutes or for filing with the corporate records. As and when required by Section 13.1-657D of the Code nonvoting share holders shall be given at least ten (10) days written notice of any proposed action before the action is taken by unanimous consent of the voting shareholders. Any action taken by such unanimous written consent shall be effective according to its terms when a signed consent for each shareholder entitled to vote thereon is in the possession of the corporation, unless such consents all specify the same effective date and each specifies the date of execution by each executing shareholder, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote of voting shareholders at a duly called and held shareholders' meeting and may be described as such in any document filed with the State Corporation Commission. A share holder may withdraw a consent theretofore delivered to the corporation only by delivering to the corporation a written notice of withdrawal as to such consent prior to the time that all other like consents are in possession of the corporation. Unless otherwise required by law, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs a consent as to such action. Section 9. Waiver of Notice - Any other provision of these bylaws notwithstanding, a shareholder may waive any notice required by these bylaws, the corporation's articles of incorporation, or any law by signing a written waiver of such notice (whether such waiver is executed before or after the date and time of the event that is the subject of such required notice) and delivering such signed waiver to the secretary of the corporation for inclusion in the minutes or filing with the corporate records. A shareholder who attends a shareholders' meeting (i) waives all objections to lack of notice or defective notice of that meeting, unless at the beginning of the meeting the share holder objects to holding the meeting or to transacting business at the meeting, and (ii) waives all objection to consideration at that meeting of a particular matter that is not within the purpose or purposes described in the meeting notice, unless that shareholder objects to considering the matter when it is presented. Section 10. Minutes - The corporation shall keep as a permanent record minutes of all meetings of its shareholders and a record of all actions taken by its shareholders without a meeting. ARTICLE V - BOARD OF DIRECTORS 4 Section 1. General Powers - All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its board of directors, subject to any limitation set forth in its articles of incorporation. Section 2. Number, Term, and Qualification - Until such time as this bylaw shall be amended to specify or fix a different number, the number of directors of the corporation shall be one (1). The term of each director shall expire at the next annual shareholders' meeting following his election, but despite the expiration of a director's term, he shall continue to serve until his successor is duly elected and qualifies or until there is a decrease in the number of directors. A decrease in the number of directors shall not shorten an incumbent director's term. A director need not be a resident of the Commonwealth of Virginia or a shareholder of the corporation. Section 3. Election of Board of Directors - Except under the conditions described in Sections 4 and 5 of this Article V, the board of directors shall be elected annually at the annual share-holders' meeting. Section 4. Removal - Any director may be removed, with or without cause, if at a shareholders' meeting duly called and held the number of votes cast to remove him constitutes a majority of the votes then entitled to be cast and counted together in an election of such director at a shareholders' meeting. Notice of such a meeting must state that the purpose, or a purpose, of the meeting is removal of the director. If any director is so removed, a new director may be elected in his place at the same shareholders' meeting. Section 5. Resignation - A director may resign at any time by delivering written notice thereof to the board of directors, its chairman, the corporation's president, or the corporation's secretary. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date, in which case the board of directors may fill the pending vacancy before the effective date, but a successor so elected shall not take office until the effective date. Section 6. Vacancies - Any vacancy occurring in the board of directors (including a vacancy resulting from an increase in the number of directors) may be filled by a vote of the board of directors (and if the directors then remaining in office constitute fewer than a quorum the board of directors may fill the vacancy by the affirmative vote of a majority of the then direc- 5 tors) unless the vacant office was held by a director elected by a voting group of shareholders, in which event such vacancy may be filled only by the affirmative vote of a majority of the shareholders in such voting group. Section 7. Compensation - The board of directors may compensate each director for his service as such and may provide for the payment of all expenses incurred by each director in attending meetings of the board of directors. ARTICLE VI - MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings, Minutes - Regular meetings of the board of directors shall be held annually (immediately following each annual shareholders' meeting) to elect officers and to carry on such other business as may properly come before such meeting and immediately following each special shareholders' meeting to carry on such business as may properly come before such meeting. Any such regular meeting of the board of directors shall be held at the place where the immediately preceding shareholders' meeting was held. Special meetings of the board of directors may be called by any member of the board of directors. Any meeting of the board of directors may be held in or out of the Common wealth of Virginia. The corporation shall keep as a permanent record minutes of all meetings of the board of directors, a record of all actions taken by the board of directors without a meeting, and a record of all actions taken on behalf of the corporation by each committee of the board of directors. Section 2. Method of Meeting - Any or all directors may participate in any regular or special meeting of the board of directors by, or may conduct the meeting through the use of, any means of communication by which all participating directors may simultaneously hear each other during the meeting. Section 3. Notice - No notice need be given of any regular meeting of the board of directors. Notice of each special meeting of the board of directors stating the date, time, and place of the meeting shall be mailed to each director at least three (3) days or telegraphed or telefaxed at least two (2) days prior to the date of the meeting. Unless otherwise required by these bylaws, the notice need not describe the purpose of a special meeting of the board of directors. Section 4. Quorum - A majority of the number of directors fixed herein, or one director if that is the number of directors fixed herein, shall constitute the quorum for each meeting of the 6 board of directors. If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present at a board of directors' meeting, or of the sole director if the corporation shall have but one director, shall be the act of the board of directors unless the vote of a greater number of direc tors is required by the articles of incorporation. Section 5. Action Without a Meeting - Any action required or permitted to be taken at a meeting of the board of directors may be taken without such a meeting and without notice if the action is taken by all members of the board of directors and is evidenced by one or more written consents stating the action taken, signed by each director either before or after the action taken, and included in the corporate minutes or filed with the corporate records reflecting the action taken. Any action taken by such unanimous, written consent shall be effective when the last director of the board of directors signs an approving consent, unless such consents all specify the same effective date and each specifies the date of execution by each executing director, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote at a duly called and held meeting of the board of directors and may be described as such in any document. Section 6. Waiver of Notice - Any other provision of these bylaws notwithstanding, whenever any notice is required to be given to a director, a waiver thereof in writing signed by the director entitled to such notice, whether executed before or after the time stated therein, and filed with the corporate minutes or records shall be equivalent to the giving of such notice to such director. A director's attendance at or participation in a board of directors' meeting waives any required notice to him of the meeting unless that director at the beginning of the meeting or promptly upon his arrival objects to holding the meeting or transacting business at the meeting and thereafter does not vote for or assent to action taken at the meeting. ARTICLE VII - COMMITTEES From time to time the board of directors may create one or more committees (comprised only of members of the board of directors) that may exercise powers of the board of directors as and to the extent provided in the creating resolution, except as may be limited by Section 13.1-689 of the Code. ARTICLE VIII - OFFICERS 7 Section 1. Election, Removal, and Duties - Promptly after its election in each year the board of directors shall appoint a president (who need not be a director) and a secretary. From time to time the board of directors may appoint such other officers as it may deem proper, as evidenced by their appointment. A duly appointed officer may appoint or remove (at any time and with or without cause) one or more assistant officers for his office. Any officer may simultaneously hold more than one office in the corporation. Each officer shall be appointed for a term continuing, unless sooner terminated, until the date of the next ensuing annual meeting of the board of directors and until his successor is appointed; provided, however, that any officer may resign, and any officer may be removed by the board of directors, in each case, at any time, and with or without cause, and such officer's then term shall terminate effective with the date of such resignation or removal. Each vacancy among the officers shall be filled by the board of directors. Each officer of the corporation shall have such authority and shall perform such duties as generally pertain to his office, as well as such other authority and duties as may be prescribed for such officer from time to time by the board of directors. Section 2. Bonds - The board of directors may require that each officer, agent, or employee of the corporation give bond to the corporation, with sufficient surety, conditioned on the faithful performance of the duties of his office or position and upon compliance with such other conditions as may from time to time be imposed by the board of directors. ARTICLE IX - SHARE CERTIFICATES; RECORDS Section 1. Form - Each shareholder shall be entitled to a share certificate evidencing the share or shares in the corporation owned by such shareholder, which certificate shall be in such form as may be required by law and shall be approved by the board of directors and signed by the corporation's president or a vice president and by its secretary or an assistant secretary. Section 2. Transfers - A transfer of any share or shares of the corporation may be made only upon registration of the share transfer in the share transfer records of the corporation, and then only upon surrender of each certificate for each share then being transferred accompanied by a satisfactory written assignment applicable thereto duly executed by the then shareholder thereof or by such shareholder's duly authorized attorney-in-fact. 8 Section 3. Replacements - In case of the loss, mutilation, or destruction of a share certificate, a duplicate certificate may be issued upon such terms not in conflict with law as the board of directors may prescribe. Section 4. Records - The corporation or its agent shall maintain a record of the corporation's shareholders in the manner required by law, and the corporation's share transfer records shall constitute conclusive proof of the ownership of the then issued and outstanding shares of the corporation at any given time. ARTICLE X - INDEMNITY Section 1. Indemnity - Any person (hereinafter in this Article, "indemnitee") who, because he is or was an officer or director of the corporation, is, was, or is threatened to be made a party to any threatened, pending, or completed action, suit, proceeding, or appeal whether civil, criminal, administrative, or investigative and whether formal or informal (hereinafter "proceeding") (including any proceeding by or in the right of the corporation) shall be indemnified by the corporation against all liability (including the obligation to pay all or any part of a judgment, decree, settlement, penalty, fine or other such obligation) and reasonable expenses (including counsel fees, expert witness fees, and costs of investigation, litigation, and appeal, as well as any amounts expended in asserting any counterclaim or claim for indemnification from others) incurred in or as a result of the proceeding except such liability and expenses as are incurred because of his willful misconduct or a knowing violation of the criminal law. The corporation shall pay for or reimburse the reasonable expenses incurred by any indemnitee in advance of final disposition of any proceeding upon receipt of an unsecured undertaking from him to repay the sums if ultimately it is determined that he is not entitled to indemnification. A director shall be so indemnified without the necessity of any further determination or authorization, but in the case of an officer, the determination that indemnification is permissible and an evaluation as to the reasonableness of expenses in a specific case shall be made as authorized from time to time by general or specific actions of the board of directors. The termination of a proceeding by a judgment, decree, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that an indemnitee acted in such a manner as to make him ineligible for indemnification. Section 2. Limitation - In any proceeding brought by a shareholder in the right of the corporation or brought by or on 9 behalf of shareholders of the corporation, the aggregate amount of all damages that may be assessed against an officer or director of the corporation arising out of any single transaction, occurrence, or course of conduct shall be limited to one dollar. This bylaw is adopted by the shareholders as a limitation on the liability of the corporation's officers and directors, and this limitation shall not apply if the officer or director engaged in willful misconduct or a knowing violation of the criminal law or of any state securities law. Section 3. Application - This Article shall be applicable in and to all proceedings commenced after its adoption even though arising, in whole or in part, from conduct, actions, or events occurring or taken before its adoption. No amendment, modification, or repeal of this Article shall diminish the rights provided hereby with respect to any claim, issue, or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act occur ring prior to such amendment, modification, or repeal. Reference herein to any director or officer shall include a former director or officer who has ceased to have the capacity of director or officer, as the case may be, and his heirs, executors, and administrators. The corporation may purchase and maintain insurance to indemnify it against all or any part of the liability to indemnify assumed by it in accordance with this Article. ARTICLE XI - AMENDMENTS Section 1. New Bylaws and Repeal - These bylaws may be amended or repealed and new bylaws may be made by the board of directors or the shareholders at any time. Each bylaw made by the board of directors, however, may be amended or repealed, and a new bylaw made, by the shareholders, and the shareholders may provide that any bylaw made by them shall not be amended or repealed by the board of directors, which proviso shall control. Section 2. Legislative Amendment - If any portion of these bylaws is subsequently rendered invalid by an Act of the General Assembly of Virginia, those portions hereof that are not affected by such legislation shall remain in full force and effect until and unless amended or repealed in accordance with the terms hereof. ARTICLE XII - MISCELLANEOUS Shares in another corporation held in the name of this corporation may be voted only by the president or secretary of this corporation, either in person or by proxy. 10 Each use of a masculine pronoun herein shall be read to include both the feminine and neuter pronouns as applicable. Adopted by the Shareholders; As of ________________________ 11 EX-3.(II)(NN) 21 EXHIBIT 3(II)(NN) Exhibit 3(ii)(nn) Exhibit A BYLAWS OF HURON P.S. MANAGEMENT, INC. ARTICLE I - CORPORATE SEAL The corporation need not have a seal. Should the secretary of the corporation determine that a seal is desirable, the seal of the corporation shall be circular and shall have inscribed thereon, within and around the circumference, the corporation's name, and in the center shall be the word "SEAL". ARTICLE II - FISCAL YEAR The fiscal year of the corporation shall be determined by the board of directors, but in the absence of such a determination it shall be the calendar year. ARTICLE III - RECORD DATE Unless the board of directors shall have fixed some other future date as the record date, the record date for determining the corporation's shareholders entitled to a distribution or to a share dividend shall be the date and time the board of directors authorizes the distribution or share dividend. The record date for any other determination of the corporation's shareholders (except for actions taken by consent as hereinafter provided in Article IV, Section 8) shall be 5:00 o'clock p.m. local time in Richmond, Virginia on the date that is the thirtieth (30th) day prior to the date of the meeting or action then requiring a determination of shareholders. A determination of shareholders entitled to notice of and to vote at a shareholders' meeting shall be effective for any adjournment of the meeting unless the board of directors fixes a new record date, which it shall do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. ARTICLE IV - SHAREHOLDERS' MEETINGS Section 1. Place of Meetings - Each shareholders' meeting shall be held at such place, in or out of the Commonwealth of Virginia, as may be provided in the meeting notice. Section 2. Annual Meeting - The corporation shall hold the annual shareholders' meeting on the second (2nd) Tuesday in February of each year commencing at 10:00 o'clock a.m. local time at the meeting place. If the aforesaid date shall fall on a legal holiday, the annual shareholders' meeting shall be held on the next following business day, and if for any other reason the annual shareholders' meeting shall not be held on such day, it may be called in accordance with the provisions of Article IV, Section 3, and a meeting called and held with this as a purpose shall be specifically designated as the annual meeting. Section 3. Special Meetings - The corporation shall hold a special shareholders' meeting on call of the chairman of the board of directors, the president, the board of directors, or (upon due execution and delivery of one or more written demands as required by and in compliance with Section 13.1-655 of the Code of Virginia (1950), as amended (the "Code")) the holders of not less than twenty percent (20%) of all votes entitled to be cast on any issue proposed to be considered at the special meeting. Only business within the purpose or purposes described in the required meeting notice may be conducted at a special shareholders' meeting. Section 4. Notice of Meeting - For each shareholders' meeting, not less than ten (10) nor more than sixty (60) days before the meeting date (except as a different time is specified in the second paragraph of this Section or by Virginia law), written notice stating the date, time, and place of the meeting and, in case of a special shareholders' meeting, the purpose or purposes for which the meeting is called, shall be given to each shareholder entitled to vote at such meeting either personally or by mail by or at the direction of the president, the secretary, or the persons calling the meeting. If mailed, each such notice shall be deemed to have been given when deposited in the United States mail, postage prepaid, addressed to a shareholder at such shareholder's address as it appears on the share transfer records of the corporation. Notice of a shareholders' meeting to act on an amendment of the articles of incorporation, on a plan of merger or share exchange, or on dissolution of the corporation, or to authorize a proposed sale of assets pursuant to Section 13.1-724 of the Code, shall be given in the form and manner provided above for a special meeting but not less than twenty-five (25) nor more than sixty (60) days before the meeting date. Section 5. Adjournment - If an annual or special shareholders' meeting is adjourned to a different date, time, or place, notice need not be given if the new date, time, and place are announced at the meeting before adjournment. Section 6. Quorum - Shareholders may take action on a matter at a shareholders' meeting only if a quorum exists with respect to that matter. A majority of the votes entitled to be cast by the shareholders in any voting group shall constitute a 2 quorum as to each matter considered by such voting group at each shareholders' meeting. Once a share is represented for any purpose at a shareholders' meeting, it is deemed present for quorum purposes for the remainder of that meeting and for any adjournment of that meeting unless a new record date is set for that adjourned meeting pursuant to Article III. If a quorum exists the affirmative vote of a majority of the votes cast within a voting group on the matter being voted upon shall be the act of the voting group, unless the affirmative vote of a greater number is required by law or by the articles of incorporation, and except that in any election of directors those receiving a plurality of the votes cast by the shares entitled to vote in the election shall be elected, though not receiving a majority. Less than a quorum may adjourn a meeting. Section 7. Voting - Except as may otherwise be provided in the articles of incorporation or by Section 13.1-662 of the Code, each outstanding share of the corporation, regardless of class, is entitled to one vote on each matter to be voted on at a shareholders' meeting. As and to the extent provided by Section 13.1-662 of the Code, redeemable shares (after a notice of redemption has been mailed and a deposit made as provided in such section) shall not vote and shall not be outstanding shares. Shares of the corporation held by another corporation, domestic or foreign, shall not be entitled to vote at any meeting and shall not be counted in determining the total number of outstanding shares at any given time entitled to vote if a majority of the shares entitled to vote for the election of directors of the other corporation is owned, directly or indirectly, by this corporation. A shareholder entitled to vote may vote his shares in person or by a proxy and may appoint such a proxy to vote or otherwise act for him by signing an appointment form, either personally or by his attorney-in-fact, and filing the appointment form with the secretary of the corporation. Any proxy may be revoked as permitted by law and, unless sooner revoked, shall be valid for eleven (11) months from the date the appointment form is received by the secretary of the corporation, unless a longer period is expressly provided in the appointment form. Section 8. Shareholders' Action Without a Meeting - Any action required or permitted to be taken at a shareholders' meeting may be taken without such a meeting, without notice to voting shareholders, and without action by the board of directors if the action is taken by all shareholders entitled to vote thereon and is evidenced by one or more written consents describing the action taken, at least one such approving consent to have been signed by each shareholder entitled to vote on the action, and delivered to the secretary of the corporation for inclusion 3 in the minutes or for filing with the corporate records. As and when required by Section 13.1-657D of the Code nonvoting shareholders shall be given at least ten (10) days written notice of any proposed action before the action is taken by unanimous consent of the voting shareholders. Any action taken by such unanimous written consent shall be effective according to its terms when a signed consent for each shareholder entitled to vote thereon is in the possession of the corporation, unless such consents all specify the same effective date and each specifies the date of execution by each executing shareholder, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote of voting shareholders at a duly called and held shareholders' meeting and may be described as such in any document filed with the State Corporation Commission. A shareholder may withdraw a consent theretofore delivered to the corporation only by delivering to the corporation a written notice of withdrawal as to such consent prior to the time that all other like consents are in possession of the corporation. Unless otherwise required by law, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs a consent as to such action. Section 9. Waiver of Notice - Any other provision of these bylaws notwithstanding, a shareholder may waive any notice required by these bylaws, the corporation's articles of incorporation, or any law by signing a written waiver of such notice (whether such waiver is executed before or after the date and time of the event that is the subject of such required notice) and delivering such signed waiver to the secretary of the corporation for inclusion in the minutes or filing with the corporate records. A shareholder who attends a shareholders' meeting (i) waives all objections to lack of notice or defective notice of that meeting, unless at the beginning of the meeting the shareholder objects to holding the meeting or to transacting business at the meeting, and (ii) waives all objection to consideration at that meeting of a particular matter that is not within the purpose or purposes described in the meeting notice, unless that shareholder objects to considering the matter when it is presented. Section 10. Minutes - The corporation shall keep as a permanent record minutes of all meetings of its shareholders and a record of all actions taken by its shareholders without a meeting. ARTICLE V - BOARD OF DIRECTORS 4 Section 1. General Powers - All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its board of directors, subject to any limitation set forth in its articles of incorporation. Section 2. Number, Term, and Qualification - Until such time as this bylaw shall be amended to specify or fix a different number, the number of directors of the corporation shall be one (1). The term of each director shall expire at the next annual shareholders' meeting following his election, but despite the expiration of a director's term, he shall continue to serve until his successor is duly elected and qualifies or until there is a decrease in the number of directors. A decrease in the number of directors shall not shorten an incumbent director's term. A director need not be a resident of the Commonwealth of Virginia or a shareholder of the corporation. Section 3. Election of Board of Directors - Except under the conditions described in Sections 4 and 5 of this Article V, the board of directors shall be elected annually at the annual share-holders' meeting. Section 4. Removal - Any director may be removed, with or without cause, if at a shareholders' meeting duly called and held the number of votes cast to remove him constitutes a majority of the votes then entitled to be cast and counted together in an election of such director at a shareholders' meeting. Notice of such a meeting must state that the purpose, or a purpose, of the meeting is removal of the director. If any director is so removed, a new director may be elected in his place at the same shareholders' meeting. Section 5. Resignation - A director may resign at any time by delivering written notice thereof to the board of directors, its chairman, the corporation's president, or the corporation's secretary. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date, in which case the board of directors may fill the pending vacancy before the effective date, but a successor so elected shall not take office until the effective date. Section 6. Vacancies - Any vacancy occurring in the board of directors (including a vacancy resulting from an increase in the number of directors) may be filled by a vote of the board of directors (and if the directors then remaining in office constitute fewer than a quorum the board of directors may fill the vacancy by the affirmative vote of a majority of the then direc- 5 tors) unless the vacant office was held by a director elected by a voting group of shareholders, in which event such vacancy may be filled only by the affirmative vote of a majority of the shareholders in such voting group. Section 7. Compensation - The board of directors may compensate each director for his service as such and may provide for the payment of all expenses incurred by each director in attending meetings of the board of directors. ARTICLE VI - MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings, Minutes - Regular meetings of the board of directors shall be held annually (immediately following each annual shareholders' meeting) to elect officers and to carry on such other business as may properly come before such meeting and immediately following each special shareholders' meeting to carry on such business as may properly come before such meeting. Any such regular meeting of the board of directors shall be held at the place where the immediately preceding shareholders' meeting was held. Special meetings of the board of directors may be called by any member of the board of directors. Any meeting of the board of directors may be held in or out of the Commonwealth of Virginia. The corporation shall keep as a permanent record minutes of all meetings of the board of directors, a record of all actions taken by the board of directors without a meeting, and a record of all actions taken on behalf of the corporation by each committee of the board of directors. Section 2. Method of Meeting - Any or all directors may participate in any regular or special meeting of the board of directors by, or may conduct the meeting through the use of, any means of communication by which all participating directors may simultaneously hear each other during the meeting. Section 3. Notice - No notice need be given of any regular meeting of the board of directors. Notice of each special meeting of the board of directors stating the date, time, and place of the meeting shall be mailed to each director at least three (3) days or telegraphed or telefaxed at least two (2) days prior to the date of the meeting. Unless otherwise required by these bylaws, the notice need not describe the purpose of a special meeting of the board of directors. Section 4. Quorum - A majority of the number of directors fixed herein, or one director if that is the number of directors fixed herein, shall constitute the quorum for each meeting of the 6 board of directors. If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present at a board of directors' meeting, or of the sole director if the corporation shall have but one director, shall be the act of the board of directors unless the vote of a greater number of directors is required by the articles of incorporation. Section 5. Action Without a Meeting - Any action required or permitted to be taken at a meeting of the board of directors may be taken without such a meeting and without notice if the action is taken by all members of the board of directors and is evidenced by one or more written consents stating the action taken, signed by each director either before or after the action taken, and included in the corporate minutes or filed with the corporate records reflecting the action taken. Any action taken by such unanimous, written consent shall be effective when the last director of the board of directors signs an approving consent, unless such consents all specify the same effective date and each specifies the date of execution by each executing director, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote at a duly called and held meeting of the board of directors and may be described as such in any document. Section 6. Waiver of Notice - Any other provision of these bylaws notwithstanding, whenever any notice is required to be given to a director, a waiver thereof in writing signed by the director entitled to such notice, whether executed before or after the time stated therein, and filed with the corporate minutes or records shall be equivalent to the giving of such notice to such director. A director's attendance at or participation in a board of directors' meeting waives any required notice to him of the meeting unless that director at the beginning of the meeting or promptly upon his arrival objects to holding the meeting or transacting business at the meeting and thereafter does not vote for or assent to action taken at the meeting. ARTICLE VII - COMMITTEES From time to time the board of directors may create one or more committees (comprised only of members of the board of directors) that may exercise powers of the board of directors as and to the extent provided in the creating resolution, except as may be limited by Section 13.1-689 of the Code. ARTICLE VIII - OFFICERS 7 Section 1. Election, Removal, and Duties - Promptly after its election in each year the board of directors shall appoint a president (who need not be a director) and a secretary. From time to time the board of directors may appoint such other officers as it may deem proper, as evidenced by their appointment. A duly appointed officer may appoint or remove (at any time and with or without cause) one or more assistant officers for his office. Any officer may simultaneously hold more than one office in the corporation. Each officer shall be appointed for a term continuing, unless sooner terminated, until the date of the next ensuing annual meeting of the board of directors and until his successor is appointed; provided, however, that any officer may resign, and any officer may be removed by the board of directors, in each case, at any time, and with or without cause, and such officer's then term shall terminate effective with the date of such resignation or removal. Each vacancy among the officers shall be filled by the board of directors. Each officer of the corporation shall have such authority and shall perform such duties as generally pertain to his office, as well as such other authority and duties as may be prescribed for such officer from time to time by the board of directors. Section 2. Bonds - The board of directors may require that each officer, agent, or employee of the corporation give bond to the corporation, with sufficient surety, conditioned on the faithful performance of the duties of his office or position and upon compliance with such other conditions as may from time to time be imposed by the board of directors. ARTICLE IX - SHARE CERTIFICATES; RECORDS Section 1. Form - Each shareholder shall be entitled to a share certificate evidencing the share or shares in the corporation owned by such shareholder, which certificate shall be in such form as may be required by law and shall be approved by the board of directors and signed by the corporation's president or a vice president and by its secretary or an assistant secretary. Section 2. Transfers - A transfer of any share or shares of the corporation may be made only upon registration of the share transfer in the share transfer records of the corporation, and then only upon surrender of each certificate for each share then being transferred accompanied by a satisfactory written assignment applicable thereto duly executed by the then shareholder thereof or by such shareholder's duly authorized attorney-in-fact. 8 Section 3. Replacements - In case of the loss, mutilation, or destruction of a share certificate, a duplicate certificate may be issued upon such terms not in conflict with law as the board of directors may prescribe. Section 4. Records - The corporation or its agent shall maintain a record of the corporation's shareholders in the manner required by law, and the corporation's share transfer records shall constitute conclusive proof of the ownership of the then issued and outstanding shares of the corporation at any given time. ARTICLE X - INDEMNITY Section 1. Indemnity - Any person (hereinafter in this Article, "indemnitee") who, because he is or was an officer or director of the corporation, is, was, or is threatened to be made a party to any threatened, pending, or completed action, suit, proceeding, or appeal whether civil, criminal, administrative, or investigative and whether formal or informal (hereinafter "proceeding") (including any proceeding by or in the right of the corporation) shall be indemnified by the corporation against all liability (including the obligation to pay all or any part of a judgment, decree, settlement, penalty, fine or other such obligation) and reasonable expenses (including counsel fees, expert witness fees, and costs of investigation, litigation, and appeal, as well as any amounts expended in asserting any counterclaim or claim for indemnification from others) incurred in or as a result of the proceeding except such liability and expenses as are incurred because of his willful misconduct or a knowing violation of the criminal law. The corporation shall pay for or reimburse the reasonable expenses incurred by any indemnitee in advance of final disposition of any proceeding upon receipt of an unsecured undertaking from him to repay the sums if ultimately it is determined that he is not entitled to indemnification. A director shall be so indemnified without the necessity of any further determination or authorization, but in the case of an officer, the determination that indemnification is permissible and an evaluation as to the reasonableness of expenses in a specific case shall be made as authorized from time to time by general or specific actions of the board of directors. The termination of a proceeding by a judgment, decree, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that an indemnitee acted in such a manner as to make him ineligible for indemnification. Section 2. Limitation - In any proceeding brought by a shareholder in the right of the corporation or brought by or on 9 behalf of shareholders of the corporation, the aggregate amount of all damages that may be assessed against an officer or director of the corporation arising out of any single transaction, occurrence, or course of conduct shall be limited to one dollar. This bylaw is adopted by the shareholders as a limitation on the liability of the corporation's officers and directors, and this limitation shall not apply if the officer or director engaged in willful misconduct or a knowing violation of the criminal law or of any state securities law. Section 3. Application - This Article shall be applicable in and to all proceedings commenced after its adoption even though arising, in whole or in part, from conduct, actions, or events occurring or taken before its adoption. No amendment, modification, or repeal of this Article shall diminish the rights provided hereby with respect to any claim, issue, or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act occurring prior to such amendment, modification, or repeal. Reference herein to any director or officer shall include a former director or officer who has ceased to have the capacity of director or officer, as the case may be, and his heirs, executors, and administrators. The corporation may purchase and maintain insurance to indemnify it against all or any part of the liability to indemnify assumed by it in accordance with this Article. ARTICLE XI - AMENDMENTS Section 1. New Bylaws and Repeal - These bylaws may be amended or repealed and new bylaws may be made by the board of directors or the shareholders at any time. Each bylaw made by the board of directors, however, may be amended or repealed, and a new bylaw made, by the shareholders, and the shareholders may provide that any bylaw made by them shall not be amended or repealed by the board of directors, which proviso shall control. Section 2. Legislative Amendment - If any portion of these bylaws is subsequently rendered invalid by an Act of the General Assembly of Virginia, those portions hereof that are not affected by such legislation shall remain in full force and effect until and unless amended or repealed in accordance with the terms hereof. ARTICLE XII - MISCELLANEOUS Shares in another corporation held in the name of this corporation may be voted only by the president or secretary of this corporation, either in person or by proxy. 10 Each use of a masculine pronoun herein shall be read to include both the feminine and neuter pronouns as applicable. Adopted by the Shareholders; As of ________________________ 11 EX-3.(II)(OO) 22 EXHIBIT 3(II)(OO) Exhibit 3(ii)(oo) Exhibit A BYLAWS OF NORTHERN COLORADO HOLDINGS MANAGEMENT, INC. ARTICLE I - CORPORATE SEAL The corporation need not have a seal. Should the secretary of the corporation determine that a seal is desirable, the seal of the corporation shall be circular and shall have inscribed thereon, within and around the circumference, the corporation's name, and in the center shall be the word "SEAL". ARTICLE II - FISCAL YEAR The fiscal year of the corporation shall be determined by the board of directors, but in the absence of such a determination it shall be the calendar year. ARTICLE III - RECORD DATE Unless the board of directors shall have fixed some other future date as the record date, the record date for determining the corporation's shareholders entitled to a distribution or to a share dividend shall be the date and time the board of directors authorizes the distribution or share dividend. The record date for any other determination of the corporation's shareholders (except for actions taken by consent as hereinafter provided in Article IV, Section 8) shall be 5:00 o'clock p.m. local time in Richmond, Virginia on the date that is the thirtieth (30th) day prior to the date of the meeting or action then requiring a determination of shareholders. A determination of shareholders entitled to notice of and to vote at a shareholders' meeting shall be effective for any adjournment of the meeting unless the board of directors fixes a new record date, which it shall do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. ARTICLE IV - SHAREHOLDERS' MEETINGS Section 1. Place of Meetings - Each shareholders' meeting shall be held at such place, in or out of the Commonwealth of Virginia, as may be provided in the meeting notice. Section 2. Annual Meeting - The corporation shall hold the annual shareholders' meeting on the second (2nd) Tuesday in February of each year commencing at 10:00 o'clock a.m. local time at the meeting place. If the aforesaid date shall fall on a legal holiday, the annual shareholders' meeting shall be held on the next following business day, and if for any other reason the annual shareholders' meeting shall not be held on such day, it may be called in accordance with the provisions of Article IV, Section 3, and a meeting called and held with this as a purpose shall be specifically designated as the annual meeting. Section 3. Special Meetings - The corporation shall hold a special shareholders' meeting on call of the chairman of the board of directors, the president, the board of directors, or (upon due execution and delivery of one or more written demands as required by and in compliance with Section 13.1-655 of the Code of Virginia (1950), as amended (the "Code")) the holders of not less than twenty percent (20%) of all votes entitled to be cast on any issue proposed to be considered at the special meeting. Only business within the purpose or purposes described in the required meeting notice may be conducted at a special shareholders' meeting. Section 4. Notice of Meeting - For each shareholders' meeting, not less than ten (10) nor more than sixty (60) days before the meeting date (except as a different time is specified in the second paragraph of this Section or by Virginia law), written notice stating the date, time, and place of the meeting and, in case of a special shareholders' meeting, the purpose or purposes for which the meeting is called, shall be given to each shareholder entitled to vote at such meeting either personally or by mail by or at the direction of the president, the secretary, or the persons calling the meeting. If mailed, each such notice shall be deemed to have been given when deposited in the United States mail, postage prepaid, addressed to a shareholder at such shareholder's address as it appears on the share transfer records of the corporation. Notice of a shareholders' meeting to act on an amendment of the articles of incorporation, on a plan of merger or share exchange, or on dissolution of the corporation, or to authorize a proposed sale of assets pursuant to Section 13.1-724 of the Code, shall be given in the form and manner provided above for a special meeting but not less than twenty-five (25) nor more than sixty (60) days before the meeting date. Section 5. Adjournment - If an annual or special shareholders' meeting is adjourned to a different date, time, or place, notice need not be given if the new date, time, and place are announced at the meeting before adjournment. Section 6. Quorum - Shareholders may take action on a matter at a shareholders' meeting only if a quorum exists with respect to that matter. A majority of the votes entitled to be cast by the shareholders in any voting group shall constitute a 2 quorum as to each matter considered by such voting group at each shareholders' meeting. Once a share is represented for any purpose at a shareholders' meeting, it is deemed present for quorum purposes for the remainder of that meeting and for any adjournment of that meeting unless a new record date is set for that adjourned meeting pursuant to Article III. If a quorum exists the affirmative vote of a majority of the votes cast within a voting group on the matter being voted upon shall be the act of the voting group, unless the affirmative vote of a greater number is required by law or by the articles of incorporation, and except that in any election of directors those receiving a plurality of the votes cast by the shares entitled to vote in the election shall be elected, though not receiving a majority. Less than a quorum may adjourn a meeting. Section 7. Voting - Except as may otherwise be provided in the articles of incorporation or by Section 13.1-662 of the Code, each outstanding share of the corporation, regardless of class, is entitled to one vote on each matter to be voted on at a shareholders' meeting. As and to the extent provided by Section 13.1-662 of the Code, redeemable shares (after a notice of redemption has been mailed and a deposit made as provided in such section) shall not vote and shall not be outstanding shares. Shares of the corporation held by another corporation, domestic or foreign, shall not be entitled to vote at any meeting and shall not be counted in determining the total number of outstanding shares at any given time entitled to vote if a majority of the shares entitled to vote for the election of directors of the other corporation is owned, directly or indirectly, by this corporation. A shareholder entitled to vote may vote his shares in person or by a proxy and may appoint such a proxy to vote or otherwise act for him by signing an appointment form, either personally or by his attorney-in-fact, and filing the appointment form with the secretary of the corporation. Any proxy may be revoked as permitted by law and, unless sooner revoked, shall be valid for eleven (11) months from the date the appointment form is received by the secretary of the corporation, unless a longer period is expressly provided in the appointment form. Section 8. Shareholders' Action Without a Meeting - Any action required or permitted to be taken at a shareholders' meeting may be taken without such a meeting, without notice to voting shareholders, and without action by the board of directors if the action is taken by all shareholders entitled to vote thereon and is evidenced by one or more written consents describing the action taken, at least one such approving consent to have been signed by each shareholder entitled to vote on the action, and delivered to the secretary of the corporation for inclusion 3 in the minutes or for filing with the corporate records. As and when required by Section 13.1-657D of the Code nonvoting shareholders shall be given at least ten (10) days written notice of any proposed action before the action is taken by unanimous consent of the voting shareholders. Any action taken by such unanimous written consent shall be effective according to its terms when a signed consent for each shareholder entitled to vote thereon is in the possession of the corporation, unless such consents all specify the same effective date and each specifies the date of execution by each executing shareholder, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote of voting shareholders at a duly called and held shareholders' meeting and may be described as such in any document filed with the State Corporation Commission. A shareholder may withdraw a consent theretofore delivered to the corporation only by delivering to the corporation a written notice of withdrawal as to such consent prior to the time that all other like consents are in possession of the corporation. Unless otherwise required by law, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs a consent as to such action. Section 9. Waiver of Notice - Any other provision of these bylaws notwithstanding, a shareholder may waive any notice required by these bylaws, the corporation's articles of incorporation, or any law by signing a written waiver of such notice (whether such waiver is executed before or after the date and time of the event that is the subject of such required notice) and delivering such signed waiver to the secretary of the corporation for inclusion in the minutes or filing with the corporate records. A shareholder who attends a shareholders' meeting (i) waives all objections to lack of notice or defective notice of that meeting, unless at the beginning of the meeting the shareholder objects to holding the meeting or to transacting business at the meeting, and (ii) waives all objection to consideration at that meeting of a particular matter that is not within the purpose or purposes described in the meeting notice, unless that shareholder objects to considering the matter when it is presented. Section 10. Minutes - The corporation shall keep as a permanent record minutes of all meetings of its shareholders and a record of all actions taken by its shareholders without a meeting. ARTICLE V - BOARD OF DIRECTORS 4 Section 1. General Powers - All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its board of directors, subject to any limitation set forth in its articles of incorporation. Section 2. Number, Term, and Qualification - Until such time as this bylaw shall be amended to specify or fix a different number, the number of directors of the corporation shall be one (1). The term of each director shall expire at the next annual shareholders' meeting following his election, but despite the expiration of a director's term, he shall continue to serve until his successor is duly elected and qualifies or until there is a decrease in the number of directors. A decrease in the number of directors shall not shorten an incumbent director's term. A director need not be a resident of the Commonwealth of Virginia or a shareholder of the corporation. Section 3. Election of Board of Directors - Except under the conditions described in Sections 4 and 5 of this Article V, the board of directors shall be elected annually at the annual share-holders' meeting. Section 4. Removal - Any director may be removed, with or without cause, if at a shareholders' meeting duly called and held the number of votes cast to remove him constitutes a majority of the votes then entitled to be cast and counted together in an election of such director at a shareholders' meeting. Notice of such a meeting must state that the purpose, or a purpose, of the meeting is removal of the director. If any director is so removed, a new director may be elected in his place at the same shareholders' meeting. Section 5. Resignation - A director may resign at any time by delivering written notice thereof to the board of directors, its chairman, the corporation's president, or the corporation's secretary. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date, in which case the board of directors may fill the pending vacancy before the effective date, but a successor so elected shall not take office until the effective date. Section 6. Vacancies - Any vacancy occurring in the board of directors (including a vacancy resulting from an increase in the number of directors) may be filled by a vote of the board of directors (and if the directors then remaining in office constitute fewer than a quorum the board of directors may fill the vacancy by the affirmative vote of a majority of the then direc- 5 tors) unless the vacant office was held by a director elected by a voting group of shareholders, in which event such vacancy may be filled only by the affirmative vote of a majority of the shareholders in such voting group. Section 7. Compensation - The board of directors may compensate each director for his service as such and may provide for the payment of all expenses incurred by each director in attending meetings of the board of directors. ARTICLE VI - MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings, Minutes - Regular meetings of the board of directors shall be held annually (immediately following each annual shareholders' meeting) to elect officers and to carry on such other business as may properly come before such meeting and immediately following each special shareholders' meeting to carry on such business as may properly come before such meeting. Any such regular meeting of the board of directors shall be held at the place where the immediately preceding shareholders' meeting was held. Special meetings of the board of directors may be called by any member of the board of directors. Any meeting of the board of directors may be held in or out of the Commonwealth of Virginia. The corporation shall keep as a permanent record minutes of all meetings of the board of directors, a record of all actions taken by the board of directors without a meeting, and a record of all actions taken on behalf of the corporation by each committee of the board of directors. Section 2. Method of Meeting - Any or all directors may participate in any regular or special meeting of the board of directors by, or may conduct the meeting through the use of, any means of communication by which all participating directors may simultaneously hear each other during the meeting. Section 3. Notice - No notice need be given of any regular meeting of the board of directors. Notice of each special meeting of the board of directors stating the date, time, and place of the meeting shall be mailed to each director at least three (3) days or telegraphed or telefaxed at least two (2) days prior to the date of the meeting. Unless otherwise required by these bylaws, the notice need not describe the purpose of a special meeting of the board of directors. Section 4. Quorum - A majority of the number of directors fixed herein, or one director if that is the number of directors fixed herein, shall constitute the quorum for each meeting of the 6 board of directors. If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present at a board of directors' meeting, or of the sole director if the corporation shall have but one director, shall be the act of the board of directors unless the vote of a greater number of directors is required by the articles of incorporation. Section 5. Action Without a Meeting - Any action required or permitted to be taken at a meeting of the board of directors may be taken without such a meeting and without notice if the action is taken by all members of the board of directors and is evidenced by one or more written consents stating the action taken, signed by each director either before or after the action taken, and included in the corporate minutes or filed with the corporate records reflecting the action taken. Any action taken by such unanimous, written consent shall be effective when the last director of the board of directors signs an approving consent, unless such consents all specify the same effective date and each specifies the date of execution by each executing director, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote at a duly called and held meeting of the board of directors and may be described as such in any document. Section 6. Waiver of Notice - Any other provision of these bylaws notwithstanding, whenever any notice is required to be given to a director, a waiver thereof in writing signed by the director entitled to such notice, whether executed before or after the time stated therein, and filed with the corporate minutes or records shall be equivalent to the giving of such notice to such director. A director's attendance at or participation in a board of directors' meeting waives any required notice to him of the meeting unless that director at the beginning of the meeting or promptly upon his arrival objects to holding the meeting or transacting business at the meeting and thereafter does not vote for or assent to action taken at the meeting. ARTICLE VII - COMMITTEES From time to time the board of directors may create one or more committees (comprised only of members of the board of directors) that may exercise powers of the board of directors as and to the extent provided in the creating resolution, except as may be limited by Section 13.1-689 of the Code. ARTICLE VIII - OFFICERS 7 Section 1. Election, Removal, and Duties - Promptly after its election in each year the board of directors shall appoint a president (who need not be a director) and a secretary. From time to time the board of directors may appoint such other officers as it may deem proper, as evidenced by their appointment. A duly appointed officer may appoint or remove (at any time and with or without cause) one or more assistant officers for his office. Any officer may simultaneously hold more than one office in the corporation. Each officer shall be appointed for a term continuing, unless sooner terminated, until the date of the next ensuing annual meeting of the board of directors and until his successor is appointed; provided, however, that any officer may resign, and any officer may be removed by the board of directors, in each case, at any time, and with or without cause, and such officer's then term shall terminate effective with the date of such resignation or removal. Each vacancy among the officers shall be filled by the board of directors. Each officer of the corporation shall have such authority and shall perform such duties as generally pertain to his office, as well as such other authority and duties as may be prescribed for such officer from time to time by the board of directors. Section 2. Bonds - The board of directors may require that each officer, agent, or employee of the corporation give bond to the corporation, with sufficient surety, conditioned on the faithful performance of the duties of his office or position and upon compliance with such other conditions as may from time to time be imposed by the board of directors. ARTICLE IX - SHARE CERTIFICATES; RECORDS Section 1. Form - Each shareholder shall be entitled to a share certificate evidencing the share or shares in the corporation owned by such shareholder, which certificate shall be in such form as may be required by law and shall be approved by the board of directors and signed by the corporation's president or a vice president and by its secretary or an assistant secretary. Section 2. Transfers - A transfer of any share or shares of the corporation may be made only upon registration of the share transfer in the share transfer records of the corporation, and then only upon surrender of each certificate for each share then being transferred accompanied by a satisfactory written assignment applicable thereto duly executed by the then shareholder thereof or by such shareholder's duly authorized attorney-in-fact. 8 Section 3. Replacements - In case of the loss, mutilation, or destruction of a share certificate, a duplicate certificate may be issued upon such terms not in conflict with law as the board of directors may prescribe. Section 4. Records - The corporation or its agent shall maintain a record of the corporation's shareholders in the manner required by law, and the corporation's share transfer records shall constitute conclusive proof of the ownership of the then issued and outstanding shares of the corporation at any given time. ARTICLE X - INDEMNITY Section 1. Indemnity - Any person (hereinafter in this Article, "indemnitee") who, because he is or was an officer or director of the corporation, is, was, or is threatened to be made a party to any threatened, pending, or completed action, suit, proceeding, or appeal whether civil, criminal, administrative, or investigative and whether formal or informal (hereinafter "proceeding") (including any proceeding by or in the right of the corporation) shall be indemnified by the corporation against all liability (including the obligation to pay all or any part of a judgment, decree, settlement, penalty, fine or other such obligation) and reasonable expenses (including counsel fees, expert witness fees, and costs of investigation, litigation, and appeal, as well as any amounts expended in asserting any counterclaim or claim for indemnification from others) incurred in or as a result of the proceeding except such liability and expenses as are incurred because of his willful misconduct or a knowing violation of the criminal law. The corporation shall pay for or reimburse the reasonable expenses incurred by any indemnitee in advance of final disposition of any proceeding upon receipt of an unsecured undertaking from him to repay the sums if ultimately it is determined that he is not entitled to indemnification. A director shall be so indemnified without the necessity of any further determination or authorization, but in the case of an officer, the determination that indemnification is permissible and an evaluation as to the reasonableness of expenses in a specific case shall be made as authorized from time to time by general or specific actions of the board of directors. The termination of a proceeding by a judgment, decree, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that an indemnitee acted in such a manner as to make him ineligible for indemnification. Section 2. Limitation - In any proceeding brought by a shareholder in the right of the corporation or brought by or on 9 behalf of shareholders of the corporation, the aggregate amount of all damages that may be assessed against an officer or director of the corporation arising out of any single transaction, occurrence, or course of conduct shall be limited to one dollar. This bylaw is adopted by the shareholders as a limitation on the liability of the corporation's officers and directors, and this limitation shall not apply if the officer or director engaged in willful misconduct or a knowing violation of the criminal law or of any state securities law. Section 3. Application - This Article shall be applicable in and to all proceedings commenced after its adoption even though arising, in whole or in part, from conduct, actions, or events occurring or taken before its adoption. No amendment, modification, or repeal of this Article shall diminish the rights provided hereby with respect to any claim, issue, or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act occurring prior to such amendment, modification, or repeal. Reference herein to any director or officer shall include a former director or officer who has ceased to have the capacity of director or officer, as the case may be, and his heirs, executors, and administrators. The corporation may purchase and maintain insurance to indemnify it against all or any part of the liability to indemnify assumed by it in accordance with this Article. ARTICLE XI - AMENDMENTS Section 1. New Bylaws and Repeal - These bylaws may be amended or repealed and new bylaws may be made by the board of directors or the shareholders at any time. Each bylaw made by the board of directors, however, may be amended or repealed, and a new bylaw made, by the shareholders, and the shareholders may provide that any bylaw made by them shall not be amended or repealed by the board of directors, which proviso shall control. Section 2. Legislative Amendment - If any portion of these bylaws is subsequently rendered invalid by an Act of the General Assembly of Virginia, those portions hereof that are not affected by such legislation shall remain in full force and effect until and unless amended or repealed in accordance with the terms hereof. ARTICLE XII - MISCELLANEOUS Shares in another corporation held in the name of this corporation may be voted only by the president or secretary of this corporation, either in person or by proxy. 10 Each use of a masculine pronoun herein shall be read to include both the feminine and neuter pronouns as applicable. Adopted by the Shareholders; As of ---------------------------- 11 EX-3.(II)(PP) 23 EXHIBIT 3(II)(PP) Exhibit 3(ii)(pp) Exhibit A BYLAWS OF NORTHLAND BROADCASTING MANAGEMENT, INC. ARTICLE I - CORPORATE SEAL The corporation need not have a seal. Should the secretary of the corporation determine that a seal is desirable, the seal of the corporation shall be circular and shall have inscribed thereon, within and around the circumference, the corporation's name, and in the center shall be the word "SEAL". ARTICLE II - FISCAL YEAR The fiscal year of the corporation shall be determined by the board of directors, but in the absence of such a determination it shall be the calendar year. ARTICLE III - RECORD DATE Unless the board of directors shall have fixed some other future date as the record date, the record date for determining the corporation's shareholders entitled to a distribution or to a share dividend shall be the date and time the board of directors authorizes the distribution or share dividend. The record date for any other determination of the corporation's shareholders (except for actions taken by consent as hereinafter provided in Article IV, Section 8) shall be 5:00 o'clock p.m. local time in Richmond, Virginia on the date that is the thirtieth (30th) day prior to the date of the meeting or action then requiring a determination of shareholders. A determination of shareholders entitled to notice of and to vote at a shareholders' meeting shall be effective for any adjournment of the meeting unless the board of directors fixes a new record date, which it shall do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. ARTICLE IV - SHAREHOLDERS' MEETINGS Section 1. Place of Meetings - Each shareholders' meeting shall be held at such place, in or out of the Commonwealth of Virginia, as may be provided in the meeting notice. Section 2. Annual Meeting - The corporation shall hold the annual shareholders' meeting on the second (2nd) Tuesday in February of each year commencing at 10:00 o'clock a.m. local time at the meeting place. If the aforesaid date shall fall on a legal holiday, the annual shareholders' meeting shall be held on the next following business day, and if for any other reason the annual shareholders' meeting shall not be held on such day, it may be called in accordance with the provisions of Article IV, Section 3, and a meeting called and held with this as a purpose shall be specifically designated as the annual meeting. Section 3. Special Meetings - The corporation shall hold a special shareholders' meeting on call of the chairman of the board of directors, the president, the board of directors, or (upon due execution and delivery of one or more written demands as required by and in compliance with Section 13.1-655 of the Code of Virginia (1950), as amended (the "Code")) the holders of not less than twenty percent (20%) of all votes entitled to be cast on any issue proposed to be considered at the special meeting. Only business within the purpose or purposes described in the required meeting notice may be conducted at a special shareholders' meeting. Section 4. Notice of Meeting - For each shareholders' meeting, not less than ten (10) nor more than sixty (60) days before the meeting date (except as a different time is specified in the second paragraph of this Section or by Virginia law), written notice stating the date, time, and place of the meeting and, in case of a special shareholders' meeting, the purpose or purposes for which the meeting is called, shall be given to each shareholder entitled to vote at such meeting either personally or by mail by or at the direction of the president, the secretary, or the persons calling the meeting. If mailed, each such notice shall be deemed to have been given when deposited in the United States mail, postage prepaid, addressed to a shareholder at such shareholder's address as it appears on the share transfer records of the corporation. Notice of a shareholders' meeting to act on an amendment of the articles of incorporation, on a plan of merger or share exchange, or on dissolution of the corporation, or to authorize a proposed sale of assets pursuant to Section 13.1-724 of the Code, shall be given in the form and manner provided above for a special meeting but not less than twenty-five (25) nor more than sixty (60) days before the meeting date. Section 5. Adjournment - If an annual or special shareholders' meeting is adjourned to a different date, time, or place, notice need not be given if the new date, time, and place are announced at the meeting before adjournment. Section 6. Quorum - Shareholders may take action on a matter at a shareholders' meeting only if a quorum exists with respect to that matter. A majority of the votes entitled to be cast by the shareholders in any voting group shall constitute a 2 quorum as to each matter considered by such voting group at each shareholders' meeting. Once a share is represented for any purpose at a shareholders' meeting, it is deemed present for quorum purposes for the remainder of that meeting and for any adjournment of that meeting unless a new record date is set for that adjourned meeting pursuant to Article III. If a quorum exists the affirmative vote of a majority of the votes cast within a voting group on the matter being voted upon shall be the act of the voting group, unless the affirmative vote of a greater number is required by law or by the articles of incorporation, and except that in any election of directors those receiving a plurality of the votes cast by the shares entitled to vote in the election shall be elected, though not receiving a majority. Less than a quorum may adjourn a meeting. Section 7. Voting - Except as may otherwise be provided in the articles of incorporation or by Section 13.1-662 of the Code, each outstanding share of the corporation, regardless of class, is entitled to one vote on each matter to be voted on at a shareholders' meeting. As and to the extent provided by Section 13.1-662 of the Code, redeemable shares (after a notice of redemption has been mailed and a deposit made as provided in such section) shall not vote and shall not be outstanding shares. Shares of the corporation held by another corporation, domestic or foreign, shall not be entitled to vote at any meeting and shall not be counted in determining the total number of outstanding shares at any given time entitled to vote if a majority of the shares entitled to vote for the election of directors of the other corporation is owned, directly or indirectly, by this corporation. A shareholder entitled to vote may vote his shares in person or by a proxy and may appoint such a proxy to vote or otherwise act for him by signing an appointment form, either personally or by his attorney-in-fact, and filing the appointment form with the secretary of the corporation. Any proxy may be revoked as permitted by law and, unless sooner revoked, shall be valid for eleven (11) months from the date the appointment form is received by the secretary of the corporation, unless a longer period is expressly provided in the appointment form. Section 8. Shareholders' Action Without a Meeting - Any action required or permitted to be taken at a shareholders' meeting may be taken without such a meeting, without notice to voting shareholders, and without action by the board of directors if the action is taken by all shareholders entitled to vote thereon and is evidenced by one or more written consents describing the action taken, at least one such approving consent to have been signed by each shareholder entitled to vote on the action, and delivered to the secretary of the corporation for inclusion 3 in the minutes or for filing with the corporate records. As and when required by Section 13.1-657D of the Code nonvoting shareholders shall be given at least ten (10) days written notice of any proposed action before the action is taken by unanimous consent of the voting shareholders. Any action taken by such unanimous written consent shall be effective according to its terms when a signed consent for each shareholder entitled to vote thereon is in the possession of the corporation, unless such consents all specify the same effective date and each specifies the date of execution by each executing shareholder, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote of voting shareholders at a duly called and held shareholders' meeting and may be described as such in any document filed with the State Corporation Commission. A shareholder may withdraw a consent theretofore delivered to the corporation only by delivering to the corporation a written notice of withdrawal as to such consent prior to the time that all other like consents are in possession of the corporation. Unless otherwise required by law, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs a consent as to such action. Section 9. Waiver of Notice - Any other provision of these bylaws notwithstanding, a shareholder may waive any notice required by these bylaws, the corporation's articles of incorporation, or any law by signing a written waiver of such notice (whether such waiver is executed before or after the date and time of the event that is the subject of such required notice) and delivering such signed waiver to the secretary of the corporation for inclusion in the minutes or filing with the corporate records. A shareholder who attends a shareholders' meeting (i) waives all objections to lack of notice or defective notice of that meeting, unless at the beginning of the meeting the shareholder objects to holding the meeting or to transacting business at the meeting, and (ii) waives all objection to consideration at that meeting of a particular matter that is not within the purpose or purposes described in the meeting notice, unless that shareholder objects to considering the matter when it is presented. Section 10. Minutes - The corporation shall keep as a permanent record minutes of all meetings of its shareholders and a record of all actions taken by its shareholders without a meeting. ARTICLE V - BOARD OF DIRECTORS 4 Section 1. General Powers - All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its board of directors, subject to any limitation set forth in its articles of incorporation. Section 2. Number, Term, and Qualification - Until such time as this bylaw shall be amended to specify or fix a different number, the number of directors of the corporation shall be one (1). The term of each director shall expire at the next annual shareholders' meeting following his election, but despite the expiration of a director's term, he shall continue to serve until his successor is duly elected and qualifies or until there is a decrease in the number of directors. A decrease in the number of directors shall not shorten an incumbent director's term. A director need not be a resident of the Commonwealth of Virginia or a shareholder of the corporation. Section 3. Election of Board of Directors - Except under the conditions described in Sections 4 and 5 of this Article V, the board of directors shall be elected annually at the annual share-holders' meeting. Section 4. Removal - Any director may be removed, with or without cause, if at a shareholders' meeting duly called and held the number of votes cast to remove him constitutes a majority of the votes then entitled to be cast and counted together in an election of such director at a shareholders' meeting. Notice of such a meeting must state that the purpose, or a purpose, of the meeting is removal of the director. If any director is so removed, a new director may be elected in his place at the same shareholders' meeting. Section 5. Resignation - A director may resign at any time by delivering written notice thereof to the board of directors, its chairman, the corporation's president, or the corporation's secretary. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date, in which case the board of directors may fill the pending vacancy before the effective date, but a successor so elected shall not take office until the effective date. Section 6. Vacancies - Any vacancy occurring in the board of directors (including a vacancy resulting from an increase in the number of directors) may be filled by a vote of the board of directors (and if the directors then remaining in office constitute fewer than a quorum the board of directors may fill the vacancy by the affirmative vote of a majority of the then direc- 5 tors) unless the vacant office was held by a director elected by a voting group of shareholders, in which event such vacancy may be filled only by the affirmative vote of a majority of the shareholders in such voting group. Section 7. Compensation - The board of directors may compensate each director for his service as such and may provide for the payment of all expenses incurred by each director in attending meetings of the board of directors. ARTICLE VI - MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings, Minutes - Regular meetings of the board of directors shall be held annually (immediately following each annual shareholders' meeting) to elect officers and to carry on such other business as may properly come before such meeting and immediately following each special shareholders' meeting to carry on such business as may properly come before such meeting. Any such regular meeting of the board of directors shall be held at the place where the immediately preceding shareholders' meeting was held. Special meetings of the board of directors may be called by any member of the board of directors. Any meeting of the board of directors may be held in or out of the Commonwealth of Virginia. The corporation shall keep as a permanent record minutes of all meetings of the board of directors, a record of all actions taken by the board of directors without a meeting, and a record of all actions taken on behalf of the corporation by each committee of the board of directors. Section 2. Method of Meeting - Any or all directors may participate in any regular or special meeting of the board of directors by, or may conduct the meeting through the use of, any means of communication by which all participating directors may simultaneously hear each other during the meeting. Section 3. Notice - No notice need be given of any regular meeting of the board of directors. Notice of each special meeting of the board of directors stating the date, time, and place of the meeting shall be mailed to each director at least three (3) days or telegraphed or telefaxed at least two (2) days prior to the date of the meeting. Unless otherwise required by these bylaws, the notice need not describe the purpose of a special meeting of the board of directors. Section 4. Quorum - A majority of the number of directors fixed herein, or one director if that is the number of directors fixed herein, shall constitute the quorum for each meeting of the 6 board of directors. If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present at a board of directors' meeting, or of the sole director if the corporation shall have but one director, shall be the act of the board of directors unless the vote of a greater number of directors is required by the articles of incorporation. Section 5. Action Without a Meeting - Any action required or permitted to be taken at a meeting of the board of directors may be taken without such a meeting and without notice if the action is taken by all members of the board of directors and is evidenced by one or more written consents stating the action taken, signed by each director either before or after the action taken, and included in the corporate minutes or filed with the corporate records reflecting the action taken. Any action taken by such unanimous, written consent shall be effective when the last director of the board of directors signs an approving consent, unless such consents all specify the same effective date and each specifies the date of execution by each executing director, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote at a duly called and held meeting of the board of directors and may be described as such in any document. Section 6. Waiver of Notice - Any other provision of these bylaws notwithstanding, whenever any notice is required to be given to a director, a waiver thereof in writing signed by the director entitled to such notice, whether executed before or after the time stated therein, and filed with the corporate minutes or records shall be equivalent to the giving of such notice to such director. A director's attendance at or participation in a board of directors' meeting waives any required notice to him of the meeting unless that director at the beginning of the meeting or promptly upon his arrival objects to holding the meeting or transacting business at the meeting and thereafter does not vote for or assent to action taken at the meeting. ARTICLE VII - COMMITTEES From time to time the board of directors may create one or more committees (comprised only of members of the board of directors) that may exercise powers of the board of directors as and to the extent provided in the creating resolution, except as may be limited by Section 13.1-689 of the Code. ARTICLE VIII - OFFICERS 7 Section 1. Election, Removal, and Duties - Promptly after its election in each year the board of directors shall appoint a president (who need not be a director) and a secretary. From time to time the board of directors may appoint such other officers as it may deem proper, as evidenced by their appointment. A duly appointed officer may appoint or remove (at any time and with or without cause) one or more assistant officers for his office. Any officer may simultaneously hold more than one office in the corporation. Each officer shall be appointed for a term continuing, unless sooner terminated, until the date of the next ensuing annual meeting of the board of directors and until his successor is appointed; provided, however, that any officer may resign, and any officer may be removed by the board of directors, in each case, at any time, and with or without cause, and such officer's then term shall terminate effective with the date of such resignation or removal. Each vacancy among the officers shall be filled by the board of directors. Each officer of the corporation shall have such authority and shall perform such duties as generally pertain to his office, as well as such other authority and duties as may be prescribed for such officer from time to time by the board of directors. Section 2. Bonds - The board of directors may require that each officer, agent, or employee of the corporation give bond to the corporation, with sufficient surety, conditioned on the faithful performance of the duties of his office or position and upon compliance with such other conditions as may from time to time be imposed by the board of directors. ARTICLE IX - SHARE CERTIFICATES; RECORDS Section 1. Form - Each shareholder shall be entitled to a share certificate evidencing the share or shares in the corporation owned by such shareholder, which certificate shall be in such form as may be required by law and shall be approved by the board of directors and signed by the corporation's president or a vice president and by its secretary or an assistant secretary. Section 2. Transfers - A transfer of any share or shares of the corporation may be made only upon registration of the share transfer in the share transfer records of the corporation, and then only upon surrender of each certificate for each share then being transferred accompanied by a satisfactory written assignment applicable thereto duly executed by the then shareholder thereof or by such shareholder's duly authorized attorney-in-fact. 8 Section 3. Replacements - In case of the loss, mutilation, or destruction of a share certificate, a duplicate certificate may be issued upon such terms not in conflict with law as the board of directors may prescribe. Section 4. Records - The corporation or its agent shall maintain a record of the corporation's shareholders in the manner required by law, and the corporation's share transfer records shall constitute conclusive proof of the ownership of the then issued and outstanding shares of the corporation at any given time. ARTICLE X - INDEMNITY Section 1. Indemnity - Any person (hereinafter in this Article, "indemnitee") who, because he is or was an officer or director of the corporation, is, was, or is threatened to be made a party to any threatened, pending, or completed action, suit, proceeding, or appeal whether civil, criminal, administrative, or investigative and whether formal or informal (hereinafter "proceeding") (including any proceeding by or in the right of the corporation) shall be indemnified by the corporation against all liability (including the obligation to pay all or any part of a judgment, decree, settlement, penalty, fine or other such obligation) and reasonable expenses (including counsel fees, expert witness fees, and costs of investigation, litigation, and appeal, as well as any amounts expended in asserting any counterclaim or claim for indemnification from others) incurred in or as a result of the proceeding except such liability and expenses as are incurred because of his willful misconduct or a knowing violation of the criminal law. The corporation shall pay for or reimburse the reasonable expenses incurred by any indemnitee in advance of final disposition of any proceeding upon receipt of an unsecured undertaking from him to repay the sums if ultimately it is determined that he is not entitled to indemnification. A director shall be so indemnified without the necessity of any further determination or authorization, but in the case of an officer, the determination that indemnification is permissible and an evaluation as to the reasonableness of expenses in a specific case shall be made as authorized from time to time by general or specific actions of the board of directors. The termination of a proceeding by a judgment, decree, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that an indemnitee acted in such a manner as to make him ineligible for indemnification. Section 2. Limitation - In any proceeding brought by a shareholder in the right of the corporation or brought by or on 9 behalf of shareholders of the corporation, the aggregate amount of all damages that may be assessed against an officer or director of the corporation arising out of any single transaction, occurrence, or course of conduct shall be limited to one dollar. This bylaw is adopted by the shareholders as a limitation on the liability of the corporation's officers and directors, and this limitation shall not apply if the officer or director engaged in willful misconduct or a knowing violation of the criminal law or of any state securities law. Section 3. Application - This Article shall be applicable in and to all proceedings commenced after its adoption even though arising, in whole or in part, from conduct, actions, or events occurring or taken before its adoption. No amendment, modification, or repeal of this Article shall diminish the rights provided hereby with respect to any claim, issue, or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act occurring prior to such amendment, modification, or repeal. Reference herein to any director or officer shall include a former director or officer who has ceased to have the capacity of director or officer, as the case may be, and his heirs, executors, and administrators. The corporation may purchase and maintain insurance to indemnify it against all or any part of the liability to indemnify assumed by it in accordance with this Article. ARTICLE XI - AMENDMENTS Section 1. New Bylaws and Repeal - These bylaws may be amended or repealed and new bylaws may be made by the board of directors or the shareholders at any time. Each bylaw made by the board of directors, however, may be amended or repealed, and a new bylaw made, by the shareholders, and the shareholders may provide that any bylaw made by them shall not be amended or repealed by the board of directors, which proviso shall control. Section 2. Legislative Amendment - If any portion of these bylaws is subsequently rendered invalid by an Act of the General Assembly of Virginia, those portions hereof that are not affected by such legislation shall remain in full force and effect until and unless amended or repealed in accordance with the terms hereof. ARTICLE XII - MISCELLANEOUS Shares in another corporation held in the name of this corporation may be voted only by the president or secretary of this corporation, either in person or by proxy. 10 Each use of a masculine pronoun herein shall be read to include both the feminine and neuter pronouns as applicable. Adopted by the Shareholders; As of ________________________ 11 EX-3.(II)(QQ) 24 EXHIBIT 3(II)(QQ) Exhibit 3(ii)(qq) Exhibit A BYLAWS OF NORTHLAND HOLDINGS MANAGEMENT, INC. ARTICLE I - CORPORATE SEAL The corporation need not have a seal. Should the secretary of the corporation determine that a seal is desirable, the seal of the corporation shall be circular and shall have inscribed thereon, within and around the circumference, the corporation's name, and in the center shall be the word "SEAL". ARTICLE II - FISCAL YEAR The fiscal year of the corporation shall be determined by the board of directors, but in the absence of such a determination it shall be the calendar year. ARTICLE III - RECORD DATE Unless the board of directors shall have fixed some other future date as the record date, the record date for determining the corporation's shareholders entitled to a distribution or to a share dividend shall be the date and time the board of directors authorizes the distribution or share dividend. The record date for any other determination of the corporation's shareholders (except for actions taken by consent as hereinafter provided in Article IV, Section 8) shall be 5:00 o'clock p.m. local time in Richmond, Virginia on the date that is the thirtieth (30th) day prior to the date of the meeting or action then requiring a determination of shareholders. A determination of shareholders entitled to notice of and to vote at a shareholders' meeting shall be effective for any adjournment of the meeting unless the board of directors fixes a new record date, which it shall do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. ARTICLE IV - SHAREHOLDERS' MEETINGS Section 1. Place of Meetings - Each shareholders' meeting shall be held at such place, in or out of the Commonwealth of Virginia, as may be provided in the meeting notice. Section 2. Annual Meeting - The corporation shall hold the annual shareholders' meeting on the second (2nd) Tuesday in February of each year commencing at 10:00 o'clock a.m. local time at the meeting place. If the aforesaid date shall fall on a legal holiday, the annual shareholders' meeting shall be held on the next following business day, and if for any other reason the annual shareholders' meeting shall not be held on such day, it may be called in accordance with the provisions of Article IV, Section 3, and a meeting called and held with this as a purpose shall be specifically designated as the annual meeting. Section 3. Special Meetings - The corporation shall hold a special shareholders' meeting on call of the chairman of the board of directors, the president, the board of directors, or (upon due execution and delivery of one or more written demands as required by and in compliance with Section 13.1-655 of the Code of Virginia (1950), as amended (the "Code")) the holders of not less than twenty percent (20%) of all votes entitled to be cast on any issue proposed to be considered at the special meeting. Only business within the purpose or purposes described in the required meeting notice may be conducted at a special shareholders' meeting. Section 4. Notice of Meeting - For each shareholders' meeting, not less than ten (10) nor more than sixty (60) days before the meeting date (except as a different time is specified in the second paragraph of this Section or by Virginia law), written notice stating the date, time, and place of the meeting and, in case of a special shareholders' meeting, the purpose or purposes for which the meeting is called, shall be given to each shareholder entitled to vote at such meeting either personally or by mail by or at the direction of the president, the secretary, or the persons calling the meeting. If mailed, each such notice shall be deemed to have been given when deposited in the United States mail, postage prepaid, addressed to a shareholder at such shareholder's address as it appears on the share transfer records of the corporation. Notice of a shareholders' meeting to act on an amendment of the articles of incorporation, on a plan of merger or share exchange, or on dissolution of the corporation, or to authorize a proposed sale of assets pursuant to Section 13.1-724 of the Code, shall be given in the form and manner provided above for a special meeting but not less than twenty-five (25) nor more than sixty (60) days before the meeting date. Section 5. Adjournment - If an annual or special shareholders' meeting is adjourned to a different date, time, or place, notice need not be given if the new date, time, and place are announced at the meeting before adjournment. Section 6. Quorum - Shareholders may take action on a matter at a shareholders' meeting only if a quorum exists with respect to that matter. A majority of the votes entitled to be cast by the shareholders in any voting group shall constitute a 2 quorum as to each matter considered by such voting group at each shareholders' meeting. Once a share is represented for any purpose at a shareholders' meeting, it is deemed present for quorum purposes for the remainder of that meeting and for any adjournment of that meeting unless a new record date is set for that adjourned meeting pursuant to Article III. If a quorum exists the affirmative vote of a majority of the votes cast within a voting group on the matter being voted upon shall be the act of the voting group, unless the affirmative vote of a greater number is required by law or by the articles of incorporation, and except that in any election of directors those receiving a plurality of the votes cast by the shares entitled to vote in the election shall be elected, though not receiving a majority. Less than a quorum may adjourn a meeting. Section 7. Voting - Except as may otherwise be provided in the articles of incorporation or by Section 13.1-662 of the Code, each outstanding share of the corporation, regardless of class, is entitled to one vote on each matter to be voted on at a shareholders' meeting. As and to the extent provided by Section 13.1-662 of the Code, redeemable shares (after a notice of redemption has been mailed and a deposit made as provided in such section) shall not vote and shall not be outstanding shares. Shares of the corporation held by another corporation, domestic or foreign, shall not be entitled to vote at any meeting and shall not be counted in determining the total number of outstanding shares at any given time entitled to vote if a majority of the shares entitled to vote for the election of directors of the other corporation is owned, directly or indirectly, by this corporation. A shareholder entitled to vote may vote his shares in person or by a proxy and may appoint such a proxy to vote or otherwise act for him by signing an appointment form, either personally or by his attorney-in-fact, and filing the appointment form with the secretary of the corporation. Any proxy may be revoked as permitted by law and, unless sooner revoked, shall be valid for eleven (11) months from the date the appointment form is received by the secretary of the corporation, unless a longer period is expressly provided in the appointment form. Section 8. Shareholders' Action Without a Meeting - Any action required or permitted to be taken at a shareholders' meeting may be taken without such a meeting, without notice to voting shareholders, and without action by the board of directors if the action is taken by all shareholders entitled to vote thereon and is evidenced by one or more written consents describing the action taken, at least one such approving consent to have been signed by each shareholder entitled to vote on the action, and delivered to the secretary of the corporation for inclusion 3 in the minutes or for filing with the corporate records. As and when required by Section 13.1-657D of the Code nonvoting shareholders shall be given at least ten (10) days written notice of any proposed action before the action is taken by unanimous consent of the voting shareholders. Any action taken by such unanimous written consent shall be effective according to its terms when a signed consent for each shareholder entitled to vote thereon is in the possession of the corporation, unless such consents all specify the same effective date and each specifies the date of execution by each executing shareholder, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote of voting shareholders at a duly called and held shareholders' meeting and may be described as such in any document filed with the State Corporation Commission. A shareholder may withdraw a consent theretofore delivered to the corporation only by delivering to the corporation a written notice of withdrawal as to such consent prior to the time that all other like consents are in possession of the corporation. Unless otherwise required by law, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs a consent as to such action. Section 9. Waiver of Notice - Any other provision of these bylaws notwithstanding, a shareholder may waive any notice required by these bylaws, the corporation's articles of incorporation, or any law by signing a written waiver of such notice (whether such waiver is executed before or after the date and time of the event that is the subject of such required notice) and delivering such signed waiver to the secretary of the corporation for inclusion in the minutes or filing with the corporate records. A shareholder who attends a shareholders' meeting (i) waives all objections to lack of notice or defective notice of that meeting, unless at the beginning of the meeting the shareholder objects to holding the meeting or to transacting business at the meeting, and (ii) waives all objection to consideration at that meeting of a particular matter that is not within the purpose or purposes described in the meeting notice, unless that shareholder objects to considering the matter when it is presented. Section 10. Minutes - The corporation shall keep as a permanent record minutes of all meetings of its shareholders and a record of all actions taken by its shareholders without a meeting. ARTICLE V - BOARD OF DIRECTORS 4 Section 1. General Powers - All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its board of directors, subject to any limitation set forth in its articles of incorporation. Section 2. Number, Term, and Qualification - Until such time as this bylaw shall be amended to specify or fix a different number, the number of directors of the corporation shall be one (1). The term of each director shall expire at the next annual shareholders' meeting following his election, but despite the expiration of a director's term, he shall continue to serve until his successor is duly elected and qualifies or until there is a decrease in the number of directors. A decrease in the number of directors shall not shorten an incumbent director's term. A director need not be a resident of the Commonwealth of Virginia or a shareholder of the corporation. Section 3. Election of Board of Directors - Except under the conditions described in Sections 4 and 5 of this Article V, the board of directors shall be elected annually at the annual share-holders' meeting. Section 4. Removal - Any director may be removed, with or without cause, if at a shareholders' meeting duly called and held the number of votes cast to remove him constitutes a majority of the votes then entitled to be cast and counted together in an election of such director at a shareholders' meeting. Notice of such a meeting must state that the purpose, or a purpose, of the meeting is removal of the director. If any director is so removed, a new director may be elected in his place at the same shareholders' meeting. Section 5. Resignation - A director may resign at any time by delivering written notice thereof to the board of directors, its chairman, the corporation's president, or the corporation's secretary. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date, in which case the board of directors may fill the pending vacancy before the effective date, but a successor so elected shall not take office until the effective date. Section 6. Vacancies - Any vacancy occurring in the board of directors (including a vacancy resulting from an increase in the number of directors) may be filled by a vote of the board of directors (and if the directors then remaining in office constitute fewer than a quorum the board of directors may fill the vacancy by the affirmative vote of a majority of the then direc- 5 tors) unless the vacant office was held by a director elected by a voting group of shareholders, in which event such vacancy may be filled only by the affirmative vote of a majority of the shareholders in such voting group. Section 7. Compensation - The board of directors may compensate each director for his service as such and may provide for the payment of all expenses incurred by each director in attending meetings of the board of directors. ARTICLE VI - MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings, Minutes - Regular meetings of the board of directors shall be held annually (immediately following each annual shareholders' meeting) to elect officers and to carry on such other business as may properly come before such meeting and immediately following each special shareholders' meeting to carry on such business as may properly come before such meeting. Any such regular meeting of the board of directors shall be held at the place where the immediately preceding shareholders' meeting was held. Special meetings of the board of directors may be called by any member of the board of directors. Any meeting of the board of directors may be held in or out of the Commonwealth of Virginia. The corporation shall keep as a permanent record minutes of all meetings of the board of directors, a record of all actions taken by the board of directors without a meeting, and a record of all actions taken on behalf of the corporation by each committee of the board of directors. Section 2. Method of Meeting - Any or all directors may participate in any regular or special meeting of the board of directors by, or may conduct the meeting through the use of, any means of communication by which all participating directors may simultaneously hear each other during the meeting. Section 3. Notice - No notice need be given of any regular meeting of the board of directors. Notice of each special meeting of the board of directors stating the date, time, and place of the meeting shall be mailed to each director at least three (3) days or telegraphed or telefaxed at least two (2) days prior to the date of the meeting. Unless otherwise required by these bylaws, the notice need not describe the purpose of a special meeting of the board of directors. Section 4. Quorum - A majority of the number of directors fixed herein, or one director if that is the number of directors fixed herein, shall constitute the quorum for each meeting of the 6 board of directors. If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present at a board of directors' meeting, or of the sole director if the corporation shall have but one director, shall be the act of the board of directors unless the vote of a greater number of directors is required by the articles of incorporation. Section 5. Action Without a Meeting - Any action required or permitted to be taken at a meeting of the board of directors may be taken without such a meeting and without notice if the action is taken by all members of the board of directors and is evidenced by one or more written consents stating the action taken, signed by each director either before or after the action taken, and included in the corporate minutes or filed with the corporate records reflecting the action taken. Any action taken by such unanimous, written consent shall be effective when the last director of the board of directors signs an approving consent, unless such consents all specify the same effective date and each specifies the date of execution by each executing director, in which event the action taken shall be effective as of the effective date so specified. Such unanimous consent shall have the effect of a unanimous vote at a duly called and held meeting of the board of directors and may be described as such in any document. Section 6. Waiver of Notice - Any other provision of these bylaws notwithstanding, whenever any notice is required to be given to a director, a waiver thereof in writing signed by the director entitled to such notice, whether executed before or after the time stated therein, and filed with the corporate minutes or records shall be equivalent to the giving of such notice to such director. A director's attendance at or participation in a board of directors' meeting waives any required notice to him of the meeting unless that director at the beginning of the meeting or promptly upon his arrival objects to holding the meeting or transacting business at the meeting and thereafter does not vote for or assent to action taken at the meeting. ARTICLE VII - COMMITTEES From time to time the board of directors may create one or more committees (comprised only of members of the board of directors) that may exercise powers of the board of directors as and to the extent provided in the creating resolution, except as may be limited by Section 13.1-689 of the Code. ARTICLE VIII - OFFICERS 7 Section 1. Election, Removal, and Duties - Promptly after its election in each year the board of directors shall appoint a president (who need not be a director) and a secretary. From time to time the board of directors may appoint such other officers as it may deem proper, as evidenced by their appointment. A duly appointed officer may appoint or remove (at any time and with or without cause) one or more assistant officers for his office. Any officer may simultaneously hold more than one office in the corporation. Each officer shall be appointed for a term continuing, unless sooner terminated, until the date of the next ensuing annual meeting of the board of directors and until his successor is appointed; provided, however, that any officer may resign, and any officer may be removed by the board of directors, in each case, at any time, and with or without cause, and such officer's then term shall terminate effective with the date of such resignation or removal. Each vacancy among the officers shall be filled by the board of directors. Each officer of the corporation shall have such authority and shall perform such duties as generally pertain to his office, as well as such other authority and duties as may be prescribed for such officer from time to time by the board of directors. Section 2. Bonds - The board of directors may require that each officer, agent, or employee of the corporation give bond to the corporation, with sufficient surety, conditioned on the faithful performance of the duties of his office or position and upon compliance with such other conditions as may from time to time be imposed by the board of directors. ARTICLE IX - SHARE CERTIFICATES; RECORDS Section 1. Form - Each shareholder shall be entitled to a share certificate evidencing the share or shares in the corporation owned by such shareholder, which certificate shall be in such form as may be required by law and shall be approved by the board of directors and signed by the corporation's president or a vice president and by its secretary or an assistant secretary. Section 2. Transfers - A transfer of any share or shares of the corporation may be made only upon registration of the share transfer in the share transfer records of the corporation, and then only upon surrender of each certificate for each share then being transferred accompanied by a satisfactory written assignment applicable thereto duly executed by the then shareholder thereof or by such shareholder's duly authorized attorney-in-fact. 8 Section 3. Replacements - In case of the loss, mutilation, or destruction of a share certificate, a duplicate certificate may be issued upon such terms not in conflict with law as the board of directors may prescribe. Section 4. Records - The corporation or its agent shall maintain a record of the corporation's shareholders in the manner required by law, and the corporation's share transfer records shall constitute conclusive proof of the ownership of the then issued and outstanding shares of the corporation at any given time. ARTICLE X - INDEMNITY Section 1. Indemnity - Any person (hereinafter in this Article, "indemnitee") who, because he is or was an officer or director of the corporation, is, was, or is threatened to be made a party to any threatened, pending, or completed action, suit, proceeding, or appeal whether civil, criminal, administrative, or investigative and whether formal or informal (hereinafter "proceeding") (including any proceeding by or in the right of the corporation) shall be indemnified by the corporation against all liability (including the obligation to pay all or any part of a judgment, decree, settlement, penalty, fine or other such obligation) and reasonable expenses (including counsel fees, expert witness fees, and costs of investigation, litigation, and appeal, as well as any amounts expended in asserting any counterclaim or claim for indemnification from others) incurred in or as a result of the proceeding except such liability and expenses as are incurred because of his willful misconduct or a knowing violation of the criminal law. The corporation shall pay for or reimburse the reasonable expenses incurred by any indemnitee in advance of final disposition of any proceeding upon receipt of an unsecured undertaking from him to repay the sums if ultimately it is determined that he is not entitled to indemnification. A director shall be so indemnified without the necessity of any further determination or authorization, but in the case of an officer, the determination that indemnification is permissible and an evaluation as to the reasonableness of expenses in a specific case shall be made as authorized from time to time by general or specific actions of the board of directors. The termination of a proceeding by a judgment, decree, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that an indemnitee acted in such a manner as to make him ineligible for indemnification. Section 2. Limitation - In any proceeding brought by a shareholder in the right of the corporation or brought by or on 9 behalf of shareholders of the corporation, the aggregate amount of all damages that may be assessed against an officer or director of the corporation arising out of any single transaction, occurrence, or course of conduct shall be limited to one dollar. This bylaw is adopted by the shareholders as a limitation on the liability of the corporation's officers and directors, and this limitation shall not apply if the officer or director engaged in willful misconduct or a knowing violation of the criminal law or of any state securities law. Section 3. Application - This Article shall be applicable in and to all proceedings commenced after its adoption even though arising, in whole or in part, from conduct, actions, or events occurring or taken before its adoption. No amendment, modification, or repeal of this Article shall diminish the rights provided hereby with respect to any claim, issue, or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act occurring prior to such amendment, modification, or repeal. Reference herein to any director or officer shall include a former director or officer who has ceased to have the capacity of director or officer, as the case may be, and his heirs, executors, and administrators. The corporation may purchase and maintain insurance to indemnify it against all or any part of the liability to indemnify assumed by it in accordance with this Article. ARTICLE XI - AMENDMENTS Section 1. New Bylaws and Repeal - These bylaws may be amended or repealed and new bylaws may be made by the board of directors or the shareholders at any time. Each bylaw made by the board of directors, however, may be amended or repealed, and a new bylaw made, by the shareholders, and the shareholders may provide that any bylaw made by them shall not be amended or repealed by the board of directors, which proviso shall control. Section 2. Legislative Amendment - If any portion of these bylaws is subsequently rendered invalid by an Act of the General Assembly of Virginia, those portions hereof that are not affected by such legislation shall remain in full force and effect until and unless amended or repealed in accordance with the terms hereof. ARTICLE XII - MISCELLANEOUS Shares in another corporation held in the name of this corporation may be voted only by the president or secretary of this corporation, either in person or by proxy. 10 Each use of a masculine pronoun herein shall be read to include both the feminine and neuter pronouns as applicable. Adopted by the Shareholders; As of ________________________ 11 EX-4.3 25 EXHIBIT 4.3 Exhibit 4.3 ----------------------------------- BRILL MEDIA COMPANY, LLC, and BRILL MEDIA MANAGEMENT, INC. as Issuers, and THE SUBSIDIARY GUARANTORS NAMED HEREIN and UNITED STATES TRUST COMPANY OF NEW YORK as Trustee $3,000,000,000 aggregate principal amount APPRECIATION NOTES DUE 2007, SERIES A APPRECIATION NOTES DUE 2007, SERIES B ----------------------------------- ----------------------------------- FIRST SUPPLEMENTAL APPRECIATION NOTE INDENTURE DATED AS OF _______________, 1998 ----------------------------------- This First Supplemental Appreciation Note Indenture (the "First Supplemental Appreciation Note Indenture") dated as of ______________, 1998, among Brill Media Company, LLC, a Virginia limited liability company ("BMC"), Brill Media Management, Inc., a Virginia corporation ("Media", and collectively with BMC, the "Issuers"), the Subsidiary Guarantors listed on Schedule I attached to the Appreciation Note Indenture referred to below (the "Original Subsidiary Guarantors") and the Subsidiary Guarantors listed on Schedule I attached hereto (the "New Subsidiary Guarantors" and, collectively with the Original Subsidiary Guarantors, the "Subsidiary Guarantors") as Subsidiary Guarantors and United States Trust Company of New York, a banking corporation organized and existing under the laws of the State of New York, as Trustee (the "Trustee"). The Issuers and the Subsidiary Guarantors are entering into this First Supplemental Appreciation Note Indenture to the Appreciation Note Indenture dated as of December 30, 1997 as amended and supplemented from time to time (the "Indenture") among the Issuers, the original Subsidiary Guarantors, and the Trustee, and have requested the Trustee to execute the same in order to insure that all things necessary to make the Securities (as defined) the valid obligations of the New Subsidiary Guarantors and to make this First Supplemental Appreciation Note Indenture a part of the Indenture and a valid and binding agreement of the Trustee, the Issuers, and the Subsidiary Guarantors shall have been done. Accordingly, for and in consideration of the matters hereinafter set forth and for other good and valuable consideration, the Issuers, the Subsidiary Guarantors, and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the Securities: ARTICLE IA INCORPORATION BY REFERENCE; NEW RESTRICTED SUBSIDIARIES; GUARANTEES SECTION 1A.01. INCORPORATION BY REFERENCE. This First Supplemental Appreciation Note Indenture hereby is made and becomes a part of the Indenture, and all definitions and provisions of the Indenture are hereby incorporated herein as a part hereof by this reference as if set forth herein word for word. All provisions of the Indenture shall remain in full force and effect and be binding upon all parties hereto as if expressly set forth herein. SECTION 1A.02. NEW RESTRICTED SUBSIDIARIES; GUARANTEES. (a) Each New Subsidiary Guarantor, as a newly organized Restricted Subsidiary of the Issuer, by this First Supplemental Appreciation Note Indenture hereby acknowledges its liability as and becomes a Subsidiary Guarantor subject to all provisions of the Indenture. (b) The New Subsidiary Guarantors (in aid and not in limitation of the provisions of the Indenture) hereby jointly and severally irrevocably and unconditionally guarantee, as primary obligors and not as a surety, to each Securityholder of a Security heretofore or hereafter authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Securities, or the Obligations of the Issuers hereunder or thereunder: (i) the due and punctual payment of the principal, premium, if any, interest (including post-petition interest in any proceeding under any Bankruptcy Law whether or not an allowed claim in such proceeding) on overdue principal, premium, if any, and interest, if lawful, on such Security; and (ii) all other monetary Obligations payable by the Issuers under the Indenture (including under Section 7.07 of the Indenture) and the Securities (all of the foregoing being hereinafter collectively called the "Guaranteed Obligations"), when and as the same shall become due and payable, whether by acceleration thereof, call for redemption or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), in accordance with the terms of any such Security and of the Indenture, subject, however, in the case of (i) and (ii) above, to the limitations set forth in Section 10.04 of the Indenture. Each New Subsidiary Guarantor hereby agrees that its Obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any failure to enforce the provisions of any such Security or the Indenture, any waiver, modification, or indulgence granted to the Issuers with respect thereto, the recovery of any judgment against an Issuer, any action to enforce the same, by the Securityholders or the Trustee, the recovery of any judgment against an Issuer, any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. Each New Subsidiary Guarantor hereby waives diligence, presentment, filing of claims with a court in the event of a merger or bankruptcy of an Issuer, any right to require a proceeding first against the Issuers, the benefit of discussion, protest or notice with respect to any such Security or the Indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee shall 2 not be discharged as to any such Security except by payment in full of the principal thereof, premium, if any, and all accrued interest thereon. (c) Each New Subsidiary Guarantor further agrees that the Subsidiary Guarantee of each New Subsidiary Guarantor constitutes a guarantee of payment, performance, and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Securityholder or the Trustee to any Security held for payment of the Guaranteed Obligations. (d) Each New Subsidiary Guarantor agrees that it shall not be entitled to, and hereby irrevocably waives, any right of subrogation in relation to the Securityholders or the Trustee in respect of any Guaranteed Obligations. Each New Subsidiary Guarantor further agrees that, as between such New Subsidiary Guarantor, on the one hand, and the Securityholders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 of the Indenture for the purposes of such New Subsidiary Guarantor's Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any Declaration of acceleration of such Guaranteed Obligations as provided in Article 6 thereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such New Subsidiary Guarantor for the purpose of Article 10 of the Indenture. (e) Each New Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the Trustee or any Securityholder in enforcing any rights under Article 10 of the Indenture. SECTION 1A.03. EXECUTION AND DELIVERY. (a) Each New Subsidiary Guarantor hereby agrees that a notation of its Subsidiary Guarantee may be placed on each Security authenticated and delivered by the Trustee. (b) This First Supplemental Appreciation Note Indenture shall be executed on behalf of each New Subsidiary Guarantor by a duly authorized officer or member. (c) The delivery of any Security by the Trustee, after authentication thereof under the Indenture, shall constitute due delivery of the Subsidiary Guarantee set forth in this First Supplemental Appreciation Note Indenture on behalf of each New 3 Subsidiary Guarantor. SECTION 1A.04. SUBSIDIARY GUARANTEE UNCONDITIONAL, ETC. Upon failure of payment when due of any Guaranteed Obligation for whatever reason, each New Subsidiary Guarantor will be obligated to pay the same immediately. Each New Subsidiary Guarantor hereby agrees that its obligations hereunder shall be continuing, absolute and unconditional, irrespective of: the recovery of any judgment against an Issuer or any Subsidiary Guarantor; any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of an Issuer under the Indenture or any Security, by operation of law or otherwise; any modification or amendment of or supplement to the Indenture or any Security; any change in the corporate or company existence, structure or ownership of an Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting an Issuer or its assets or any resulting release or discharge of any obligation of an Issuer contained in the Indenture or any Security; or the existence of any claim, set-off or other rights, that any Subsidiary Guarantor may have at any time against an Issuer, the Trustee, any Securityholder, or any other Person, whether in connection herewith or any unrelated transaction; provided, that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim; any invalidity or unenforceability relating to or against any Issuer for any reason of the Indenture or any Security, or any provision of applicable law or regulation purporting to prohibit the payment by an Issuer of the principal, premium, if any, or interest on any Security or any other Guaranteed Obligation; or any other act or omission to act or delay of any kind by an Issuer, the Trustee, any Securityholder or any other Person or any other circumstance whatsoever that might, but for the provisions of this paragraph, constitute a legal or equitable discharge of the Subsidiary Guarantors' obligations hereunder. Each New Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a proceeding first against the Issuers, protest, notice and all demand whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by the complete performance of the obligations contained in the Securities and the Indenture. Each New Subsidiary Guarantor's obligations hereunder shall remain in full force and effect until the Indenture shall have terminated and the principal of and interest on the Securities and all other Guaranteed Obligations shall have been paid in full. If at any time any payment of the principal of or interest on any Security or any other payment in respect of 4 any Guaranteed Obligation is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy, or reorganization of an Issuer or otherwise, each New Subsidiary Guarantor's obligations hereunder with respect to such payment shall be reinstated as though such payment had been due but not made at such time, and Article 10 of the Indenture, to the extent theretofore discharged, shall be reinstated in full force and effect. Each New Subsidiary Guarantor irrevocably waives any and all rights to which it may be entitled by operation of law or otherwise, upon making any payment hereunder to be subrogated to the rights of the payee against the Issuers with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by the Issuers in respect thereof. SECTION 1A.05. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY. Each New Subsidiary Guarantor, and by its acceptance hereof each Securityholder, hereby confirms that it is the intention of all such parties that the guarantee by such New Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, Federal and state fraudulent conveyance laws, or other legal principles. To effectuate the foregoing intention, the Securityholders and each New Subsidiary Guarantor hereby irrevocably agree that the obligations of such New Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such New Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to Section 10.05 of the Indenture, result in the obligations of such New Subsidiary Guarantor under the Subsidiary Guarantee not constituting such fraudulent transfer or conveyance under federal or state law. SECTION 1A.06. CONTRIBUTION. In order to provide for just and equitable contribution among all Subsidiary Guarantors, the New Subsidiary Guarantors agree, inter se and with all Subsidiary Guarantors, that in the event any payment or distribution is made by any Subsidiary Guarantor (a "Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor shall be entitled to a contribution from all other Subsidiary Guarantors in a pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including the Funding Guarantor) for all payments, damages, and expenses incurred by that Funding Guarantor in discharging the Issuers' 5 obligations with respect to the Securities or any other Subsidiary Guarantor's obligations with respect to the Subsidiary Guarantee. SECTION 1A.07. RELEASE. Upon the sale or disposition of all of the equity interests of a Subsidiary Guarantor to an entity that is not an Issuer or a Subsidiary of an Issuer, which is otherwise in compliance with the Indenture, such Subsidiary Guarantor shall be deemed released from all its obligations under the Indenture without any further action required on the part of the Trustee or any Securityholder and the Subsidiary Guarantee of such Subsidiary Guarantor under all of its guarantees of, and under all of its pledges of assets or other security interests that secure, Indebtedness of an Issuer and the other Subsidiary Guarantors shall also terminate upon such release, sale or transfer; provided further, that without limiting the foregoing, any proceeds received by an Issuer or any Subsidiary of an Issuer from such transaction shall be applied as provided in Section 4.10 and Section 3.09 of the Indenture. The Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request by the Issuers accompanied by an Officers' Certificate certifying as to the compliance with Section 10.06 of the Indenture. Any Subsidiary Guarantor not so released remains liable for the full amount of principal, premium, if any, and interest on the Securities as provided in Article 10 of the Indenture. SECTION 1A.08. ADDITIONAL SUBSIDIARY GUARANTORS. Any Person that was not a Subsidiary Guarantor on the date of this First Supplemental Appreciation Note Indenture may become a Subsidiary Guarantor by executing and delivering to the Trustee (a) a supplemental indenture in substantially the form and substance satisfactory to the Trustee, which subjects such Person to the provisions (including, without limitation, the representations and warranties in Article 10) of the Indenture as a Subsidiary Guarantor and (b) an Opinion of Counsel complying with Section 9.06 of the Indenture and to the effect that such supplemental indenture has been duly authorized and executed by such Person and constitutes the legal, valid, binding, and enforceable obligation of such Person (subject to such customary exceptions concerning creditors' rights and equitable principles as may be acceptable to the Trustee in its discretion). The Subsidiary Guarantee of each Person described in Section 10.07 of the Indenture, including each New Subsidiary Guarantor, shall apply to all Securities theretofore executed and delivered, notwithstanding any failure of such Securities to contain a 6 notation of such Subsidiary Guaranty thereon. SECTION 1A.09. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. (a) Nothing contained in the Indenture or in any of the Securities shall prevent any consolidation or merger of a Subsidiary Guarantor with or into an Issuer or another Subsidiary Guarantor that is a Wholly-Owned Subsidiary of an Issuer or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as an entirety, to an Issuer or another Subsidiary Guarantor that is a Wholly-Owned Subsidiary of an Issuer. Upon any such consolidation, merger, sale, or conveyance, the Subsidiary Guarantee given by such Subsidiary Guarantor shall no longer have any force or effect. (b) Nothing contained in the Indenture or in any of the Securities shall prevent any consolidation or merger of a Subsidiary Guarantor with or into a Person or Persons other than an Issuer or another Subsidiary Guarantor (whether or not affiliated with the Subsidiary Guarantor), or successive consolidations or mergers in which a Subsidiary Guarantor or its successor or successors shall be a party or parties, or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as an entirety, to a Person other than an Issuer or another Subsidiary Guarantor (whether or not affiliated with the Subsidiary Guarantor); provided, however, that, subject to Sections 10.06 and 10.08(a) of the Indenture, (x) (i) immediately after such transaction and giving effect thereto, no Default or Event of Default shall have occurred as a result of such transaction and be continuing, or (ii) such transaction does not violate any covenants set forth in the Indenture, and (y) (i) the respective transaction is treated as an Asset Disposition for purposes of Section 4.10 and Section 3.09 of the Indenture or (ii) if the surviving Person is not the Subsidiary Guarantor, each Subsidiary Guarantor hereby covenants and agrees that, upon any such consolidation, merger, sale or conveyance, the Subsidiary Guarantee set forth herein, and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed by such Subsidiary Guarantor, shall be expressly assumed (in the event that the Subsidiary Guarantor is not the surviving corporation in the merger), by supplemental indenture satisfactory in form to the Trustee of the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Subsidiary Guarantor, such successor Person shall succeed to, and be substituted for, the Subsidiary Guarantor with the same effect as if it had been named in the Indenture as a Subsidiary 7 Guarantor. SECTION 1A.10. SUCCESSORS AND ASSIGNS. This agreement shall be binding upon each Subsidiary Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Securityholders and, in the event of any transfer or assignment of rights by any Securityholder or the Trustee, the rights and privileges conferred upon that party in the Indenture and in the Securities shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of the Indenture. SECTION 1A.11. WAIVER OF STAY, EXTENSION OR USURY LAWS. Each Subsidiary Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive each such Subsidiary Guarantor from performing its Subsidiary Guarantee as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of the Indenture; and (to the extent that it may lawfully do so) each such Subsidiary Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such Power as though no such law had been enacted. ARTICLE 2A MISCELLANEOUS SECTION 2A.01. TRUST INDENTURE ACT CONTROLS. If any provision of the Indenture limits, qualifies, or conflicts with another provision that is required to be included in the Indenture by the TIA, the required provision shall control. Until such time as the Indenture becomes qualified under the TIA, the Issuers, the Subsidiary Guarantors, and the Trustee shall be deemed subject to and governed by the TIA as if the Indenture were so qualified on the date thereof. SECTION 2A.02. SEPARABILITY. In case any provision in this First Supplemental 8 Appreciation Note 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 2A.03. NO THIRD PARTY BENEFITS. Nothing in this First Supplemental Appreciation Note Indenture, express or implied, shall give to any Person, other than the parties hereto and their successors under the Indenture, and the Holders of the Securities, any benefit or any legal or equitable right, remedy, or claim under the Indenture. SECTION 2A.04. CONTINUANCE OF INDENTURE. This First Supplemental Appreciation Note Indenture supplements the Indenture and shall be a part of and subject to all the terms thereof. The Indenture, as supplemented by this First Supplemental Appreciation Note Indenture, shall continue in full force and effect. SECTION 2A.05. THE TRUSTEE. The Trustee shall not be responsible in any manner for or in respect of the validity or sufficiency of this First Supplemental Appreciation Note Indenture, or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. SECTION 2A.06. GOVERNING LAW. This First Supplemental Appreciation Note Indenture shall be governed by and construed in accordance with the laws of the State of New York. SECTION 2A.07. COUNTERPARTS. This First Supplemental Appreciation Note Indenture may be executed in any number of 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. IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Appreciation Note Indenture to be duly executed as of the date first written above. SIGNATURES: 9 ISSUERS: BRILL MEDIA COMPANY, LLC, a Virginia limited liability company By: BRILL MEDIA MANAGEMENT, INC., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President BRILL MEDIA MANAGEMENT, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, President SUBSIDIARY GUARANTORS: BMC HOLDINGS, LLC, a Virginia limited liability company By: BRILL MEDIA COMPANY, LLC, its manager By: BRILL MEDIA MANAGEMENT, INC., its manager By: ------------------------------------------------- Alan R. Brill, President READING RADIO, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President TRI-STATE BROADCASTING, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President NORTHERN COLORADO RADIO, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President NCR II, INC., a Virginia corporation 10 By: ------------------------------------------------- Alan R. Brill, Vice President CENTRAL MISSOURI BROADCASTING, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President CMB II, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President NORTHLAND BROADCASTING, LLC, a Virginia limited liability company By: Northland Holdings, LLC, a Virginia limited liability company, its manager By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President 11 NB II, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN NEWSPAPERS, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President CADILLAC NEWSPAPERS, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President CMN ASSOCIATED PUBLICATIONS, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN DISTRIBUTION CO., L.P. By: Central Michigan Distribution Co., Inc. Its general partner By: ------------------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN DISTRIBUTION CO., INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President GLADWIN NEWSPAPERS, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President 12 GRAPH ADS PRINTING, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President MIDLAND BUYER'S GUIDE, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President ST. JOHNS NEWSPAPERS, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President HURON P.S., LLC, a Virginia limited liability company By: Huron Holdings, LLC, a Virginia limited liability company, its manager By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President HURON NEWSPAPERS, LLC, a Virginia limited liability company By: Huron Holdings, LLC, a Virginia limited liability company, its manager By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia 13 corporation, its manager By: ------------------------------------------------- Alan R. Brill, President 14 HURON HOLDINGS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President NORTHERN COLORADO HOLDINGS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President NCR III, LLC, a Virginia limited liability company By: NCH II, LLC, a Virginia limited liability company, its manager By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager 15 By: ------------------------------------------------- Alan R. Brill, President 16 NCH II, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President NORTHLAND HOLDINGS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President CMN HOLDING, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, President BRILL RADIO, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, President BRILL NEWSPAPERS, INC. By: ------------------------------------------------- Alan R. Brill, President 17 UPPER MICHIGAN NEWSPAPERS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President UPPER MICHIGAN HOLDINGS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President CENTRAL PRINTING SERVICE, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President 18 ADVERTISERS P.S., LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ------------------------------------------------- Alan R. Brill, President UPPER MICHIGAN MANAGEMENT, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President UPPER MICHIGAN HOLDINGS, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, Vice President HURON HOLDINGS MANAGEMENT, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, President HURON NEWSPAPERS MANAGEMENT, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, President HURON P.S. MANAGEMENT, INC., a Virginia corporation By: ------------------------------------------------- Alan R. Brill, President NORTHLAND HOLDINGS MANAGEMENT, INC., a Virginia corporation 19 By: ------------------------------------------------- Alan R. Brill, President NORTHLAND BROADCASTING MANAGEMENT, INC. By: ------------------------------------------------- Alan R. Brill, President NORTHERN COLORADO HOLDINGS MANAGEMENT, INC. By: ------------------------------------------------- Alan R. Brill, President BMC HOLDINGS, INC. By: ------------------------------------------------- Alan R. Brill, President TRUSTEE: UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee By: ------------------------------------------------- Name: Title: 20 SCHEDULE I NEW SUBSIDIARY GUARANTORS Upper Michigan Newspapers, LLC Upper Michigan Holdings, LLC Upper Michigan Management, Inc. Upper Michigan Holdings, Inc. Central Printing Service, LLC Advertisers P.S., LLC Huron Holdings Management, Inc. Huron Newspapers Management, Inc. Huron P.S. Management, Inc. Northland Holdings Management, Inc. Northland Broadcasting Management, Inc. Northern Colorado Holdings Management, Inc. BMC Holdings, Inc. 21 EX-4.4 26 EXHIBIT 4.4 Exhibit 4.4 ------------------------------------ BRILL MEDIA COMPANY, LLC, and BRILL MEDIA MANAGEMENT, INC. as Issuers, and THE SUBSIDIARY GUARANTORS named herein and UNITED STATES TRUST COMPANY OF NEW YORK as Trustee $105,000,000 12% SENIOR NOTES DUE 2007, SERIES A 12% SENIOR NOTES DUE 2007, SERIES B ------------------------------------ ------------------------------------ FIRST SUPPLEMENTAL INDENTURE DATED AS OF _______________, 1998 ------------------------------------ This First Supplemental Indenture (the "First Supplemental Indenture") dated as of ______________, 1998, among Brill Media Company, LLC, a Virginia limited liability company ("BMC"), Brill Media Management, Inc., a Virginia corporation ("Media", and collectively with BMC, the "Issuers"), the Subsidiary Guarantors listed on Schedule I attached to the Indenture referred to below (the "Original Subsidiary Guarantors") and the Subsidiary Guarantors listed on Schedule I attached hereto (the "New Subsidiary Guarantors" and, collectively with the Original Subsidiary Guarantors, the "Subsidiary Guarantors") as Subsidiary Guarantors and United States Trust Company of New York, a banking corporation organized and existing under the laws of the State of New York, as Trustee (the "Trustee"). The Issuers and the Subsidiary Guarantors are entering into this First Supplemental Indenture to the Indenture dated as of December 30, 1997 as amended and supplemented from time to time (the "Indenture") among the Issuers, the original Subsidiary Guarantors, and the Trustee, and have requested the Trustee to execute the same in order to insure that all things necessary to make the Securities (as defined) the valid obligations of the New Subsidiary Guarantors and to make this First Supplemental Indenture a part of the Indenture and a valid and binding agreement of the Trustee, the Issuers, and the Subsidiary Guarantors shall have been done. Accordingly, for and in consideration of the matters hereinafter set forth and for other good and valuable consideration, the Issuers, the Subsidiary Guarantors, and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the Securities: ARTICLE IA INCORPORATION BY REFERENCE; NEW RESTRICTED SUBSIDIARIES; GUARANTEES SECTION 1A.01. INCORPORATION BY REFERENCE. This First Supplemental Indenture hereby is made and becomes a part of the Indenture, and all definitions and provisions of the Indenture are hereby incorporated herein as a part hereof by this reference as if set forth herein word for word. All provisions of the Indenture shall remain in full force and effect and be binding upon all parties hereto as if expressly set forth herein. SECTION 1A.02. NEW RESTRICTED SUBSIDIARIES; GUARANTEES. (a) Each New Subsidiary Guarantor, as a newly organized Restricted Subsidiary of the Issuer, by this First Supplemental Indenture hereby acknowledges its liability as and becomes a Subsidiary Guarantor subject to all provisions of the Indenture. (b) The New Subsidiary Guarantors (in aid and not in limitation of the provisions of the Indenture) hereby jointly and severally irrevocably and unconditionally guarantee, as primary obligors and not as a surety, to each Securityholder of a Security heretofore or hereafter authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Securities, or the Obligations of the Issuers hereunder or thereunder: (i) the due and punctual payment of the principal, premium, if any, interest (including post-petition interest in any proceeding under any Bankruptcy Law whether or not an allowed claim in such proceeding) on overdue principal, premium, if any, and interest, if lawful, on such Security; and (ii) all other monetary Obligations payable by the Issuers under the Indenture (including under Section 7.07 of the Indenture) and the Securities (all of the foregoing being hereinafter collectively called the "Guaranteed Obligations"), when and as the same shall become due and payable, whether by acceleration thereof, call for redemption or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), in accordance with the terms of any such Security and of the Indenture, subject, however, in the case of (i) and (ii) above, to the limitations set forth in Section 10.04 of the Indenture. Each New Subsidiary Guarantor hereby agrees that its Obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any failure to enforce the provisions of any such Security or the Indenture, any waiver, modification, or indulgence granted to the Issuers with respect thereto, the recovery of any judgment against an Issuer, any action to enforce the same, by the Securityholders or the Trustee, the recovery of any judgment against an Issuer, any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. Each New Subsidiary Guarantor hereby waives diligence, presentment, filing of claims with a court in the event of a merger or bankruptcy of an Issuer, any right to require a proceeding first against the Issuers, the benefit of discussion, protest or notice with respect to any such Security or the Indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee shall not be discharged as to any such Security except by payment in full of the principal thereof, premium, if any, and all accrued interest thereon. 2 (c) Each New Subsidiary Guarantor further agrees that the Subsidiary Guarantee of each New Subsidiary Guarantor constitutes a guarantee of payment, performance, and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Securityholder or the Trustee to any Security held for payment of the Guaranteed Obligations. (d) Each New Subsidiary Guarantor agrees that it shall not be entitled to, and hereby irrevocably waives, any right of subrogation in relation to the Securityholders or the Trustee in respect of any Guaranteed Obligations. Each New Subsidiary Guarantor further agrees that, as between such New Subsidiary Guarantor, on the one hand, and the Securityholders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 of the Indenture for the purposes of such New Subsidiary Guarantor's Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any Declaration of acceleration of such Guaranteed Obligations as provided in Article 6 thereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such New Subsidiary Guarantor for the purpose of Article 10 of the Indenture. (e) Each New Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the Trustee or any Securityholder in enforcing any rights under Article 10 of the Indenture. SECTION 1A.03. EXECUTION AND DELIVERY. (a) Each New Subsidiary Guarantor hereby agrees that a notation of its Subsidiary Guarantee may be placed on each Security authenticated and delivered by the Trustee. (b) This First Supplemental Indenture shall be executed on behalf of each New Subsidiary Guarantor by a duly authorized officer or member. (c) The delivery of any Security by the Trustee, after authentication thereof under the Indenture, shall constitute due delivery of the Subsidiary Guarantee set forth in this First Supplemental Indenture on behalf of each New Subsidiary Guarantor. SECTION 1A.04. SUBSIDIARY GUARANTEE UNCONDITIONAL, ETC. 3 Upon failure of payment when due of any Guaranteed Obligation for whatever reason, each New Subsidiary Guarantor will be obligated to pay the same immediately. Each New Subsidiary Guarantor hereby agrees that its obligations hereunder shall be continuing, absolute and unconditional, irrespective of: the recovery of any judgment against an Issuer or any Subsidiary Guarantor; any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of an Issuer under the Indenture or any Security, by operation of law or otherwise; any modification or amendment of or supplement to the Indenture or any Security; any change in the corporate or company existence, structure or ownership of an Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting an Issuer or its assets or any resulting release or discharge of any obligation of an Issuer contained in the Indenture or any Security; or the existence of any claim, set-off or other rights, that any Subsidiary Guarantor may have at any time against an Issuer, the Trustee, any Securityholder, or any other Person, whether in connection herewith or any unrelated transaction; provided, that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim; any invalidity or unenforceability relating to or against any Issuer for any reason of the Indenture or any Security, or any provision of applicable law or regulation purporting to prohibit the payment by an Issuer of the principal, premium, if any, or interest on any Security or any other Guaranteed Obligation; or any other act or omission to act or delay of any kind by an Issuer, the Trustee, any Securityholder or any other Person or any other circumstance whatsoever that might, but for the provisions of this paragraph, constitute a legal or equitable discharge of the Subsidiary Guarantors' obligations hereunder. Each New Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a proceeding first against the Issuers, protest, notice and all demand whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by the complete performance of the obligations contained in the Securities and the Indenture. Each New Subsidiary Guarantor's obligations hereunder shall remain in full force and effect until the Indenture shall have terminated and the principal of and interest on the Securities and all other Guaranteed Obligations shall have been paid in full. If at any time any payment of the principal of or interest on any Security or any other payment in respect of any Guaranteed Obligation is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy, or reorganization of an Issuer or otherwise, each New Subsidiary Guarantor's obligations hereunder with respect to such payment 4 shall be reinstated as though such payment had been due but not made at such time, and Article 10 of the Indenture, to the extent theretofore discharged, shall be reinstated in full force and effect. Each New Subsidiary Guarantor irrevocably waives any and all rights to which it may be entitled by operation of law or otherwise, upon making any payment hereunder to be subrogated to the rights of the payee against the Issuers with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by the Issuers in respect thereof. SECTION 1A.05. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY. Each New Subsidiary Guarantor, and by its acceptance hereof each Securityholder, hereby confirms that it is the intention of all such parties that the guarantee by such New Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, Federal and state fraudulent conveyance laws, or other legal principles. To effectuate the foregoing intention, the Securityholders and each New Subsidiary Guarantor hereby irrevocably agree that the obligations of such New Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such New Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to Section 10.05 of the Indenture, result in the obligations of such New Subsidiary Guarantor under the Subsidiary Guarantee not constituting such fraudulent transfer or conveyance under federal or state law. SECTION 1A.06. CONTRIBUTION. In order to provide for just and equitable contribution among all Subsidiary Guarantors, the New Subsidiary Guarantors agree, inter se and with all Subsidiary Guarantors, that in the event any payment or distribution is made by any Subsidiary Guarantor (a "Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor shall be entitled to a contribution from all other Subsidiary Guarantors in a pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including the Funding Guarantor) for all payments, damages, and expenses incurred by that Funding Guarantor in discharging the Issuers' obligations with respect to the Securities or any other Subsidiary Guarantor's obligations with respect to the Subsidiary Guarantee. 5 SECTION 1A.07. RELEASE. Upon the sale or disposition of all of the equity interests of a Subsidiary Guarantor to an entity that is not an Issuer or a Subsidiary of an Issuer, which is otherwise in compliance with the Indenture, such Subsidiary Guarantor shall be deemed released from all its obligations under the Indenture without any further action required on the part of the Trustee or any Securityholder and the Subsidiary Guarantee of such Subsidiary Guarantor under all of its guarantees of, and under all of its pledges of assets or other security interests that secure, Indebtedness of an Issuer and the other Subsidiary Guarantors shall also terminate upon such release, sale or transfer; provided further, that without limiting the foregoing, any proceeds received by an Issuer or any Subsidiary of an Issuer from such transaction shall be applied as provided in Section 4.10 and Section 3.09 of the Indenture. The Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request by the Issuers accompanied by an Officers' Certificate certifying as to the compliance with Section 10.06 of the Indenture. Any Subsidiary Guarantor not so released remains liable for the full amount of principal, premium, if any, and interest on the Securities as provided in Article 10 of the Indenture. SECTION 1A.08. ADDITIONAL SUBSIDIARY GUARANTORS. Any Person that was not a Subsidiary Guarantor on the date of this First Supplemental Indenture may become a Subsidiary Guarantor by executing and delivering to the Trustee (a) a supplemental indenture in substantially the form and substance satisfactory to the Trustee, which subjects such Person to the provisions (including, without limitation, the representations and warranties in Article 10) of the Indenture as a Subsidiary Guarantor and (b) an Opinion of Counsel complying with Section 9.06 of the Indenture and to the effect that such supplemental indenture has been duly authorized and executed by such Person and constitutes the legal, valid, binding, and enforceable obligation of such Person (subject to such customary exceptions concerning creditors' rights and equitable principles as may be acceptable to the Trustee in its discretion). The Subsidiary Guarantee of each Person described in Section 10.07 of the Indenture, including each New Subsidiary Guarantor, shall apply to all Securities theretofore executed and delivered, notwithstanding any failure of such Securities to contain a notation of such Subsidiary Guaranty thereon. SECTION 1A.09. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. 6 (a) Nothing contained in the Indenture or in any of the Securities shall prevent any consolidation or merger of a Subsidiary Guarantor with or into an Issuer or another Subsidiary Guarantor that is a Wholly-Owned Subsidiary of an Issuer or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as an entirety, to an Issuer or another Subsidiary Guarantor that is a Wholly-Owned Subsidiary of an Issuer. Upon any such consolidation, merger, sale, or conveyance, the Subsidiary Guarantee given by such Subsidiary Guarantor shall no longer have any force or effect. (b) Nothing contained in the Indenture or in any of the Securities shall prevent any consolidation or merger of a Subsidiary Guarantor with or into a Person or Persons other than an Issuer or another Subsidiary Guarantor (whether or not affiliated with the Subsidiary Guarantor), or successive consolidations or mergers in which a Subsidiary Guarantor or its successor or successors shall be a party or parties, or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as an entirety, to a Person other than an Issuer or another Subsidiary Guarantor (whether or not affiliated with the Subsidiary Guarantor); provided, however, that, subject to Sections 10.06 and 10.08(a) of the Indenture, (x) (i) immediately after such transaction and giving effect thereto, no Default or Event of Default shall have occurred as a result of such transaction and be continuing, or (ii) such transaction does not violate any covenants set forth in the Indenture, and (y) (i) the respective transaction is treated as an Asset Disposition for purposes of Section 4.10 and Section 3.09 of the Indenture or (ii) if the surviving Person is not the Subsidiary Guarantor, each Subsidiary Guarantor hereby covenants and agrees that, upon any such consolidation, merger, sale or conveyance, the Subsidiary Guarantee set forth herein, and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed by such Subsidiary Guarantor, shall be expressly assumed (in the event that the Subsidiary Guarantor is not the surviving corporation in the merger), by supplemental indenture satisfactory in form to the Trustee of the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Subsidiary Guarantor, such successor Person shall succeed to, and be substituted for, the Subsidiary Guarantor with the same effect as if it had been named in the Indenture as a Subsidiary Guarantor. SECTION 1A.10. SUCCESSORS AND ASSIGNS. This agreement shall be binding upon each Subsidiary 7 Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Securityholders and, in the event of any transfer or assignment of rights by any Securityholder or the Trustee, the rights and privileges conferred upon that party in the Indenture and in the Securities shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of the Indenture. SECTION 1A.11. WAIVER OF STAY, EXTENSION OR USURY LAWS. Each Subsidiary Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive each such Subsidiary Guarantor from performing its Subsidiary Guarantee as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of the Indenture; and (to the extent that it may lawfully do so) each such Subsidiary Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such Power as though no such law had been enacted. ARTICLE 2A MISCELLANEOUS SECTION 2A.01. TRUST INDENTURE ACT CONTROLS. If any provision of the Indenture limits, qualifies, or conflicts with another provision that is required to be included in the Indenture by the TIA, the required provision shall control. Until such time as the Indenture becomes qualified under the TIA, the Issuers, the Subsidiary Guarantors, and the Trustee shall be deemed subject to and governed by the TIA as if the Indenture were so qualified on the date thereof. SECTION 2A.02. SEPARABILITY. 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 2A.03. NO THIRD PARTY BENEFITS. 8 Nothing in this First Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto and their successors under the Indenture, and the Holders of the Securities, any benefit or any legal or equitable right, remedy, or claim under the Indenture. SECTION 2A.04. CONTINUANCE OF INDENTURE. This First Supplemental Indenture supplements the Indenture and shall be a part of and subject to all the terms thereof. The Indenture, as supplemented by this First Supplemental Indenture, shall continue in full force and effect. SECTION 2A.05. THE TRUSTEE. The Trustee shall not be responsible in any manner for or in respect of the validity or sufficiency of this First Supplemental Indenture, or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. SECTION 2A.06. GOVERNING LAW. This First Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York. SECTION 2A.07. COUNTERPARTS. This First Supplemental Indenture may be executed in any number of 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. IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the date first written above. SIGNATURES: ISSUERS: BRILL MEDIA COMPANY, LLC BRILL MEDIA COMPANY, LLC, a Virginia limited liability company By: BRILL MEDIA MANAGEMENT, INC., a Virginia corporation, its manager 9 By: ----------------------------------------------------- Alan R. Brill, President BRILL MEDIA MANAGEMENT, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, President SUBSIDIARY GUARANTORS: BMC HOLDINGS, LLC, a Virginia limited liability company By: BRILL MEDIA COMPANY, LLC, its manager By: BRILL MEDIA MANAGEMENT, INC., its manager By: ----------------------------------------------------- Alan R. Brill, President READING RADIO, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President TRI-STATE BROADCASTING, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President NORTHERN COLORADO RADIO, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President NCR II, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President CENTRAL MISSOURI BROADCASTING, INC., a Virginia corporation By: ----------------------------------------------------- 10 Alan R. Brill, Vice President CMB II, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President NORTHLAND BROADCASTING, LLC, a Virginia limited liability company By: Northland Holdings, LLC, a Virginia limited liability company, its manager By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President NB II, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President 11 CENTRAL MICHIGAN NEWSPAPERS, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President CADILLAC NEWSPAPERS, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President CMN ASSOCIATED PUBLICATIONS, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN DISTRIBUTION CO., L.P. By: Central Michigan Distribution Co., Inc. Its general partner By: ----------------------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN DISTRIBUTION CO., INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President GLADWIN NEWSPAPERS, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President GRAPH ADS PRINTING, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President MIDLAND BUYER'S GUIDE, INC., a Virginia corporation 12 By: ----------------------------------------------------- Alan R. Brill, Vice President ST. JOHNS NEWSPAPERS, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President HURON P.S., LLC, a Virginia limited liability company By: Huron Holdings, LLC, a Virginia limited liability company, its manager By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President HURON NEWSPAPERS, LLC, a Virginia limited liability company By: Huron Holdings, LLC, a Virginia limited liability company, its manager By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President 13 HURON HOLDINGS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President NORTHERN COLORADO HOLDINGS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President NCR III, LLC, a Virginia limited liability company By: NCH II, LLC, a Virginia limited liability company, its manager By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager 14 By: ----------------------------------------------------- Alan R. Brill, President 15 NCH II, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President NORTHLAND HOLDINGS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President CMN HOLDING, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, President BRILL RADIO, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, President BRILL NEWSPAPERS, INC. By: ----------------------------------------------------- Alan R. Brill, President 16 UPPER MICHIGAN NEWSPAPERS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President UPPER MICHIGAN HOLDINGS, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President CENTRAL PRINTING SERVICE, LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President 17 ADVERTISERS P.S., LLC, a Virginia limited liability company By: BMC Holdings, LLC, a Virginia limited liability company, its manager By: Brill Media Company, LLC, a Virginia limited liability company, its manager By: Brill Media Management, Inc., a Virginia corporation, its manager By: ----------------------------------------------------- Alan R. Brill, President UPPER MICHIGAN MANAGEMENT, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President UPPER MICHIGAN HOLDINGS, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, Vice President HURON HOLDINGS MANAGEMENT, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, President HURON NEWSPAPERS MANAGEMENT, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, President HURON P.S. MANAGEMENT, INC., a Virginia corporation By: ----------------------------------------------------- Alan R. Brill, President NORTHLAND HOLDINGS MANAGEMENT, INC., a Virginia corporation 18 By: ----------------------------------------------------- Alan R. Brill, President NORTHLAND BROADCASTING MANAGEMENT, INC. By: ----------------------------------------------------- Alan R. Brill, President NORTHERN COLORADO HOLDINGS MANAGEMENT, INC. By: ----------------------------------------------------- Alan R. Brill, President BMC HOLDINGS, INC. By: ----------------------------------------------------- Alan R. Brill, President TRUSTEE: UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee By: ----------------------------------------------------- Name: Title: 19 SCHEDULE I NEW SUBSIDIARY GUARANTORS Upper Michigan Newspapers, LLC Upper Michigan Holdings, LLC Upper Michigan Management, Inc. Upper Michigan Holdings, Inc. Central Printing Service, LLC Advertisers P.S., LLC Huron Holdings Management, Inc. Huron Newspapers Management, Inc. Huron P.S. Management, Inc. Northland Holdings Management, Inc. Northland Broadcasting Management, Inc. Northern Colorado Holdings Management, Inc. BMC Holdings, Inc. 20 EX-10.7 27 EXHIBIT 10.7 EX-10.7 AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 30, 1997 By and Among ARB FINANCE - ONE, INC.; NORTHLAND BROADCASTING, LLC; READING RADIO, INC.; CENTRAL MISSOURI BROADCASTING, INC; NORTHERN COLORADO RADIO, INC.; TRI-STATE BROADCASTING INC.; CMB II, INC., NB II, INC., CENTRAL MICHIGAN NEWSPAPERS, INC.; GRAPH ADS PRINTING, INC.; GLADWIN NEWSPAPERS, INC.; CADILLIC NEWSPAPERS, INC.; MIDLAND BUYER'S GUIDE, INC.; CMN ASSOCIATIED PUBLICATIONS, INC.; CENTRAL MICHIGAN DISTRIBUTION CO., INC.; CENTRAL MICHIGAN DISTRIBUTION CO., L.P.; ST. JOHNS NEWSPAPERS, INC.; NCR II, INC.; TSB III, LLC; TSB IV, LLC; NCR III, LLC; HURON NEWSPAPERS, LLC; and HURON P.S., LLC ("Borrowers") and AMRESCO FUNDING CORPORATION, a Delaware corporation, as a Lender and as Agent and GOLDMAN SACHS CREDIT PARTNERS L.P., a Bermuda limited partnership, as a Lender ("Lenders") AMENDED AND RESTATED CREDIT AGREEMENT This AMENDED AND RESTATED CREDIT AGREEMENT is dated as of September 30, 1997, and is entered into by and among the following parties: ARB Finance - One, Inc. ("ARB Finance-One"); Northland Broadcasting, LLC ("Northland"); Reading Radio, Inc. ("Reading"); Central Missouri Broadcasting, Inc. ("CMB"); Northern Colorado Radio, Inc. ("NCR"); Tri-State Broadcasting, Inc. ("Tri-State"); CMB II, Inc. ("CMB II"); NB II, Inc. ("NB II"); Central Michigan Newspapers, Inc. ("CMN"); Graph Ads Printing, Inc. ("Graph Ads"); Gladwin Newspapers, Inc. ("Gladwin"); Cadillac Newspapers, Inc. ("Cadillac"); Midland Buyer's Guide, Inc. ("MBG"); CMN Associated Publications, Inc. ("CMN Assoc."); Central Michigan Distribution Co., Inc. ("CMD Inc."); Central Michigan Distribution Co., L.P. ("CMD L.P."); St. Johns Newspapers, Inc. ("St. Johns"); NCR II, Inc. ("NCR II"); TSB III, LLC ("TSB III"); TSB IV, LLC ("TSB IV"); NCR III, LLC ("NCR III"); Huron Newspapers, LLC ("Huron Newspapers"); and Huron P.S., LLC ("HPS") (all of the entities identified in this section shall be referred to individually sometimes as a "Borrower" and collectively as the "Borrowers"), as borrowers; and AMRESCO Funding Corporation, a Delaware corporation ("AMRESCO") and Goldman Sachs Credit Partners L.P., a Bermuda limited partnership ("Goldman Sachs") (hereinafter referred to individually as a "Lender" and collectively referred to as "Lenders"), as lenders, and AMRESCO as Agent for Lenders. RECITALS (Capitalized terms used herein are defined below.) A. On February 6, 1996, Lenders and Borrowers entered into the Original Credit Agreement. Pursuant to the terms of the Original Credit Agreement, Lenders have advanced the Original Loans to Borrowers in the aggregate principal amount of Fifty-Six Million Dollars ($56,000,000). The Borrowers have requested that Lenders (1) maintain the Original Loans in the aggregate principal amount of Fifty-Six Million Dollars ($56,000,000) and (2) extend to the Borrowers the Closing Date Advances in the aggregate principal amount of Fourteen Million Dollars ($14,000,000), for a combined loan to the Borrowers in the aggregate principal amount of Seventy Million Dollars ($70,000,000). B. The Closing Date Advances are to be used and distributed in accordance with the terms set forth in Section 2.2 herein and on Schedule 2.2 hereof C. Subject to the terms and conditions set forth herein, each Lender has agreed to maintain and/or advance to the Borrowers its Pro Rata Share of the Loan provided that the Original Credit Agreement is amended, restated and replaced in its entirety by this Agreement. -1- NOW, THEREFORE, in consideration of the foregoing, and the covenants contained herein, the parties hereto hereby agree that on the Closing Date the Original Credit Agreement shall be amended and restated in its entirety as follows: ARTICLE I DEFINITIONS AND INTERPRETATIONS SECTION 1.1 Definitions. The following terms, as used herein, shall have the following meanings: 1. "Acquisition" or "Acquisitions" means singly or collectively any acquisition of (a) FM or AM broadcast radio stations and related assets, or (b) newspapers or other publications and related assets, each of the foregoing being subject to the written consent of Lenders as more particularly provided in Section 3.2 hereof. 2. "Acquisition Company" or "Acquisition Companies" means individually or collectively the corporate or other legal entities created or established by the Borrowers or Pledgors to make an Acquisition. 3. "Additional Advance" and "Additional Advances" shall have the meaning set forth in Section 2.9 hereof. 4. "Additional Interest Rate" means the fixed rate of interest of seven and one-half percent (7.5%) per annum. 5. "Advances" means collectively the Closing Date Advances and the Additional Advances. 6. "Affiliate" or "Affiliates" means, individually or collectively, all Borrowers, all Pledgors, Brill, BMC Inc., BMC L.P., ARB Two and any other Person or entity that directly or indirectly controls, is controlled by or is under common control with any such Borrower, Pledgor, or owner of a Borrower and, for purposes of the foregoing "control" (including "controlled by" and "under common control with") with respect to any Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. 7. "Affiliate Payments" means payments to BMC L.P. for management fees not to exceed the amount of One Million Seven Hundred Thousand Dollars ($1,700,000) per Fiscal Year in the aggregate for all Borrowers, to be paid in monthly installments not to exceed the amount of $141,667 per month in the aggregate for all Borrowers; provided, however, that, after the occurrence of an Event of Default not cured within the applicable Cure Period, if any, -2- the monthly installments of the Affiliate Payment shall decrease to the amount of $70,834 per month in the aggregate for all Borrowers. 8. "Affiliates' Inter-Company Accounts Receivable" means any and all sums owed by any Borrower to any non-Borrower Affiliate, including but not limited to such sums described more particularly on Schedule 5.15 hereof. 9. "Agent" means (unless the Borrowers have received written notice to the contrary) AMRESCO, which shall act as Agent for Lenders in connection with this Agreement and the other Credit Documents. 10. "Agent's Fee" means the payment by the Borrowers to Agent of a quarterly fee in the amount of Twenty Thousand Dollars ($20,000) in accordance with the terms of Section 2.7 hereof. 11. "Agreement" means this Amended and Restated Credit Agreement, together with any concurrent or subsequent rider, amendment, modification, schedule or exhibit to this Amended and Restated Credit Agreement. 12. "AMRESCO Note" means that certain Amended and Restated AMRESCO Note of even date herewith in the principal amount of Fifteen Million Dollars ($15,000,000) executed by the Borrowers to the order of AMRESCO, together with any amendments thereto or modifications thereof. The AMRESCO Note replaces the Original AMRESCO Notes in their entirety. 13. "ARB Two" means ARB Finance-Two, Inc., a Virginia corporation. 14. "Asset or Assets" means any interest of a Borrower in any kind of property or asset, whether real, personal, or mixed real and personal, and whether tangible or intangible, including without limitation the FCC Licenses and all Collateral described in Section 4.11 hereof. 15. "Asset Sale" means any sale, transfer or other disposition of any Borrower's businesses or Assets (other than sales, transfers or other dispositions for value in the ordinary course of business or sales, transfers or other dispositions which in the aggregate do not exceed $25,000). 16. "Authorized Capital Expenditures" means (1) cash Capital Expenditures not to exceed the aggregate amount for all Borrowers of Four Hundred Thousand Dollars ($400,000) per Fiscal Year; (2) Capital Expenditures paid from the Capital Expenditure Reserve Fund; and (3) expenditures for the purchase of equipment under Capitalized Leases or purchase money loans not to exceed an aggregate amount for all Borrowers of Two Hundred Thousand Dollars ($200,000) per Fiscal Year. -3- 17. "Authorized Payments" means (1) debt service to Lenders plus reasonably related costs; (2) Permitted Third Party Debt Service; (3) Affiliate Payments permitted pursuant to Section 6.8 hereof; (4) Authorized Capital Expenditures; and (5) taxes due and payable by the Borrowers, such taxes not to exceed the aggregate amount of $100,000 per Fiscal Year without prior notice to and approval by Lenders, which approval shall not be unreasonably withheld. 18. "Bankruptcy Code" means Title 11 of the United States Code entitled "The Bankruptcy Code," as amended or supplemented from time to time, or any successor statute, and any and all rules and regulations issued or promulgated in connection therewith. 19. "BMC Inc." means Brill Media Company, Inc., a Virginia corporation. 20. "BMC L.P." means Brill Media Company, L.P., a Virginia limited partnership. 21. "BNI" means Brill Newspapers, Inc., a Virginia corporation. 22. "Borrower" or "Borrowers" means individually or collectively (A) the Borrowers described in the introduction to this Agreement; (B) any other Person that becomes a Subsidiary of any Borrower (including without limitation any Acquisition Company); and (C) any Acquisition Company that executes the ratification agreement described in Section 3.2(c) hereof. 23. "Borrowers' Annual Surplus Cash Flow" means the Borrowers' aggregate Net Operating Income less regularly scheduled cash payments made on Permitted Debt, less Authorized Capitalized Expenditures, less Affiliate Payments, and less the increase over the prior Fiscal Year End's aggregate accounts receivable balance, not over 120 days old. 24. "Borrowers' Certificate" means a certificate executed by a duly authorized representative of each Borrower in the form set forth in Schedule 1.1(24) hereto. 25. "Borrowers' Leverage" means for all Borrowers collectively as of the date of the most recent Financial Statement required to be delivered to Agent pursuant to Section 5.3 hereof, the quotient of(1) the sum of the following: (a) Obligations then outstanding plus Additional Advances to be made in connection with a pending Acquisition, plus (b) Debt secured by Permitted Liens, less (c) cash and cash equivalents (but not including amounts in the Capital Expenditure Reserve Fund), divided by (2) the sum of the following: (a) the preceding twelve (12) months' Net Operating Income from Assets existing on the date of an Additional Advance, plus (b) the preceding twelve (12) months' Net Operating Income from Assets to be acquired with such Additional Advance subject to pro forma adjustments agreed to by Lenders, less (c) the preceding twelve (12) months' Affiliate Payments. 26. "Brill" means Alan R. Brill. -4- 27. "Business Day" means any day other than a Saturday, a Sunday, or a day on which commercial lenders in the City of New York, New York, are authorized or required by law or executive order or decree to close. 28. "Call Option Price" means the premium required to pre-pay any or all of the outstanding principal amounts due under the Loan as set forth in Section 2.8 hereof and on Schedule 2.8 hereto. 29. "Capital Expenditure Reserve Fund" means a segregated reserve fund in the initial amount of Eight Hundred Thousand Dollars ($800,000) to be used for the following purposes only: (A) up to Three Hundred Thousand Dollars ($300,000) shall be used to provide improved or increased coverage of the radio broadcast signals of Reading, Tri-State, NCR II, or NCR III, as appropriate; and (B) up to Five Hundred Thousand Dollars ($500,000) shall be used for CMN's real property Capital Expenditures. 30. "Capital Expenditures" means any current expenditure (including but not limited to any such amounts financed by entering into a Capitalized Lease) made by the Borrowers for the acquisition, construction, repair, maintenance, or replacement of fixed or capital assets which should be capitalized in conformity with GAAP. 31. "Capitalized Lease" means any lease of an Asset by any Borrower as lessee which would, in conformity with GAAP, be required to be accounted for as a capital lease on the balance sheet of such Borrower. 32. "Capitalized Lease Obligations" means the obligation of any Borrower under any Capitalized Lease equal to or in excess of Thirty Thousand Dollars ($30,000) and which would be shown as a liability on a balance sheet of such Borrower prepared in accordance with GAAP. 32. "Closing" shall have the meaning set forth in Section 3.1 hereof. 33. "Closing Date" means September 30, 1997. 34. "Closing Date Advance" and "Closing Date Advances" shall have the respective meanings set forth in Section 2.1 hereof. 35. "CMD Partnership Agreement" means that certain Limited Partnership Agreement for CMD L.P., by and between CMD Inc., as the general partner, and BNI as the limited partner. 36. "Collateral" shall have the meaning set forth in Section 4.11 hereof -5- 37. "Credit Document(s)" means each of the following documents, instruments, and agreements individually or collectively, as the context requires: (A) this Agreement; (B) AMRESCO Note; (C) the Goldman Sachs Note; (D) the Guaranty; (E) written pledges (and appropriate stock powers satisfactory to Lenders) executed by Pledgors, Holding Companies or other Affiliates, as appropriate, of 100% of the issued and outstanding capital stock of, or membership or partnership interest in, (1) each Borrower (except that the stock of CMB II, NB II, St. Johns and NCR II and the membership interest in NCR III, LLC shall be subject to prior liens as more particularly set forth in Schedule 6.2 hereto); (2) each managing member of a Borrower that is a limited liability company; (3) each general partner of a Borrower that is a limited partnership; and (4) all Acquisition Companies subject only to any prior pledges of such stock or membership interest to the seller(s) of any Acquisition as permitted by Lenders in their sole discretion, as such pledges may be amended, supplemented or otherwise modified from time to time; (F) written consents and acknowledgments from the Permitted First Lien Holders regarding the Borrowers' and Pledgors' pledge of the stock, membership interests and Assets of the Borrowers to Lenders, as appropriate or necessary; (G) notifications to and acknowledgments by the Custodian that 100% of the stock of CMB II, NB II, St. Johns and NCR II has been pledged to Lenders by Pledgors; (H) that certain Amended and Restated Security Agreement of even date herewith and executed among the Borrowers and Lenders, as such agreement may be amended, supplemented or otherwise modified from time to time; (I) that certain Security Agreement dated February 6, 1996, executed by and among BNI and Lenders (together with appropriate notices satisfactory to Lenders) granting to Lenders a security interest in 100% of BNI's limited partnership interest in CMD L.P., as such agreement may be amended, supplemented or otherwise modified from time to time; (J) that certain BNI Acknowledgment and Ratification Agreement of even date herewith executed by and among BNI and Lenders acknowledging the continued effectiveness of the Security Agreement executed by BNI and Lenders on February 6, 1998; -6- (K) security agreements, mortgages and deeds of trust executed by each Acquisition Company and covering 100% of the real and personal property of each Acquisition Company, including without limitation any time brokerage agreement, local marketing agreement and purchase agreement, subject to Permitted Liens, if any, as such agreements, mortgages and deeds of trust may be amended, supplemented or otherwise modified from time to time; (L) those certain Ratification Agreements in the form attached hereto as Exhibit A, to be executed by each Acquisition Company upon the completion of the purchase of an Acquisition approved by Lenders, as each such agreement may be amended, supplemented or otherwise modified from time to time; (M) those notifications to appropriate depository institutions notifying such institutions of the Borrowers' granting Lenders a security interest in all deposit and operating accounts maintained by the Borrowers (which notifications shall be held by Lenders until Lenders, in their discretion, determine that such notifications should be delivered to such institutions); (N) those certain deeds of trust and mortgages affecting the Borrowers' interest in the real property owned by the Borrowers and described on Schedule 4.11(b) hereto, together with any amendments, supplements or modifications to said deeds of trust and mortgages given to Lenders by some or all of the Borrowers as deemed necessary by Lenders; (0) those certain leasehold deeds of trust and leasehold mortgages affecting the Borrowers' leasehold interest in real property leased by the Borrowers and described on Schedule 4.13 hereto, together with any amendments, supplements or modifications to said leasehold deeds of trust and leasehold mortgages given to Lenders by some or all of the Borrowers as deemed necessary by Lenders; (P) all UCC financing statement filings, fixture filings and continuation statements from each Borrower, Pledgor and Acquisition Company, each in form and substance satisfactory to Agent, and any amendments thereto or modifications thereof; (Q) the Subordination Agreement, as such agreement may be amended, supplemented or otherwise modified from time to time; (R) written opinions of the Borrowers', Pledgors' and Guarantor's legal counsel, including FCC legal counsel, satisfactory to Lenders; (S) certificates of good standing for each Borrower and Pledgor from the State of Virginia and each State in which the Borrowers and all corporate or limited liability company Pledgors are conducting business, each statement to be current within thirty (30) days of the Closing Date; -7- (T) certificate of good standing for each Acquisition Company from its state of incorporation or formation and from the state in which such Acquisition Company is conducting business, each statement to be current within thirty (30) days of the Acquisition Company becoming a Borrower; (U) any other documents which Lenders or Lenders' legal counsel reasonably request relating to the existence of the Borrowers, the authority for and the validity of this Agreement and the other Credit Documents; (V) certified copies of the Borrowers' and Pledgors' formation documents (including without limitation Articles of Incorporation, Bylaws, Operating Agreements, Certificates of Organization, and the like) and any amendments thereto or modifications thereof and a satisfactory resolution authorizing this transaction and a Certificate of Incumbency listing all current officers of each Borrower and Pledgor, which documents shall be subject to the approval of Lenders; (W) evidence satisfactory to Lenders that the Borrowers have obtained all necessary FCC Licenses, authorizations and approvals from governmental authorities with respect to the operation of the Radio Stations, as described in Schedule 4.9(b) hereto; and (X) such other documents, instruments, and agreements (including financing statements and fixture filings) as Lenders may reasonably request in connection with the transactions contemplated hereunder or to perfect or protect the liens and security interests granted to Lenders in connection herewith. 38. "Cure Period" shall mean the thirty day period immediately following the occurrence of an Event of Default and shall only apply to Events of Default under subsections 7.1(a), (j) and (k). 39. "Custodian" means Old National Trust Company, Evansville, Indiana. 40. "Debt" means the outstanding Obligations plus all of the Borrowers consolidated Capitalized Lease Obligations and any indebtedness then outstanding heretofore or hereafter created, issued, secured, guaranteed, incurred or assumed by the Borrowers (directly or indirectly) for or in respect of money borrowed or for or in respect of the deferred purchase price of property or services purchased. 41. "Default" means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default. -8- 42. "Default Rate" means the fixed rate of interest of twenty-four percent (24%) per annum. 43. "Dollars" or "$" means lawful currency of the United States of America. 44. "Duluth Radio Stations" means the following broadcast radio stations owned by Northland and NB II: A. KKCB-FM, licensed to Duluth, Minnesota; B. WEBC-AM, licensed to Duluth, Minnesota; and C. KLDJ-FM, licensed to Duluth, Minnesota. 45. "Duluth Sale Agreement" means those certain asset purchase agreements or stock purchase agreements which may be entered into by and among Northland and NB II, as sellers, and a future buyer for the sale of the Duluth Radio Stations and the assets used in connection with the ownership and operation thereof. 46. "Duluth Sale Proceeds" means the Net Cash Sale Proceeds from the sale of the Duluth Radio Stations pursuant to the Duluth Sale Agreement. 47. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and all references to sections thereof shall include such sections and any predecessor provisions thereto, including any rules or regulations issued in connection therewith. 48. "ERISA Affiliate" means each trade or business (whether or not incorporated) that, together with any Borrower would be treated as a single employer under Section 400(b)(l) of ERISA. 49. "Event(s) of Default" shall have the meanings set forth in Section 7.1 hereof. 50. "Expense Deposit" means the payment by the Borrowers of the amount of One Hundred Twenty-Five Thousand Dollars ($125,000) to be paid to Lenders on the Closing Date from proceeds of the Loan and to be applied first to Pre-Closing Lender Expenses and then to Post-Closing Lender Expenses or Agent's Fees. 51. "FCC" means the Federal Communications Commission or any governmental authority succeeding to any of its functions. 52. "FCC Licenses" means all commercial broadcast station licenses, permits and other certificates required by (A) the FCC, (B) the Communications Act of 1934, as amended, (C) 47 CFR Part 73, or (D) any other governmental entity in connection with the -9- ownership and operation of each of the Radio Stations and granted or assigned to the Borrowers by the FCC or any other public or governmental agency or regulatory body for the operation of said Radio Stations, including without limitation those FCC Licenses described in Schedule 4.9(b) hereto. 53. "Final Order" means an order, action or decision of the FCC (or subsequent court order or judgment) that (A) has not been reversed, stayed, enjoined, modified or amended and as to which the time for appeal, petition for certiorari, to seek reargument, rehearing, administrative reconsideration or review has expired; and (B) as to which no appeal, reargument, petition for certiorari, rehearing, petition for reconsideration or application for review is pending; or (C) as to which any right to appeal, reargue, petition for certiorari, rehearing, reconsideration or review has been sought, the order or judgment of the court or FCC has been (1) affirmed by the highest court (or administrative entity or body) to which the order was appealed or from which the argument, rehearing, reconsideration or review was sought, or (2) certiorari has been denied, and (3) the time to take any further appeal or to seek certiorari or further reargument, rehearing, reconsideration or review has expired. 54. "Financial Statement(s)" means, with respect to any accounting period of any Person, statements of income and statements of changes in financial position of such Person for such period, and balance sheets of such Person as of the end of such period, setting forth in each case in comparative form figures for the corresponding period in the preceding Fiscal Year and to the budget for the corresponding period, or, if such period is a full Fiscal Year, corresponding figures from the preceding annual audit, all prepared in reasonable detail and in accordance with GAAP. "Financial Statement(s)" shall include the notes and schedules thereto. 55. "Fiscal Year" means, for each Borrower, the time period from and including March 1 through the last day of the following February. 56. "Fiscal Year End" means, for each Borrower, the last day of February. 57. "Funding Borrower" shall have the meaning set forth in Section 2.13(b) hereof 58. "GAAP" means generally accepted accounting principles in the United States of America, consistently applied, which are in effect as of the date of their application. 59. "Goldman Sachs Note" means that certain Amended and Restated Goldman Sachs Note of even date herewith in the principal amount of Fifty-Five Million Dollars ($55,000,000) executed by the Borrowers to the order of Goldman Sachs, together with any amendments thereto or modifications thereof. The Goldman Sachs Note amends and replaces the Original Goldman Sachs Notes in their entirety. -10- 60. "Guarantor" means Alan R. Brill. 61. "Guaranty" means that certain Amended and Restated Guaranty executed by and among the Guarantor and Lenders of even date herewith. The Guaranty amends and restates any and all previous guaranties given by Brill to Lenders. 62. "Holding Companies" means collectively Brill Radio, Inc.; CMN Holdings, Inc.; CMN; Tri-State Holdings, Inc.; Northland Holdings, Inc.; and Huron Holdings, Inc. 63. "HPS Assets" means collectively Huron Postal Service, Inc.'s distribution services and related services for North Eastern Printers, Inc., and other clients and customers, together with all of the assets used in connection with the ownership and operation thereof, and the assets of Northeastern Printers, Inc., including the North Eastern Shopper's Guides, and related publishing, printing and other business activities and all assets used in connection with the ownership and operation thereof 64. "HPS Purchase Agreement" means an asset purchase agreement to be entered into among HPS and Huron Newspapers, as buyers, and Huron Postal Service, Inc., William Ezo, J. G. Huck, and Northeastern Printers, Inc., as sellers, for the purchase of the HPS Assets. 65. "Initial Interest Rate" means the fixed rate of interest of ten percent (10%) per annum. 66. "Insolvency Proceeding" means any proceeding commenced by or against any Person, under any provision of the Bankruptcy Code, or under any other bankruptcy or insolvency law, including, but not limited to, assignments for the benefit of creditors, formal or informal moratoriums, compositions, or extensions with some or all creditors. 67. "Internal Revenue Code" means the Internal Revenue Code of 1986, as supplemented and amended from time to time, or any successor statute, and any and all regulations and rules promulgated thereunder. 68. "KTRR" means broadcast radio station KTRR-FM, licensed to Windsor, Colorado. 69. "KTRR Purchase Agreement" means that certain Asset Purchase Agreement to be executed by NCR II or NCR III, as buyer, and Onyx Broadcasting, Inc., as seller, for the purchase and sale of KTRR and the assets used in connection with the ownership and operation thereof -11- 70. "Lender" or "Lenders" means individually or collectively, AMRESCO and Goldman Sachs and any other Person which becomes a party hereto by assignment from Goldman Sachs or AMRESCO or another Lender in accordance with Section 9.5(a) hereof. 71. "Lending Office" means Agent's office located at the address set forth in Section 9.1, or such other office of Lenders as they may hereafter designate as their Lending Office by notice to the Borrowers. 72. "Licenses" means all FCC Licenses. 73. "Lien" means any mortgage, deed of trust, pledge, security interest, assignment, conditional sale or other title retention agreement, lien, charge or encumbrance of any kind. 74. "Loan" means, collectively, (A) the Original Loans maintained by the Borrowers as a portion of the Loan hereunder pursuant to Section 2.1(a), (B) the Closing Date Advances, and (C) any Additional Advances. 75. "Loan Fee" means the payment by the Borrowers to Lenders in the principal amount of Four Hundred Thousand Dollars ($400,000), to be paid to each Lender in accordance with its respective Pro Rata Share from the proceeds of the Loan on the Closing Date in accordance with Section 2.2 hereof. 76. "Material Adverse Effect" means any material adverse change in (A) the financial condition of the Borrowers taken as a whole, (B) the ability of the Borrowers taken as a whole to perform the Obligations under the Credit Documents (including, without limitation, repayment of the Obligations as they come due) or (C) other than as the result of some action or inaction by Lenders, the validity or enforceability of this Agreement, the other Credit Documents, or the rights or remedies of Lenders hereunder and thereunder. 77. "Maturity Date" means September 30, 1999, or such earlier date to which the maturity of the Loan may be accelerated as provided herein. 78. "Maximum Additional Advances Amount" means the lesser of (A) the aggregate amount of the Duluth Sale Proceeds and the Missouri Sale Proceeds received by Lenders; or (B) Twelve Million Dollars ($12,000,000), and shall be reduced by the amount of any Additional Advances made from time to time after the Closing Date. 79. "Missouri Radio Stations" means the following broadcast radio stations owned by CMB and CMB II: A. KTXY-FM, licensed to Jefferson City, Missouri; B. KLIK-AM, licensed to Jefferson City, Missouri; and -12- C. KATI-FM licensed to California, Missouri. 80. "Missouri Sale Agreement" means those certain asset purchase agreements or stock purchase agreements which may be entered into by and between CMB and CMB II, as sellers, and a future buyer for the sale of the Missouri Radio Stations and the assets used in connection with the ownership and operation thereof. 81. "Missouri Sale Proceeds" means the Net Cash Sale Proceeds from the sale of the Missouri Radio Stations pursuant to the Missouri Sale Agreement. 82. "NCR Note Payments" means the current obligations owed by NCR to Guarantor evidenced by a note or open book account. 83. "Net Cash Sale Proceeds" means all proceeds of sale after payment of broker's fees, legal fees, real and personal property taxes, income taxes related to such sale in an amount approved by Lenders in their sole discretion, third-party indebtedness, including that indebtedness secured by Permitted Liens, and other customary closing costs. 84. "Net Operating Income" means all cash revenues less agency commissions or discounts and all cash operating expenses (including without limitation personal and real property taxes but excluding Affiliate Payments). 85. "Net Working Capital" means all cash and cash equivalents (excluding amounts in the Capital Expenditure Reserve Fund), plus accounts receivable not more than 120 days old, less current liabilities (excluding the current portion of Permitted Third Party Debt Service and the Obligations). 86. "Newspaper Operators" means, collectively, CMN, Graph Ads, Gladwin, Cadillac, MBG, CMN Assoc., CMD Inc., CMD L.P., St. Johns, Huron Newspapers, HPS and any other Borrower that operates or owns or controls any Newspaper from time to time. 87. "Newspapers" means, collectively, The Morning Sun; The Mt. Pleasant Buyer's Guide; The Clare Buyers Guide; The Alma Reminder; The Gladwin Buyer's Guide; The Isabella County Herald; The Cadillac Buyers Guide; The Midland Buyers Guide; The Carson City Reminder; The Edmore Advertiser; The Hemlock Shoppers Guide; The St. Johns Reminder; The North Eastern Shopper's Guides; and any other newspaper, periodical, tabloid, magazine or other publication owned or operated by any Borrower from time to time. 88. "Notes" means collectively the AMRESCO Note and the Goldman Sachs Note, and any promissory notes issued in replacement thereof or to any new Lender pursuant to Section 9.5(a) hereof, together with any amendments thereto or modifications thereof. -13- 89. "Obligations" means any and all indebtedness, liabilities, and obligations of the Borrowers or any of them owing to Lenders and to their successors and assigns, arising out of or in connection with this Agreement or any other Credit Document, previously, now, or hereafter incurred, and howsoever evidenced, whether direct or indirect, absolute or contingent, joint or several, liquidated or unliquidated, voluntary or involuntary, due or not due, legal or equitable, whether incurred before, during, or after any Insolvency Proceeding, and whether recovery thereof is or becomes otherwise unenforceable or unallowable as claims in any Insolvency Proceeding, together with all interest thereupon (including all interest accruing during the pendency of an Insolvency Proceeding), including without limitation all principal and interest owing under the AMRESCO Note, the Goldman Sachs Note, all Post-Closing Lender Expenses, all Pre-Closing Lender Expenses, and any other fees and expenses due hereunder, and all other indebtedness evidenced by the Credit Documents. 90. "Operating Lease" means any lease of an Asset by any Borrower as lessee which would be considered an operating lease, in conformity with GAAP, and shown on Schedule 4.26 hereto. 91. "Original AMRESCO Notes" means collectively the promissory notes in the aggregate principal amount of Eight Million Dollars ($8,000,000) executed by certain Borrowers in favor of AMRESCO pursuant to the terms of the Original Credit Agreement, as amended to the date hereof. 92. "Original Credit Agreement" means collectively that (A) certain Credit Agreement dated as of February 6, 1996; (B) that certain First Amendment to Credit Agreement dated as of September 30, 1996; and (C) that certain Second Amendment to Credit Agreement dated as of February 28, 1997, each entered into by and among the Borrowers described therein and Lenders and providing for the making of the Original Loans. 93. "Original Goldman Sachs Notes" means collectively the promissory notes in the aggregate principal amount of Forty-Eight Million Dollars ($48,000,000) executed by certain Borrowers in favor of Goldman Sachs pursuant to the terms of the Original Credit Agreement, as amended to the date hereof. 94. "Original Loans" means those certain loans in the aggregate principal amount of Fifty-Six Million Dollars ($56,000,000) and evidenced by the Original AMRESCO Notes and the Original Goldman Sachs Notes. 95. "Original Loan Amount" shall have the meaning set forth in Section 2.1(a). 96. "PBGC" means the Pension Benefit Guaranty Corporation. 97. "Permitted Debt" means the Debt described on Schedule 6.1 hereto. -14- 98. "Permitted First Lien Holders" means Town and Country Communications, Inc.; Owensboro National Bank; QB Broadcasting, Inc.; Jefferson Bank of Missouri; Thomas P. Gammon; Onyx Broadcasting, Inc.; Harriet Field; Rebecca M. Wood; and any other holders of Permitted Liens with first lien positions as set forth on Schedule 6.2 hereto (but only to the extent of the amounts set forth therein). 99. "Permitted Liens" means (A) Liens listed on Schedule 6.2; (B) purchase money Liens, subject to the limitations of Section 6.7 hereof; and (C) Liens for current taxes, assessments or other governmental charges which are not delinquent or remain payable without any penalty. 100. "Permitted Third Party Debt Service" means, and is limited to, the payments described on Schedule 1.1(100) hereto. 101. "Person" means and includes natural persons, corporations, limited partnerships, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, lenders, trust companies, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political subdivisions thereof 102. "Personal Property Collateral" shall have the meaning set forth in Section 4.11. 103. "Pledgors" means collectively the Holding Companies; Brill; BNI (with respect to its limited partnership interest in CMD L.P. only); Tri-State Holdings, LLC; Tri-State Management, Inc.; NCH II, LLC; NCR II; Northland Holdings, LLC; Northland Management, Inc.; Huron Management, Inc.; Huron Holdings, LLC; and any other Person required to enter into a pledge agreement pursuant to Section 3.2(d) hereof. 104. "Post-Closing Lender Expenses" means all reasonable costs or expenses paid or advanced by Lenders which are required to be paid by the Borrowers under this Agreement and all other documents executed in connection herewith on or after the Closing Date, including without limitation all costs or expenses paid or advanced by Lenders in connection with the purchase of any Acquisitions and any Advances in connection therewith, including without limitation the negotiation and drafting of any commitment letters to sellers of Acquisitions for which the Borrowers request Advances from Lenders, together with all recording fees, taxes, title and lien search charges and any other fees and costs incurred in connection with such Acquisitions or the funding of any Advances pursuant to Section 2.9 and Section 3.3; all taxes and insurance premiums of every nature and kind of the Borrowers paid by Lenders; all amounts advanced by Lenders to cure defaults under Permitted Debt; reasonable and customary appraisal, filing, recording, documentation, publication and search fees paid or actually incurred by Lenders to correct any default or enforce any provision of this Agreement and all other Credit Documents executed in connection herewith on or after the Closing Date; -15- reasonable costs and expenses of suits or arbitration proceedings incurred by Lenders in enforcing or defending this Agreement, or any portion hereof, and reasonable attorneys' fees and expenses incurred by Lenders in amending, terminating, enforcing, defending or taking other action concerning this Agreement or any other Credit Documents or any other documents executed in connection herewith, whether or not suit is brought, such attorneys' fees to include the reasonable estimate of the allocated costs and expense of Lenders' in-house legal counsel and professional staff, and including reimbursement of Lenders' reasonable travel expenses incurred in connection with Lenders' semi-annual on-site inspections to review the Collateral and observe the operation of the Radio Stations or the Newspapers; provided, however, that reimbursement of Lenders' semi-annual on-site inspection expenses shall not exceed Forty Thousand Dollars ($40,000) in any twelve month period. All Post-Closing Lender Expenses paid or incurred by Lenders are payable upon demand, and if not reimbursed within thirty (30) days after demand, shall become a part of the Obligations and shall immediately thereafter bear interest, together with all other amounts to be paid by the Borrowers pursuant hereto, at the appropriate interest rate in accordance with provisions of Section 2.3 hereof. 105. "Pre-Closing Lender Expenses" means all reasonable costs or expenses paid or advanced by Lenders in connection with drafting, negotiating and structuring this Agreement and the other Credit Documents, including without limitation attorneys' fees, travel expenses, credit review expenses, appraisals, filing, recording, documentation, publication and search fees paid or incurred by Lenders in connection with Lenders' review of the Assets of the Borrowers. Lenders acknowledge receipt of the Expense Deposit from the Borrowers, which Expense Deposit shall be used first to pay Pre-Closing Lender Expenses and then applied to Post-Closing Lender Expenses. In the event the Pre-Closing Expenses are in excess of the Expense Deposit, the Borrowers shall pay on the Closing Date or within fifteen (15) days after receipt from Agent of an invoice or request for payment all additional reasonable costs and expenses, including without limitation reasonable attorneys' fees, incurred by Lenders in connection with the negotiation and documentation of the Loan, together with all recording fees, taxes, title search charges and any other fees incurred in connection with the Closing. 106. "Pro Rata Share" means, with respect to the Loan, 78.57143% for Goldman Sachs and 21.42857% for AMRESCO on the Closing Date; provided, however, that the foregoing amounts shall be adjusted (A) in accordance with any Advances that are not advanced hereunder in accordance with Lenders' Pro Rata Shares at the time of the relevant Advance solely for purposes of determining any Lender's Pro Rata Share for the purposes of voting by the Lenders and allocating payments made by the Borrowers to the Lenders, but such adjustment shall not affect any Lender's Pro Rata Share for purposes of determining such Lender's obligation to make any Additional Advances hereunder, and (B) to reflect that percentage of the Loan amount assigned to any Lender pursuant to Section 9.5 hereof in each case as adjusted in the event of any assignment. -16- 107. "Radio Operators" means, collectively, Northland, Reading, CMB, NCR, Tri-State, CMB II, NB II, NCR II, TSB III, TSB IV and any other Borrower that operates, owns or controls any Radio Station from time to time. 108. "Radio Stations" means the broadcast radio stations described on Schedule 4.9(b) hereof and any other broadcast radio station owned or operated by any Borrower from time to time, together with all of the Assets of the Borrowers used in the ownership and operation thereof and Licenses with respect thereto. 109. "Real Property Collateral" shall have the meaning set forth in Section 4.11(b). 110. "Releasing Lenders" means Persons who have liens against any Acquisition, which lien is required by Lenders to be released upon the closing of the purchase of such Acquisition. 111. "Subordination Agreement" means that certain Amended and Restated Subordination Agreement of even date herewith executed by and among the Borrowers, Pledgors, Guarantor, BMC L.P., BMC Inc., ARB Two, and other Persons required to execute any subordination agreement in connection with this Agreement, as such agreement may be amended, supplemented or otherwise modified from time to time. 112. "Subsidiary" means, with respect to any Borrower, a corporation, partnership, limited liability company, association, joint venture or other business entity (whether now existing or hereafter organized or acquired) of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Persons or Person (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by such Borrower or one or more of the other Subsidiaries of such Borrower or a combination thereof. SECTION 1.2 Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP. SECTION 1.3 Computation of Time Periods. In this Agreement, with respect to the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding." Periods of days referred to in this Agreement shall be counted in calendar days unless otherwise stated. -17- SECTION 1.4 Construction. Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular and to the singular include the plural, references to any gender include any other gender, the part includes the whole, the term "including" is not limiting, and the term "or" has, except where otherwise indicated, the inclusive meaning represented by the phrase "and/or." References in this Agreement to "determination" by Agent include reasonable estimates by Agent (in the case of quantitative determinations), and reasonable beliefs by Agent (in the case of qualitative determinations). The words "hereof," "herein," "hereby," "hereunder," and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Article, section, subsection, clause, exhibit and schedule references are to this Agreement, unless otherwise specified. Any reference in this Agreement or any of the other Credit Documents to this Agreement includes any and all permitted alterations, amendments, changes, extensions, modifications, renewals, or supplements thereto or thereof, as applicable. SECTION 1.5 Schedules. All of the schedules attached hereto shall be deemed incorporated herein by reference. SECTION 1.6 No Presumption Against Any Party. Neither this Agreement, any of the other Credit Documents, any other document, agreement, or instrument entered into in connection herewith, nor any uncertainty or ambiguity herein or therein shall be construed or resolved using any presumption against any party hereto, whether under any rule of construction or otherwise. On the contrary, this Agreement, the other Credit Documents, and the other documents, instruments, and agreements entered into in connection herewith have been reviewed by each of the parties and their legal counsel and shall be construed and interpreted according to the ordinary meanings of the words used so as to accomplish fairly the purposes and intentions of all parties hereto. SECTION 1.7 Independence of Provisions. All agreements and covenants hereunder, under the other Credit Documents, and the other documents, instruments, and agreements entered into in connection herewith shall be given independent effect such that if a particular action or condition is prohibited by the terms of any such agreement or covenant, the fact that such action or condition would be permitted within the limitations of another agreement or covenant shall not be construed as allowing such action to be taken or condition to exist. ARTICLE II THE CREDIT SECTION 2.1 The Loan. Subject to the terms and conditions hereof and as more particularly set forth in Section 3.1 and Section 3.3 hereof, each Lender hereby severally agrees to maintain the Original Loans and to make the Closing Date Advances as follows: -18- (a) Original Loans. Each of the Borrowers acknowledges and confirms that (1) Lenders collectively hold the Original Loans in the aggregate principal amount of Fifty-Six Million Dollars ($56,000,000) outstanding as of the Closing Date and (2) each Lender holds the Original Loans in the respective principal amounts (together with all interest due and accrued thereon) (with respect to each Lender, the "Original Loan Amount") outstanding immediately prior to the Closing Date set forth opposite its name on Schedule 2.1(a) hereto. Each of the Borrowers hereby represents, warrants, agrees, covenants and (1) reaffirms that it has no (and it permanently and irrevocably waives and releases Agent and Lenders from any, to the extent arising on or prior to the Closing Date) defense, set off, claim or counterclaim against Agent or any Lender in regard to its Obligations in respect of such Original Loans and (2) reaffirms its obligation to pay such Original Loans in accordance with the terms and conditions of this Agreement and the other Credit Documents. Based on the foregoing, each Borrower and each Lender agree that the Original Loans, and any amounts owed under the Original Credit Documents (whether or not presently due and payable, and including all interest accrued to the Closing Date, which interest shall be payable on the Closing Date) by the Borrowers to Lenders thereunder or in respect thereof, shall, as of the Closing Date, be converted to, maintained and continued as, and owed by the Borrowers, jointly and severally, under or in respect of, the Loan hereunder. (b) Closing Date Advances. Each Lender severally agrees to lend to the Borrowers on the Closing Date an amount (each such loaned amount being the "Closing Date Advance" of such Lender and collectively, the "Closing Date Advances") equal to the difference between (x) such Lender's Pro Rata Share of Seventy Million Dollars ($70,000,000), minus (y) the principal amount of the Original Loans held by such Lender after giving effect to clause (a) of this Section 2.1, to be used for the purposes identified in Section 2.2 hereof. Except as provided in Section 2.9 hereof, the Loan or any portion of the Loan (including the Closing Date Advances), to the extent subsequently repaid or prepaid, may not be reborrowed. SECTION 2.2 Allocation of Loan/Purpose and Disbursement of Proceeds of Closing Date Advances. (a) Allocation of Loan. The Loan shall be allocated among the Original Loans and the Closing Date Advances in the amounts set forth below: (1) $8,450,416.66 shall be used to maintain AMRESCO's Original Loan Amount; (2) $51,456,916.68 shall be used to maintain Goldman Sach's Original Loan Amount; -19- (3) $400,000 shall be paid to Agent on behalf of Lenders to pay the Loan Fee; (4) $125,000 shall be paid to Agent to pay the Expense Deposit; (5) $20,000 shall be paid to Agent to pay the Agent's Fee due and payable on September 30, 1997; (6) $800,000 shall be paid to the Borrowers to be deposited to the Capital Expenditure Reserve Fund; (7) $3,000,000 shall be paid to the Borrowers to be distributed to Guarantor; (8) $1,000,000 shall be paid to the Borrowers to be used for the purchase of the HPS Assets; (9) $600,000 shall be paid to the Borrowers to be used for the purchase of KTRR, including reimbursement of the good faith deposit for the purchase of KTRR; and (10) the remainder of the Closing Date Advances shall be paid to the Borrowers to be used for the payment of accrued but unpaid fees under the Original Credit Agreement and for the Borrowers' working capital. (b) Purpose and Uses of Closing Date Advances. The proceeds of the Closing Date Advances shall be disbursed in accordance with the disbursement instructions set forth in Schedule 2.2 hereto and shall be used solely for the purposes described in Section 2.2(a) hereof. SECTION 2.3 Interest Rates. The unpaid principal balance of the Loan shall bear interest at the applicable rate per annum provided below: (a) Initial Rate and Additional Rate. From and after the Closing Date, interest shall accrue on the outstanding principal balance of the Loan at the Initial Interest Rate plus the Additional Interest Rate. (b) Default Rate. Upon the occurrence and during the continuance of an Event of Default, interest shall accrue on the then outstanding principal balance of the Loan at the Default Rate. In the event the Event of Default is cured within the Cure Period, if applicable, the interest rate on the Loan shall revert to the interest rates effective as of the date the cure is effectuated. Interest which has accrued on the Obligations at the Default Rate shall be due and -20- payable with the next required payment hereunder or on demand as it accrues if after the Maturity Date. (c) Computation of Interest. All computations of interest shall be calculated on the basis of a year of three hundred sixty (360) days for the actual days elapsed. SECTION 2.4 Repayment of the Loan. The Borrowers shall repay the Loan as follows: (a) Interest Payments. The Borrowers shall pay to Agent for the benefit of Lenders monthly interest payments in arrears on the aggregate outstanding principal balance of the Notes, to include all interest then due and accrued at the Initial Interest Rate, on the first day of each month commencing November 1, 1997, and continuing to the Maturity Date. All interest accrued and unpaid at the Additional Interest Rate shall be due and payable in full on the earlier of the Maturity Date or the date of any prepayment of the Obligations. All interest due at the Default Rate shall be paid in accordance with Section 2.3(b) hereof. (b) Payment of Principal and Remaining Obligations. Except as otherwise set forth herein, all principal due and outstanding under the Notes and all other Obligations shall be due and payable in full on the Maturity Date. (c) Application of Payments by Agent. All payments of principal and interest and all payments of the Call Option Price (set forth in Section 2.8 below) received by Agent shall be apportioned between the Notes in amounts equal to each Lender's respective Pro Rata Share. SECTION 2.5 Statements of Obligations. The Loan and the Borrowers' obligation to repay the same shall be evidenced by the AMRESCO Note, the Goldman Sachs Note and this Agreement and all payments of principal or interest with respect to the Loan shall be evidenced by notations made by Agent on such Agent's books and records showing the date and amount of the applicable Advance and each payment of principal or interest. Advances made to the Borrowers by AMRESCO shall be evidenced by the AMRESCO Note. Advances made to the Borrowers by Goldman Sachs shall be evidenced by the Goldman Sachs Note. SECTION 2.6 Loan Fee. The Loan Fee shall be paid by the Borrowers to Lenders from the proceeds of the Loan on the Closing Date. SECTION 2.7 Agent's Fee. The Borrowers shall pay the Agent's Fee to Agent commencing on the Closing Date, and continuing on the 30th day of the last month of each calendar quarter thereafter through the Maturity Date (i.e., December 30, March 30, June 30, and September 30). SECTION 2.8 Prepayments. In the event the Borrowers desire to repay any or all of the then outstanding principal balance due under the Notes prior to the Maturity -21- Date, which sums are not required to then be paid pursuant to Section 5.18, Section 5. 1 9, or Section 5.20, hereof, the Borrowers may do so by paying to Agent on behalf of Lenders the Call Option Price (expressed as a percentage of principal prepaid) set forth on Schedule 2.8 hereto, together with 100% of all interest accrued and unpaid on the Obligations at the Additional Interest Rate; provided, however, that no Call Option Price shall be due and payable as a result of a prepayment from the Missouri Sale Proceeds or the Duluth Sale Proceeds, unless such funds are not reborrowed as Additional Advances prior to the Maturity Date or repayment in full of the Loan, in which event the applicable Call Option Price shall be determined as of the month in which such prepayment occurred and shall be due and payable on the date of such prepayment. All prepayments under this Section of amounts less than the full amount due under the Notes shall be applied first to Post-Closing Lender Expenses, if any, then to interest accrued at the Additional Interest Rate, then to a premium in an amount equal to the excess of the applicable Call Option Price over the amount of principal to be paid, then to principal, then to interest accrued at the Initial Interest Rate. SECTION 2.9 Re-borrowing. At the Borrowers' request, and provided that all conditions set forth in Section 3.2 and Section 3.3 have been fully complied with to Lenders' satisfaction, each Lender severally agrees to lend to the Borrowers from time to time (each such amount loaned being an "Additional Advance" and collectively, the "Additional Advances") during the period from the Closing Date to but excluding the Maturity Date an aggregate amount not exceeding such Lender's Pro Rata Share of the Maximum Additional Advances Amount at the time of the request for the applicable Additional Advance; provided that in no event shall any Lender be required to make Additional Advances in an aggregate principal amount exceeding its Pro Rata Share of the lesser of (A) the aggregate amount of the Duluth Sale Proceeds and the Missouri Sale Proceeds received in repayment of the Loan by Lenders and (B) Twelve Million Dollars ($12,000,000). Lenders shall not be required to make more than four (4) Additional Advances each, even in the event the aggregate amount of the Additional Advances actually advanced by Lenders is less than the Maximum Additional Advances Amount. Any Additional Advances subsequently repaid or prepaid may not be reborrowed. All proceeds of any Additional Advances shall be used solely for the making of the applicable Acquisition to which such Additional Advances relate and for transaction costs related thereto which have been approved by Lenders. SECTION 2.10 Cross-Default/Cross Collateral Provisions. An Event of Default hereunder shall constitute an Event of Default under the AMRESCO Note and the Goldman Sachs Note. The Collateral described in Section 4.11 hereof shall be pledged as security for the repayment of all Obligations. SECTION 2.11 Holidays. Any principal or interest in respect of the Loan which would otherwise become due on a day other than a Business Day, shall instead become due on the next succeeding Business Day and such adjustment shall be reflected in the computation of interest; provided, however, that in the event that such due date shall, subsequent -22- to the specification thereof by Lenders, for any reason no longer constitute a Business Day, Lenders may change such specified due date in accordance with this Section 2.11. SECTION 2.12 Time and Place of Payments. All payments due on the Notes hereunder shall be made to Agent in immediately available Dollars, not later than 12:00 p.m., Atlanta, Georgia, time, on the day of payment, to the following address: AMRESCO Funding Corporation P.O. Box 277215 Atlanta, GA 30384-7215 or by wire-transfer in accordance with the following wire-transfer instructions: NationsBank, N.A. (South) Atlanta, Georgia ABA#: 061000052 Deposit into Account #: 010-255-5209 Account Name: AMRESCO Funding Corporation Re: Brill Media SECTION 2.13 Joint and Several Liability: Payment Indemnifications. (a) Each Borrower hereby agrees and acknowledges that the obligation of each Borrower for payment of the Obligations shall be joint and several with the obligations of each other Borrower hereunder regardless of which Borrower actually receives the proceeds of any borrowing. Each Borrower hereby agrees and acknowledges that it will receive substantial benefits from the Loan, including the Additional Advances. The Obligations of and the Liens granted by any Borrower under the Credit Documents shall not be impaired or released by any action or inaction on the part of Agent or any Lender with respect to any other Borrower, any Pledgor or Guarantor, including any action or inaction which would otherwise release a surety. (b) In order to provide for just and equitable contribution between the Borrowers if any payment is made by a Borrower (for purposes of this Section 2.13(b), a "Funding Borrower") in discharging any of the Obligations, that Funding Borrower shall be entitled to a contribution from the other Borrowers for all payments, damages and expenses incurred by that Funding Borrower in discharging the Obligations, in the manner and to the extent required to allocate liabilities in an equitable manner among the Borrowers on the basis of the relative benefits received by the Borrowers. If and to the extent that a Funding Borrower makes any payment to any Lender or any other Person in respect of the Obligations, any claim which said Funding Borrower may have against the other Borrowers by reason thereof shall be subject and subordinate to the prior cash payment in full of the Obligations. -23- The parties hereto acknowledge that the right to contribution hereunder shall constitute an asset of the party to which such contribution is owing. Notwithstanding any of the foregoing to the contrary, such contribution arrangements shall not limit in any manner the joint and several nature of the Obligations; limit, release or otherwise impair any rights of Agent or any Lender under the Credit Documents; or alter, limit or impair the obligation of each Borrower, which is absolute and unconditional, to repay the Obligations. ARTICLE III CONDITIONS TO BORROWING SECTION 3.1 Disbursement of Closing Date Advances and Effectiveness of Agreement. This Agreement shall become effective and Lenders shall disburse the Closing Date Advances in accordance with Section 2.2 above if, and only if, each of the following conditions have been fulfilled to the satisfaction of Lenders and their legal counsel (the occurrence of which shall be called, collectively, the "Closing"): (a) receipt by Agent of this Agreement and each of the other Credit Documents, all duly executed and, where required, acknowledged; (b) receipt by Agent of satisfactory Uniform Commercial Code and other public record searches with respect to the Borrowers and Pledgors indicating that Lenders have, with the exception of the Permitted Liens of the Permitted First Lien Holders, a first priority lien on all of the Borrowers' Assets, including the Collateral described in Section 4.11 hereof and including all proceeds of the sale or transfer of the Licenses (to the extent allowable by law), in accordance with the Credit Documents; (c) receipt by Agent of copies of insurance binders or insurance certificates evidencing the Borrowers' having obtained insurance in accordance with Section 5.5, including the Lenders' loss payee endorsements required by such Section; (d) receipt by Lenders of commitments for the issuance of ALTA lender's title insurance policies, or endorsements to existing policies, in amounts satisfactory to Agent insuring the liens of the deeds of trust, mortgages, leasehold deeds of trust and leasehold mortgages covering the Real Property Collateral and showing title to the Real Property Collateral to be vested in the Borrowers and subject only to those exceptions acceptable to Lenders. Such policies or endorsements shall be in standard form and issued by title insurance companies acceptable to Agent. The Borrowers shall deliver to Agent funds sufficient to purchase such policies or endorsements no later than the Closing Date; (e) receipt by Agent of evidence satisfactory to Lenders that there has been no change in the financial condition of any of the Borrowers since the previous Financial Statements -24- provided by the Borrowers to Agent dated as of July 31, 1997, that would constitute or give rise to a Material Adverse Effect with respect to the Borrowers taken as a whole; (f) receipt by Agent of the identification of all Personal Property Collateral with a value in excess of Fifty Thousand Dollars ($50,000) sufficient to enable Agent to perfect Lenders' lien against such Personal Property Collateral, including without limitation serial numbers or other identification numbers of all printing presses and other equipment used in connection therewith or forming a part thereof; (g) receipt by Agent of a completed and fully executed Borrower's Certificate; and (h) receipt by Agent, for distribution (as appropriate hereunder or under the terms of the Original Credit Agreement, as the case may be) to Agent and Lenders, (1) all fees accrued and unpaid under the Original Credit Agreement and (2) all interest accrued and unpaid under the Original Credit Agreement. SECTION 3.2 Conditions to Lenders' Approval of Future Acquisitions. Lenders shall not be deemed to have approved any prospective Acquisition until the following conditions have been fulfilled to the satisfaction of Lenders and their legal counsel with respect to such Acquisition: (a) Lenders or Agent shall have conducted to Lenders' satisfaction a due diligence investigation of the Acquisition, which due diligence shall consist of the following: visits to the business to be acquired in such Acquisition; confirmation of historical revenues and Net Operating Income of the business to be acquired in such Acquisition; receipt of the Borrowers' pro-forma operating statements for the business to be acquired in such Acquisition combined with the operations of in-market Radio Stations or Newspapers, as appropriate; and review of Acquisition purchase agreements and other contracts and/or agreements, local marketing agreements or time brokerage agreements, (if any); (b) the Acquisition is of an in-market broadcast radio station or newspaper; (c) the Acquisition Company created for the purpose of making the Acquisition or other Subsidiary formed or acquired in such Acquisition shall have executed a ratification agreement in the form attached hereto as Exhibit A and a security agreement granting to Lenders a security interest in all Assets of the Acquisition Company (including an assignment of the applicable purchase contract to the extent permitted by law and right to a refund of any applicable earnest money deposit) in the form attached hereto as Exhibit B; (d) Lenders shall have received (1) a pledge agreement and appropriate stock powers satisfactory to Lenders covering the pledge of one hundred percent (100%) of the -25- ownership interest in the Acquisition Company (and (i) if such Acquisition Company is a limited liability company, its corporate member/manager, or (ii) if such Acquisition Company is a limited partnership, its general partner thereof) or other Subsidiary formed or acquired in such Acquisition in the form attached hereto as Exhibit C, and (2) if the Acquisition Company or other Subsidiary formed or acquired in such Acquisition is a limited liability company, a pledge agreement covering one hundred percent (100%) of the stock or other ownership interest in the managing member of the Acquisition Company or other Subsidiary formed or acquired in such Acquisition in the form attached hereto as Exhibit D; and (e) Lenders' shall have consented in writing to any purchase agreement for such Acquisition and the other documentation relating thereto (including without limitation any loan or security documents executed by an Acquisition Company in connection with such purchase) and any amendments thereto or modifications thereof. SECTION 3.3 Funding Additional Advances for Acquisitions. Lenders shall make Additional Advances to the Borrowers for the making of an Acquisition approved by Lenders pursuant to Section 3.2 hereof if, and only if, each of the following conditions have been fulfilled to the satisfaction of Lenders and their legal counsel: (a) the conditions of Section 3.1 and Section 3.2 shall have been fully complied with; (b) Lenders shall have received the Duluth Sale Proceeds and/or the Missouri Sale Proceeds; (c) the sum of all Additional Advances shall not exceed the amount of the Maximum Additional Advances; (d) the Borrowers shall have executed an amendment to the Notes satisfactory to Lenders in the event the total aggregate outstanding principal balance of the Loan will exceed the principal sum of Seventy Million Dollars ($70,000,000) upon funding of the Additional Advances; (e) the Maturity Date shall not have occurred; (f) the Borrowers shall have provided to Agent confirmation satisfactory to Agent that all prior security interests except Permitted Liens in the applicable Acquisition have been released. Such confirmation shall consist of evidence of the termination of all existing security interests in the applicable Acquisition, including termination of all UCC Financing Statements, terminations and/or reconveyances of all deeds of trust and leasehold deeds of trust previously recorded by any entity against the applicable Acquisition, which terminations and/or reconveyances shall be recorded through an escrow; return of the original notes, pledge agreements and guaranties to the seller(s) of the applicable Acquisition; and written confirmation -26- acceptable in form and content to Agent that any claims against the applicable Acquisition have been extinguished; (g) any Acquisition Company and Pledgors shall have delivered to Agent such security documents (in addition to the documents required pursuant to Section 3.2 above) satisfactory to Lenders granting to Lenders a first priority security interest in all of the assets acquired in connection with or in the operation of the Acquisitions subject only to liens given to sellers of such Acquisitions as permitted by Lenders, including without limitation proceeds of all FCC Licenses, and in such other or additional collateral as required by Lenders, including without limitation UCC-l Financing Statements, mortgage documents and collateral assignments of leases; and the Borrowers or Acquisition Company shall have delivered to Agent and Lenders modifications to Schedules 4.9(b) 4.10, 4.13, 4.25, 4.26, 6.1 and 6.2 hereto (together with any other modifications to any other Schedule which Lenders reasonably deem necessary) satisfactory to Lenders (prepared giving effect to the addition of the applicable Acquisition Companies as the Borrowers and the consummation of the purchase of the applicable Acquisition), which modifications shall be deemed to supplement and amend such Schedules for all purposes hereunder and under the other Credit Documents; (h) the Borrowers and Guarantor shall have provided evidence satisfactory to Lenders that there has been no Material Adverse Effect in the financial condition of the existing the Borrowers and Guarantor, taken as a whole, since the most recent financial statements provided by the Borrowers to Agent in accordance with this Agreement; (i) the Borrowers' Leverage shall not exceed 8.0; (j) Lenders shall have received ALTA Lender's title insurance policies in amounts acceptable to Lenders insuring the lien of any leasehold mortgage or leasehold deed of trust covering the real property leased or owned in connection with the operation of the Acquisition. Such policies shall show title vested in the appropriate Acquisition Company and shall be subject only to those exceptions acceptable to Lenders. Such policies shall be in standard form and issued by title insurance companies acceptable to Agent; (k) Agent shall have received certificates or instruments representing the Collateral and documentation sufficient to perfect Lenders' interest in all of the Collateral as more particularly provided in Section 4.11 hereof; (l) the Borrowers, Pledgors and Guarantor are not in Default in any material term, covenant or condition under any Credit Document; (m) the Borrowers shall have delivered to Agent an opinion of FCC legal counsel for the Borrowers satisfactory to Lenders in connection with any Acquisition that is of a broadcast radio station; -27- (n) the FCC shall have approved the transfer to the Borrowers or an Acquisition Company of any FCC License issued by the FCC in connection with operation of an Acquisition that is a broadcast radio station, and such approval shall have become a Final Order; (o) Agent shall have received a completed and fully executed Borrower's Certificate; and (p) At least five (5) Business Days in advance of the proposed date of the making of the Additional Advance(s), Agent shall have received a request for disbursement of the Additional Advance(s) satisfactory to Lenders and specifying (1) the proposed date of the Additional Advance(s) (which shall be a Business Day); (2) the amount of the Additional Advance(s) requested; (3) the application of the proceeds of such Additional Advance(s); and (4) wire-transfer instructions for any disbursements to be made by wire-transfer. SECTION 3.4 Acknowledgment of Approval of Purchase of KTRR and the HPS Assets. Lenders and the Borrowers acknowledge that, subject to Lenders' review and approval of each of the KTRR Purchase Agreement and the HPS Purchase Agreement, and, in each case, all documentation (including any seller notes) related thereto, Lenders have approved the Borrowers' proposal to purchase KTRR and the HPS Assets. Lenders and the Borrowers further acknowledge that funds for the purchase of KTRR and the HPS Assets will be disbursed to the Borrowers pursuant to Section 2.2 hereof. The purchases of KTRR and the HPS Assets shall not be deemed to be "Acquisitions" for purposes of Section 3.2 and Section 3.3 hereof. SECTION 3.5 Closing. From and after the Closing Date, the rights, obligations, and remedies of the parties hereto shall be governed by this Agreement and the other Credit Documents. ARTICLE IV REPRESENTATIONS AND WARRANTIES Each Borrower makes the following representations and warranties to Lenders, which representations and warranties shall survive the execution of this Agreement and shall continue in full force and effect until the payment, performance and satisfaction in full of the Obligations. SECTION 4.1 Legal Status. Each Borrower is a corporation, limited liability company or limited partnership duly organized and existing under the laws of the State of Virginia and is properly licensed and in good standing in every jurisdiction in which such Borrower is doing business where failure to qualify would have a Material Adverse Effect on the Borrowers. Schedule 4.1 hereto accurately and completely lists, as to each Borrower: (1) the state of incorporation or formation of each such Borrower, (2) the classes and number of authorized and outstanding shares of capital stock of or membership interests in each of them, -28- and the owners of such outstanding shares of capital stock or membership interests, and (3) the business in which each of them is engaged. All of the foregoing shares of stock or membership interests which are issued and outstanding have been duly and validly issued and are fully paid and non-assessable, and are owned by the Persons referred to on Schedule 4.1 free and clear of any Lien except as otherwise provided for herein. Except as set forth on Schedule 4.1, there are no outstanding warrants, options, contracts or commitments of any kind entitling any Person to purchase or otherwise acquire any shares of capital stock of or membership interests in any Borrower nor are there outstanding securities which are convertible into or exchangeable for any shares of capital stock of or membership interests in any Borrower. Except as set forth on Schedule 4.1, none of the Borrowers have any Subsidiaries. SECTION 4.2 No Violation; Compliance. As of Closing, the execution, delivery and performance of this Agreement and the other Credit Documents are within each Borrower's respective powers, are not in conflict with the terms of any charter, bylaw, the CMD Partnership Agreement, Articles of Incorporation, limited liability company operating agreements or other organization papers of each Borrower, and do not result in a breach of or constitute a default under any contract, obligation, indenture or other instrument to which either is a party or by which either is bound or affected; and there is no law, rule or regulation, nor is there any judgment, decree or order of any court or governmental authority binding on any Borrower which would be contravened by the execution, delivery, performance or enforcement of this Agreement or the other Credit Documents. SECTION 4.3 Authorization; Validity. Each Borrower has taken all partnership, corporate or other action necessary to authorize the execution and delivery of this Agreement and the other Credit Documents, and the consummation of the transactions contemplated hereby and thereby. SECTION 4.4 Approvals; Consents. As of the date of this Agreement (except as may be required by the FCC pursuant to 47 CFR ss.3613), no approval, consent, exemption or other action by, or notice to or filing with, any governmental authority is presently necessary in connection with the execution, delivery, performance or enforcement of this Agreement or the other Credit Documents except as may have been obtained by the Borrowers and certified copies of which have been delivered to Lenders. SECTION 4.5 Liens. The Borrowers' have good and marketable title to their Assets, free and clear of all Liens or rights of others, except for Permitted Liens as shown on Schedule 6.2 hereof. SECTION 4.6 Litigation. There are no suits, proceedings, claims or disputes pending or, to the knowledge of any Borrower after due inquiry, threatened, against any Borrower or its properties in an amount which exceeds Twenty-Five Thousand Dollars ($25,000) for any individual matter or an aggregate for all Borrowers in an amount which exceeds One Hundred Thousand Dollars ($100,000) for all such matters which such amount is not fully -29- covered by applicable insurance as to which no reservation of rights has been taken by the insurer thereunder, except as described in Schedule 4.6 hereof. SECTION 4.7 Taxes. All tax returns required to be filed by the Borrowers have in fact been filed, and all taxes, assessments, fees and other governmental charges upon the Borrowers or upon any of their Assets, income or franchises, which are due and payable have been paid. The provisions for taxes on the books of the Borrowers are adequate for all open years, and for the Borrowers' current Fiscal Year. SECTION 4.8 Correctness of Financial Statements (a) The Financial Statements prepared by the Borrowers as of July 31, 1997, and all material, written information and data furnished by the Borrowers to Agent in connection therewith or subsequent thereto, and all other Financial Statements provided by the Borrowers to Agent are complete and correct and, taken together, accurately and fairly present the financial condition and results of operations of the Borrowers as of July 31, 1997. Any forecasts of future financial performance delivered by the Borrowers to Agent have been made in good faith and are based on reasonable assumptions and investigations by Borrower. Any audited Financial Statements have been prepared in accordance with GAAP. Since July 31, 1997, there has been no change in the Borrowers' financial condition or results of operations sufficient to have a Material Adverse Effect. (b) The Financial Statements prepared by Guarantor as of December 31, 1996, and all material, written information and data furnished by Guarantor to Agent in connection therewith or subsequent thereto, and all other Financial Statements provided by Guarantor to Agent are complete and correct and, taken together, accurately and fairly present the financial condition of Guarantor as of December 31, 1996. Since December 31, 1996, there has been no change in Guarantor's financial condition sufficient to have a Material Adverse Effect. SECTION 4.9 Licenses, Patents, Trademarks, Copyrights, and Intellectual Property, etc. (a) Each Borrower has all necessary patents, patent rights, licenses, trademarks, trademark rights, trade names, trade name rights, copyrights, permits, and franchises in order to conduct its business and to operate its Assets as presently being conducted and operated, without known material conflict with the rights of third Persons, and all of same are valid and subsisting, except where such lack of validity or subsistence would not have a Material Adverse Effect. The consummation of the transactions contemplated by this Agreement will not alter or impair any of such rights of each Borrower. No Borrower has been charged or, to the best of the Borrowers' knowledge, has been threatened to be charged with any infringement, nor has any Borrower infringed on any unexpired trademark, trademark registration, trade name, patent, copyright, copyright registration, or other proprietary right of any Person, which charge or threat could reasonably be expected to have a Material Adverse Effect. -30- (b) Set forth in Schedule 4.9(b) hereto is a complete list of all Radio Stations and with all FCC Licenses used in connection with the ownership and operation thereof. Such list correctly sets forth the termination date of each FCC License. Each FCC License is validly issued and in full force and effect, and constitutes all of the authorization from the FCC or any communications regulatory authority necessary for the operation of each Radio Station in the same manner as it is presently conducted and as proposed to be conducted. Each Borrower has taken all material actions and performed all of its material obligations that are necessary to maintain the FCC Licenses without adverse modification or impairment, and complete and correct copies of the FCC Licenses of each Borrower have been delivered to Agent. No event has occurred which (1) results in, or after notice or lapse of time or both would result in revocation, suspension, adverse modification, non-renewal, impairment or termination of or any order of forfeiture with respect to any FCC License or (2) materially and adversely affects or could reasonably be expected in the future to materially adversely affect any of the rights any Borrower thereunder. Except as set forth in Schedule 4.9(b) none of the FCC Licenses require that any present stockholder (other than Brill), director, officer or employee of any Borrower remains a stockholder or employee of such Person, or that any transfer of control of such Borrower must be approved by any public or governmental body other than the FCC. (c) Except as to disclosures previously made to Lenders concerning NCR and the $5,000 fine in connection with the Notice of Apparent Liability issued by the FCC pursuant to Section 503(b) of the Communications Act of 1934, as amended, and a complaint recently filed against Radio Station WIOV (FM), formal notice of which has not been received by Borrowers, no Borrower or Pledgor is a party to or has knowledge of any investigation, notice of apparent liability, material violation, forfeiture or other order or complaint issued by or before any court or regulatory body, including the FCC, or of any other proceedings (other than proceedings relating to the radio or television industries generally) which could in any manner threaten or adversely affect the validity or continued effectiveness of the FCC Licenses of any Borrower. No Borrower has any reason to believe that the FCC Licenses listed and described in Schedule 4.9(b) will not be renewed in the ordinary course. Each Borrower has filed in a timely manner all material reports, applications, documents, instruments and information required to be filed by it pursuant to applicable rules and regulations or requests of every regulatory body having jurisdiction of its FCC Licenses. Each Borrower has submitted to the FCC on a timely basis all required equal employment opportunity reports. All Borrowers maintain appropriate public files at the Radio Stations in a manner that complies in all material respects with the rules, regulations and policies of the FCC. (d) None of the facilities used in connection with the Radio Stations (including without limitation, the transmitter and tower sites owned or used by the Borrowers) violates in any material respect the provisions of any applicable building codes, fire regulations, building restrictions or other governmental ordinances, orders or regulations and each such facility is zoned so as to permit the commercial uses intended by the owner or occupier thereof and there are no outstanding variances or special use permits materially affecting any of the facilities or the uses thereof. -31- (e) To the Borrowers' knowledge, after due inquiry, the operation of any of the Radio Stations does not cause or result in exposure to any workers or the general public to levels of radio frequency radiation in excess of the "Radio Frequency Protection Guidelines" recommended in "American National Standard Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields 300 Khz to l00gHz" (ANSI C95.1-1982), issued by the American National Standards Institute. (f) Each Ownership Report filed by each Borrower with the FCC is true, correct and complete in all material respects and there have been no changes in the ownership of any Borrower or the FCC Licenses since the filing of the most recent Ownership Reports for each Radio Station. SECTION 4.10 Ownership. The schedule of ownership interests in the Borrowers and Pledgors set forth in Schedule 4.10 hereof is true, accurate and complete. Schedule 4.10 shall be further amended upon creation of new or additional Acquisition Companies or other Subsidiaries to identify the ownership interests in such new or additional Acquisition Companies or Subsidiaries (and any applicable corporate member/manager) which have been approved by Lenders. SECTION 4.11 Grant of Security Interest. Subject to all Permitted Liens, and to the extent only and as more particularly set forth herein or provided for in the other Credit Documents, the Borrowers hereby grant to Lenders, to secure the payment and performance of the Obligations, a security interest in and to all of Borrower's present and future Assets including, without limitation, the following (collectively referred to as the "Collateral"): (a) All of each Borrower's personal property including without limitation each Borrower's cash, money, deposit accounts, accounts, documents, instruments, chattel paper, inventory, accounts receivable, machinery, equipment, transmitting towers, antennas, fixtures, and all general intangibles including without limitations all proceeds of the sale, transfer or other disposition of the FCC Licenses (but only to the extent that a Borrower is now or hereafter permitted by law to grant a security interest in such FCC Licenses), described on Schedule 4.9(b) hereto, and all other general intangibles including goodwill, patents, trademarks, trade names, in each case whether now existing or hereafter acquired or created, and any proceeds or products of any of the foregoing, including without limitation all proceeds of sale of the foregoing, all proceeds of insurance covering the foregoing, and all proceeds of eminent domain and other governmental takings of the foregoing (collectively referred to as the "Personal Property Collateral"); (b) All of each Borrower's interest in all now owned or hereafter acquired material real property, including an assignment of rents and leases and a lien on fixtures with respect thereto, whether leased or owned outright by any of the Borrowers as shown on Schedule 4. 11(b) and Schedule 4. 13 hereto (collectively referred to as the "Real Property Collateral"); -32- (c) One hundred percent (100%) of the issued and outstanding capital stock of, or membership interests in, each Borrower; provided however, that the pledge of stock of CMB II, NB II, St. Johns and NCR II and the pledge of membership interest in NCR III, if any, shall be unperfected and subordinate to pledges and liens to the Permitted First Lien Holders until such time as all obligations to the Permitted First Lien Holders are satisfied or discharged and the shares of stock in CMB II, NB II, St. Johns and NCR II are in the possession of Agent or other pledge holder for Lenders as the secured party; (d) All leases for all equipment or other personal property valued at or in excess of $30,000 and used in the operations of the business of the Radio Operators and the Newspaper Operators as described on Schedule 4.25 or Schedule 4.26 hereto; (e) All of CMD Inc.'s general partnership interest and BNI's limited partnership interest in CMD L.P.; (f) All existing life insurance policies or replacements thereto covering Guarantor, which currently designate Lenders as the collateral assignees of such policies; (g) A first priority security interest in all of the Assets of each Acquisition Company or new Subsidiary of any Borrower, subject only to liens in favor of sellers of such Assets which have been approved by Lenders, if any; (h) 100% of the issued and outstanding capital stock of, or the membership interest in, each Acquisition Company or new Subsidiary of any Borrower; (i) Upon closing of the HPS Purchase Agreement, a first priority security interest in all of the Assets used in connection with the ownership and operation of HPS, subject only to liens in favor of sellers of such Assets which have been approved by Lenders, if any; and (I) Upon closing of the KTRR Purchase Agreement, a first priority security interest in all of the Assets used in connection with the operation and ownership of KTRR, subject only to liens in favor of sellers of such Assets which have been approved by Lenders, if any. SECTION 4.12 Lien Priority. To the extent permitted by law, upon perfection of Lenders' security interest in the Collateral, Lenders shall have a first lien priority security interest in all of the Assets of each Borrower except as provided on Schedule 6.2 hereto. SECTION 4.13 Tower Leases and Licenses. No Borrower is a party to any lease, license or occupancy agreement with a term in excess of one month with respect to the installation, maintenance and operation of any radio transmitters, repeater stations, office space or other facilities used by the Radio Operators in connection with the operation of the Radio Stations, or the Newspaper Operators in connection with the operation of the Newspapers, except -33- for the leases described on the attached Schedule 4.13 hereto. Each Borrower has delivered to Lenders true, complete and accurate copies of all written real property leases or licenses with respect to the installation, maintenance and operation of any radio transmitters, repeater stations, office space or other facilities used by the Radio Operators in connection with the operation of the Radio Stations or by the Newspaper Operators in connection with the operation of the Newspapers. SECTION 4.14 Other Obligations. No Borrower and, to the best knowledge of the Borrowers, no Pledgor or Guarantor is in default on any obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, which default could reasonably be expected to have, in the aggregate, a Material Adverse Effect, except as provided in Schedule 4.14. SECTION 4.15 This Obligation. No Borrower is in default under any of the terms, conditions or covenants contained in any of the Credit Documents. SECTION 4.16 Binding Agreements. This Agreement and all other Credit Documents have been duly executed and delivered by each Borrower. This Agreement and all other Credit Documents to which any Borrowers are a party, each constitute the legal, valid and binding obligations of each such Borrower enforceable in accordance with their respective terms, except insofar as the enforceability hereof and thereof may be limited by applicable bankruptcy, insolvency or other similar laws now or hereafter in effect affecting the enforcement of creditors' rights generally and by general principals of equity. SECTION 4.17 Insurance. The Borrowers have taken all action necessary to acquire the insurance policies described in Section 5.5 hereof, summaries of which policies have been provided to Lenders in accordance with Section 3.1(c). These insurance policies are in full force and effect on the date hereof and the Borrowers are not delinquent in the payment of any premium for such policies. SECTION 4.18 ERISA. (a) Except as described on Schedule 4.18, no Borrower has, nor has any of them ever had, any Plan in connection with which there could arise a direct or contingent liability of any Borrower to the Pension Benefit Guaranty Corporation ("PBGC"), the Department of Labor or the Internal Revenue Service ("IRS"). No Borrower is a participation employer in: (1) any Plan under which more than one employer makes contributions as described in Sections 4063 and 4064 of ERISA, or (2) a Multiemployer Plan as defined in Section 4001 (a)(3) of ERISA. (b) All references to the Borrowers, in this Section 4.18 or in any other Section of this Agreement relating to ERISA, shall be deemed to refer to the Borrowers and all other entities which are, together with the Borrowers, part of a Controlled Group. -34- SECTION 4.19 Partnerships and Joint Ventures. No Borrower is a party to any partnership agreement or joint venture agreement except that CMD Inc. and BNI are parties to the CMD Partnership Agreement. SECTION 4.20 Sufficient Capital. Each Borrower now has capital sufficient to carry on its business, all business and transactions in which it is about to engage, and is now solvent and able to pay its debts as they mature. Each Borrower now owns property having a value, both at fair valuation and at present fair saleable value, greater than the amount required to pay such Borrower's debts. SECTION 4.21 Environmental Matters and Compliance with Laws. (a) There have been no complaints, citations, claims, notices, information requests, orders (including but not limited to clean up orders) or directives on environmental grounds made or delivered to, pending or served on, or anticipated by each Borrower or its agent, or of which each Borrower or its agent, after due investigation, including consideration of the previous uses of the assets and meeting the standard under 42 U.S.C. Section 9601(35)(B)(1986), are aware or should be aware (1) issued by a governmental department or agency having jurisdiction over any of the assets of each Borrower, real or personal, owned or leased, and affecting each Borrower's Assets, business, operations, equipment, property leaseholds, other facilities, or any part thereof, including but not limited to clean up orders, or (2) issued or claimed by any persons, agencies, or organizations and affecting each Borrower's Assets, business, operations, equipment, property, leaseholds, or other facilities, or any part hereof. (b) To the Borrowers' knowledge, after due investigation, including but not limited to consideration of the previous uses of the assets and meeting the standard of 42 U.S.C. Section 960l(35)(B)(1986), there have not been, are not now and as of the Closing Date, there will be no solid waste, hazardous waste, hazardous substances, toxic substances, toxic chemicals, pollutants or contaminants, underground storage tanks, purposeful dumps, or accidental spills in, on or about any of the Assets of each Borrower, real or personal, owned or leased, or stored on any real property owned or leased by each Borrower or by each Borrowers' lessees, licensees, invitees or predecessors except as disclosed on Schedule 4.21 hereto. (c) To the Borrowers' knowledge, after due investigation, including consideration of the previous uses of the property and meeting the standard of 42 U.S.C. Section 9601(35)(B)(1986), except as disclosed on Schedule 4.21 hereto, there have been no, and are not now any material or reportable emissions, spills, seepage, damages, releases, or discharges into or upon the air, soils or improvements located thereon, surface water or ground water, or any sewer or septic system servicing each Borrower's Assets, or any toxic or hazardous substances, pollutants, contaminants, solid waste or hazardous waste. (d) Each Borrower has obtained and will maintain all necessary approvals, permits, licenses, certificates, or satisfactory clearances for use of its assets from all -35- governmental authorities, utility companies, or development-related entities, with respect to each Borrower's use of its assets and each Borrower's discharge of any chemicals, liquids and emissions, into the atmosphere, ground water or surface water, including but not limited to sewers or septic systems, from each Borrower's operations. (e) To the best of each Borrower's knowledge, after due investigation, no asbestos or asbestos containing materials are installed, used or incorporated into any Borrower's property, and no asbestos or asbestos containing materials have been disposed of on each Borrower's property. (f) To the best of each Borrower's knowledge, after due investigation, no polychlorinated biphenyls ("PCBs") are located on or in any Borrower's property, in the form of electrical transformers, fluorescent light fixtures with ballasts, cooling oils, or in any other device or form, except as reflected on Schedule 4.21. (g) Each Borrower and their business operations, assets, equipment, property, leaseholds or other facilities are in substantial compliance with all applicable federal, state, and local statutes, laws, regulations and ordinances. SECTION 4.22 Regulation G. The proceeds of the Loan will be used by the Borrowers as set forth in Section 2.2 and Section 3.3 hereof. No Borrower owns or intends to carry or purchase, and no part of the proceeds will be used directly or indirectly for the purpose of purchasing or carrying (or for payment in full or in part of Indebtedness which was incurred for the purposes of purchasing or carrying), any "margin security", as such term is defined in Regulation G. SECTION 4.23 Condition of Assets. (a) All of the assets and properties of the Borrowers which are reasonably necessary for the operation of their respective businesses, are in good working condition, ordinary wear and tear excepted, and are able to serve the function for which they are currently being used. (b) No Collateral covered by the Credit Documents has, at any time during the four (4) month period immediately preceding the Closing Date, been located anywhere other than its location on the Closing Date. SECTION 4.24 ARB Finance - One Conduct of Business. ARB Finance - One does not currently conduct any business or operations nor does it presently propose to conduct any business or operations except as a lender or borrower for or on behalf of the Borrowers. -36- SECTION 4.25 Capitalized Lease Obligations. Attached hereto as Schedule 4.25 is a true, complete and accurate description, including payment schedules, of all of the Capitalized Lease Obligations of the Borrowers as of the date hereof. SECTION 4.26 Operating Lease Obligations. Attached hereto as Schedule 4.26 is a true, complete and accurate description, including payments schedules, of all Operating Leases of the Borrowers providing for payments in excess of Twenty Thousand Dollars ($20,000) per year in effect on the date hereof ARTICLE V AFFIRMATIVE COVENANTS Borrower covenants and agrees that until the Obligations have been paid in full to Lenders, each Borrower shall: SECTION 5.1 Punctual Payments. Punctually pay the interest and principal on the Loan, and any fees or other liabilities due under this Agreement and the other Credit Documents, at the times and place and in the manner specified in this Agreement. SECTION 5.2 Books and Records. Maintain adequate books and records in accordance with GAAP, and permit any authorized representative of Agent or Lenders, at any reasonable time during normal business hours, and, provided no Event of Default has occurred and is continuing, upon three (3) Business Days' notice to Borrower, to inspect, audit and examine such books and records, to make copies of the same, and to inspect the Borrowers' Assets. All such notices shall be directed to Guarantor or to the officers of BMC Inc. SECTION 5.3 Financial Statements. Deliver to Agent the following, all in form and detail reasonably satisfactory to Agent and Lenders: (a) as soon as available but not later than 30 days after each month end, a Financial Statement for each Borrower which shall include a balance sheet as of the close of such period, a statement of income, a projected sales report; an accounts receivable aging schedule and an accounts payable aging schedule; (b) the Radio Operators, as a group, and the Newspaper Operators, as a group, shall each provide to Agent no later than June 30, 1998, annual audited Financial Statements for the period ending February 28, 1998, which statements shall include a balance sheet, statement of income, statement of cash flow, and management letters from the auditors of each group, prepared by an independent certified public accountant that is selected by the Borrowers and that is either Ernst & Young or some other selected CPA that is reasonably satisfactory to Agent; -37- (c) as soon as available but not later than March 31 of each year that the Loan remains unpaid each Borrower shall provide to Agent an annual budget for the prospective Fiscal Year; (d) from time to time such other information as Lenders may reasonably request, (e) no later than thirty (30) days after each month end, a monthly compliance certificate in the form set forth on Schedule 5.3(e) hereto; and (f) no later than seventy-five (75) days after Fiscal Year End, an annual compliance certificate in the form set forth on Schedule 5.3(f) hereto. SECTION 5.4 Existence; Compliance with Law. Preserve and maintain its existence and all of its licenses (including without limitation, all FCC licenses), permits, governmental approvals, rights, privileges and franchises required for the operations of the Borrowers to the extent that failure to preserve and maintain the same could reasonably be expected to have a Material Adverse Effect; comply with the provisions of all documents pursuant to which each Borrower is organized which govern such Borrower's continued existence to the extent that failure to so comply could reasonably be expected to have a Material Adverse Effect on any Borrower; and comply with the requirements of all applicable laws, rules, regulations, orders of any governmental authority and requirements for the maintenance of each Borrower's insurance, licenses, permits, governmental approvals, rights, privileges and franchises to the extent that failure to so comply could reasonably be expected to have a Material Adverse Effect. SECTION 5.5 Insurance. Maintain and keep in force insurance covering the Personal Property Collateral, and the Real Property Collateral and of the types and in amounts which are reasonable and which are generally held by owners of radio broadcast stations of a similar size and location as the Radio Stations, and by owners of newspapers of a similar size and location as the Newspapers, including fire, extended coverage, public liability, business interruption (excess cost), property damage and workers' compensation insurance, issued by insurance companies acceptable to Agent, and deliver to Agent from time to time at Agent's request schedules setting forth all insurance then in effect. Lenders shall be named as an additional loss payee as to all of the Borrowers' property and casualty insurance policies under an endorsement reasonably acceptable to Agent. The Borrowers shall, concurrently with the financial information required to be delivered by Borrower pursuant to Section 5.3(f), deliver to Agent, as Agent may request, copies of certificates describing all insurance of the Borrowers then in effect. SECTION 5.6 Facilities. Keep all of the Borrowers' Assets which are useful or necessary to its business in good repair and condition, and from time to time make -38- necessary repairs, renewals and replacements thereto so that such Assets shall be fully and efficiently preserved and maintained (ordinary wear and tear excepted). SECTION 5.7 Taxes and Other Liabilities. Pay and discharge when due any and all indebtedness, obligations, assessments and taxes, both real or personal and including federal and state income taxes; provided, however, that the Borrowers shall have no obligation to pay such indebtedness, obligations, assessments and taxes if same are being diligently contested in good faith by appropriate proceedings, and reserves or other appropriate provisions, if required by GAAP, have been made therefor. SECTION 5.8 Inspection of Assets. Allow Agent, Lenders and their representatives access to inspect the Assets, including the Personal Property Collateral, the Real Property Collateral, the Radio Stations, and the Newspapers, upon reasonable notice by Agent or Lenders to the Borrowers. All informational requests and notices by Agent shall be directed to Guarantor or to the officers of BMC L.P. SECTION 5.9 Notice to Agent. Promptly, upon the Borrowers acquiring knowledge thereof, give written notice to Agent of: (a) all litigation affecting the Borrowers where the amount claimed is in excess of Twenty-Five Thousand Dollars ($25,000) for any individual matter or in excess of Fifty Thousand Dollars ($50,000) in the aggregate and when such amount is not fully covered by applicable insurance (less applicable deductibles); (b) any substantial dispute which may exist between any Borrower, on the one hand, and any governmental regulatory body or law enforcement authority, on the other, if the determination of such dispute could reasonably be expected to have a Material Adverse Effect; (c) any labor controversy resulting in or threatening to result in a strike against any Borrower, if the commencement of such strike could reasonably be expected to have a Material Adverse Effect; (d) any sale or transfer of any capital stock of or membership interest in any Borrower or any other Affiliate directly or indirectly owning any Borrower; provided, however, that this clause shall not be deemed to constitute or imply any consent to any such sale or transfer; (e) any Default or Event of Default; (f) any other matter which has resulted in or could reasonably be expected to have a Material Adverse Effect; -39- (g) any Reportable Event, as defined in Section 4043 of ERISA, if a notice of such Reportable Event is required under ERISA to be delivered to the PBGC within thirty (30) days after the occurrence thereof, together with a description of such Reportable Event and a statement of the action any Borrower intends to take with respect thereto, together with a copy of the notice thereof given to the PBGC; and, (h) any of the following notices relating to environmental issues: (1) any notice of any violation or administrative or judicial complaint or order having been filed or about to be filed against any Borrower, Pledgor or other Affiliate alleging violations of any Environmental Law and Regulation, or (2) any notice from any government body or any other Person alleging that any Borrower, Pledgor or other Affiliate is or may be subject to any Environmental Liability; and promptly upon receipt thereof, provide Agent with a copy of such notice together with a statement of the action which such Borrower, Pledgor or other Affiliate intends to take with respect thereto. SECTION 5.10 Real Property Leases; Tower Site Leases or Real Property Purchases. Provide Agent with an accurate and complete copy of any material, written real property lease or tower site lease any Borrower proposes to enter into prior to the execution thereof and, if requested by Agent, execute and deliver to Agent for the benefit of Lenders a first priority leasehold deed of trust or collateral assignment of lease covering such leasehold estate therein and provide Agent with prior written notice of the acquisition of any real property and, if requested by Agent, execute and deliver to Agent for the benefit of Lenders a first priority deed of trust thereon, all such documents to be in form and substance satisfactory to Agent. Nothing herein shall be deemed to imply or constitute Lenders' consent to the entry into any real property leases or tower site leases other than as set forth on Schedule 4.13 hereto. SECTION 5.11 ERISA Notices. Deliver to Agent (a) concurrently with such filing, a copy of each Form 5500 which is filed with respect to each Plan with the IRS; and (b) promptly, upon their becoming available, copies of: (1) all correspondence with the PBGC, the Secretary of Labor or any representative of the IRS with respect to any Plan, relating to an actual or threatened change or development which would be materially adverse to any Borrower; (2) all actuarial valuations received by any Borrower with respect to any Plan; and (3) any notices of Plan termination filed by any Plan Administrator (as those terms are used in ERISA) with the PBGC and any notices from the PBGC to any Borrower with respect to the intent of the PBGC to institute involuntary termination proceedings. SECTION 5.12 Statements Relating to Accounts Receivable Between the Borrowers. In the event that: (a) any Radio Operator or any Newspaper Operator: (1) makes an advance to ARB Finance-One or (2) receives a payment from ARB Finance-One in respect of principal or interest on such advances; or -40- (b) ARB Finance-One: (1) makes an advance to any Radio Operator or any Newspaper Operator or (2) receives a payment from any Radio Operator or any Newspaper Operator in respect of principal or interest on any such advances; then deliver to the Agent not later than delivery of the Financial Statements required to be delivered the date pursuant to Section 5.3(a), a written statement setting forth the amounts of the advances or repayments, the dates on which ARB Finance-One made or received any such advances or repayments. In addition, the Borrowers and ARB Finance-One shall maintain and retain records of all such advances and payments. All such advances or repayments shall comply with the restrictions on transactions with Affiliates as set forth in Section 6.8 herein. SECTION 5.13 Continuance of Business. Do, or cause to be done, all things reasonably necessary to preserve and keep in full force and effect its corporate existence and all permits, rights and privileges necessary for the proper conduct of its business including, without limitation, the FCC Licenses, and continue to engage in the same line of business. SECTION 5.14 Comply with ERISA. Comply with all applicable provisions of ERISA now or hereafter in effect. SECTION 5.15 Subordinate Affiliates' Inter-Company Accounts Receivable. Together with all Affiliates (including without limitation Guarantor) subordinate payment of any existing and all future Affiliates' Inter-Company Accounts Receivable, including those described on Schedule 5.15 hereto, to the payment of all Obligations due hereunder; provided, however that NCR may pay the NCR Note Payments to Guarantor on the condition that equal funds are simultaneously reinvested in the Borrowers. SECTION 5.16 Maintain Net Working Capital. Maintain Net Working Capital in the minimum amount of Three Million Dollars ($3,000,000) in the aggregate, adjusted downward proportionately for Asset Sales approved by Lenders. SECTION 5.17 Notice of FCC Reports. Promptly upon their becoming available, provide Agent with copies of each periodic or special report filed by or on behalf of any Borrower with the FCC, if such reports indicate any material adverse change in the business, operations, affairs, or conditions of Borrower's business, and copies of any material notices or other communications from the FCC which specifically relate to the operation of each Borrower's business. SECTION 5.18 Purchase of the HPS Assets. On or before December 31, 1997: (a) use the funds disbursed pursuant to Section 2.2(a)(8) to complete the purchase of the HPS Assets according to the terms of the HPS Purchase Agreement and deliver to Agent within fifteen (15) days thereafter any additional documents reasonably required by Agent in connection therewith to perfect Lenders' security interest in the Assets used in connection with the ownership and operation thereof; or (b) pay said funds to Lenders to be applied to the then -41- outstanding Obligations in accordance with the provisions of Section 2.8 hereof (provided, however, that no Call Option Price shall be due and payable as a result of such payment). SECTION 5.19 Purchase of KTRR. On or before August 1, 1998: (a) use the funds disbursed pursuant to Section 2.2(a)(9) to complete the purchase of KTRR according to the terms of the KTRR Purchase Agreement and deliver to Agent within fifteen (15) days thereafter any additional documents reasonably required by Agent in connection therewith to perfect Lenders' security interest in the Assets used in connection with the ownership and operation thereof; or (b) pay said funds to Lenders to be applied to the then outstanding Obligations in accordance with the provisions of Section 2.8 hereof (provided, however, that no Call Option Price shall be due and payable as a result of such payment). SECTION 5.20 Surplus Cash Flow Sharing Agreement. At Lenders' option and within ten (10) days of the Borrowers' receipt of written notice from Lenders of the exercise of such option, pay 75% of all Borrowers' Annual Surplus Cash Flow to Lenders, the payment of which shall be applied as a prepayment in the manner set forth in Section 2.8 hereof; provided, however that no Call Option Price shall be due and payable as a result of such prepayment. The Borrowers' Annual Surplus Cash Flow shall be calculated based on Fiscal Year End information supplied by the Borrowers to Lenders, and the Borrowers shall deliver to Lenders written notice of the amount of the Borrowers' Annual Surplus Cash Flow (together with supporting calculations therefor) no later than seventy-five (75) days after the Borrowers' Fiscal Year End. Lenders shall, no later than ten (10) days after receipt of such notice, notify the Borrowers of Lenders' election to exercise their option to have the Loan prepaid under this Section 5.20 (failure to deliver notice of such election being deemed an election by Lenders not to have the Loan prepaid). SECTION 5.21 Maintain Bank Accounts. Maintain funds disbursed to the Capital Expenditure Reserve Fund and for the purchase of KTRR and the HPS Assets pursuant to Section 2.2 hereof in a deposit account in which Lenders have a duly perfected first priority security interest; provided, however, that such funds may be disbursed for the uses described in Section 3.4 hereof, subject to the requirements of Section 5.18 and Section 5.19 hereof. ARTICLE VI NEGATIVE COVENANTS The Borrowers further covenant and agree that until the Obligations have been fully paid to Lenders, the Borrowers shall not without the prior written consent of Lenders: SECTION 6.1 Debt. Create incur or suffer to exist any Debt except for (a) Permitted Debt as described in Schedule 6.1 hereof; (b) creation of any additional Affiliates' Inter-Company Accounts Receivable permitted as set forth in Section 6.8 hereof; (c) increases in management incentive liabilities as described on Schedule 6.1 hereto; or (d) Debt incurred in the -42- ordinary course of business in connection with Authorized Capital Expenditures in an amount not to exceed the amount of the Authorized Capital Expenditures to which such Debt relates; provided, however, that Borrowers may incur Debt in connection with the making of an Acquisition, the purchase of KTRR and the purchase of the HPS Assets upon receipt of Lenders' prior written consent upon terms and evidenced by documentation subject to Lender's approval in Lenders' sole discretion. SECTION 6.2 Liens. Create, assume or suffer to exist any Lien (including the lien of an attachment, judgment or execution) securing any Debt, charge or obligation, on any of the Assets of the Borrowers, whether now owned or hereafter acquired, except for Permitted Liens as described in Schedule 6.2 hereof. SECTION 6.3 Merger, Consolidation, Transfer of Assets. Liquidate or dissolve, or enter into any consolidation, merger or other combination, or lease or conduct any Asset Sale with respect to any of the Borrowers' Assets or businesses, or any one of them, including the Radio Stations and the Collateral and all Licenses relating thereto. SECTION 6.4 Loans, Advances, Investments, Subsidiaries, Acquisitions, Guaranties. Except for Permitted Debt, Acquisitions approved by Lenders pursuant to Section 3.2 and Section 3.3, and as provided in Section 2.2 and Section 6.8 herein, make any loans or advances to, or any investment in, any Person; nor acquire any interest in any entity; nor acquire or form any new Subsidiary; nor guaranty or become liable in any way as surety, endorser or accommodation endorser (except as an endorser or accommodation endorser in the ordinary course of business); nor pledge or hypothecate any Assets as security for, any liabilities or obligations of any other Person. SECTION 6.5 Character of Business. Engage in any business activities or operations substantially different from or unrelated to the present business activities and operations of the Borrowers. SECTION 6.6 Dividends, Distributions. Declare or pay any dividend or distribution in cash or kind except as provided for in Section 2.2(f) herein or any distribution to or from CMN for or to any Newspaper Operator. In the event that Guarantor incurs personal income tax obligations related to his ownership interests in the Borrowers which are subchapter "S" corporations or limited liability companies, Lenders will consider Guarantor's request for the payment of a dividend by such the Borrowers to pay Guarantor's personal income tax obligation. SECTION 6.7 Capital Expenditures. Make cash Capital Expenditures in excess of Authorized Capital Expenditures unless the Borrowers receive Lenders' prior written consent; provided, however, each Borrower shall be permitted to make reasonable expenditures for the purchase or lease of vehicles which are reasonably necessary to the operation of its business. The purchase of Acquisitions permitted to be made pursuant to Section 3.2 and Section 3.3 of this Agreement, the purchase of the HPS Assets and the purchase of KTRR shall not be -43- deemed Capital Expenditures for purposes of this Section 6.7. At the Borrowers' request, Lenders may, but shall not be required, to modify the limitation on Authorized Capital Expenditures as set forth in this Section 6.7 after the Borrowers' purchase of an Acquisition approved by Lenders pursuant to the terms of this Agreement. SECTION 6.8 Transactions with Affiliates. Directly or indirectly: (a) make any investment in any Affiliate other than a Borrower (including the acquisition of capital stock, bonds, notes, debentures, partnership or other ownership interests or other securities of any Affiliate other than a Borrower); (b) make any deposit with, or advance, loan or other extension of credit to any Affiliate other than a Borrower, or guaranty of, or other contingent obligation with respect to, Debt or other liability of any Affiliate other than a Borrower and (without duplication) any amount committed to be advanced, lent or extended to any Affiliate other than a Borrower; (c) merge into or consolidate with or purchase or acquire assets from any Affiliate other than a Borrower; (d) transfer, sell, lease, assign or otherwise dispose of any assets to any Affiliate other than a Borrower; (e) enter into any transaction directly or indirectly with or for the benefit of any Affiliate other than a Borrower (including guaranties and assumptions of obligations of such Affiliate); or (f) distribute any cash or make any payments to Guarantor, BMC Inc., or BMC L.P., except arm's length equivalent payments for reimbursement of goods and services in the ordinary course of business (and limited to reimbursement for insurance and other similar third party expenses) or to any Affiliate other than a Borrower, including any family members of Guarantor, BMC Inc., and or to BMC L.P., or any Affiliate other than a Borrower, for any purpose, including without limitation payment of any Affiliates' Inter-Company Accounts Receivable, salaries, wages, management fees, and capital distributions, except that the Borrowers may (1) pay the Affiliate Payments to BMC L.P.; and (2) make reimbursements of payments for third party goods and services delivered and/or rendered for the benefit of the Borrowers and delivered and/or incurred in the ordinary course (and limited to reimbursement for insurance and other similar third party expenses). SECTION 6.9 Change in Location of Principal Place of Business and Assets. Relocate the principal place of business and/or Assets of any Borrower. SECTION 6.10 Change in Ownership. Cause, permit or suffer any change, direct or indirect, in the capital ownership, membership or control of any Borrower, Pledgor, or any corporate, partnership, or limited liability company Affiliate owning or controlling, directly or indirectly, any Borrower. SECTION 6.11 Change in Name. Cause, permit or suffer any change in the name of any Borrower. SECTION 6.12 Limitation on Expenditures. Make distributions of Net Operating Income or contributions of cash except for the payment of Authorized Payments. -44- SECTION 6.13 Change in Operating Agreement/Articles of Incorporation/Bylaws. Amend or otherwise make any change to (a) any operating agreement or change any initial "Manager" of a Borrower that is a limited liability company (as defined in such Borrower's operating agreement) and (b) any corporate Borrower's Articles of Incorporation or Bylaws without Lenders' prior written approval, which approval may be granted or withheld at Lenders' sole discretion. SECTION 6.14 Entry into Purchase Agreement, etc. Enter into any purchase agreement, time brokerage agreement, local marketing agreement, joint venture agreement, joint sales agreement or any other similar agreement relating to the purchase or other acquisition of an interest in any new Acquisition (or any amendment to any existing such agreement) other than as set forth in Article III herein. Notwithstanding the foregoing, Guarantor may enter into such agreements in connection with the purchase or other acquisition of a business enterprise or entity that is not within the radio broadcasting or newspaper industries without Lenders' prior written consent. SECTION 6.15 Change in Fiscal Year or Fiscal Year End. Change any Borrower's Fiscal Year or Fiscal Year End. SECTION 6.16 Maintain Net Operating Income. Fail to generate Net Operating Income levels on the cumulative basis set forth in Schedule 6.16 hereto (the monthly Net Operating Income level is for reference purposes only) provided that (a) upon sale of the Duluth Radio Stations (i) the monthly Net Operating Income level shown on Schedule 6.16 shall be reduced by the amount of $25,000 per month, and (ii) the minimum cumulative Net Operating Income level shown on Schedule 6.16 shall be reduced by $25,000 per month multiplied by the number of months elapsed since the date of such sale (assuming the Duluth Sale Proceeds reduce the amount of the Obligations by the minimum amount of $4,500,000; provided, however, that such amount shall not be construed as a release price for the Duluth Radio Stations); (b) upon sale of the Missouri Radio Stations (i) the monthly Net Operating Income level shown on Schedule 6.16 shall be reduced by the amount of $40,000 per month and (ii) the minimum cumulative Net Operating Income level shown on Schedule 6.16 shall be reduced by $40,000 per month multiplied by the number of months elapsed since the date of such sale (assuming the Missouri Sale Proceeds reduce the amount of the Obligations by the minimum amount of $6,000,000; provided, however, that such amount shall not be construed as a release price for the Missouri Radio Stations); (c) upon making an Acquisition approved by Lenders in accordance with the provisions of Section 3.3 hereof (i) the monthly Net Operating Income level shown on Schedule 6.16 shall be increased by the amount of $9,000 per month, and (ii) the minimum cumulative Net Operating Income level shown on Schedule 6.16 shall be increased by the amount of $9,000 per month multiplied by the number of months elapsed since the date of making such Acquisition for each one million dollars re-borrowed by the Borrowers. Upon the occurrence of a sale or the making of an Acquisition described under clause (a), (b) or (c) hereof, Schedule 6.16 shall, if Lenders so request, be amended in a manner satisfactory to Lenders as a condition precedent to Lenders' funding any Additional Advance. -45- ARTICLE VII EVENTS OF DEFAULT AND REMEDIES SECTION 7.1 Events of Default. The occurrence of any one or more of the following events, acts or occurrences shall constitute an event of default (an "Event of Default") hereunder: (a) The Borrowers fail to timely pay any payment of interest due on the Notes; (b) The Borrowers fail to pay off the Loan when due and payable, including the payment of any Post-Closing Lender Expenses, or any other amount payable hereunder; (c) The Borrowers fail to observe or perform any material covenant set forth in Article V, Article VI or Article VIII herein or any other Credit Document except as set forth in subsections (a), (it (k) (w) and (x) herein; (d) Any representation, warranty, certification or statement made by any Borrower in this Agreement, in any certificate, Financial Statement or other document delivered pursuant to this Agreement, or under any Credit Document proves to have been incorrect in any material respect when made; (e) Any Borrower commences a voluntary Insolvency Proceeding seeking liquidation, reorganization or other relief with respect to itself or its Debt or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or consents to any such relief or to the appointment of or taking possession by any such official in an involuntary Insolvency Proceeding or fails generally to pay its Debt as it becomes due, or takes any corporate action to authorize any of the foregoing; (f) (1) A court of competent jurisdiction enters a decree or order for relief in respect of any Borrower in an insolvency case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency, or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (2) An involuntary Insolvency Proceeding is commenced against any Borrower seeking liquidation, reorganization or other relief with respect to it or its Debt or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary Insolvency Proceeding remains undismissed and unstayed for a period of sixty (60) days; -46- (g) A judgment creditor obtains possession of any of the Assets of any Borrower by any means, including levy, distraint, replevin, or self-help, or one or more judgments are entered against the Borrowers involving singly or in the aggregate a liability in excess of $50,000 (to the extent not fully covered by insurance) or any order, judgment or decree is entered decreeing the dissolution of the Borrowers and such order remains undischarged or unstayed for a period in excess of thirty (30) calendar days; (h) Brill fails to own and control one hundred percent (100%) of the ownership interests in the Holding Companies and BNI; (i) Any of the Credit Documents fails to be in full force and effect for any reason, or, except for Permitted Liens, Lenders fail to have a perfected, first priority lien in all of the Collateral assigned or pledged to Lenders thereunder other than as the result of some action or inaction by Lenders, or a default or event of default occurs under any Credit Document; 6) The Borrowers fail to maintain insurance as provided in Section 5.5 hereof; (k) The Borrowers fail to furnish Agent required financial reports or covenant compliance certificates after the time requirements provided in Section 5.3 hereof; (1) The FCC Licenses, but excluding the auxiliary licenses, are modified adversely, revoked, suspended, canceled or otherwise rendered non-transferable by the FCC or any other regulatory agency or court of competent jurisdiction; (m) Any Radio Operator shall fail to be the licensee under any or all of the FCC Licenses other than in connection with a sale or transfer of any of the FCC Licenses consented to by Lenders; (n) Any of the Radio Stations shall fail to maintain any broadcast signal for any period of three (3) consecutive days for any reason other than natural causes or an act of war; (o) The Borrowers contribute any cash or cash equivalents, either as loans, loan repayments, distributions, exchanges, etc., to ARB Two, for any purpose whatsoever, including without limitation for capital improvements, to supplement daily cash flow, or for working capital of ARB Two; (p) The Borrowers default under any obligation secured by the Permitted Liens; (q) The Borrowers fail to generate Net Operating Income levels on the cumulative basis set forth in Section 6.16 hereof; -47- (r) The Borrowers fail to maintain Net Working Capital in the minimum amount set forth in Section 5.16 hereof; (s) The termination of any Plan or the institution by the PBGC of proceedings for the involuntary termination of any Plan, in either case, by reason of, or which results or could result in, a material "accumulated funding deficiency" under Section 412 of ERISA or the failure by any Borrower to make required contributions, in accordance with the applicable provisions of ERISA, to any Plan now or hereafter established or assumed by it; (t) The Borrowers enter into any purchase agreement, time brokerage agreement, local marketing agreement, joint venture agreement, joint sales agreement or any other similar agreement relating to the purchase or other acquisition of an interest in any new Acquisition (or any amendment to any existing such agreement) other than as set forth in Article Ill and Section 6.14 herein. (u) The Borrowers cause, permit or suffer any change, direct or indirect, in the capital ownership, membership or control of any Borrower, Pledgor, or corporate, partnership, or limited liability company Affiliate owning or controlling, directly or indirectly, any Borrower without Lenders' prior written consent; (v) Any Borrower that is a limited liability company amends or otherwise makes any change to its operating agreement or changes its initial "Manager" (as defined in any such Borrower's operating agreement) without Lenders' prior written approval; (w) The Borrowers fail to comply with the requirements set forth in Section 5.18; and (x) The Borrowers fail to comply with the requirements set forth in Section 5.19. SECTION 7.2 Remedies. (a) Upon the occurrence of any Event of Default under Section 7.1(e) or Section 7.1(f) hereof the Obligations shall become immediately due and payable without any election or action on the part of Lenders. Upon the occurrence and continuance of any other Event of Default not cured within the Cure Period, if applicable, Lenders may, at their election, immediately declare the Obligations to be due and payable, and the Obligations shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which the Borrowers hereby expressly waive. (b) Upon the occurrence of an Event of Default, the amounts due under the AMRESCO Note and the Goldman Sachs Note shall immediately begin to accrue interest at the Default Rate unless waived by Lenders. In the event an Event of Default is one under Section -48- 7.1 (a), (j) or (k), and such Event of Default is cured within the Cure Period, the interest rate on the Loan shall revert to the Initial Interest Rate plus the Additional Interest Rate. (c) Upon the occurrence of Events of Default as set forth in Section 7.1, unless cured within the Cure Period, if applicable, the Borrowers, Pledgors, and Guarantor, shall: (1) At Agent's request, stipulate to the appointment of a receiver in a court of competent jurisdiction, and (2) In the event of such appointment, consent to and cooperate with the liquidation of the Radio Stations and all Collateral for the Loan by the receiver, or (3) Consent to and cooperate with such other non-judicial foreclosure proceedings conducted or initiated by Agent. (d) Upon the occurrence of any Event of Default, Lenders shall have all other remedies set forth herein and in the other Credit Documents and all remedies at law, in equity, or under the Uniform Commercial Code that are consistent with the Communications Act and the rules and regulations of the FCC; provided, however, that in no event shall any Lender obtain, or have the right to obtain, a deficiency judgment against any Pledgor other than the Guarantor under the Guaranty. ARTICLE VIII TRANSFER OF TITLE TO RADIO STATIONS AND NEWSPAPERS SECTION 8.1 No Transfer Without Consent of Lenders. Borrower shall not transfer title to the Radio Stations, the Newspapers, or any or all of the FCC Licenses related to the operation of the Radio Stations without the Lenders' prior written consent. ARTICLE IX MISCELLANEOUS SECTION 9.1 Notices. All notices, requests and other communications to any party hereunder shall be in writing and shall be given to such party at its address and to the telefax number set forth below or such other address or telefax number as such party may hereafter specify for the purpose by notice to the other party: If to the Borrowers: Brill Media Company, L.P. 420 N.W. Fifth Street, Suite 420 -49- P.O. Box 3353 Evansville, IN 47732 Attention: Mr. Alan R. Brill Telephone: (812) 423-6200 Facsimile: (812) 428-4021 with a copy to: Charles Laughlin, Esq. Thompson & McMullan 100 Shockoe Slip Richmond, VA 23219 Telephone: (804) 649-7545 Facsimile: (804) 780-1813 If to Agent: AMRESCO Funding Corporation 700 Pearl Street Suite 2400 - LB 342 Dallas, TX 75201-7424 Attention: Ted B. Bartley Telephone: (214) 953-3323 Facsimile: (214) 720-1577 If to Lenders: AMRESCO Funding Corporation 700 Pearl Street Suite 2400 - LB 342 Dallas, TX 75201-7424 Attention: Ted B. Bartley Telephone: (214) 953-8323 Facsimile: (214) 720-1577 and Goldman Sachs Credit Partners L.P. 85 Broad Street, 27th Floor -50- New York, NY 10004 Attention: Richard Katz Jay Strauss Nicholas Weber Telephone: (212) 902-5492 (212) 902-0940 (212) 902-3829 Facsimile: (212) 902-2417 (212) 902-3684 and Goldman Sachs Credit Partners L.P. 85 Broad Street, 6th Floor New York, NY 10004 Attention: Ms. Jennifer Perry Telephone: (212) 902-4599 Facsimile: (212) 357-4597 with a copy to: Patricia H. Lyon, Esq. French, Lyon & Associates 71 Stevenson Street, Suite 1425 San Francisco, CA 94105 Telephone: (415) 597-7849 Facsimile: (415) 243-8200 Any notice or other communication provided for or allowed hereunder shall be considered to have been validly given if delivered personally, and evidenced by a receipt signed by an authorized agent or addressee, or 72 hours after being deposited in the United States mail, registered or certified, postage prepaid, return receipt requested, or 48 hours after being sent by Federal Express or other courier service, or, in the case of telefaxed notice, when telefaxed, receipt acknowledged. SECTION 9.2 No Waivers. No failure or delay by Agent in exercising any right, power or privilege hereunder or under any Credit Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise -51- thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. SECTION 9.3 Expenses; Documentary Taxes; Indemnification. (a) Borrower shall pay (1) all Lenders' Pre-Closing Expenses; (2) all Lender's Post-Closing Expenses; and (3) if an Event of Default occurs, all out-of-pocket expenses incurred by Lenders, including reasonable attorneys' fees and expenses incurred in connection with such Event of Default and collection and other enforcement proceedings resulting therefrom or in connection with any refinancing or restructuring of the Obligations and the liabilities of the Borrowers under this Agreement, any of the other Credit Documents, or any other document, instrument or agreement subsequently entered into. (b) In the event that Lenders become involved in any capacity in any action, proceeding or investigation brought by or against any person, including stockholders of the Borrowers or Guarantor, in connection with or as a result of either the Loan, this Agreement or the other Credit Documents, the Borrowers and Guarantor jointly and severally, periodically will reimburse Lenders for their legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith. The Borrowers and Guarantor, jointly and severally, also will indemnify and hold Lenders harmless against any and all losses, claims, damages or liabilities to any such person in connection with or as a result of either this arrangement or any matter referred to in this Agreement or the other Credit Documents, except to the extent that any such loss, claim, damage or liability results from the gross negligence or bad faith of Lenders in performing their obligations under this Agreement. If for any reason the foregoing indemnification is unavailable to Lenders or insufficient to hold them harmless, then the Borrowers and Guarantor, jointly and severally, shall contribute to the amount paid or payable by Lenders as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect an equitable allocation of the liability on the basis of the relative economic interests of the Borrowers and Guarantor and their respective stockholders on the one hand and Lenders on the other hand in the matters contemplated by this Agreement, as well as the relative fault of the Borrowers, Guarantor and Lenders with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of the Borrowers and Guarantor under this paragraph shall be in addition to any liability which the Borrowers and Guarantor may otherwise have, shall extend upon the same terms and conditions to any affiliate of Lenders and the partners, officers, directors, agents, employees and controlling persons (if any), as the case may be, of Lenders or any such affiliate, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representative of the Borrowers, Guarantor, Lenders, any such affiliate and any such person. The Borrowers and Guarantor also agree that neither Lenders nor any affiliates, partners, officers, directors, agents, employees or controlling persons of Lenders shall have any liability to the -52- Borrowers or Guarantor or any person asserting claims on behalf of or in right of same or any other person in connection with or as a result of either this arrangement or any matter referred in this Agreement or the other Credit Documents except to the extent that any losses, claims, damages, liabilities or expenses incurred by the Borrowers or Guarantor result from the gross negligence or bad faith of Lenders in performing their obligations under this Agreement. Borrowers' and Guarantor's obligations under this Section 9.3 shall survive repayment of the Loan or any termination of the Borrowers' or Guarantor's Obligations under the Credit Documents. SECTION 9.4 Amendments and Waivers. Any provision of this Agreement, or any of the other Credit Documents to which the Borrowers are a party, may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Borrowers and Lenders. SECTION 9.5 Successors and Assigns; Representations of Lenders. (a) Successors and assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns except that the Borrowers may not assign or transfer any of their rights or obligations under this Agreement without the prior written consent of Lenders. Each of AMRESCO and Goldman Sachs may assign all or any part of the Loan made by it to an "accredited investor" (as defined in Regulation D under the Securities Act of 1933, as amended) which extends credit or buys loans in the ordinary course of its businesses (an "Eligible Assignee") upon notice to Agent and the Borrowers and consent of Goldman Sachs or AMRESCO, respectively (such consent not to be required in the case of an assignment to an affiliate of the Lender and in any event not to be unreasonably withheld). Upon the execution and delivery of an assignment and assumption agreement, (1) the assignee thereunder shall become a party hereto and to the extent that rights and obligations hereunder have been assigned to it, shall have the rights and obligations of a Lender hereunder, and (2) the assigning Lender shall, to the extent that rights and obligations hereunder have been assigned by it, and assumed by such assignee, relinquish its rights and be released from its obligations under this Agreement. Upon the effectiveness of any such assignment, the Borrowers shall execute new notes in the form of the Notes to the assigning Lender and the assignee reflecting their respective Pro Rata Shares of the Loan and concurrently with receipt of such new notes the assigning Lender will return to the Borrowers the existing Note. Lenders may also grant participations in the Loan made by them. Lenders may also pledge their interest in their respective Notes and their proportionate interest in the Collateral to a lender of such Lender or such Lender's affiliates. (b) Representations of Lenders. Each Lender initially party to this Agreement hereby severally represents and agrees that each person that becomes a Lender pursuant to an assignment permitted by this Section 9.5 upon its becoming a Lender under this Agreement shall be deemed to severally represent and agree that (1) it is a sophisticated commercial financial institution or "accredited investor" (as defined in Regulation D under the Securities Act of 1933, -53- as amended), in each case, which makes loans in the ordinary course of its business; (2) it is making its Loan and acquiring its Note for its own account in the ordinary course of its business and without a view to distribution of the Loan or the Note within the meaning of the federal securities laws; (3) it has received such financial or other information about the Borrowers and their business as such Lender deems necessary and appropriate; and (4) it shall not transfer or assign all or any part of its Loan or Note except to an Eligible Assignee (as defined in Section 9.5(a)), and any such transfer or assignment shall be made in accordance with all applicable laws, rules and regulations. SECTION 9.6 Counterparts; Integration; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof. It is the intention of each of the parties hereto that the Original Credit Agreement be amended and restated so as to preserve the perfection and priority of all security interests securing indebtedness and obligations under the Original Credit Agreement and the other Credit Documents, that all Obligations of the Borrowers and the Pledgors hereunder and thereunder shall be secured by the Credit Documents, and that this Agreement shall not constitute a novation of the obligations and liabilities existing under the Original Credit Agreement or be deemed to evidence or constitute repayment of all or any portion of any such of the Obligations. The parties hereto further acknowledge and agree that this Agreement constitutes an amendment of the Original Credit Agreement made under the terms of Section 9.4 thereof. This Agreement shall become effective upon the execution of a counterpart hereof by each Borrower and Lenders and receipt by Borrowers and Agent of written or telephonic notification of such execution and authorization of delivery thereof; provided that, unless and until all of the conditions set forth in Section 3.1 hereof have been satisfied or waived in accordance with Section 9.4 of the Original Credit Agreement, the Original Credit Agreement shall remain in full force and effect without giving effect to the amendments set forth herein, all as if this Agreement had never been executed and delivered. Telefaxed signatures on this Agreement will be effective as originals. SECTION 9.7 Governing Law; Jurisdiction. (a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS (EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY SET FORTH THEREIN) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. (b) JURISDICTION AND VENUE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT OR THE -54- OTHER CREDIT DOCUMENTS MAY BE TRIED AND LITIGATED IN THE STATE OF NEW YORK, OR, AT THE SOLE OPTION OF LENDERS, IN ANY OTHER COURT IN WHICH LENDERS INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS JURISDICTION OVER THE SUBJECT MATTER AND PARTIES IN CONTROVERSY. TO THE EXTENT THEY MAY LEGALLY DO SO, THE PARTIES HERETO HEREBY WAIVE ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 9.7(b) AND STIPULATE THAT ANY SUCH COURT SHALL HAVE IN PERSONAM JURISDICTION AND VENUE OVER EACH SUCH PARTY FOR THE PURPOSE OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE OTHER CREDIT DOCUMENTS. SERVICE OF PROCESS SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST BORROWER MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THEIR ADDRESS SPECIFIED FOR NOTICES PURSUANT TO SECTION 9.1 HEREOF. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL FOR ALL PURPOSES BE DEEMED TO HAVE BEEN ENTERED INTO IN THE STATE OF NEW YORK. (c) WAIVER OF TRIAL BY JURY. THE PARTIES HERETO EACH AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including without limitation contract claims, tort claims, breach of duty claims and all other common law and statutory claims. The parties hereto each (1) acknowledge that this waiver is a material inducement for the parties to enter into a business relationship, that the parties hereto have already relied on this waiver in entering into this Agreement or accepting the benefits thereof, as the case may be, and that each will continue to rely on this waiver in their related future dealings, and (2) further warrant and represent that each has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS OF THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. SECTION 9.8 Survival of Warranties. All agreements (including without limitation the provisions of Section 9.3) and the representations and warranties made herein shall survive the execution and delivery of this Agreement. -55- SECTION 9.9 Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. SECTION 9.10 Maximum Interest Rate. Notwithstanding anything to the contrary contained in the Notes or this Agreement, the Borrowers shall not be obligated to pay, and Lenders shall not be entitled to charge, collect, receive, reserve, or take interest (it being understood that interest shall be calculated as the aggregate of all charges which constitute interest under applicable law that are contracted for, charged, reserved, received, or paid) in excess of the maximum rate permitted by law. During any period of time in which the interest rates specified herein exceed the maximum rate permitted by law, interest shall accrue and be payable at such maximum rate; provided that if the interest rate declines below the maximum rate permitted by law, interest shall continue to accrue and be payable at the maximum rate permitted by law (so long as there remains any unpaid principal) until the interest that has been paid under this Agreement or the Notes equals the amount of interest that would have been paid if interest had at all times accrued and been payable at the applicable interest rates specified in this Agreement. If from any circumstances whatsoever, fulfillment of any provision of the Notes, or this Agreement or of any other document pertaining hereto or thereto, shall involve transcending the limit of validity prescribed by law for the collection or charging of interest, then ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity, and if from any such circumstances Lenders shall ever receive anything of value as interest or deemed interest by applicable law under the Notes, this Agreement, any of the other Credit Documents or any other document pertaining hereto, thereto or otherwise an amount that would exceed the maximum rate permitted by law, such amount that would be excessive interest shall be applied to the reduction of the principal amount owing under the Notes or on account of any other indebtedness of the Borrowers to Lenders, and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal of such indebtedness, such excess shall be refunded to the Borrowers. In determining whether or not the interest paid or payable with respect to any indebtedness of the Borrowers to Lenders, under any specified contingency, exceeds the maximum rate permitted by law, the Borrowers and Lenders shall, to the maximum extent permitted by applicable law, (a) characterize any non-principal payment as an expense, fee or premium rather than as interest, (b) exclude voluntary prepayments and the effects thereof, (c) amortize, prorate, allocate and spread the total amount of interest throughout the actual term of such indebtedness such that it does not exceed the maximum amount permitted by applicable law, and/or (d) allocate interest between portions of such indebtedness, to the end that no such portion shall bear interest at a rate greater than that permitted by applicable law. SECTION 9.11 Headings. Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. -56- SECTION 9.12 Marshaling; Payments Set Aside. Neither Agent nor any Lender shall be under any obligation to marshal any assets in favor of the Borrowers or any other party or against or in payment of any or all of the Obligations. To the extent any Borrower makes a payment or payments to Agent or Lenders (or to Agent for the benefit of Lenders), or Agent or Lenders enforce any security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, or other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred. SECTION 9.13 Public Announcement. Upon Closing of the Loan, Lenders are authorized in their discretion to issue news releases and at its own expense to publish "tombstone ads" and other announcements in newspapers, trade journals and other appropriate media, containing information about the Loan as may be deemed noteworthy by Lenders, including without limitation the legal and trade name of the Borrowers, the amount of the Loan and the name, nature and location of the Collateral. SECTION 9.14 Further Assurances and Release By Lenders. Upon payment in full of the Obligations, as herein provided, this Credit Agreement and each of the other Credit Documents shall terminate and the Lenders shall transfer and deliver, or cause to be transferred and delivered, to the Borrowers all Stock, and all certificates and evidences of title to said Stock, or any other Collateral, and, at the Borrowers' sole expense, shall execute and deliver to the borrowers such termination statements or such other instruments and further assurances as the Borrowers' reasonably may request acknowledging satisfaction and discharge of the Obligations and this Agreement and each of the other Credit Documents, with the exception of the Guaranty. ARTICLE X AGENT SECTION 10.1 Appointment. AMRESCO is hereby appointed Agent hereunder and under the other Credit Documents and each Lender hereby authorizes Agent to act as its agent in accordance with the terms of this Agreement and the other Credit Documents. Agent agrees to act upon the express conditions contained in this Agreement and the other Credit Documents, as applicable. The provisions of this Article X are solely for the benefit of Agent and Lenders. The Borrowers, Pledgors and Guarantor shall have no rights as third party beneficiaries of any of the provisions hereof. In performing its functions and duties under this Agreement, Agent shall act solely as an agent of Lenders and does not assume and shall not be -57- deemed to have assumed any obligation towards or relationship of agency or trust with or for the Borrowers. SECTION 10.2 Powers and Duties; General Immunity. (a) Powers: Duties Specified. Each Lender irrevocably authorizes Agent to take such action on such Lender's behalf and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Agent shall have only those duties and responsibilities that are expressly specified in this Agreement and the other Credit Documents. Agent may exercise such powers, rights and remedies and perform such duties by or through its agents, affiliates or employees. Agent shall not have, by reason of this Agreement or any of the other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing in this Agreement or any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as to impose upon Agent any obligations in respect of this Agreement or any of the other Credit Documents except as expressly set forth herein or therein. (b) Exculpatory Provisions. Neither Agent nor any of its officers, directors, employees or agents shall be liable to Lenders for any action taken or omitted by Agent under or in connection with any of the Credit Documents except to the extent caused by Agent's gross negligence or willful misconduct. Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection with this Agreement or any of the other Credit Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until Agent shall have received instructions in respect thereof from Lenders and, upon receipt of such instructions from Lenders, Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions. Without prejudice to the generality of the foregoing, (1) Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for the Borrowers), accountants, experts and other professional advisors selected by it; and (2) no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or (where so instructed) refraining from acting under this Agreement or any of the other Credit Documents in accordance with the instructions of Lenders. (c) Agent Entitled to Act as Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loan, Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not performing the duties and functions delegated to it -58- hereunder, and the term "Lender" or "Lenders" or any similar term shall, unless the context clearly otherwise indicates, include Agent in its individual capacity. (d) No Responsibility for Certain Matters. Agent shall not be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Agreement or any other Credit Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by Agent to Lenders or by or on behalf of the Borrowers to Agent or any Lender in connection with the Credit Documents and the transactions contemplated thereby or for the financial condition or business affairs of the Borrowers or any other Person liable for the payment of any Obligations, nor shall Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to the use of the proceeds of the Loan or as to the existence or possible existence of any Event of Default or Default. (e) Representations and Warranties. No Responsibility For Appraisal of Creditworthiness. Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of the Borrowers in connection with the making of the Loan hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of the Borrowers. Agent shall not have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto other than the information provided by the Borrowers hereunder, and Agent shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Lenders. SECTION 10.3 Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify Agent, to the extent that Agent shall not have been reimbursed by the Borrowers for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, reasonable counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against Agent in exercising its powers, rights and remedies or performing its duties hereunder or under the other Credit Documents or otherwise in its capacity as Agent in any way relating to or arising out of this Agreement or the other Credit Documents; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from Agent's gross negligence or willful misconduct. If any indemnity furnished to Agent for any purpose shall, in the opinion of Agent, be insufficient or become impaired, Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. -59- SECTION 10.4 Successor Agent. Agent may resign at any time by giving 30 days' prior written notice thereof to Lenders and the Borrowers, and Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Borrowers and Agent and signed by Lenders. Upon any such notice of resignation or any such removal, Lenders shall have the right, upon five Business Days' notice to the Borrowers, to appoint a successor Agent. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, that successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent and the retiring or removed Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or removed Agent's resignation or removal hereunder as Agent, the provisions of this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. SECTION 10.5 Collateral Documents. Each Lender hereby further authorizes Agent, on behalf of and for the benefit of Lenders, to enter into each Credit Document granting a security interest in Collateral to Lenders and to be the agent for and representative of Lenders under each Credit Document granting a security interest in Collateral to Lenders and each Lender agrees to be bound by the terms of each Credit Document granting a security interest in Collateral; provided that Agent shall not (a) enter into or consent to any amendment, modification, termination or waiver of any provision contained in any such Credit Document or (b) release any Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or the applicable Credit Document), in each case without the prior consent of Lenders; provided further, however, that, without further written consent or authorization from Lenders, Agent may execute any documents or instruments necessary to release any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted by this Agreement or to which Lenders have otherwise consented. Notwithstanding anything contained in any of the Credit Documents to the contrary, the Borrowers, Agent and each Lender hereby agree that (aa) no Lender shall have any right individually to realize upon any of the Collateral under any Credit Document, it being understood and agreed that all rights and remedies under the Credit Documents granting security interests in Collateral may be exercised solely by Agent for the benefit of Lenders in accordance with the terms hereof and thereof, and (bb) in the event of a foreclosure by Agent on any of the Collateral pursuant to a public or private sale, Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale. to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by Agent at such sale. SECTION 10.6 Apportionment of Payments. All payments of interest, principal and fees received by Agent from the Borrowers or other cash proceeds of the Loan, the Collateral or the Guaranty received by the Agent shall be apportioned among Lenders -60- proportionately to each Lender's Pro Rata Share (irrespective of any directions or designation by the Borrowers to the contrary). Agent shall promptly distribute to each Lender, at it address set forth in Section 9.1 or at such other address as Lender may request, its Pro Rata Share of all such payments. SECTION 10.7 Delivery of Notices and Reports. Agent shall promptly upon receipt thereof deliver to each Lender copies of all notices, financial information, reports, documents and other information delivered to Agent by the Borrowers pursuant to the Credit Documents. SECTION 10.8 Control By Lenders. Notwithstanding anything herein or in any Credit Document to the contrary, with respect to any actions required or permitted to be taken by Lenders or by Agent at the direction of Lenders (including without limitation approvals, consents, waivers, amendments, acceleration, and any exercise of remedies) under this Agreement or any other Credit Document, "Lenders" shall be deemed to mean: (a) all Lenders, with respect to any such action which (1) reduces the principal amount of the Loan or decreases the interest rate borne by the Loan, (2) postpones the Maturity Date or any date upon which interest is payable, (3) releases the Liens on the Collateral other than as permitted under the Credit Documents or releases the Guaranty, (4) changes any Lender's Pro Rata Share or (5) amends or modifies this Section 10.8; and (b) Lenders holding 51% of the outstanding amount of the Loan, with respect to all other such actions. SECTION 10.9 Ratable Sharing. Lenders hereby agree among themselves that if any of them shall, whether by voluntary payment, by realization upon security, through the exercise of any right of set-off or banker's lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to that Lender hereunder or under the other Credit Documents (collectively, the "Aggregate Amounts Due" to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (1) notify Agent and each other Lender of the receipt of such payment and (2) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided that if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of the Borrowers or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. -61- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. Borrowers: ARB FINANCE - ONE, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, President NORTHLAND BROADCASTING, LLC By: Northland Management, Inc., a Virginia corporation, Managing Member By: /s/ Alan R. Brill -------------------------------------- Alan R. Brill, Vice President READING RADIO, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President CENTRAL MISSOURI BROADCASTING, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President NORTHERN COLORADO RADIO, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President TRI-STATE BROADCASTING, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President -62- CMB II, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President NB II, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN NEWSPAPERS, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President GRAPH ADS PRINTING, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President GLADWIN NEWSPAPERS, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President CADILLAC NEWSPAPERS, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President MIDLAND BUYER'S GUIDE, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President -63- CMN ASSOCIATED PUBLICATIONS, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN DISTRIBUTION CO., INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN DISTRIBUTION CO., L.P. By: Central Michigan Distribution Co., Inc. Its General Partner By: /s/ Alan R. Brill -------------------------------------- Alan R. Brill, Vice President ST. JOHNS NEWSPAPERS, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President NCR II, INC. By: /s/ Alan R. Brill ----------------------------------------- Alan R. Brill, Vice President NCR III, LLC By: NCR II, Inc., a Virginia corporation, Managing Member By: /s/ Alan R. Brill -------------------------------------- -64- Alan R. Brill, Vice President TSB III, LLC By: Tri-State Management, Inc., a Virginia corporation, Managing Member By: /s/ Alan R. Brill -------------------------------------- Alan R. Brill, President TSB IV, LLC By: Tri-State Management, Inc., a Virginia corporation, Managing Member By: /s/ Alan R. Brill -------------------------------------- Alan R. Brill, President HURON NEWSPAPERS, LLC By: Huron Management, Inc., a Virginia corporation, Managing Member By: /s/ Alan R. Brill -------------------------------------- Alan R. Brill, Vice President HURON P.S., LLC By: Huron Management, Inc., a Virginia corporation, Managing Member By: /s/ Alan R. Brill -------------------------------------- Alan R. Brill, Vice President -65- LENDERS: AMRESCO FUNDING CORPORATION a Delaware corporation, as a Lender and as Agent By: /s/ Ted B. Bartley ----------------------------------------- Ted B. Bartley, Vice President GOLDMAN SACHS CREDIT PARTNERS L.P. a Bermuda limited partnership, as a Lender By: /s/ Nicholas Weber ----------------------------------------- Authorized Signatory -66- EXHIBITS AND SCHEDULES Schedule 1.1(24) Borrowers' Certificate Schedule 1.1(100) Permitted Third Party Debt Service Schedule 2.1(a) Lenders' Original Loan Amounts Schedule 2.2 Disbursement Authorization and Schedule Schedule 2.8 Call Option Price Schedule 4.1 Legal Status Schedule 4.6 Litigation Schedule Schedule 4.9(b) FCC Licenses Schedule 4.10 Ownership of Borrowers Schedule 4.11(b) Real Property Interests - Owned/Leased Schedule 4.13 Real Property Leases and Transmitter Related Leases Schedule 4.14 Default Conditions - Other Obligations Schedule 4.18 PBGC Liabilities Schedule 4.21 Environmental Matters/Existing PCBs Schedule 4.25 Capitalized Leases Schedule 4.26 Operating Leases Schedule 5.3(e) Monthly Covenant Compliance Certificate Schedule 5.3(f) Annual Covenant Compliance Certificate Schedule 5.15 Affiliates' Inter-Company Accounts Receivable Schedule 6.1 Permitted Debt Schedule 6.2 Permitted Liens Schedule 6.16 Net Operating Income Levels Exhibit A - Acknowledgment and Ratification Agreement Exhibit B - Security Agreement Exhibit C - Pledge of Membership Interest in LLC Exhibit D - Pledge Agreement Covering Stock Schedule 1.1(24) BORROWERS' CERTIFICATE The undersigned do hereby certify that the following is true and correct: 1. This Borrowers' Certificate is made pursuant to Section [3.1(g) or 3.3(o)] of that certain Amended and Restated Credit Agreement ("Credit Agreement") dated as of September 30, 1997, and executed by and among Borrowers and Lenders (all capitalized terms used herein shall have the meanings ascribed to them under the terms of the Credit Agreement). 2. We are the duly elected_______ and _______ of the Borrowers. 3. Each Person signing this Borrowers' Certificate in a representative capacity hereby certifies that such Person has read the Credit Agreement and has made or has caused to be made such examination or investigation necessary to make this Borrowers' Certificate. 4. Each of the conditions set forth in Section [3.1 or 3.3] of the Credit Agreement has been fully complied with except as otherwise disclosed to and agreed to in writing by Lenders. 5. No Borrower is in default of any material term, covenant or condition under any Credit Document. 6. No event has occurred, or would result from the making of the [Closing Date Advances or Additional Advances] and the application of the proceeds thereof, that would constitute a Default or an Event of Default. 7. There has been no change in the financial condition of any of the Borrowers since the previous Financial Statements provided by the Borrowers to Agent dated [insert date] that would constitute or give rise to a Material Adverse Effect with respect to Borrowers taken as a whole. 8. Each Borrower has performed in all material respects all agreements and satisfied all conditions that are required under the Credit Documents to be performed or satisfied on or before the date of the funding of the [Closing Date Advance(s) or Additional Advance(s)] except as otherwise disclosed to and agreed to in writing by Agent. 9. All representations and warranties contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects as of the [date of funding the Closing Date Advances or date of funding the Additional Advance(s)] though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date. 10. [The [identify appropriate Acquisition purchase agreement] has not been materially modified or amended since Lender's approval dated [insert date] except as follows: [insert description of amendments or modifications].] 11. There has been no change to the "call letters" for the Radio Stations except as follows: [insert any new call letters]. IN WITNESS WHEREOF, the Borrowers have caused this Borrowers' Certificate to be duly executed by their respective authorized officers as of [date]. BORROWERS: ARB FINANCE - ONE, INC. By: --------------------------------------- Alan R. Brill, President NORTHLAND BROADCASTING, LLC By: Northland Management, Inc., a Virginia corporation, Managing Member By: --------------------------------------- Alan R. Brill, Vice President READING RADIO, INC. By: --------------------------------------- Alan R. Brill, Vice President CENTRAL MISSOURI BROADCASTING, INC. By: --------------------------------------- Alan R. Brill, Vice President NORTHERN COLORADO RADIO, INC. By: --------------------------------------- Alan R. Brill, Vice President TRI-STATE BROADCASTING, INC. By: --------------------------------------- Alan R. Brill, Vice President CMB II, INC. By: --------------------------------------- Alan R. Brill, Vice President NB II, INC. By: --------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN NEWSPAPERS, INC. By: --------------------------------------- Alan R. Brill, Vice President GRAPH ADS PRINTING, INC. By: --------------------------------------- Alan R. Brill, Vice President GLADWIN NEWSPAPERS, INC. By: --------------------------------------- Alan R. Brill, Vice President CADILLAC NEWSPAPERS, INC. By: --------------------------------------- Alan R. Brill, Vice President MIDLAND BUYER'S GUIDE, INC. By: --------------------------------------- Alan R. Brill, Vice President CMN ASSOCIATED PUBLICATIONS, INC. By: --------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN DISTRIBUTION CO., INC. By: --------------------------------------- Alan R. Brill, Vice President CENTRAL MICHIGAN DISTRIBUTION CO., L.P. By: Central Michigan Distribution Co., Inc. By: --------------------------------------- Alan R. Brill, Vice President ST. JOHNS NEWSPAPERS, INC. By: --------------------------------------- Alan R. Brill, Vice President NCR II, INC. By: --------------------------------------- Alan R. Brill, Vice President NCR III, LLC By: NCR II, Inc., a Virginia corporation, Managing Member By: --------------------------------------- Alan R. Brill, Vice President TSB III, LLC By: Tri-State Management, Inc., a Virginia corporation, Managing Member By: --------------------------------------- Alan R. Brill, President TSB IV, LLC By: Tri-State Management, Inc., a Virginia corporation, Managing Member By: --------------------------------------- Alan R. Brill, President HURON NEWSPAPERS, LLC By: Huron Management, Inc., a Virginia corporation, Managing Member By: --------------------------------------- Alan R. Brill, Vice President HURON P.S., LLC By: Huron Management, Inc., a Virginia corporation, Managing Member By: --------------------------------------- Alan R. Brill, Vice President Schedule 1.1(100) Permitted Third Party Debt Service (a) Debt service payments by CMB II to Town and Country Communications, Inc., not to exceed the aggregate amount of $36,400 plus reasonably related costs per Fiscal Year; (b) Debt service payments by NB II to QB Broadcasting, Inc., not to exceed the aggregate amount of $109,800 plus reasonably related costs per Fiscal Year; (c) Debt service payments by Tri-State to Owensboro National Bank not to exceed the aggregate amount of $125,000 plus reasonably related costs per Fiscal Year; (d) Debt service payments by St. Johns to Harriet Field and Rebecca M. Wood not to exceed the aggregate amount of $l10,000 plus reasonably related costs per Fiscal Year; and (e) Debt service payments by NCR III, LLC to Onyx Broadcasting, Inc., and Thomas P. Gammon not to exceed the aggregate amount of $240,000 plus reasonably related costs per Fiscal Year. SCHEDULE 2.1(a) Lender's Original Loan Amounts AMRESCO:
Initial Interest Add'l Interest Total Due Note Date Principal as of 9/30/97 as of 9/30/97 as of 9/30/97 - --------- --------- ------------- ------------- ------------- 02/06/96 $ 4,000,000.00 $ 38,666.67 $ 312,277.78 $ 4,350,944.45 05/21/97 2,000,000.00 19,333.33 40,333.33 2,059.666.66 07/25/97 2,000,000.00 19,333.33 20,472.22 2,039.805.55 ---------------- ------------ ------------- ---------------- $ 8,000,000.00 $ 77,333.33 $ 373,083.33 $ 8,450,416.66
GOLDMAN SACHS:
Initial Interest Add'l Interest Note Date Principal as of 9/30/97 as of 9/30/97 Total Due - --------- --------- ------------- ------------- --------- 02/06/96 $ 36,000,000.00 $ 348,000.01 $2,810,500.00 $ 39,158,500.01 05/21/97 6,000,000.00 58,000.00 121,000.00 6,179,000.00 07/25/97 6,000,000.00 58,000.00 61,416.67 6,119,416.67 ---------------- ------------ ------------- ---------------- $ 48,000,000.00 $ 464,000.01 $2,992,916.67 $ 51,456,916.68
SCHEDULE 2.2 Disbursement Authorization and Schedule Upon funding of the Loan, Lenders are authorized to disburse the Loan proceeds as follows:
Recipient Purpose Amount --------- ------- ------- 1. Borrowers Capital Expenditure Reserve Fund, $ 9,547,666.66 purchase of the HPS Assets, purchase of KTRR, authorized distribution to Guarantor and Borrowers' working capital 2. Goldman Sachs, Allocation for Original Goldman Sachs $51,456,916.68 as Lender Notes 3. AMRESCO, Allocation for Original AMRESCO Notes $ 8,450,416.66 as Lender 4. AMRESCO, Expense Deposit, Agent's Fee and $ 545,000.00 as Agent Lenders' Loan Fee -------------- $70,000,000.00
- -------------------------------- Alan R. Brill, as authorized signatory for all Borrowers Schedule 2.8 Call Option Price
Period(Months) Percentage -------------- ---------- 0-6 104.0 7 103.8 8 103.6 9 103.4 10 103.2 11 103.0 12 102.8 13 102.6 14 102.4 15 102.2 16 102.0 17 101.8 18 101.6 19 101.4 20 101.2 21 101.0 22 100.8 23 100.6 24 or after 100.5
Schedule 4.1 Legal Status/Ownership of Borrowers/ Issued and Outstanding Shares or Interests
State of Authorized Shares Issued/ Corporation Incorporation Shares Outstanding Owner Business ----------- ------------- ---------- -------------- ----- -------- ARB Finance - One, Inc. Virginia 1000 shs common 100 shs Alan R. Brill Finance of Affiliates Cadillac Newspapers, Inc. Virginia 2000 shs common 100 shs Central Michigan Newspapers, Inc. Newspaper Publishing Central Michigan Distribution Co., Virginia 1000 shs common 100 shs Central Michigan Newspapers, Inc. Newspaper Publishing Inc. Central Michigan Newspapers, Inc. Virginia 2000 shs common 1000 shs CMN Holding, Inc. Newspaper Pub1ishing Central Missouri Broadcasting, Inc. Virginia 1000 shs common 1000 shs Alan R. Brill Radio Broadcasting CMB II, Inc. Virginia 5000 shs common 100 shs Alan R. Brill (pledged to secure Radio Broadcasting Town and Country Communications - purchase money) CMN Associated Publications, Inc. Virginia 1000 shs common 100 shs Central Michigan Newspapers, Inc. Newspaper Publishing Gladwin Newspapers, Inc. Virginia 2000 shs common 100 shs Central Michigan Newspapers, Inc. Newspaper Publishing Graph Ads Printing, Inc. Virginia 1000 shs common 100 shs Central Michigan Newspapers, Inc. Newspaper Publishing Midland Buyer's Guide, Inc. Virginia 1000 shs common 100 shs Central Michigan Newspapers, Inc. Newspaper Publishing NB II, Inc. Virginia 5000 shs common 100 shs Alan R. Brill Pledged to Q.B. Radio Broadcasting Broadcasting, Ltd. - purchase money) Northern Colorado Radio, Inc. Virginia 1000 shs common 100 shs Alan R. Brill Radio Broadcasting Reading Radio, Inc. Virginia 2000 shs common 2000 shs Brill Radio, Inc. Radio Broadcasting Tri-State Broadcasting. Inc. Virginia 5000 shs common 100 shs Alan R. Brill Radio Broadcasting St. John's Newspapers, Inc. Virginia 5000 shs common 100 shs Alan R. Brill (pledged to Wood) Newspaper Publishing NCR II, Inc. Virginia 5000 shs common 100 shs Alan R. Brill (pledged to Onyx Radio Broadcasting Broadcasting, Inc.)
LIMITED LIABILITY COMPANIES
Company State of Formation Members Business ------- ------------------ ------- -------- Northland Broadcasting, LLC Virginia Northland Holdings, LLC, a Virginia limited liability company Radio Broadcasting (99%); Northland Management, Inc., a Virginia corporation (1%) - Manager TSB III, LLC Virginia Tri-State Holdings, LLC, a Virginia limited liability company Radio Broadcasting (99%); Tri-State Management, Inc., a Virginia corporation (1%) - Manager TSB IV, LLC Virginia Tri-State Holdings, LLC, a Virginia limited liability company Radio Broadcasting (99%); Tri-State Management, Inc., a Virginia corporation (1%) - Manager Huron Newspapers, LLC Virginia Huron Holdings, LLC, a Virginia limited liability company Newspaper (99%); Huron Management, Inc., a Virginia corporation (1%) - Publishing Manager Huron P.S., LLC Virginia Huron Holdings, LLC, a Virginia limited liability company Newspaper (99%); Huron Management, Inc., a Virginia corporation (1%) - Publishing Manager NCR III, LLC Virginia NCH II, LLC, a Virginia limited liability company (99%); NCR II, Inc., a Virginia corporation (1 %) - Manager
LIMITED PARTNERSHIP
State of Authorized Shares Issued/ formation States Outstanding Owner Business --------- ------ ----------- ----- -------- Central Michigan Distribution Co., Virginia N/A N/A Central Michigan Distribution Newspaper Publishing L.P., a Virginia limited partnership Co., Inc., General Partner, and Brill Newspapers, Inc., Limited Partner
Schedule 4.6 Litigation Schedule The only litigation currently pending in which any Borrower, Pledgor or Guarantor is a party defendant or counterclaim or cross-claim defendant is as follows: Pinnacle Broadcasting d/b/a WYNG, and Rusty Maples a/k/a Rusty James v. Brill Media, Inc. d/b/a WKDQ Radio, Vanderburgh, Indiana Superior Court, Cause No. 82D03-9705-CP-1491. This case involves a claim for proprietary rights to use the name "Rusty James" for an on-air personality in the Evansville, Indiana-Owensboro, Kentucky market area. Settlement is imminent and will result in no payment of monetary relief or damages by the named defendants. The defendants will agree only to discontinue use of the name "Rusty James" for an on-air personality at radio station WKDQ. Schedule 4.9(b) I. Radio Stations Owned by Borrowers Central Missouri Broadcasting, Inc. Reading Radio, Inc. KLIK-AM 950 & KTXY-FM 106.9 WIOV-AM 1240 & WIOV-FM 105.1 3605 Country Club Drive 44 Bethany Road Jefferson City, MO 65109 Ephrata, PA 17522 (Cole County) (Lancaster County) Thomas (Tom) L. Thies, General Manager Mitch Carroll, General Manager CMB II, Inc. TRI-State Broadcasting, Inc. KATI-FM 94.3 WOMI-AM 1490 & WBKR-FM 92.5 3605 Country Club Drive 3301 Frederica Street Jefferson City, MO 65109 Owensboro, KY 42301 (Cole County) (Daviess County) Thomas (Tom) L. Thies, General Manager Gary Exline, General Manager Northern Colorado Radio, Inc. TSB IV, LLC KUAD FM 99 WKDQ-FM (99.5) 600 Main Street 3020 Second Street Windsor, CO 80550 Henderson, Kentucky 42420 (Weld County) Gary Exline, General Manager Dan Conway, General Manager TSB III, LC Northland Broadcasting, LC WVJS-AM 1420 & WSTO-FM 96.1 WEBC-AM 560 & KKCB-FM 105.1 3301 Frederica Street 1001 East Ninth Street Owensboro, Kentucky 42301 Duluth, MN 55805 (Daviess County) (St. Louis County) Gary Exline, General Manager Charles Norman, General Manager NB II, Inc. KLDJ-FM 101.7 1001 East Ninth Street Duluth, MN 55805 (St. Louis County) Charles Norman, General Manager 1 II. Borrowers' FCC Overall License Summary A. READING RADIO, INC. 1. WIOV-AM; Reading, PA 1240 kHz; Class C-lkw-nondirectional-unlimited hours File # BZ-910919AC Eff: 10/29/92 Exp. 8/01/98 2. WIOV-FM; Ephrata, PA 105.1 MHz; Class B; 25kw-nondirectional-unlimited hours; 212 meters HAAT File # BLH-910708KA Eff: 7/27/92 Exp: 8/1/98 3. KGF678 450.45 MHz and 455.45 MHz RP Auxiliary Remote Pickup. Associated station: WIOV-FM Power: 100 watts File # 9403480733 Eff: 5/20/94 Exp: 8/1/98 4. WNTY44I 22025 MHz Business microwave. Associated station: WIOV-FM File # 9502711684 Eff: 4/4/95 Exp: 4/4/2000 2 5. WNTY442 22325 MHz and 22175 MHz Business microwave. Associated station: WIOV-FM File # 9502711685 Eff: 4/4/95 Exp: 4/4/2000 6. WNTY443 23525 MHz Business microwave. Associated station: WIOV-FM File # 9502711686 Eff: 4/4/95 Exp: 4/4/2000 7. WNTY444 23225 MHz and 23375 MHz Business microwave. Associated station: WIOV-FM File # 9502711687 Eff: 4/4/95 Exp: 4/4/2000 8. WIOV-FM 105.1 MHz-booster construction permit FM broadcast booster station 5kw nondirectional File # BPFTB-941206TC Eff: 4/28/95 Exp: 10/26/96 Application to extend construction permit filed October 25, 1996. BMPFTB-961025TL Application to modify construction permit filed October 25, 1996. 3 B. CENTRAL MISSOURI BROADCASTING, INC. 1. KTXY-FM; Jefferson City, MO 106.9 MHz; class "C"; 100kw non-directional unlimited hours; 381 meters HAAT License # BLH-900727KA Grant: 1/31/97 Exp: 2/01/05 2. KLIK-AM; Jefferson City, MO 950 kHz; 5kw day non-directional; .5kw night directional. Unlimited hours. File # BZ-900205AA Grant: 1/31/97 Exp: 2/01/05 3. KPK31O 450.01 MHz RP Auxiliary Remote Pick Up. Affiliated station KTXY Power: 30 watts File # 900525MA Eff: 10/24/90 Exp: 02/01/05 4. WLO--653 949.00 MHz Auxiliary Broadcast Aural STL. Unlimited hours. Affiliated with KTXY Power: 10 watts File # BPLST-880921MB Eff: 6/15/89 Exp: 2/01/05 5. KB-55702 450.15MHz and 450.25 MHz Auxiliary Broadcast R/P Mobile System. Associated with KTXY. Power: 15 watts File # BLNRE-880714MB Eff: 9/26/88 Exp: 2/01/05 4 6. WMU-454 951.5 MHz Auxiliary Broadcast Aural Intercity Relay. Associated with KTXY Power: 5 watts File # BPLIC-930923MD Eff: 12/16/93 Exp: 2/01/05 7. WLO-538 948 MHz Auxiliary Broadcast Aural STL. Associated with KLIK. Power: 6 watts File # BPLST-880921MA Eff: 2/07/89 Exp: 2/01/05 8. KEH-584 161.70, 161.76 MHz Remote Pick Up base Mobile System. Associated with KLIK, KTXY. Power: 90 watts File # BLRE-28345 Eff: 8/29/77 Exp: 2/01/05 5 C. CMBII, Inc. 1. KATI-FM; California, MO 94.3 MHz Class "C2"; 50 kw nondirectional; 150 meters HAAT; unlimited hours Grant: 1/28/97 Expiration: 2/01/05 6 D. NORTHLAND BROADCASTING, LLC 1. KKCB-FM; Duluth, MN 105.1 MHz 100 kw nondirectional; 790 feet HAAT; unlimited hours File # BLH-830311AG Eff: 3/27/97 Exp: 4/01/05 2. WEBC-AM; Duluth, MN 560 kHz 5kw fulltime operation directional; unlimited hours File # BR-620 Eff: 3/27/97 Exp: 4/01/05 3. WAX-32 949.0 MCS Aural STL; associated with WEBC Power: 8 watts File # BLST-487 Eff: 5/28/69 Exp: 4/01/05 4. WLG-708 945.00 MHz Auxiliary Broadcast Aural Intercity Relay; Associated with WAVC-FM Power: 7 watts File # BPLIC-850912MH Eff: 1/17/86 Exp: 4/01/05 5. WHE-957 455.35 MHz Auxiliary Broadcast R/P Base Mobile System; Associated with WEBC Power: 25 watts File # BPLRE-820809MH Eff: 11/16/82 Exp: 4/01/05 7 6. KZ-2668 161.67; 161.76 MHz Remote Pickup Mobile System; Operated with WEBC Power: 30 watts Eff: 4/01/80 Exp: 4/01/05 7. KPJ-206 455.98 MHz Auxiliary Broadcast R/P Base Station; associated with WAVC Power: 1 watt Eff: 12/04/85 Exp: 4/01/05 8 E. NBII, INC. 1. KLDJ-FM; Duluth, MN 101.7 MHz Class "C2"; 18.5kw; 251 meters HAAT; unlimited hours License File # BLH-960709KB Eff: 9/24/96 Exp: 4/01/05 *2 WMU-681 946.625; 946.3750 Auxiliary Broadcast Aural Intercity Relay; Associated with KLXK-FM Power: 10 watts File # BPIC-940314MG Eff: 4/08/94 Exp: 4/01/05 * License in FCC data base in name of prior licensee. Request for transfer filed. 9 F. NORTHERN COLORADO RADIO, INC. 1. KUAD-FM; Windsor, CO 99.1 MHz 100 kw nondirectional; 660 feet HAAT; unlimited hours File # BRH7912O3WA Eff: 7/22/92 Exp: 4/01/97 Renewal Application Pending 2. KXZ-922 (NOTE: NO LONGER IN USE) 450.85 MHz Auxiliary Broadcast R/P Automatic Relay Power: 25 watts File # BPLRE-840716MU Eff: 9/26/84 Exp: 4/01/97 Renewal Application Pending 3. KTB-597 (NOTE: NO LONGER IN USE) 450.85; 455.85 MHz Auxiliary Broadcast R/P Base Station Power: 10 watts File # BPLRE-840716MT Eff: 9/26/84 Exp: 4/01/97 Renewal Application Pending 4. WAY-650 949.00 MHz Auxiliary Broadcast Aural STL Power: 8 watts File # BPLST-84718MV Eff: 9/26/84 Exp: 4/01/97 Renewal Application Pending 10 G. TRI-STATE BROADCASTING, INC. 1. WBKR-FM; Owensboro, KY 92.5 MHz 100 kw fulltime nondirectional; 319 meters HAAT License # BLH-870121KD Eff: 7/26/89 (renewed on 7/26/96) Exp: 8/01/04 2. KB-97370 450.01 MHz Auxiliary Broadcast - Telemetry Return Link for WBKR Power: 1 watt File # BLNRE-860923MB Eff: 11/17/86 Exp: 8/01/04 3. WME-707 945.00 MHz Auxiliary Broadcast Aural Intercity Relay; associated station WOMI & WBKR Power: 7 watts File # BPLIC-910401MP Eff: 8/06/91 Exp: 8/01/04 4. WLF-786 946.00 MHz Auxiliary Broadcast Aural STL Power: 10 watts File # BPLST-860923MA Eff: 11/17/86 Exp: 8/01/04 5. KFZ-709 161.73; 161.64 MHz Auxiliary Broadcast R/P Mobile System; associated with WBKR & WOMI Power: 40 watts File # BMLRE-840709ME Eff: 8/30/84 Exp: 8/01/04 11 6. WBKR 92.5 MHz Auxiliary Antenna; 100 kw @ 115 meters HAAT File # BLH-870127KC Eff: 10/19/87 Exp: 8/01/04 7. WOMI 1490 kHz Main & Auxiliary Transmitters for WOMI File # BZ-9630 Power: 1 kw; unlimited hours Eff: 4/27/78 (renewed on 7/26/96) Exp: 8/01/04 8. KB-96030 450.45; 450.80 MHz Auxiliary Broadcast R/P Mobile System; associated with WOMI & WBKR Power: 5 watts File # BLNRE-91040MF Eff: 8/06/91 Exp: 8/01/04 12 H. TSB IV, LLC TSB IV, LLC owns the following FCC licenses as of the date of Closing: 1. WKDQ-FM Henderson, KY 99.5 Mhz Station Operating License File # BLH-881025KC 100 KW fulltime non-directional 300 meters HAAT Effective: 7-26-96 Expires: 8-1-03 2. WLL-712 Studio-transmitter Link FCC File # BPLST-881107MK Frequency = 950.800 Mhz Expires: 8-1-03 (renews with station license) 3. KPK-984 Transmitter-Studio Link FCC File # BMLRE 890501MB Frequency = 450.020 Mhz Expires: 8-1-03 4. KC24820 R/P Mobile System (Marti) FCC File # BLNRE-91007MB Frequency 166.250 Mhz Expires: 8-1-03 5. KZH-855 R/P Base Unit (Marti) FCC File # BLRE-26069 Frequency 161.700 Mhz Expires: 8-1-03 6. KA-88941 R/P Mobile Unit (Marti) FCC File # BMLRE-850429MG Frequency 455.350 Mhz Expires: 8-1-03 13 I. TSB III, LLC 1. WVJS-AM Owensboro, KY 1420 kHz Station Operating License File #: BZ - 950120AA Power: 5 kW day. 1 kW nites Effective 8/1/96 Expires: 8/1/2003 2. WSTO-FM Owensboro, KY 96.1 MHz 100 kw fulltime non-directional. 1001 feet HAAT. License file #: BLH-820601A0 Effective: 8/1/96 Expires: 8/1/2003 3. WHA-989 Studio-Transmitter Link Associated Station: WSTO FCC file #: BPLST-810604M5 Frequency: 948.0 MHz Expires: 8/1/2003 4. WQB-232 Transmitter-Studio Link Associated Station: WSTO FCC file #: BPLRE-810604MP Frequency: 455.01 MHz Expires: 8/1/2003 5. KAJ-672 Remote Pick Up Associated station: Both FCC file #: BRRE-790413ME Frequency: 161.64, 153.29 MHz Expires: 8/1/2003 6. KZ2523 Remote Pick Up Associated station: Both FCC file #: BRRE-790413ME Frequency: 450.05 MHz Expires: 8/1/2003 14 7. KS2942 Remote Pick Up Associated station: Both FCC file #: BLRE-800603MA Frequency: 161.67 MHz Expires: 8/1/2003 8. KC-27741 Remote Pick Up Associated station: Both FCC file #: 9402480694 Frequency: 450.25; 450.70; 455.25; 455.70 MHz Expires: 8/1/2003 9. BLP-01162 LP Auxiliary Low Power Associated station: Both FCC file #: 9508481352 Frequency: 944.00; 952.00 MHz Expires: 8/1/2003 10. KNEP-792 Business Band Associated station: Both FCC file #: 9603D02603 1 Frequency: 460.825; 465-825 MHz Expires: 8/1/03 11. KA64106 1B Business Associated Station: Both FCC File #: 9409R06062 Frequency: 154.54 MHz Expires: 8/1/03 12. STATION LICENSE FOR AUXILIARY TRANSMITTER WSTO 96.1MHz 100 kw; 340 FT HAAT License #: BLH-830720AF Expires: 8/1/2003 15 Schedule 4.10 Ownership of Borrowers/Pledgors Issued and Outstanding Shares CORPORATE BORROWERS
================================================================================================================================= State of Authorized Shares Issued, Borrower Corporation Incorporation Shares Outstanding Owner ================================================================================================================================= ARB Finance - One, Inc. Virginia 1000 shs common 100 shs Alan R. Brill - --------------------------------------------------------------------------------------------------------------------------------- Cadillac Newspapers, Inc. Virginia 2000 shs common 100 shs Central Michigan Newspapers, Inc. - --------------------------------------------------------------------------------------------------------------------------------- Central Michigan Distribution Virginia 1000 shs common 100 shs Central Michigan Newspapers, Inc. Co., Inc. - --------------------------------------------------------------------------------------------------------------------------------- Central Michigan Newspapers, Virginia 2000 shs common 1000 shs CMN Holding, Inc. Inc. - --------------------------------------------------------------------------------------------------------------------------------- Central Missouri Virginia 1000 shs common 1000 shs Alan R. Brill Broadcasting, Inc. - --------------------------------------------------------------------------------------------------------------------------------- CMB II, Inc. Virginia 5000 shs common 100 shs Alan R. Brill 1,000 (pledged to secure Town and Country Communications - purchase money) - --------------------------------------------------------------------------------------------------------------------------------- CMN Associated Publications, Virginia 1000 shs common 100 shs Central Michigan Newspapers, Inc. Inc. - --------------------------------------------------------------------------------------------------------------------------------- Gladwin Newspapers, Inc. Virginia 2000 shs common 100 shs Central Michigan Newspapers, Inc. - --------------------------------------------------------------------------------------------------------------------------------- Graph Ads Printing, Inc. Virginia 1000 shs common 100 shs Central Michigan Newspapers, Inc. - --------------------------------------------------------------------------------------------------------------------------------- Midland Buyer's Guide, Inc. Virginia 1000 shs common 100 shs Central Michigan Newspapers, Inc. - --------------------------------------------------------------------------------------------------------------------------------- NB 11, Inc. Virginia 5000 shs common 100 shs Alan R. Brill (pledged to Q. B. Broadcasting, Ltd. - purchase money) - --------------------------------------------------------------------------------------------------------------------------------- Northern Colorado Radio, Inc. Virginia 1000 shs common 100 shs Alan R. Brill - --------------------------------------------------------------------------------------------------------------------------------- Reading Radio, Inc. Virginia 2000 shs common 2000 shs Brill Radio, Inc. - --------------------------------------------------------------------------------------------------------------------------------- Tri-State Broadcasting, Inc. Virginia 5000 shs common 100 shs Alan R Brill - --------------------------------------------------------------------------------------------------------------------------------- St. John's Newspapers, Inc. Virginia 5000 shs common 100 shs Alan R. Brill - --------------------------------------------------------------------------------------------------------------------------------- NCR 11, Inc. Virginia 5000 shs common 100 shs Alan R. Brill =================================================================================================================================
LIMITED PARTNERSHIPS - BORROWERS
================================================================================================================================= Limited Partnership State of Organization Partners Business - --------------------------------------------------------------------------------------------------------------------------------- Central Michigan Distribution, L.P. Virginia Central Michigan Distribution Co., Newspaper Inc., General Partner and Brill Publishing Newspapers, Inc., Limited Partner =================================================================================================================================
LIMITED LIABILITY COMPANIES - BORROWERS
================================================================================================================================= Company State of Members Business Organization ================================================================================================================================= Northland Broadcasting, Virginia Northland Holdings, LLC, a Virginia limited Radio Broadcasting LLC liability company (99%); Northland Management, Inc., a Virginia corporation (1%) - Manager - --------------------------------------------------------------------------------------------------------------------------------- TSB III, LLC Virginia Tri-State Holdings, LLC, a Virginia limited Radio Broadcasting liability company (99%); Tri-State Management, Inc., a Virginia corporation (1%) - Manager - -------------------------------------------------------------------------------------------------------------------------------- TSB IV, LLC Virginia Tri-State Holdings, LLC, a Virginia limited Radio Broadcasting liability company (99%); Tri-State Management, Inc., a Virginia corporation (1%) - Manager - --------------------------------------------------------------------------------------------------------------------------------- NCR III, LLC Virginia NCH II, LLC, a Virginia limited liability company None (99%); NCR 11, Inc., a Virginia corporation (1%) - Manager - --------------------------------------------------------------------------------------------------------------------------------- Huron Newspapers, LLC Virginia Huron Holdings, LLC, a Virginia limited liability Newspaper company (99%); Huron Management, Inc., a Publishing Virginia corporation (1%) - Manager - --------------------------------------------------------------------------------------------------------------------------------- Huron P.S., LLC Virginia Huron Holdings, LLC, a Virginia limited liability Newspaper company (99%); Huron Management, Inc., a Publishing Virginia corporation (1%) - Manager =================================================================================================================================
CORPORATE PLEDGORS
================================================================================================================================= State of Authorized Shares Issued/ Pledgor Incorporation Shares Outstanding Owner - --------------------------------------------------------------------------------------------------------------------------------- Brill Radio, Inc. Virginia 1000 shs common 1000 shs Alan R. Brill - --------------------------------------------------------------------------------------------------------------------------------- Brill Newspapers, Inc. Virginia 70 shs S. Cum. Pfd. 1000 shs (voting) Alan R. Brill shs Class 200 shs Convert. Pfd. 150 shs (non-voting) A Common; 150 shs 1000 shs Class A Common Class B non-voting 2000 shs Class B Common - --------------------------------------------------------------------------------------------------------------------------------- Central Michigan Virginia 2000 shs common 1000 shs CMN Holding, Inc. Newspapers, Inc. - --------------------------------------------------------------------------------------------------------------------------------- CMN Holding, Inc. Virginia 5000 shs Sr. Cum. Pfd. 1000 shs Class A Common Brill Newspapers, Inc. 1000 shs Jr. Cum. Pfd. 1000 shs Class A Common 1000 shs Class B Common - --------------------------------------------------------------------------------------------------------------------------------- Northland Management, Virginia 5000 shs common 100 shs Northland Holdings, Inc. Inc. - --------------------------------------------------------------------------------------------------------------------------------- Northland Virginia 5000 shs common 100 shs Brill Media Holdings, Holdings, Inc. Inc. - --------------------------------------------------------------------------------------------------------------------------------- Tri-State Management, Inc. Virginia 5000 shs common 100 shs Tri-State Holdings, Inc. - ---------------------------------------------------------------------------------------------------------------------------------
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================================================================================================================================= State of Authorized Shares Issued/ Pledgor Incorporation Shares Outstanding Owner ================================================================================================================================= Tri-State holdings, Virginia 5,000 shs common 100 shs Brill Media Holdings, Inc. Inc. - --------------------------------------------------------------------------------------------------------------------------------- Huron Management, Virginia 5,000 shs common 100 shs Huron Holdings, Inc. Inc. - --------------------------------------------------------------------------------------------------------------------------------- Huron Holdings, Inc. Virginia 5,000 shs common 100 shs Brill Media Holdings, Inc. Inc. - --------------------------------------------------------------------------------------------------------------------------------- NCR II, Inc. Virginia 5,000 shs common 100 shs Alan R. Brill =================================================================================================================================
LIMITED LIABILITY COMPANIES - PLEDGORS
================================================================================================================================= State of Pledgor Organization Members - --------------------------------------------------------------------------------------------------------------------------------- Northland Holdings, LLC Virginia Brill Media Holdings, LLC, a Virginia limited liability company (99%); Northland Management, Inc., a Virginia corporation (1%) - Manager - --------------------------------------------------------------------------------------------------------------------------------- Tri-State Holdings, LLC Virginia Brill Media Holdings, LLC, a Virginia limited liability company (99%); Tri-State Management, Inc., a Virginia corporation (1%) - Manager - --------------------------------------------------------------------------------------------------------------------------------- Huron Holdings, LLC Virginia Brill Media Holdings, LLC, a Virginia limited liability company (99%); Huron Management, Inc., a Virginia corporation (1 %) - Manager - --------------------------------------------------------------------------------------------------------------------------------- NCH II, LLC Virginia Brill Media Holdings, LLC, a Virginia limited liability company (99%); NCR II, Inc., a Virginia corporation (1%) - Manager ==================================================================================================================================
Schedule 4.11(b) - Real Property Interests - Owned/Leased (Excluding leased sales offices) Reading Radio, Inc. Studio Owned Ephrara, PA WIOV-AM Tower & Site Owned Reading, PA WIOV-FM Tower Tower owned; land leased Ephrata, PA Tri-State Broadcasting, Inc. Studio Owned Owensboro National Bank Owensboro, KY WOMI-AM Tower & Site Owned Owensboro National Bank Same as studio WBKR-FM Tower & Site Owned Owensboro National Bank South of Owensboro, KY Northern Colorado Radio, Inc. Studio Owned (Subordinated 2nd) Windsor, CO Philip Brewer (seller) KUAD-FM Tower Tower owned; land leased Wells-Tennessen North of Windsor, CO Central Missouri Broadcasting, Inc. Studio Leased Jefferson City, MO KLIK-AM Tower Tower owned; land leased South of Jefferson City KTXY Tower Space Leased West of Jefferson City CMB II, Inc. KATI-FM Tower Space Leased (Leasehold) Ray Rouse West of Jefferson City, (seller) MO Northland Broadcasting, Inc. Studio Owned Duluth, MN WEBC-AM Tower & Site Owned Wisconsin - 10 miles cast KKCB-FM Tower Space Leased Duluth, MN NBII, Inc. KLDJ-FM Tower Space Leased Leasehold) Al Quanstrom Duluth, MN (seller) Central Michigan Newspapers, Inc. 5 N. Main Office Leased Mt. Pleasant, Ml 711 West Pickard Leased short term Mt. Pleasant, Ml Alma unimproved lot Owned Alma, Ml Gladwin Sales Office Owned Gladwin, Ml
SCHEDULE 4.13 Real Property Leases and Transmitter Related Leases (I) Existing Leases
Capital or Maturity Monthly Company Lessor Description Operating Date Payment ================================================================================================================================== CMB II Frank & Diana Newell KATI-FM Tower Space Operating Mar 99 $1,100.00 CMBI Tower Company, Inc. FM Tower/Transmitter Capital Jul 00 12,500.00 CMBI George & Agnes Merten KLIK-AM Tower Site Operating Jan 00 575.00 CMBI Daniel Gordon Studio Building Operating Oct 98 3,996.00 CMNI Mike Engwis Midland Sales Office Operating month to 593.00 month CMNI Pickard Industrial Park Graph Ads Printing Operating Sep 97 4,550.00 Building month to month Extension agreed to CMNI Gaylord Kurtz Cadillac Sales Office Operating Apr 98 450.00 CMNI PX Investment CMN Building Capital Mar 00 3,850.00 CMNI Lawrence Lippert Alma Sales Office Operating May 01 1,303.00 NB II WDIO-TV KIDJ-FM Tower Space Operating Feb 99 740.00 NB, LLC Duluth Superior Educational TV KKSB-FM Tower Space Operating Aug 98 1,725.00 NCRI William & Vera Dulmer KUAD-EM Tower Site Operating Apr 05 200.00 RRI Borough of Ephrata WIOV-FM Tower Site Operating Dec 04 433.00 NB II Tower Company, Inc. Transmitter & Technical Capital Apr 03 3,585.00 Equip. ST. JOHNS Harriett Field St. Johns sales office Operating Jun 99 500.00 TSB III, Owensboro On The Air, Inc. WSTO-FM Tower Site Operating Jul 2096. $1.00/ LLC yr TSB III, Owensboro On The Air, Inc. WVJS-AM Tower Site Operating Jul 2096 $1.00/ LLC yr
Schedule 4.14 Default Conditions - Other Obligations None SCHEDULE 4.18 PBGC Liabilities The employees of the various Borrowers are eligible to participate in the Brill Media Company, Inc. Employee Profit Sharing Plan (401-K Plan), copies of which have previously been provided to Lenders. Borrowers are unaware of any direct or contingent, asserted or unasserted claim by PBGC, the IRS or the Department of Labor with respect to such plan as of the date of Closing. Schedule 4.21 Environmental Matters/Existing PCB's 1. Underground storage tanks ("UST's") for fuel for diesel generators exist on the site of Central Missouri Broadcasting, Inc.'s KLIK-AM leased tower site. These UST's belong to the Federal Emergency Management Agency (FEMA) and are to be properly removed by FEMA, in accordance with applicable laws and regulations. 2. UST's were formerly located on the land owned by Graph Ads, Inc. in Alma, Michigan. These UST's have been properly removed, pursuant to applicable laws and regulations. 3. Polychlorinated biphenyls (PCB's) are known to exist within equipment owned by Borrowers at the following locations: (a) Reading Radio, Inc. - WIOV-AM transmitter site in Reading, PA; PCB's are contained in several 4" x 2" capacitors inside an old out of service transmitter. The PCB's are contained within the transmitter cavity and are not externally leaking. (b) Northland Broadcasting, Inc. - WEBC-AM transmitter site in Wisconsin. PCB's are contained within an old, out of service transmitter that is not leaking. Both of the transmitters referenced herein are disconnected from all power sources and are non-functional. No other PCB's are known to exist at any Borrower location. 4. Soil and sub-surface ground water contamination are known to exist at the Pickard Industrial Park location leased by Central Michigan Newspapers, Inc. The responsibility for clean-up of this site is not that of Central Michigan Newspapers, Inc. under applicable state and federal laws. Schedule 4.25 - Capital Leases (Capital leases less than $500 per month omitted, other than real estate, vehicle or transmitter related leases) (I) Existing Capital Leases
Maturity Monthly Company Lessor Description Date Payment ================================================================================================================== CMBI Tower Company, Inc. FM Tower/transmitter Jul 00 $ 12,500 CMBI Mike Kehoe Ford 94 Ford Van Jan 98 447 CMBI Mike Kehoe Ford - Ford Mtr. Crdt. 94 Ford Jan 98 447 CMNI Ryder 98 Navistar Truck and Dec 02 2,410 Stoughton Trailer CMNI PX Investment CMN Building Mar 00 3,850 CMNI Heller Inserting Machine May 98 2,513 NB II Al Quarnstrom Equipment Lease Dec 98 655 NB, LLC Republic Leasing Broadcast Equipment May 00 584 NB, LLC Colonial Pacific Computer Equipment Jul 00 562 NB, LLC Citicorp Broadcast Equipment Jul 00 1,199 NB II Tower Company, Inc. Transmitter & Apr 03 3,585 Technical Equipment CMNI Ryder GMC Van Apr 01 1,074 NCR Ameritech Leasing Phone System Jul 01 649 TSB Ameritech Leasing Phone System Nov 01 1,109 RRI Ameritech Leasing Phone System May 01 953 TSB IKON Color Copier Jul 02 1,564
(II) Omitted capital leases less than $500 per month and other capital leases permitted under the Credit Agreement SCHEDULE 4.26 - OPERATING LEASES (Operating leases of less than $20,000 per year omitted, other than real estate, vehicle or transmitter related leases) (I) Existing Leases
Capital or Maturity Monthly Company Lessor Description Operating Date Payment ================================================================================================================================== CMB II Frank & Diana Newell KATI-FM Tower Space Operating Mar 99 $ 1,100 CMBI George & Agnes Merten KLIK-AM Tower Site Operating Jan 00 575 CMBI Daniel Gordon Studio Building Operating Oct 98 3,996 CMNI Mike Engwis Midland Sales Office Operating month to 593 month CMNI Pickard Industrial Park Graph Ads Printing Operating Sep 97 4,550 Building month to month Extension agreed to CMNI Gaylord Kurtz Cadillac Sales Office Operating Apr 98 450 CMNI Ford Motor Credit 96 Ford Taurus Operating Dec 98 402 CMNI Krapohl Ford 95 Lincoln Operating Dec 97 501 CMNI Lawrence Lippert Alma Sales Office Operating May 01 1,303 NB II WDIO-TV KLDJ-FM Tower Space Operating Feb 99 740 NB, LLC Duluth Superior Educational TV KKCB-FM Tower Space Operating Aug 98 1,725 NCRI William & Vera Dulmer KUAD-FM Tower Site Operating Apr 05 200 RRI Borough of Ephrata WIOV-FM Tower Site Operating Dec 04 433 ST. JOHNS Harriett Field St. Johns sales office Operating Jun 99 500 TSB III, Owensboro On The Air, Inc. WSTO-FM Tower Site Operating Jul 2096 $l/yr LLC TSB III, Owensboro On The Air, Inc. WVJS-AM Tower Site Operating Jul 2096. $l/yr LLC CMBI GMAC 97 Pontiac Bonneville Operating Jan 99 $575 NCRI GMAC 95 Buick Regal Operating Oct 97 $401
(II) Omitted operating leases less than $20,000 per year and other leases permitted under the Credit Agreement Schedule 5.3 (C) Monthly Covenant Compliance Certificate [Letterhead of Brill Media Company] Dated: [insert current dale] AMRESCO Funding Corporation Attn: Mr. Ted B. Bartley 700 North Pearl Street, Suite 2400 Dallas, TX 75201-7424 Re: Covenant Compliance Certificate for Month Ended_____ Dear Mr. Bartley: The undersigned, acting on behalf of all of the Borrowers identified in that certain Amended and Restated Credit Agreement (as amended, restated or modified from time to time, the Credit Agreement") dated as of September 30, 1997, and executed by and among Borrowers and the Lenders described therein, does hereby certify, pursuant to Section 5.3(e) of the Credit Agreement: 1. Net Working Capital for the month ended ________, $_________________ 199__, in the aggregate for all Borrowers as compared to the minimum required amount of $3,000,000. 2. Required Cumulative Monthly Income for the period $_________________ ended ________, 199__, in the aggregate for all Borrowers. 3. Actual Cumulative Monthly Income for the period $_________________ ended ________, 199__, in the aggregate for all Borrowers. 4. No Borrower is in default of any material term, covenant or condition under any Credit Document. (Capitalized terms used herein shall have the meanings set forth in the Credit Agreement.) By: ______________________________________________________ Alan R. Brill, CFO/Treasurer for all of the Borrowers Schedule 5.3(f) Annual Covenant Compliance Certificate [Letterhead of Brill Media Company] AMRESCO Funding Corporation Attn: Mr. Ted Bartley 700 North Pearl Street, Suite 2400 Dallas, TX 75201-7424 Re: Covenant Compliance Certificate for Fiscal Year Ended __________ Dear Mr. Bartley: The following Covenant Compliance Certificate for Fiscal Year End ______________, is hereby provided on behalf of the Borrowers pursuant to Article V, Section 5.3(f) of that certain Amended and Restated Credit Agreement (as amended, restated or otherwise modified from time to time, the "Credit Agreement") dated as of September 30, 1997, by and among the Borrowers and Lenders (all capitalized terms used herein shall have the meanings set forth in the Credit Agreement).
Authorized/Covenant Actual ------------------- ------ Net Operating Income: $_____________ $__________ cash payments on Permitted Debt: $_____________ $__________ Authorized Capital Expenditures: $400,000 $__________ Affiliate Payments: $1,700,000 $__________ Increase over the prior Fiscal Year End's aggregate accounts receivable less than 120 days old $__________ Borrowers' Annual Surplus Cash: $__________ Total payment due to Lender pursuant to Section 5.20 $__________
The foregoing is true and correct to the best of my knowledge. Sincerely, By: ______________________________________________________ Alan R. Brill (CFO/Treasurer for all of the Borrowers) Schedule 5.15 Affiliate Inter-Company Accounts Receivable
Current Borrowers: Balance - ---------- ------- Central Missouri Broadcasting, Inc. Promissory Note dated November 25, 1986 to Brill Newspapers, Inc. $1,076,712 Promissory Note dared September 21, 1987 to Brill Newspapers, Inc. 168,500 Reading Radio, Inc. Promissory Note dated September 21, 1987 to Brill Radio, Inc. 468,814 Promissory Note dated September 21, 1987 to Brill Radio, Inc. 472,331 Northern Colorado Radio, Inc. Promissory Note dated December 31, 1988 to Alan R. Brill 74,779 Promissory Note dated February 28, 1991 to Alan R. Brill 100,000 Central Michigan Newspapers, Inc. Promissory Note dated June 14, 1989 to Brill Newspapers, Inc. 241,000 Promissory Note dated February 8,1991 to Brill Newspapers, Inc. 500,000 NCR II, Inc. Promissory Note dared June 24, 1996 to Alan R. Brill 200,000 NCR III, Inc. Promissory Note dared May 28, 1997 to Alan R. Brill 100,000
Balance of indebtedness of Borrowers to Subordinated Lenders is on open account Schedule 6.1 Permitted Debt (Debt obligations existing as of the Closing Date of loss than $500.00 per month with balances of less than $20,000 omitted, other than real estate, vehicle, or transmitter related debt) 1. Indebtedness secured by the Permitted liens described on Schedule 6.2 to the Credit Agreement, and Capitalized Leases described on Schedule 4.25 (to the extent not included within the definition of Permitted Liens). 2. Indebtedness with respect to trade obligations and other normal accruals in the ordinary course of business not yet due and payable or with respect to which any Borrower is contesting in good faith the amount or validity thereof by appropriate proceedings and then only to the extent such Borrower has set aside on its books adequate reserves therefor. 3. Indebtedness arising as a result of guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of Borrowers' business. 4. Affiliate Inter-Company Account Receivables as set forth on Schedule 5.15 hereto. 5. Obligations of Borrowers to Lenders under the terms of the Credit Agreement. 6. The indebtedness referenced in the following Schedule and omitted debt existing as of the Closing Date of less than $500.00 per month with balance of less than $20,000.00:
Permitted Maturity Monthly As of Company Lender Description Liens Date Payment 8/31/97 ============================================================================================= CNB II Ray Rouse Consulting Unsecured May-2000 1,666 Agreement consulting agmt CMB II Ray Rouse Noncompete Unsecured May-2005 1,666 160,692 Agreement noncompete agmt CMBI Tom Theis Performance Unsecured Aug-2001 893 87,635* Agreement mgmt incentive agmt CMNI Ray Pike Performance Contingent N/A N/A 640,000* Agreement unsecured mgmt incentive agent
Permitted Maturity Monthly As of Company Lender Description Liens Date Payment 8/31/97 =============================================================================================== CMNI Clif Forrest Performance Unsecured N/A N/A 1,785,000* Agreement mgmt incentive agmt CMNI MacDonald Seller Unsecured Sep-2004 3,789 153,992* Financing RRI Alan Beck Performance Contingent N/A N/A 1,700,000* Agmt unsecured mgmt incentive agmt SJN Rebecca Promissory Unsecured May-2000 700 20,185* Wood Note NCR Daniel Performance Contingent N/A N/A 30,000* Conway Agreement unsecured mgmt agmt
* These sums reference current balances due under the individual management incentive agreements. Additional sums will accrue pursuant to the terms of these agreements. Any modifications to the agreements are subject to Lenders' prior written consent. Schedule 6.2- Permitted Liens (Liens securing debt obligations of less than $500 per month existing as of the Closing Date with balances of less than $20,000 omitted, other than real estate, vehicle or transmitter related debt) (1) All properly recorded and filed liens of record as to each Borrower with the exception of liens in favor of Lenders, existing as of the date of the Amended and Restated Credit Agreement, specifically including, but not limited to the following:
Permitted Monthly As of Company Lender Description Liens Payment 8-31-97 ============================================================================================================================== CMB II Jefferson Bank PMF Equipment $ 3,850 $ 153,593 CMB II Town & Country Seller Financing 1st Lien Note 3,033 209,721 Communications CMB II Jefferson Bank Promissory Note Unsecured 3,155 141,614 CMBI Ford Motor Credit CL 94 Ford 447 3,881 CMBI Tower Company, Inc. CL FM Tower/Transmitter 12,500 370,545 CMBI Ford Motor Credit CL 94 Ford Van 447 4,571 CMNI M/S Building CL M/S Building 3,850 59,901 CMNI Ryder CL 98 Navistar Truck and 2,410 104,200 Stoughton Trailer CMNI FirstBank PMF Imagesetter 3,713 62,055 CMNI Heller CL Inserting Machine 2,513 16,923 NB II Al Quarnstrom CL Equipment Lease 655 9,640 NB II QB Broadcasting, Inc. Seller Financing 1st Lien Note 9,074 628,118 NB, LLC Citicorp CL Broadcast Equipment 1,199 34,381 NB, LLC Colonial Pacific CL Computer Equipment 562 15,036 NB, LLC Republic Leasing CL Broadcast Equipment 584 14,973 NCRI Philip Brewer Noncompete Agreement Subordinated 2nd 3,984 185,571 NCRI KUAD-FM, Inc. Seller Financing Subordinated 2nd 3,984 185,571 CMBI Exchange Bank PMF 96 Explorer 571 20,911 CMNI FirstBank PMF 96 Chevy Pickup 724 8,319 CMBI GMAC PMF 94 Chevy Van 459 3,975 NB II Tower Company, Inc. CL Transmitter & 3,585 174,021 Technical Equipment NCRI Bank of Windsor PMF 1982 Provost Bus 1,056 47,347
Permitted Monthly As of Company Lender Description Liens Payment 8-31-97 ============================================================================================================================== NCRI Wells-Tennessen Mortgage 1st Mortgage on 995 18,440 Leasehold & Improvements TSBI Owensboro National Mortgage 1st Mortgage 10,300 800,000 Bank NB, LLC Chrysler Credit PMF 95 Van 434 15,565 NB, LLC Toyota Motor Credit PMF 94 Jeep 493 17,804 NB, LLC Ford Motor Credit PMF 94 Explorer 625 1,205 TSBI Owensboro National PMF 95 GMC Van 495 13,282 Bank St. Johns Rebecca Wood Seller Financing 1st Lien Note 4,625 339,599 St. Johns Rebecca Wood Noncompete Agreement 1st Lien Note 2,083 117,276 St. Johns Max & Harriett Field Prior Stock Redemption 1st Lien Note 1,742 49,273 CMNI First of America PMF 1996 Jeep 698 13,532 CMNI Ryder CL GMC Van 1,074 38,401 NCR Ameritech Leasing CL Telephone System 649 24,187 TSB Ameritech Leasing CL Telephone System 1,109 56,776 TSB IKON CL Color Copier 1,564 49,902 RRI Ameritech Leasing CL Telephone System 953 40,763 NB, LLC GMAC PMF 98 Chevy Tahoe 1,037 22,212 NCR II Thomas Gammon/ Time Brokerage Stock of NCR II 19,000 (open) Onyx Broadcasting, Agreement Inc. TSB IV Lincolnland Bank PMF 97 Ford Explorer 383 18,000
PMF = Purchase Money Financing CL = Capital Lease (2) Any immaterial liens of parties in possession. (3) The rights of any lessor under any lease of any of the Borrowers that exists as of Closing. (4) All encroachments, overlaps, deficiencies in quantity, boundary line disputes, unrecorded easements, or any other matters not of record that might be disclosed by an accurate survey of the real property owned or leased by the Borrowers, and minor imperfections of title and encumbrances, if any, that are not substantial in amount, do not, in any case or in the aggregate, materially detract from the value of the asset or property subject thereto, and which are immaterial in their effect upon the Borrower or upon use of such assets or property. (5) Liens on any part of the Borrower's property for current taxes or assessments not delinquent or in default. (6) Liens securing obligations of Borrowers to Lenders under the Credit Documents. Schedule 6.16 Net Operating Income Levels ($ in Thousands)
Month Monthly NOI Cumulative NOI ----- ----------- -------------- 08/97 800 800 09/97 800 1,600 10/97 850 2,450 11/97 900 3,350 12/97 900 4,250 01/98 500 4,750 02/98 600 5,350 03/98 800 6,150 04/98 900 7,050 05/98 950 8,000 06/98 950 8,950 07/98 900 9,850 08/98 900 10,750 09/98 900 11,650 10/98 900 12,550 11/98 900 13,450 12/98 900 14,350 01/99 600 14,950 02/99 600 15,550 03/99 850 16,400 04/99 900 17,300 05/99 950 18,250 06/99 950 19,200 07/99 950 20,150 08/99 950 21,100 09/99 950 22,050
EXHIBIT A ACKNOWLEDGMENT AND RATIFICATION AGREEMENT THIS ACKNOWLEDGMENT AND RATIFICATION AGREEMENT ("Ratification Agreement"), dated as of __________, is made and entered into by and among AMRESCO FUNDING CORPORATION, a Delaware corporation ("AMRESCO"), and GOLDMAN SACHS CREDIT PARTNERS L.P., a Bermuda limited partnership, (collectively referred to as "Lenders"); AMRESCO, as agent for Secured Party ("Agent"); and [NEW ACQUISITION COMPANY] ("Acquisition Company") [ANY PLEDGOR OF STOCK OR MEMBERSHIP INTEREST IN ACQUISITION COMPANY] ("Pledgor"), with reference to the following facts: A. Lenders have entered into that certain Amended and Restated Credit Agreement dated as of September 30, 1997, (as hereafter amended, supplemented or otherwise modified from time to time, the "Credit Agreement") with the Borrowers described in the Credit Agreement. The Borrowers are Affiliates of Acquisition Company. B. All terms not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement. C. Acquisition Company is an "Acquisition Company" as defined Section 1.1 of the Credit Agreement. D. Pursuant to the terms of the Credit Agreement, Lenders extended the Loan in the amount of $70,000,000 to Borrowers. E. Pursuant to Section 2.9 and Section 3.3 of the Credit Agreement, Lenders have agreed to make Additional Advances to Borrowers in the amount of $__________ to be used to acquire the [Newspaper or Radio Station]. Said [Newspaper or Radio Station] is an "Acquisition" and ["Newspaper" or "Radio Station"] within the meaning of Section 1. 1 of the Credit Agreement. F. It is a condition precedent to the making of the Additional Advances by Lenders under the Credit Agreement that Acquisition Company shall have ratified and agreed to be bound by the terms, conditions and covenants set forth in the Credit Agreement and become a Borrower thereunder and that Acquisition Company shall have granted to Lenders a security interest in the [Newspaper or Radio Station] as security for Acquisition Company's obligations owing to Lenders arising under the Credit Agreement and the other Credit Documents referred to therein. G. It is a further and additional condition precedent to the making of Advances by Lenders under the Credit Agreement that Acquisition Company shall have ratified and -1- agreed to be bound as a Borrower by the terms, conditions and covenants set forth in the Subordination Agreement described in the Credit Agreement as Credit Document No. (111). NOW, THEREFORE, in consideration of the mutual promises, covenants, conditions, representations, and warranties hereinafter set forth, and for other good and valuable consideration, the parties hereto agree as follows: 1. Ratification of Recitals. The parties hereto acknowledge and agree that the Recitals set forth above are true and correct and that said Recitals are specifically incorporated herein by reference and made a part of this Ratification Agreement. 2. Ratification of Terms, Covenants and Conditions of the Credit Agreement. Acquisition Company hereby ratifies and agrees to be bound by all of the terms, covenants, and conditions set forth in the Credit Agreement, including without limitation the definitions set forth in Article I, the credit provisions set forth in Article II, the conditions to borrowing set forth in Article III, the representations and warranties set forth in ARTICLE IV, all affirmative covenants set forth in ARTICLE V, all negative covenants set forth in ARTICLE VI, the default provisions set forth in ARTICLE VII, the limitations on transfer set forth in ARTICLE VIII, the notice, jurisdiction and waiver provisions set forth in ARTICLE IX, and the Agent provisions set forth in ARTICLE X thereof. Upon execution and delivery of this Ratification Agreement, Acquisition Company shall be deemed a "Borrower" for all purposes under the Credit Agreement in the same manner and to the same extent as if Acquisition Company had executed the Credit Agreement and Acquisition Company hereby assumes all rights and obligations of a Borrower under the Credit Agreement, including without limitation, joint and several liability with all other Borrowers for all Obligations under the Credit Agreement. 3. Acknowledgment Regarding Representations and Warranties. Acquisition Company makes each of the representations and warranties set forth in Article IV of the Credit Agreement and the Schedules referred to therein and supplemented as follows: Schedules 4.1 4.9(b), 4.10, 4.11(b), 4.13, 4.25, and 4.26 of the Credit Agreement shall be supplemented by adding thereto the information set forth in Annex A hereto. 4. Ratification of Terms Covenants and Conditions of Subordination Agreement. Acquisition Company hereby ratifies and agrees to be bound by all of the terms, covenants, and conditions set forth in the Subordination Agreement as a Borrower thereunder. 5. MISCELLANEOUS. (a) All parties hereto agree that the miscellaneous provisions set forth in ARTICLE IX of the Credit Agreement apply to the rights, obligations and duties of the parties under the terms of this Ratification Agreement. -2- (b) Upon the effectiveness of this Ratification Agreement, Lenders are authorized in their discretion to issue news releases and at their own expense to publish "tombstone ads" and other announcements in newspapers, trade journals and other appropriate media, containing information about the Additional Advances described in Recital E above as may be deemed noteworthy by Lenders, including without limitation the legal and trade name of Acquisition Company, the amount of the Advance referred to above, and the name, nature and location of the Acquisition. IN WITNESS WHEREOF, the parties hereto have caused this Ratification Agreement to be duly executed by their respective authorized officers as of the day and year first above written. "ACQUISITION COMPANY" [ACQUISITION COMPANY] By: _____________________________ Title:___________________________ "PLEDGOR" [Managing Member or Holder of Stock] By: ____________________________ Title:___________________________ -3- "LENDERS" and "AGENT" AMRESCO FUNDING CORPORATION, a Delaware corporation, individually and as agent By: ______________________________________ Its: _____________________________________ GOLDMAN SACHS CREDIT PARTNERS L.P., a Bermuda limited partnership By:_______________________________________ Authorized Signatory Address for Notices for Lenders and Agent: AMRESCO Funding Corporation 700 Pearl Street Suite 2400 - LB 342 Dallas, TX 75201-7424 Attention: Ted B. Bartley Telephone: (214) 953-8323 Facsimile: (214) 720-1577 -4- EXHIBIT B - SECURITY AGREEMENT THIS SECURITY AGREEMENT, dated as of _________ is entered into among [NEW ACQUISITION COMPANY] ("Debtor"), as a borrower, and AMRESCO FUNDING CORPORATION, a Delaware corporation, a Delaware corporation ("AMRESCO"), and GOLDMAN SACHS CREDIT PARTNERS L.P., a Bermuda limited partnership (collectively referred to as "Secured Party"), as lenders, and AMRESCO, as agent for Secured Party ("Agent") in light of the following facts: WHEREAS, Debtor and Secured Party have entered into that certain Acknowledgment and Ratification Agreement of even date herewith ("Ratification Agreement"), pursuant to which Debtor has agreed to be bound by the terms, covenants, conditions and representations set forth in that certain Amended and Restated Credit Agreement dated as of September 30, 1997, (as hereafter amended, supplemented or otherwise modified from time to time, the "Credit Agreement"); and WHEREAS, Debtor has agreed to grant to Secured Party a security interest in all of the Collateral (as hereinafter defined) owned by Debtor as security for Debtor's obligations owing to Secured Party arising under the Credit Agreement and the Credit Documents referred to therein. NOW, THEREFORE, in consideration of the mutual promises, covenants, conditions, representations, and warranties hereinafter set forth, and for other good and valuable consideration, the parties hereto agree as follows: 1. DEFINITIONS As used in this Agreement, all initially capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Credit Agreement. In addition, the following terms shall have the following meanings. "Accounts" shall mean any and all of Debtor's presently existing and hereafter rising accounts and rights to payment, except those evidenced by instruments or chattel paper, arising out of the sale or lease of goods or the rendition of services by Debtor, irrespective of whether earned by performance. "Agreement" shall mean this Security Agreement, any concurrent or subsequent exhibits or schedules to this Security Agreement, and any extensions, supplements, amendments, or modifications to or in connection with this Security Agreement, or to any such schedules or exhibits. "Credit Agreement" shall have the meaning set forth in the recitals to this Agreement, the terms of which are incorporated herein by this reference. 1 "Code" shall mean the New York Uniform Commercial Code, and any and all terms used in this Agreement which are defined in the Code shall be construed and defined in accordance with the meaning and definition ascribed to such terms under the Code, unless otherwise defined herein. "Collateral" shall mean any and all of Debtor's Accounts, Equipment, Inventory, General Intangibles, Negotiable Collateral, and Debtor's Books, whether now existing or hereafter acquired or created, and any proceeds or products of any of the foregoing, including proceeds of insurance covering the Collateral or any portion thereof, and any and all Accounts, Equipment, Inventory, General Intangibles, Negotiable Collateral, cash, money, deposit accounts, or other tangible or intangible property, resulting from the sale or other disposition of the Accounts, Equipment, Inventory, General Intangibles, or Negotiable Collateral, or any portion thereof or interest therein, and the substitutions, replacements, additions, accessions, products and proceeds thereof, including without limitation proceeds of sale of the Radio Stations and all insurance policies relating thereto and proceeds thereof. "Debtor" shall have the meaning set forth in the introduction to this Agreement. "Debtor's Books" shall mean any and all Debtor's presently existing and hereafter acquired books and records, including all records (including maintenance and warranty records), ledgers, computer programs, disc or tape files, printouts, runs, and other computer prepared information indicating, summarizing, or evidencing the Accounts, Equipment, Inventory, General Intangibles, or Negotiable Collateral. "Designated Agreements" shall mean that certain [describe purchase agreement] and that certain [describe LMA or TBA], each dated as of ________, 199__, by and between Debtor, as purchaser, and _____________, as seller, for the purchase and sale of the assets relating to the ownership or operation of the Radio Stations or the Newspaper [as appropriate]. "Equipment" shall mean any and all of Debtor's presently existing and hereafter acquired machinery, equipment, furniture, furnishings, fixtures, tools, motors, motor vehicles, rolling stock, jigs, and other goods (other than Inventory, farm products, and consumer goods), of every kind and description, wherever located, including, without limitation, printing presses, amplifiers, transmitters, cables, antennas, radio broadcast facilities, connections, towers, and studios, together with any and all parts, improvements, additions, attachments, replacements, accessories, and substitutions thereto or therefor, and all other rights of Debtor relating thereto, whether in the possession and control of Debtor, or in the possession and control of a third party for the account of Debtor. "Event of Default" shall have the meaning set forth in the Credit Agreement. 2 "FCC" shall mean the Federal Communications Commission or any governmental authority succeeding to any of its functions. "General Intangibles" shall mean any and all of Debtor's presently existing and hereafter acquired or arising general intangibles and other intangible personal property, including rights under licensing and distribution agreements, interest in any joint ventures or partnerships, contract rights, including without limitation all rights under those certain Designated Agreements (as defined above), noncompetition covenants, choses in action, causes of action, all Licenses (as hereinafter defined) (but only to the extent that Debtor is now or hereafter permitted by law to grant a security interest in such authorizations, permits and licenses), and all rights incident or appurtenant to such Licenses, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of the Licenses, income tax refunds, purchase orders, customer lists, monies due or recoverable from pension funds, computer software, magnetic media, electronic data processing files, systems and programs, deposit accounts, certificates of deposit, rights to refunds or indemnification, claims for tax or other refunds against any city, county, state, provincial, or federal government or any agency or authority or other subdivision thereof, guaranties, contracts, lease agreements, licenses, know-how, sales and operating plans, copyrights, patents, trademarks, service-marks, logos, trade names, trade secrets, and the good will associated therewith. "Inventory" means any and all of Debtor's presently existing and hereafter acquired goods of every kind and description, held for sale or lease or to be furnished under a contract of service or which have been so leased or furnished, wherever located, including amplifiers, transmitters, cables, antennas, connections, and towers. "Licenses" means all commercial broadcast station licenses, permits and other certificates required by (a) the FCC, (b) the Communications Act of 1934, as amended, (c) 47 CFR Part 73, or (d) any other governmental entity in connection with the ownership and operation of the Radio Stations and granted or assigned to Debtor by the FCC or any other public or governmental agency or regulatory body for the operation of the Radio Stations. "Negotiable Collateral" shall mean any and all of Debtor's presently existing and hereafter acquired or arising letters of credit, advises of credit, certificates of deposit, notes, drafts, instruments, documents, and chattel paper, as well as Debtor's Books relating to any or all of the foregoing. "Newspaper(s)" means [insert description or name of newspaper] together with all of the Assets of Debtor used in the ownership and operation thereof. 3 "Obligations" means any and all debts, liabilities, obligations, or undertakings owing by Borrowers to Secured Party arising under, advanced pursuant to, or evidenced by the Credit Agreement, the Credit Documents to which Borrowers are a party, or this Agreement, whether direct or indirect, absolute or contingent, due or to become due, voluntary or involuntary, whether now existing or hereafter arising (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code 11 U.S.C. ss.362(a)), and including all principal, interest (including interest that but for the filing of a petition in bankruptcy would accrue on such obligations whether or not allowed as a claim), indemnities and all Secured Party's Expenses which Debtor is required to pay or reimburse pursuant to this Agreement, the Credit Agreement, the Credit Documents, or by law. "Radio Stations" means the broadcast radio stations [insert Acquisition description], and any other broadcast radio station owned or operated by any Borrower from time to time, together with all of the assets of Debtor used in the ownership and operation thereof and all Licenses with respect thereto. "Secured Party" shall have the meaning set forth in the introduction to this Agreement. "Secured Party's Expenses" shall mean any and all reasonable costs or expenses required to be paid by Debtor under this Agreement or by Borrowers under the Credit Agreement or other Credit Documents which are paid or advanced by Lenders and all reasonable costs and expenses of Lenders, including their or its reasonable attorneys' fees and expenses, incurred or expended to correct any default or enforce any provision of this Agreement, or in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, irrespective of whether a sale is consummated; and all reasonable costs and expenses of suit incurred or expended by Lenders, including its reasonable attorneys' fees and expenses in enforcing or defending this Agreement, irrespective of whether suit is brought. 2. CONSTRUCTION Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the part includes the whole, "including" is not limiting, and "or" has the inclusive meaning represented by the phrase "and/or." References in this Agreement to "determination" by Secured Party include reasonable estimates (absent manifest error) by Secured Party, as applicable (in the case of quantitative determinations) and reasonable beliefs (absent manifest error) by Secured Party, as applicable (in the case of qualitative determinations). The words "hereof," "herein," "hereby," "hereunder," and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Article, 4 section, subsection, exhibit, and schedule references are to this Agreement unless otherwise specified. 3. CREATION OF SECURITY INTEREST Debtor hereby grants to Secured Party a continuing first priority security interest in all presently existing and hereafter acquired or arising Collateral owned by Debtor, except to the extent of the Permitted Liens described in Schedule 6.2 of the Credit Agreement, in order to secure the prompt payment and performance of all of the Obligations by Borrowers. Such security interest in the Collateral shall attach to all Collateral without further act on the part of Secured Party or Debtor. 4. FURTHER ASSURANCES 4.1 Debtor shall execute and deliver to Agent, concurrently with Debtor's execution of this Agreement, and from time to time at the request of Agent, all financing statements, continuation financing statements, fixture filings, security agreements, chattel mortgages, assignments, and all other documents that Agent may reasonably request, in form reasonably satisfactory to Agent, to perfect and maintain perfected Secured Party's security interests in the Collateral and in order to consummate fully all of the transactions contemplated by this Agreement and the Credit Agreement. Debtor hereby irrevocably makes, constitutes, and appoints Agent (and Agent's officers, employees, or agents) as Debtor's true and lawful attorney with power to sign the name of Debtor on any of the above-described documents or on any other similar documents which need to be executed, recorded, or filed, and to do any and all things necessary in the name and on behalf of Debtor in order to perfect, or continue the perfection of, Secured Party's security interests in the Collateral. The power of attorney granted under this Section 4.1 is coupled with an interest and shall be irrevocable until all of the Obligations have been paid in full, the Credit Agreement terminated, and Debtor's duties hereunder have been discharged in full. 4.2 Without limiting the generality of the foregoing Section 4.1 or any of the provisions of the Credit Agreement, Debtor will: (a) at the request of Agent, mark conspicuously all chattel paper and all records pertaining to the Collateral with a legend, in form and substance satisfactory to Agent, indicating that the Collateral is subject to the security interest granted hereby; (b) at the request of the Agent, appear in and defend any action or proceeding which may affect Debtor's title to, or the security interest of Agent in, any of the Collateral; and (c) upon demand of Agent, allow inspection of Collateral by Agent or persons designated by Agent at any time during normal business hours and, provided that no Event of Default has occurred and is continuing, upon three (3) Business Days' notice to Debtor. 5 4.3 With respect to that portion of the Collateral which is evidenced by, or consists of, Negotiable Collateral (other than drafts received in the ordinary course of business so long as no Event of Default has occurred and is continuing), Debtor shall, immediately upon request by Agent, endorse (where appropriate) and assign such Negotiable Collateral over to Agent, and deliver to Agent actual physical possession of such Negotiable Collateral to Agent together with any instruments of transfer or assignment, all in form and substance satisfactory to Agent, in order to fully perfect the security interest therein of Secured Party. 4.4 Debtor acknowledges and agrees that, upon the occurrence of an Event of Default which remains uncured during any applicable Cure Period, the primary source of repayment of the Obligations is through the sale of the Collateral, including the Radio Stations and the Licenses. In accordance with the provisions of Section 7.2(c) of the Credit Agreement, upon the occurrence and during the continuance of the Event of Default(s) described therein, Debtor agrees to take all actions and do all things requested in connection with an application to the FCC for the grant, assignment, or transfer of the Licenses to a receiver acceptable to Agent and appointed by a court of competent jurisdiction, or to Agent's nominee or to a purchaser of the Collateral, including the Radio Stations and the Licenses, to facilitate Agent's non-judicial foreclosure of Secured Party's security interest, provided such actions are consistent with the Communications Act and the rules and regulations of the FCC. In connection therewith, Debtor agrees to execute and deliver to Agent, the receiver or any person or such entity designated by Agent, any documents, instruments, or agreements reasonably requested by Agent or the receiver in connection with any such grant, license, assignment, or transfer sought by Agent from the FCC. 5. RIGHTS AND REMEDIES 5.1 Upon the occurrence and during the continuance of an Event of Default, which Event of Default is not cured within any applicable Cure Period, if applicable, Agent may do any one or more of the following, all of which are authorized by Debtor: (a) Make such payments and do such acts as it considers necessary or reasonable to protect Secured Party's security interest in the Collateral. Debtor agrees to assemble and make available any or all of the Collateral if Agent so requires. Debtor authorizes Agent to enter the premises where the Collateral is located, take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any encumbrance, charge, or lien which, in the opinion of the Agent, appears to be prior or superior to Secured Party's security interest, and to pay all costs and expenses incurred in connection therewith; 6 (b) With the exception of any rights granted under the FCC licenses, which rights are not to be transferred without the prior consent of the FCC if said consent is then required, Agent is hereby granted a license or other right to use, without charge, Debtor's trade names, trademarks, service marks, customer lists, and advertising matter, or any other property of a similar nature, in advertising for sale or selling any Collateral and Debtor's rights under all licenses shall inure to the benefit of Secured Party; (c) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, or sell (in the manner provided for herein), the Collateral; (d) Sell the Collateral, at either a public or private sale, or both, by way of one or more contracts or transactions, for cash or on terms, in such manner and at such places (including Debtor's premises) as is commercially reasonable; and apply any proceeds of any sale or other disposition of the Collateral in the order provided in Section 9-504 of the Code, including the payment of Secured Party's Expenses. It is not necessary that the Collateral be present at any such sale; (e) Without constituting a retention of collateral in satisfaction of indebtedness as provided for in Section 9-505 of the Code, Agent may open Debtor's mail, notify account debtors and other obligors of Debtor of Secured Party's security interests in the Collateral, notify postal authorities that all mail addressed to Debtor is to be delivered to Agent and proceed to collect the same and apply the net cash proceeds therefrom to the Obligations; (f) Grant extensions, compromise claims and settle Collateral for less than face value, all without prior notice to Debtor; (g) Give notice of any disposition of the Collateral as follows: (1) Agent shall give Debtor and each holder of a security interest in the Collateral who has filed with Agent a written request for notice, a written notice stating the time and place of a public sale, or, if the disposition is to be either a private sale or some other disposition that is not a public sale, the time on or after which the private sale or other disposition is to be made; (2) The notice described in the immediately preceding paragraph shall be delivered to Debtor as provided in Section 9.1 of the Credit Agreement at least ten (10) calendar days before the date fixed for a public sale, or at least five (5) calendar days before the date on or after which the private sale or other disposition is to be made, unless the Collateral is perishable or threatens to decline speedily in value. Notice to 7 persons other than Debtor claiming an interest in the Collateral shall be sent to such addresses as such persons have furnished to Agent prior to the date of such notice; (3) If the disposition is to be a public sale, Agent shall also give notice of the time and place of said sale by publishing a notice at least five (5) calendar days before the date of the sale in a newspaper of general circulation, if one exists, in the county in which the sale is to be held; (h) In its own name, or in the name of a designee or nominee, bid and purchase at any public sale; (i) Choose to accept the Collateral after giving notice of such proposal to Debtor and to any other person with a security interest in such Collateral, and such acceptance shall discharge the Secured Obligations, provided neither Debtor nor any other person with a security interest in such Collateral objects in writing to such proposal within twenty-one (21) days from receipt of such notice; (j) Setoff the Obligations, or any part thereof, against any deposit account or other property of Debtor with or in the possession of Secured Party, whatever the source of the deposit account or such property; (k) Use in connection with any assembly or disposition of the Collateral, any trademark, trade name, trade style, copyright, patent right, technical process or other proprietary right used or utilized by Debtor; and (l) At Secured Party's option and without further notice to or demand upon Debtor, except as may be provided in the Credit Agreement, assume Debtor's rights under any or all of the Designated Agreements, and to hold and enjoy Debtor's interest under the Designated Agreements free from any claims of Debtor. 5.2 In addition to the remedies described above, Agent shall be entitled to exercise the remedies set forth in Section 7.2 of the Credit Agreement and all other remedies available under the Code. In the event Agent seeks the appointment of a receiver as provided for in Section 7.2(c) of the Credit Agreement, such receiver shall be instructed to seek from the FCC consent to an involuntary transfer of control of the Licenses for the purpose of seeking a bona fide purchaser to whom control will ultimately be transferred. Debtor hereby agrees to authorize such involuntary transfer of control upon the request of the receiver so appointed and, if Debtor shall refuse to authorize the transfer, its approval may be required by the court. In such event, Debtor shall further use its best efforts to assist in obtaining approval of the FCC, if required, for any actions or transactions contemplated by this Agreement and any related agreements, including, without limitation, the preparation, execution and filing with the FCC of the assignor's or transferor's portion of any application 8 or applications for consent to the assignment of the Licenses, or transfer or control necessary or appropriate under the FCC's Rules and Regulations to obtain approval of the transfer of assignment of any portion of the Collateral, together with the Licenses. (a) Upon receipt of the consent of the FCC as required under Section 5.2(d) below, the receiver shall have the power to dispose of the Licenses and the Collateral in any manner lawful in the jurisdiction in which his appointment is confirmed, including the power to conduct a public or private sale of the Licenses and Collateral; provided, however, that the successful bidder at any such public or private sale shall not acquire any License unless and until the FCC shall first have granted its consent to such acquisition. Secured Party may bid at any such public or private sale. (b) DEBTOR ACKNOWLEDGES THAT THE ASSIGNMENT OR TRANSFER OF THE LICENSES IS INTEGRAL TO SECURED PARTY'S REALIZATION OF THE VALUE OF THE COLLATERAL, THAT THERE IS NO ADEQUATE REMEDY AT LAW FOR FAILURE BY DEBTOR TO COMPLY WITH THE PROVISIONS OF THIS SECTION AND THAT SUCH FAILURE WOULD NOT BE ADEQUATELY COMPENSABLE IN DAMAGES, AND THEREFORE AGREES THAT THE AGREEMENTS CONTAINED IN THIS SECTION MAY BE SPECIFICALLY ENFORCED. (c) Notwithstanding anything herein contained to the contrary, Debtor's execution and delivery of this Agreement and any related agreements (i) do not and will not constitute, create, or have the effect of constituting or creating, directly or indirectly, actual or practical ownership of Debtor by Agent or Secured Party, or control, affirmative or negative, direct or indirect, by Agent or Secured Party over the programming, management, or any other aspect of the operation of Debtor or its broadcast properties, which ownership and control will remain exclusively and at all times in Debtor; and (ii) do not and will not constitute the transfer, assignment, or disposition in any manner, voluntarily or involuntarily, directly or indirectly, of any of the Licenses or any other license, permit or authorization at any time issued by the FCC to Debtor or the transfer of control of Debtor within the meaning of Section 310(d) of the Communications Act of 1934, as amended. (d) Notwithstanding anything contained elsewhere in this Agreement, no assignment or transfer of any Licenses shall occur without the prior written consent of the FCC (if said consent is necessary for the assignment or transfer). 5.3 Agent acknowledges that in connection with any disposition by Agent under this Agreement of the Collateral, it may be necessary to obtain the consent or approval of certain governmental authorities, including, without limitation, the FCC. Upon the exercise by Agent of any power, right, privilege, or remedy pursuant to this Agreement or pursuant to the Credit Agreement which so requires any consent, approval, registration, 9 qualification, or authorization of any governmental authority or instrumentality, Debtor agrees to execute and deliver, or will cause the execution and delivery of, all applications, certificates, instruments, assignments, and other documents and papers that Agent or any purchaser of the Collateral may be required to obtain for such governmental consent, approval, registration, qualification, or authorization. 5.4 During the term of the Loans, at Secured Party's option, Agent may cure, on behalf of Debtor, any default of Debtor with respect to the Designated Agreements. 5.5 All proceeds of sale or other disposition of the Collateral shall be applied first to Post Closing Lender Expenses, including without limitation costs of sale or other disposition of the Collateral, then to outstanding and accrued interest and then to principal. 5.6 Any portion of the Obligations which remains unpaid after disposition of the Collateral as provided above shall be paid immediately by Debtor provided that Agent has complied in all material respects with Section 9-504 of the Code, as in effect at the time of such disposition. Any excess which exists after disposition of the Collateral shall be returned promptly, without interest and subject to the rights of third parties, to Debtors by Agent; 5.7 The rights and remedies of Agent under this Agreement, the Credit Agreement, the Credit Documents, and all other agreements contemplated hereby and thereby shall be cumulative. Secured Party shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity. No exercise by Agent or Secured Party of any one right or remedy shall be deemed an election of remedies, and no waiver by Agent or Secured Party of any default on Debtor's part shall be deemed a continuing waiver of any further defaults. No delay by Agent or Secured Party shall constitute a waiver, election or acquiescence with respect to any right or remedy. 6. WAIVERS 6.1 So long as Secured Party or Agent complies with the obligations, if any, imposed by Section 9-207 of the Code, Secured Party shall not otherwise be liable or responsible in any way or manner for: (a) the safekeeping of the Equipment or Inventory, or any of Debtor's Books relating to any of the Collateral; (b) any loss or damage thereto occurring or arising in any manner or fashion or from any cause; (c) any diminution in the value thereof; or (d) any act or default of any carrier, warehouseman, bailee, forwarding agency, or other person whomsoever. 6.2 This Agreement is executed as security for the Obligations only and, therefore, the execution and delivery of this Assignment shall not in any way affect or 10 modify Debtor's liability or obligations under the Designated Agreements. Nothing contained herein shall operate or be construed to impose any obligation upon any Secured Party to perform or discharge any duty on the part of Debtor with respect to any of the Designated Agreements. It is expressly understood and agreed by Debtor that no Secured Party hereby assumes any of Debtor's obligations, liabilities or duties concerning any of the Designated Agreements unless and until such Secured Party exercises its rights hereunder and under any or all of the Designated Agreements and, notwithstanding anything herein to the contrary, the exercise by any Secured Party of any of its rights hereunder shall not release Debtor from any of its duties or obligations under the Designated Agreements. Nor shall any Secured Party be liable for any loss sustained by Debtor resulting from such Secured Party's enforcement of or failure to enforce any or all of the Designated Agreements (whether before or after the occurrence of an Event of Default hereunder) unless such loss is caused by the willful misconduct or gross negligence of such Secured Party or such Secured Party's agents or employees. Debtor shall and does hereby indemnify, defend and hold harmless each Secured Party from and against all liability, loss, costs, damages or claims arising out of the Designated Agreements, or this Agreement, including reasonable attorneys' fees and expenses, except as may arise from the gross negligence or willful misconduct of any Secured Party or such Secured Party's agents or employees. 7. RELEASES At any time, or from time to time, upon Debtor's request that it be permitted to sell all or substantially all of such Debtor's Collateral, Secured Party will give Debtor a timely response to its request, recognizing that any such decision will be in the Secured Party's sole discretion based on information then available to Secured Party. 8. NOTICES All notices or demands by any party hereto to the other party and relating to this Agreement shall be made in the manner and to the addresses set forth in Section 9.1 of the Credit Agreement. Debtor's address for notices shall be the same as Borrowers' address for notices. 9. GOVERNING LAW; JURISDICTION AND VENUE 9.1 GOVERNING LAW. This Agreement and the other Credit Documents shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to conflict of laws principles, except to the extent that federal law or the Uniform Commercial Code provides that the validity or perfection of the security interests hereunder, or remedies hereunder, in respect of any particular Collateral 11 are governed by the laws of a jurisdiction other than the State of New York without regard to conflict of laws principles. 9.2 JURISDICTION AND VENUE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS MAY BE TRIED AND LITIGATED IN THE STATE OF NEW YORK, OR, AT THE SOLE OPTION OF SECURED PARTY, IN ANY OTHER COURT IN WHICH SECURED PARTY INITIATES LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS JURISDICTION OVER THE SUBJECT MATTER AND PARTIES IN CONTROVERSY. TO THE EXTENT THEY MAY LEGALLY DO SO, THE PARTIES HERETO HEREBY WAIVE ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 9.2 AND STIPULATE THAT ANY FORUM LOCATED IN THE STATE OF NEW YORK SHALL HAVE IN PERSONAM JURISDICTION AND VENUE OVER EACH SUCH PARTY FOR THE PURPOSE OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CREDIT DOCUMENTS. SERVICE OF PROCESS SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST DEBTOR MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THEIR ADDRESS SPECIFIED FOR NOTICES PURSUANT TO SECTION 8 HEREOF. 10. FCC APPROVAL Notwithstanding anything to the contrary contained herein, Agent will not take any action pursuant to this Agreement which would constitute or result in any assignment of the Licenses or any change of control of Debtor under any other security agreement if such assignment of the Licenses or change of control would require under then existing law (including the written rules and regulations promulgated by the FCC), the prior approval of the FCC, without first obtaining such approval of the FCC. Debtor agrees to take any action which Agent may reasonably request in order to obtain and enjoy and full rights and benefits granted to Agent by this Agreement and each other agreement, instrument and document delivered to the Agent in connection with the Obligations or in any document evidencing or securing the Collateral, including specifically, at Debtor's own cost and expense, the use of its best efforts to assist in obtaining approval of the FCC for any action or transaction contemplated by this Agreement which is then required by law, and specifically, without limitation, upon request, to prepare, sign and file with the FCC the assignor's or transferor's portion of any application or applications for consent to the assignment of license or transfer or control necessary or appropriate under the FCC's rules and regulations for approval of (a) any sale or sales of property constituting the Collateral by 12 or on behalf of Agent or the holder(s) of the Obligations secured hereby, or (b) any assumption by Agent of voting rights or management rights in property constituting the Collateral effected in accordance with the terms of any other security or pledge agreement relating thereto. 11. GENERAL PROVISIONS 11.1 This Agreement shall be binding and deemed effective when executed and delivered by Debtor and accepted and executed by Secured Party. 11.2 This Agreement shall bind and inure to the benefit of the respective successors and assigns of Debtor and Secured Party; provided, however, that Debtor may not assign this Agreement or any rights hereunder without Secured Party's prior written consent and any prohibited assignment shall be absolutely void. 11.3 Section headings and numbers have been set forth herein for convenience only. Unless the contrary is compelled by the context, everything contained in each Section hereof applies equally to this entire Agreement. 11.4 Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against Agent, Secured Party or Debtor, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by each of the parties and their counsel and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto. 11.5 Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision. 11.6 This Agreement cannot be changed, modified, amended, or terminated, except by a written document executed by Debtor and Secured Party. All prior agreements, understandings, representations, warranties, and negotiations, if any, are merged into this Agreement, the Credit Agreement, and the other documents and agreements entered into in connection herewith and therewith. 11.7 The parties intend and agree that their respective rights, duties, powers, liabilities, obligations, and discretions shall be performed, carried out, discharged, and exercised reasonably and in good faith. 11 .8 After termination of the Credit Agreement and when Secured Party has received payment and performance in full of all Obligations, Secured Party shall execute 13 and deliver to Debtor a termination of all of the security interests granted by Debtor hereunder. 11.9 Secured Party's rights and security interests hereunder shall be reinstated and revived, and the enforceability of this Agreement shall continue, with respect to any amount at any time paid on account of the Secured Obligations which thereafter shall be required to be restored or returned by Secured Party upon the bankruptcy, insolvency or reorganization of Debtor or any other person, all as though such amount had not been paid. 11.10 This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original. All of such counterparts, taken together, shall constitute but one and the same Agreement. This Agreement shall become effective upon the execution of a counterpart of this Agreement by each of the parties hereto. 11.11 Agent. Agent has been appointed to act as Agent hereunder on behalf of Secured Party pursuant to the Credit Agreement and shall act as Agent hereunder in accordance with the provisions of this Agreement and the Credit Agreement. Agent hereunder shall all times be the same person as the Agent under the Credit Agreement. Resignation or removal of the Agent hereunder and appointment of a successor agent under the Credit Agreement shall constitute appointment as successor agent hereunder. Upon resignation or removal, Agent shall promptly transfer all Collateral and any related records or documents to the successor agent and shall execute and deliver any documents or instruments or take such other actions as may be reasonably necessary in connection with the transfer of the Collateral and substitution of agents. 12. WAIVER OF TRIAL BY JURY. THE PARTIES HERETO EACH AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including without limitation contract claims, tort claims, breach of duty claims and all other common law and statutory claims. The parties hereto each (i) acknowledges that this waiver is a material inducement for the parties to enter into a business relationship, that the parties hereto have already relied on this waiver in entering into this Agreement or accepting the benefits thereof, as the case may be, and that each will continue to rely on this waiver in their related future dealings, and (ii) further warrants and represents that each has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS OF THIS AGREEMENT. In 14 the event of litigation, this Agreement may be filed as a written consent to a trial by the court. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. "DEBTOR" [ACQUISITION COMPANY] By: --------------------------------- Title: ------------------------------ "SECURED PARTY AND AGENT" AMRESCO FUNDING CORPORATION, a Delaware corporation, individually and as Agent By: --------------------------------- Its: -------------------------------- GOLDMAN SACHS CREDIT PARTNERS L.P., a Bermuda limited partnership By: --------------------------------- Authorized Signatory 15 EXHIBIT C PLEDGE OF MEMBERSHIP INTEREST IN LLC This Pledge of Membership Interest in LLC is dated as of ________, and is entered into among ____________, LLC, a Virginia limited liability company, and ___________ Management, Inc., a Virginia corporation (individually and collectively referred to as "Pledgor"); AMRESCO FUNDING CORPORATION, a Delaware corporation ("AMRESCO") and GOLDMAN SACHS CREDIT PARTNERS L.P., a Bermuda limited partnership (collectively referred to as "Secured Party"), as lenders; and AMRESCO, as agent for Secured Party ("Agent") in light of the following facts: WHEREAS, Secured Party and Affiliates of ________________, a Virginia limited liability company (the "Company"), have entered into that certain Amended and Restated Credit Agreement, dated as of September 30, 1997 (as hereafter amended, supplemented or otherwise modified from time to time, the "Credit Agreement"); WHEREAS, the Company has agreed, pursuant to that certain Acknowledgment and Ratification Agreement of even date herewith, to be bound by the terms, covenants, conditions and representations set forth in the Credit Agreement; and WHEREAS, each Pledgor has agreed to grant to Secured Party a security interest in all of the Collateral (as hereinafter defined) owned by such Pledgor as security for the Obligations of the Company and its Affiliates (collectively referred to from time to time as "Borrowers") to Secured Party arising under the Credit Agreement and the Credit Documents executed by Borrowers in connection therewith. NOW, THEREFORE, in consideration of the mutual promises, covenants, conditions, representations, and warranties hereinafter set forth, and for other good and valuable consideration, the parties hereto agree as follows: 1. Definitions. As used in this Agreement, all initially capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Credit Agreement. In addition, the following terms shall have the following meanings. "Agreement" shall mean this Pledge of Membership Interest in LLC together with any concurrent or subsequent exhibits or schedules hereto and any extensions, supplements, amendments, or modifications to or in connection with this Pledge of Membership Interest in LLC or to any such schedules or exhibits. "Credit Agreement" shall have the meaning set forth in the recitals to this Agreement, the terms of which are incorporated herein by this reference. "Code" shall mean the New York Uniform Commercial Code. -1- "Collateral" shall mean, as and to the extent permitted by applicable law, (a) all of Pledgor's membership interest in the Company and all other rights of Pledgor with respect thereto and all proceeds, income, fees preferences, profits or other benefits therefrom; (b) all payments, dividends, and distributions hereafter made upon or with respect to the Company; (c) all of Pledgor's right, title and interest in and to any and all contract rights, including all rights now or hereafter accruing under any operating agreement, of the Company; and (d) all proceeds of any and all of the foregoing, including without limitation any liquidating distributions and proceeds from the sale of Pledgor's interest in the Company and all insurance policies relating thereto and proceeds thereof. "Company" shall have the meaning set forth in the recitals to this Agreement. "Event of Default" shall have the meaning set forth in the Credit Agreement. "Pledgor" shall have the meanings set forth in the introduction to this Agreement. "Secured Party" shall have the meaning set forth in the introduction to this Agreement. "Secured Obligations" means any and all debts, liabilities, obligations, or undertakings owing by Borrowers to Secured Party arising under, advanced pursuant to, or evidenced by the Credit Agreement, the Credit Documents to which Borrowers are a party, or this Agreement, whether direct or indirect, absolute or contingent, due or to become due, voluntary or involuntary, whether now existing or hereafter arising (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code (11 U.S.C. ss. 362(a)), and including all principal, interest (including interest that but for the filing of a petition in bankruptcy would accrue on such obligations whether or not allowed as a claim), indemnities and all Secured Party's Expenses which Pledgor is required to pay or reimburse pursuant to this Agreement, the Credit Agreement, the Credit Documents, or by law. "Secured Party's Expenses" shall mean any and all reasonable costs or expenses required to be paid by Pledgor under this Agreement, by Borrowers under the Credit Agreement or the other Credit Documents, or by Guarantor under the Guaranty which are paid or advanced by Secured Party and all reasonable costs and expenses of Secured Party, including their or its reasonable attorneys' fees and expenses, incurred or expended to correct any default or enforce any provision of this Agreement, or in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, irrespective of whether a sale is consummated; and all reasonable costs and expenses of suit incurred or expended by Secured Party, including its -2- reasonable attorneys' fees and expenses in enforcing or defending this Agreement, irrespective of whether suit is brought. 2. Construction. Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the part includes the whole, "including" is not limiting, and "or" has the inclusive meaning represented by the phrase "and/or." References in this Agreement to "determination" by Secured Party include reasonable estimates (absent manifest error) by Secured Party, as applicable (in the case of quantitative determinations) and reasonable beliefs (absent manifest error) by Secured Party, as applicable (in the case of qualitative determinations). The words "hereof," "herein," "hereby," "hereunder," and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Article, section, subsection, exhibit, and schedule references are to this Agreement unless otherwise specified. 3. Creation of Security Interest. Pledgor hereby grants to Secured Party a continuing first priority security interest in all presently existing and hereafter acquired or arising Collateral owned by Pledgor in order to secure the prompt payment and performance of all of the Obligations by Borrowers. Such security interest in the Collateral shall attach to all Collateral without further act on the part of Secured Party or Pledgor. 4. Further Assurances. 4.1 Pledgor shall execute and deliver to Agent, concurrently with Pledgor's execution of this Agreement, and from time to time at the request of Agent, all financing statements, continuation financing statements, security agreements, assignments, and all other documents that Agent may reasonably request, in form reasonably satisfactory to Agent, to perfect and maintain perfected Secured Party's security interests in the Collateral or the proceeds of the Collateral in order to consummate fully all of the transactions contemplated by this Agreement and the Credit Agreement. Pledgor hereby irrevocably makes, constitutes, and appoints Agent (and Agent's officers, employees, or agents) as Pledgor's true and lawful attorney with power to sign the name of Pledgor on any of the above-described documents or on any other similar documents which need to be executed, recorded, or filed, and to do any and all things necessary in the name and on behalf of Pledgor in order to perfect, or continue the perfection of, Secured Party's security interests in the Collateral. The power of attorney granted under this Section 4.1 is coupled with an interest and shall be irrevocable until all of the Obligations have been paid in full, the Credit Agreement terminated, and Pledgor's duties hereunder have been discharged in full. 4.2 Without limiting the generality of the foregoing Section 4.1 or any of the provisions of the Credit Agreement, Pledgor will: (a) at the request of Agent, mark conspicuously all chattel paper and all records pertaining to the Collateral with a legend, in form and substance satisfactory to Agent, indicating that the Collateral is subject to the security interest granted hereby; (b) at the request of the Agent, appear in and defend any -3- action or proceeding which may affect Pledgor's title to, or the security interest of Agent in, any of the Collateral; and (c) upon demand of Agent, allow inspection of Collateral by Agent or persons designated by Agent at any time during normal business hours and, provided that no Event of Default has occurred and is continuing, upon three (3) Business Days' notice to Pledgor. 4.3 With respect to that portion of the Collateral which is evidenced by, or consists of, negotiable collateral (other than drafts received in the ordinary course of business so long as no Event of Default has occurred and is continuing), Pledgor shall, immediately upon request by Agent, endorse (where appropriate) and assign such negotiable collateral over to Agent, and deliver to Agent actual physical possession of such negotiable collateral to Agent together with any instruments of transfer or assignment, all in form and substance satisfactory to Agent, in order to fully perfect the security interest therein of Secured Party. 4.4 Pledgor acknowledges and agrees that, upon the occurrence of an Event of Default which remains uncured during any applicable Cure Period, the primary source of repayment of the Obligations is through the liquidation of the Collateral described herein and through liquidation of Borrowers' Radio Stations and Licenses (as defined in the Credit Agreement). In accordance with the provisions of Section 7.2(c) of the Credit Agreement, upon the occurrence and during the continuance of the Event of Default(s) described therein, Pledgor agrees to take all actions and do all things requested in connection with an application to the FCC for the grant, assignment, or transfer of the Licenses to a receiver acceptable to Agent and appointed by a court of competent jurisdiction, or to Agent's nominee or to a purchaser of the Collateral, including the Radio Stations and the Licenses, to facilitate Agent's non-judicial foreclosure of Secured Party's security interest, provided such actions are consistent with the Communications Act and the rules and regulations of the FCC. In connection therewith, Pledgor agrees to execute and deliver to Agent, the receiver or any person or such entity designated by Agent, any documents, instruments, or agreements reasonably requested by Agent or the receiver in connection with any such grant, license, assignment, or transfer sought by Agent from the FCC. 5. Representations and Warranties of Pledgor. Pledgor hereby represents and warrants to Secured Party that: 5.1 Validity of Collateral/Title to Collateral. Pledgor is the sole legal and beneficial owner of the Collateral, and, except for the security interests granted to Secured party herein Pledgor has, and will at all times during the term hereof have, good and marketable title to all and every part of the Collateral, free and clear of any security interest, lien, pledge, encumbrance, option, conditional sale contract, lease or other title retention agreement, or any other adverse claim of any nature whatsoever. 5.2 Uncertificated Membership. Pledgor's membership interest in the Company is not evidenced by any certificate or instrument representing the Collateral. In the -4- event any certificate or instrument evidencing Pledgor's membership interest is issued by the Company, Pledgor shall immediately deliver such certificate or instrument to Agent, stamped or marked as Secured Party may require, together with duly executed or endorsed instruments of assignment or transfer relating thereto as Secured Party may reasonably require. 5.3 Nature of Collateral. The Collateral will at all times during the term hereof constitute one hundred percent (100%) of the membership interest in the Company. 5.4 Priority. Upon the execution and delivery of this Agreement by Pledgor and Agent's filing a UCC-1 Financing Statement covering the Collateral in the office of the State Corporation Commission of the State of Virginia and the office of the Secretary of the State of Indiana, Secured Party shall have perfected security interests in and to the Collateral having first priority for the full amount of all of the Secured Obligations. 5.5 No Default or Required Consent. Neither the execution or delivery of this Agreement by Pledgor nor the effectuation by Agent or Secured Party of any of its rights or remedies herein, whether upon default or otherwise, will result in a breach of or constitute a default under any Articles of Organization or operating agreement of Pledgor or the Company or any other agreement or instrument to which the Pledgor or the Company is a party or by which any of the Collateral or the assets of the Company is bound, or violate any law or any rule or regulation of any administrative agency or any order, writ, injunction or decree of any court or administrative agency, nor does any of the foregoing require the consent of any person, entity or governmental agency or any notice or filing with any governmental or regulatory body (except as may be required in connection with any sale or disposition of the Collateral by laws and regulations of the FCC and except for the filing of this Agreement with the FCC subsequent to its execution, if and as necessary). 5.6 No Litigation. There is no action, legal, administrative or other proceeding pending or threatened against Pledgor's title to or interest in the Collateral or against Pledgor's pledge of the Collateral hereunder, nor does Pledgor know of any basis for the assertion of any such claim. 5.7 Charter Documents and Member Agreements. Accurate copies of the Articles of Organization and the Operating Agreement of the Company, and agreements among the members of the Company in their member capacity to which the Pledgor is a party, all pre-organization agreements adopted by the Company, and all agreements among members or between members and the Company which contain buy/sell rights, options, rights of first refusal, rights of co-sale or similar rights affecting the transferability of member ownership or control, and all amendments of any of the foregoing (the "Member Agreements") (i) have heretofore been delivered to Secured Party (ii) have been duly authorized, executed and delivered by the parties thereto, (iii) have not been further amended or otherwise modified and (iv) are in full force and effect and are binding upon and enforceable against the parties thereto in accordance with their respective terms subject to the -5- effect of any applicable bankruptcy or similar law affecting creditors' rights generally and to the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law). There exists no default under any of the Member Agreements by Pledgor, or to Pledgor's knowledge, by any other party hereto. 6. Affirmative Covenants. Pledgor covenants that until such time as all of the Secured Obligations are paid in full unless Secured Party shall otherwise consent in writing: 6.1 Protection of Security and Legal Proceedings. Pledgor shall, at its own expense, take any and all actions necessary to preserve, protect and defend the security interest of Secured Party in the Collateral and the perfection and priority thereof against any and all adverse claims, including appearing in and defending any and all actions and proceedings which purport to affect any of the foregoing; promptly reimburse Secured Party or Agent on behalf of Secured Party for any and all sums, including reasonable costs, expenses and actual attorneys' fees, which Secured Party or Agent on behalf of Secured Party may pay or incur in defending, protecting or enforcing its security interest in the Collateral or the perfection or priority thereof, or in discharging any prior or subsequent lien or adverse claim against the Collateral or any part thereof, or by reason of becoming or being made a party to or intervening in any action or proceeding affecting the Collateral or the rights of Secured Party therein, all of which actions Pledgor hereby agrees that Secured Party or Agent on behalf of Secured Party shall have the right to take in their sole and absolute discretion. 6.2 Authorized Sale. Pledgor shall keep the proceeds of any collection, sale or disposition of any Collateral authorized by Secured Party in accordance with the Credit Agreement separate from Pledgor's other property and; until otherwise notified by Agent, shall enforce all of Pledgor's rights with respect to any such collection, sale or disposition, maintain accurate and complete records thereof and promptly deliver to Agent the proceeds thereof as and when received. 6.3 Inspection. Prior to the occurrence of an Event of Default, Pledgor shall give Secured Party and Agent such information as may be reasonably requested concerning the Collateral and permit Secured Party and its agents and representatives (including Agent), after notice and at reasonable times, to enter upon any premises upon which Pledgor's records concerning the Collateral or the Company are located for the purpose of inspecting and auditing the same. Pledgor shall also cause the Company to permit Secured Party and its agents and representatives (including Agent) full access upon reasonable request to all properties and records of the Company for the purpose of inspecting and auditing the same. After the occurrence and during the continuance of an Event of Default, Pledgor shall allow Secured Party and Agent immediate access to Pledgor's records concerning the Collateral or the Company for the purpose of inspecting and auditing same, including full access to all properties and records of the Company. -6- 6.4 Notification. Pledgor shall promptly notify Secured Party in writing of any event which materially and adversely affects the ability of Pledgor or Secured Party to dispose of the Collateral or the rights and remedies of Secured Party in relation thereto, including, but not limited to, the levy of any legal process against the Collateral and the adoption of any order, arrangement or procedure affecting the Collateral, whether governmental or otherwise; Pledgor shall also promptly notify Secured Party in writing of any event which materially and adversely affects the financial condition, assets, liabilities, business, operations or prospects of the Company in any material respect. 6.5 Authority of Secured Party. With respect to any Collateral, Pledgor hereby consents and agrees that the Company shall be entitled to accept the provisions of this Agreement as conclusive evidence of the right of Secured Party or Agent on behalf of Secured Party to effect any transfer or exercise any right hereunder with respect to any such Collateral, notwithstanding any other notice or direction to the contrary heretofore or hereafter given by Pledgor or any other person to the Company or to any registrar, transfer agent or trustee thereof. 6.6 Further Assurances. Pledgor shall from time to time make, execute, acknowledge and deliver all such further documents, instruments and assurances and take such further acts as reasonably may be requested by Secured Party or Agent to perfect or preserve the security interest created by and to carry out the intent of this Agreement. Without limiting the generality of the foregoing, Pledgor shall, upon request of Secured Party or Agent, execute and deliver to Secured Party such financing statements and security agreements, in form and substance satisfactory to the Secured Party, as Secured Party may require to effect and perfect Secured Party's security interest in the Collateral, including any distributions or dividends paid in property other than cash or cash equivalents. 6.7 Member Agreements. Pledgor shall, at its own expense, unless Secured Party shall otherwise consent in writing in advance: (a) Except as to the extent otherwise provided in Section 9.1, use its best efforts to perform and observe all of the terms and provisions of each Member Agreement to be performed or observed by it, maintain each Member Agreement to which it is a party in full force and effect, take all reasonable and prudent action to enforce in accordance with its terms each Member Agreement to which it is a party, and take all such action to such end as may be from time to time reasonably requested by Secured Party. (b) Furnish to Secured Party promptly after receipt thereof copies of (i) all notices, requests and other documents, other than financial statements, received by Pledgor under or pursuant to each Member Agreement relating to any matter requiring consent from Secured Party under Section 9.1, (ii) all amendments to, restatements of, and newly executed, as the case may be Member Agreements, and (iii) such other information and reports regarding the Collateral as Secured Party may reasonably request; and -7- (c) Upon the reasonable request of Secured Party, make such demands and requests for information and reports, or make such demands or request for action Pledgor is entitled to make under each Member Agreement, to the Company and the parties to the respective Member Agreements. 7. Negative Covenants. Pledgor covenants that (without the prior written consent of Secured Party) until such time as all of the Secured Obligations are paid in full and: 7.1 Sale or Hypothecation of Collateral. Pledgor shall not directly or indirectly, whether voluntarily, involuntarily, by operation of law or otherwise (a) exchange, sell, encumber or dispose of the Collateral or any part thereof, or any of Pledgor's rights therein, or grant any option with respect thereto; (b) cause, suffer or permit the Collateral to be affected by any encumbrance, security interest, option or adverse claim of any kind or nature whatsoever; (c) vote or consent to any change the voting rights of the members of the Company. The inclusion of "proceeds" as a component of the Collateral shall not be deemed a consent by Secured Party to any sale or disposition of all or any part of the Collateral. 7.2 No Issuance of Additional Membership Interests. Pledgor shall not cause, suffer, or permit the Company to issue any additional membership interests in the Company. 7.3 Certain Agreements. Pledgor shall not make any compromise, adjustment, amendment, modification, settlement, substitution or termination in respect to the Collateral; nor cause, suffer or permit anything to be done which might impair, or fail to do anything necessary or advisable in order to preserve the value of the Collateral and the credit interest of Secured Party therein. 8. Additional Covenants of Pledgor. 8.1 Preservation of Collateral. In case of any failure of Pledgor to keep the Collateral free from liens or adverse claims, or to pay taxes on or in respect thereof, or fully and punctually to keep and perform any other covenant hereof, then after reasonable notice to Pledgor, Secured Party or Agent on behalf of Secured Party may (but shall not be required to) pay or contest or settle such taxes, liens or adverse claims, or any judgments based thereon, take any action to preserve any rights of or against any prior or other parties in connection with the Collateral, make or give any presentments, demands for performance, notices of nonperformance, protests, notices of protests, notices of dishonor or notices or any other nature whatsoever in connection with the Collateral or the Secured Obligations, or otherwise make good any other aforesaid failure of Pledgor. Pledgor shall promptly reimburse Secured Party or Agent for any sums reasonably paid or advanced by Secured Party or Agent for any such purpose, together with interest at the rate specified in the Credit Agreement from the date of any such advance to the date of reimbursement. -8- 8.2 Attorney-in-Fact. After the occurrence and during the continuance of an Event of Default, Agent on behalf of Secured Party shall have the right and power to receive, endorse and collect all checks made payable to Pledgor representing any payment or distribution in respect of the Collateral or any part thereof and to give full discharge for the same, and to execute and deliver as attorney-in-fact on behalf of Pledgor all necessary instruments of sale, assignment and transfer of the Collateral, and any part thereof, as may be sold or otherwise disposed of pursuant to this Agreement, subject to the prior consent of the FCC to the extent required. Pledgor hereby appoints Agent on behalf of Secured Party its attorney-in-fact with full power of substitution, to carry out the purposes of this section 8.2. The power of attorney granted under this Section 8.2 is coupled with an interest and shall be irrevocable until all of the Obligations have been paid in full, the Credit Agreement terminated, and Pledgor's duties hereunder have been discharged in full. 9. Rights Incident to Collateral. 9.1 Voting Rights. Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Collateral or any part thereof for any purpose not inconsistent with the terms of this Agreement. Without limiting the generality of the foregoing, Pledgor shall not in Pledgor's capacity as a member of the Company, without Secured Party's prior written consent: (a) Cancel or terminate any Member Agreement or consent to any cancellation or termination thereof; (b) Vote or consent to amend or restate the Articles of Organization; (c) Vote or consent to amend the Operating Agreement of the Company; (d) Execute any irrevocable proxies with respect to the Company; (e) Enter into any agreement among members or between members and the Company to which Pledgor is a party to reduce or eliminate or to create or increase rights adversely affecting the transferability of, the ownership or control of the Collateral, or to restrict in any manner Pledgor's ability to freely exercise his voting rights with respect to the Collateral; and (f) Waive any material default under or breach of any Member Agreement. 9.2 Rights to Distributions. So long as no Event of Default has occurred and is continuing the Pledgor may retain any distributions made in cash or cash equivalents, but after the occurrence and during the continuance of an Event of Default Pledgor shall cause the Company to pay directly to Agent on behalf of Secured Party (a) one hundred percent (100%) of all distributions made in the ordinary course in cash or cash -9- equivalents in respect of any Collateral, (b) one hundred percent (100%) of all distributions made other than in cash or cash equivalents in respect of any Collateral, and (c) one hundred percent (100%) of all distributions of cash or cash equivalents made in respect of any Collateral in connection with a partial or total liquidation or dissolution of the Company or in connection with a reduction of capital, capital surplus or paid-in-surplus thereof, whether such distributions be made by way of interest, distribution or otherwise. Distributions received by Agent under (a) and (c) above shall be applied by Secured Party against the Secured Obligations in the manner specified in Section 14 hereof. 9.3 Distributions Held in Trust. All distributions from the Company which are received by Pledgor contrary to the provisions of this Agreement shall be received in trust for the benefit of Secured Party, shall be segregated from other funds of Pledgor, and shall forthwith be paid over to Agent as pledged Collateral in the same form as so received (with any necessary endorsements). 10. Events of Default. The occurrence of any of the following shall constitute an event of default ("Event of Default") hereunder: 10.1 Default Under Credit Agreement. The occurrence of any Event of Default under the Credit Agreement; 10.2 Deterioration of Collateral. If, in the reasonable judgment of Secured Party, there is any material deterioration, depreciation or impairment of the value of the Collateral which causes the Collateral to become unsatisfactory as to value so as to impair the Secured Party's security for the Secured Obligations; 10.3 Company's Actions. The failure of the Company, for any reason, to take any of the actions specified in the any affirmative covenant herein or the taking by the Company of any of the actions specified in Sections 7.1 through 7.3 in any such case without prior written consent of Secured Party; 10.4 Bankruptcy. The insolvency or appointment of a receiver to take charge of the business or property of the Company or (the commission of an act of bankruptcy) the making of a general assignment for the benefit of creditors or the filing of any petition in bankruptcy by or against the Company or for relief under the Bankruptcy Code, as amended, or under any other laws, whether federal or state, for the relief of debtors, now or hereafter existing, unless the same is dismissed within sixty (60) days after the filing thereof; 10.5 Liens on Property of the Company. The initiation of steps by any third party to obtain a lien, levy or writ of attachment or garnishment upon substantially all of the property of the Company or to the affect any such property by other legal process, where the same is not dismissed within thirty (30) days after the initiation thereof; -10- 10.6 Inability to Pay Debts. Any written admission by the Company of their inability to pay their debts as they mature; 10.7 Certain Transfers. Any transfer of property by the Company under circumstances which would entitle a trustee in a bankruptcy or similar fiduciary to avoid such transfer under the Bankruptcy Code, as amended, or under any other laws, whether state or federal, for the relief of debtors, now or hereafter existing; 10.8 Appointment of Receiver. The appointment of a receiver, trustee or custodian for the Company or for any substantial part of the assets of any of the Company or the institution of proceedings for the dissolution or the full or partial liquidation of the Company, and such receiver or trustee shall not be discharged within sixty (60) days of his or its appointment, or such proceedings shall not be discharged within sixty (60) days of their commencement, or the discontinuance of the business or a material change in the nature of the business of any of the foregoing parties; 10.9 Dissolution of the Company, Etc. If the Company should cease for any reason to be a going concern; 10.10 Misrepresentation. Should any material representation of the Company to Secured Party concerning the financial condition or credit standing of the Company or any representation or warranty of the Company contained in the Credit Agreement or this Agreement or in any other Credit Document prove to have been materially false or misleading when made; and 10.11 Adverse Judgments. If final judgment for the payment of money in excess of $25,000 per Pledgor shall have been rendered by any court of competent jurisdiction against the Pledgor and the same shall not have been discharged or execution thereunder stayed, whether pursuant to appeal or otherwise, within thirty (30) days of the entry of thereof, or if any final order, ruling or direction of any competent authority is issued in a proceeding with respect to the Pledgor which materially adversely affects the Pledgor, or which requires a substantial or material adverse change in the business or affairs of the Pledgor. 11. Rights and Remedies of Secured Party. Upon the occurrence of any Event of Default hereunder, Secured Party or Agent on behalf of Secured Party may exercise any and all of the following rights and remedies, all of which shall be cumulative and not mutually exclusive: 11.1 Rights and Remedies Under the Credit Agreement. Secured Party or Agent may pursue and enforce all of its rights and remedies provided under the Credit Agreement; and -11- 11.2 Other Rights and Remedies. Secured Party or Agent may pursue and enforce all of the rights and remedies provided to secured parties at law or in equity, including, without limitation, the provisions of the Uniform Commercial Code of the State of New York, as amended. Without limiting the generality of the foregoing, Secured Party or Agent may sell or otherwise dispose of the Collateral or retain it in satisfaction of the Secured Obligations and Secured Party or Agent may obtain specific performance of any obligation of Pledgor contained herein without the necessity of posting bond or proving that money damages are an adequate remedy. 12. Demands, Notices Etc.; Commercially Reasonable Sale. Subject to Section 16 hereof, all demands of performance, advertisements, notices of sale or retention, as well as the presence of the Collateral at any sale and the constructive possession of the Collateral by the person and conducting any sale, except only as provided by Section 9-504(3) of the Uniform Commercial Code of the State of New York are hereby specifically waived by Pledgor. The Secured Party shall give Pledgor ten (10) days notice, of the time and place of any public sale of the Collateral, or of the time after which any private sale or other disposition of the Collateral is proposed to be made which Pledgor hereby agrees constitutes reasonable notice. With respect to any Collateral consisting of securities, and whether or not any of such Collateral has been effectively registered under the Securities Act of 1933 or other applicable laws, Secured Party or Agent on behalf of Secured Party may, in its sole and absolute discretion, sell all or any part of such Collateral at private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable in order that the sale may be lawfully conducted. Without limiting the foregoing, Secured Party or Agent on behalf of Secured Party may (a) approach and negotiate with a limited number of potential purchasers and (b) restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing such Collateral for their own account for investment and not with a view to the distribution or resale thereof. In the event that such Collateral is sold at private sale, Pledgor agrees that if such Collateral is sold for a price which Secured Party in good faith believes to be reasonable under the circumstances then existing, then (i) the sale shall be deemed to be commercially reasonable in all respects, (ii) Pledgor shall not be entitled to a credit against any Secured Obligations in an amount in excess of the purchase price and (iii) Secured Party shall not incur any liability or responsibility to Pledgor in connection therewith, notwithstanding the possibility that a substantially higher price might have been realized at a public sale. In this regard Pledgor understands and agrees that Secured Party is under no obligation to seek prior approval of or to make any registration statement with respect to a "public offering" of the Collateral, that any decision of Secured Party not to do so shall be conclusively deemed a reasonable decision of Secured Party, and that such a decision may very strictly limit the course of conduct of Secured Party with respect to any disposition of all or any portion of the Collateral by Secured Party, and also may limit the extent to which or the manner in which any subsequent transferee of all or any portion of the Collateral may dispose of the same. Similarly, there may be other legal restrictions or limitations affecting Secured Party in any attempt to dispose of all or any part of the Collateral under applicable State Blue Sky or other State securities laws or similar laws analogous in purpose or effect. Without limiting -12- the generality of the foregoing, the foregoing provisions of this Section shall be applicable if, for example, Secured Party were to transfer all or any part of the Collateral for private placement by an investment banking firm of reputation satisfactory to Secured Party, or if Secured Party were to place all or any part of the Collateral privately with a purchaser or purchasers thereof. 13. Further Assurances. Pledgor further agrees to use its best efforts to do or cause to be done all such other acts as reasonably may be necessary to make any sale or sales of all or any portion of the Collateral pursuant to Section 12 hereof valid and binding and in compliance with any and all applicable requirements of law. Pledgor further agrees that Pledgor's failure to use such best efforts will cause irreparable injury to Secured Party, that Secured Party has no adequate remedy at law in respect to such breach and, as a consequence, that such covenant shall be specifically enforceable against Pledgor. Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred under the terms of the Credit Agreement. 14. Application of Proceeds. The proceeds of any sale, or of collection, of all or any part of the Collateral shall be applied by Agent as set forth in the Credit Agreement. 15. Return of Collateral. Subject to any duty imposed by law or otherwise to the holder of any subordinate lien on the Collateral known to Secured Party, and subject to the direction of a court of competent jurisdiction, upon the extinguishment of any commitment of Secured Party to make further advances under the Credit Agreement and upon the payment in full of the Secured Obligations, Pledgor shall be entitled to return of the Collateral. Upon payment in full of the Secured Obligations, this Agreement shall terminate and the Agent shall execute such termination statements or other instruments as Pledgor reasonably may request acknowledging satisfaction and discharge of this Agreement, and each Secured Party shall, upon request of Pledgor, duly execute and deliver to Pledgor a copy of this Agreement marked terminated, canceled and released. 16. Obtaining of Required Approvals. To the extent the exercise by Secured Party of any remedy afforded herein requires the consent or approval of any governmental agency or regulatory body, including without limitation the FCC, the right of Secured Party or Agent to exercise such remedy shall be conditioned upon receipt by Secured Party or Agent of such consent or approval. In furtherance of the exercise by Secured Party of the power of sale granted to it herein, Pledgor agrees that, upon request of Secured Party or Agent and without expense to Secured Party or Agent, Pledgor shall use its best efforts to obtain all necessary approvals from the FCC and all other applicable federal, state and local governmental agencies, authorities and instrumentalities for the sale by Secured Party of the Collateral, or the exercise of any voting powers over the Collateral, or any part thereof, or the transfer to the successful bidder or prospective purchaser of any governmental licenses or franchises necessary to allow it to conduct the business or activities for which the Collateral is intended. -13- 17. Cumulative Rights, No Waiver. The several rights and remedies of Secured Party hereunder or referred to herein shall, to the full extent permitted by law, be construed as cumulative, and no one of them is exclusive of the others. No delay or omission of Secured Party in exercising any right or remedy created by, connected with or provided in this Agreement or arising from any Event of Default hereunder shall be construed as or deemed to be an acquiescence therein or a waiver of such default or a waiver of or limitation upon the right of Secured Party to exercise, at any time and from time to time thereafter, any right or remedy under this Agreement. No waiver of any breach of any of the covenants or conditions of this Agreement shall be construed to be a waiver of or acquiescence in or consent to any preceding or subsequent breach of the same of any other condition or covenant. If the performance of any Secured Obligation is at any time secured by any other instrument or instruments, the exercise by Secured Party of any right or remedy under any such other instrument shall not be construed as or deemed to be a waiver of any limitation upon the right of Secured Party to exercise, at any time and from time to time thereafter, any right or remedy under this Agreement or under any such other instrument. Without limiting the generality of the foregoing, Pledgor acknowledges that the Secured Obligations are also secured by the Collateral described in the Credit Agreement and that Secured Party may, in its absolute discretion, proceed against any other debtor or Collateral prior to, after or concurrently with any proceedings against Pledgor and/or the Collateral hereunder and the order in which Secured Party may proceed against any other debtor or Collateral shall not in any way affect Secured Party's right to proceed against Pledgor and/or the Collateral under this Agreement. 18. Secured Party's Possession of Collateral. Each of Secured Party's and Agent's sole duty with respect to the Collateral in its possession shall be to use reasonable care in the custody and preservation thereof. Secured Party and Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which each of Secured Party and Agent accords its own property, it being understood that Secured Party and Agent shall not have any responsibility for (a) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not Secured Party or Agent has or is deemed to have knowledge of such matters, or (b) taking any necessary steps to preserve rights against any parties with respect to any Collateral. Under no circumstances shall Secured Party or Agent be responsible for any injury or loss to the Collateral, or any part thereof, arising from theft, acts of God, flood, fire or from any other cause beyond the reasonable control of Secured Party. 19. Indemnification. Secured Party shall incur no liability if any action taken by Secured Party or on Secured Party's behalf in good faith pursuant to any provisions of this Agreement shall prove to be in whole or in part inadequate or invalid and, except for claims arising from the Secured Party's gross negligence, Pledgor agrees to indemnify and hold each of Secured Party and Agent, and their officers, directors, partners, members, employees, agents and attorneys free and harmless from and against any loss, liability, claim -14- or damage, including without limitation, all attorneys' fees and court costs actually incurred (a) in connection with any such action or actions, and (b) in respect of any claims or allegations of third parties arising out of Pledgor use and ownership of the Collateral or Secured Party's or Agent's possession of the Collateral or its security interest therein. 20. Assignment of Obligations. Secured Party may transfer or negotiate any Secured Obligation as and to the extent permitted by Section 9.5 of the Credit Agreement and applicable law. 21. Modification of Secured Obligations. Pledgor consents and agrees that Secured Party may, at any time and from time to time, in Secured Party's sole and absolute discretion, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) supplement, modify, amend, extend, renew, accelerate, waive or otherwise change the time for payment or the terms of the Secured Obligations or any part thereof or any additional security or guaranties now or hereafter held therefor; (b) enter into or give any agreement, approval or consent with respect to the Secured Obligations or any part thereof or any additional security or guaranties now or hereafter held therefor; (c) accept new or additional instruments, documents or agreements in exchange for or relative to the Secured Obligations or any part thereof; (d) accept partial payments on the Secured Obligations; (e) receive and hold additional security or guaranties for the Secured Obligations or any part thereof; (f) settle, release, liquidate and/or fail to enforce any Secured Obligation; (g) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, transfer and/or fail to enforce any other security or guaranties now or hereafter held for the Secured Obligations or any part thereof; (h) substitute, exchange, amend or alter any other security or guaranty now or hereafter held for the Secured Obligations or any part thereof, whether or not the security or guaranty received upon the exercise of such power is of the same character or value as the security or pledge so affected; (i) release any person from any personal liability with respect to the Secured Obligations or any part thereof; (j) consent to the transfer of any such other security and bid and purchase the same at any sale thereof; and/or (k) consent to any merger, change or other restructuring or termination of the existence of the Company or any other person, and correspondingly restructure the Secured Obligations. 22. Waivers. To the fullest extent permitted by law, Pledgor waives any duty on the part of Secured Party to disclose to Pledgor any facts Secured Party may now know or may hereafter know about the Company or the Company's successors in interest (if any) regardless of whether Secured Party (i) has reason to believe that any such facts materially increase the risk beyond the risk which Pledgor intends to assume by executing this Agreement, (ii) has reason to believe that these facts are unknown to Pledgor, or (ii) has a reasonable opportunity to communicate such facts to Pledgor, it being understood and agreed that Pledgor is fully responsible for being and keeping informed of the financial condition of the Company or any successor in interest of the Company and of all circumstances bearing on the risk of non-payment of any indebtedness of the Company to Secured Party that is secured hereby. -15- Pledgor also waives with respect to the Company, its successor and assigns and any other person, including other guarantors, who may have similar rights against the Company, any and all rights of subrogation, reimbursement, exoneration, contribution or setoff, any and all rights to participate in any claim or remedy of Secured Party against the Company or any Collateral, and any and all rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated or to a holder or transferee against a maker, and which Pledgor may have or hereafter acquire against the Company or any such other person by contract, at law or in equity in connection with or as a result of Pledgor's execution, delivery and/or performance of this Pledge Agreement or any other Credit Document. Pledgor shall not at any time hereafter have or assert any such claims or rights against the Company, its successors and assigns or any such other persons either directly or as an attempted setoff to any action commenced against Pledgor by the Company, Secured Party or any other person. Pledgor hereby acknowledges and agrees that this waiver is intended to be for the benefit of the Company, as a thirty party beneficiary, as well as for the benefit of Secured Party. Therefore, the waiver set forth herein shall remain at all times hereafter in full force and effect, and may be enforced by the Company in its own name and right, notwithstanding that all indebtedness and obligations of the Company to Secured Party arising under the Credit Documents have been repaid in full. Pledgor further agrees that, to the extent the waiver of rights of subrogation as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation which Pledgor may have against the Company or against any Collateral or security shall be junior and subordinate to any right Secured Party may have against the Company and to all right, title and interest Secured Party may have in any Collateral or security. Secured Party may use, sell or dispose or any item of Collateral or security as herein permitted as it sees fit without regard to any subrogation right Pledgor may have, and upon disposition or sale, any right of subrogation Pledgor may have shall terminate. Pledgor acknowledges, and agrees that by virtue of this pledge, it has specifically assumed any and all risks of bankruptcy or reorganization with respect to the Company and that any modification of the Secured Obligations in any bankruptcy or reorganization of the Company shall not affect Secured Party's rights to pursue its remedies against the Collateral in respect of any Event of Default under the original terms of the Secured Obligations as though no such bankruptcy or reorganization case had occurred. Before executing this Agreement, Pledgor has made such independent legal and factual inquiries and investigations as Pledgor deemed necessary or desirable with respect to the ability of the Company to honor all of the Company's covenants and agreements which are secured hereby, and Pledgor has relied solely on said independent inquiries and investigations preparatory to entering into this Agreement. Pledgor warrants and agrees that each of the waivers and consents set forth herein is made after consultation with legal counsel and with full knowledge of their significance and consequences, with the understanding that events giving rise to any defense or right waived may diminish, destroy or otherwise adversely affect rights which Pledgor otherwise may have against the Company, -16- Secured Party or others, or against the Collateral, and that, under the circumstances, the waivers and consents herein given are reasonable and not contrary to public policy or law. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law. 23. Miscellaneous. 23.1 Attorneys' Fees. Pledgor shall pay to Secured Party all reasonable attorneys' fees and all reasonable costs and other expenses paid or incurred by Secured Party in enforcing or exercising its rights or remedies created by, connected with or provided in this Agreement, whether or not suit is filed, expressly including, without limitation, all reasonable costs, attorneys fees and expenses actually incurred by Secured Party in connection with any insolvency, bankruptcy, reorganization, arrangement or similar proceeding involving Pledgor or any other person that in any way affects the exercise by Secured Party of its rights hereunder, and the proceeds of disposition of any or all of the Collateral shall be applied to the payment of such attorneys' fees, costs and other expenses as provided herein. 23.2 Notices. All written notices, demands and requests of any kind which either party may be required or may desire to serve upon the other party herein in connection with this Agreement shall be delivered in accordance with the notice provision of the Credit Agreement. 23.3 Revival of Security Interests. To the extent permitted and as provided by applicable law, Secured Party's rights and security interests hereunder shall be reinstated and revived, and the enforceability of this Agreement shall continue, with respect to any amount at any time paid on account of Secured Obligations that thereafter shall be required to be restored or returned by Secured Party upon the bankruptcy, insolvency or reorganization of Pledgor, the Company or any other person, all as though such amount had not been paid. 23.4 Amendment; Waiver; Construction. This Agreement may not be altered or amended except by the written agreement of the parties hereto. No provision of this Agreement or right of Secured Party hereunder can be waived nor can Pledgor be released from its obligations hereunder except by a writing duly executed by Secured Party. Each of the parties hereto hereby acknowledges that it has been represented by independent counsel of its own choice throughout all negotiations which have preceded the execution of this Agreement and that it has executed the same with the consent and upon the advice of said independent counsel. All parties and their respective counsel have cooperated in the drafting and preparation of this Agreement, such that it shall be deemed to be their joint work product and may not be construed against any party by reason of its preparation. -17- 23.5 Severability. Should any one or more provisions of this Agreement be determined to be illegal or unenforceable, all other provisions of this Agreement nevertheless shall be effective. 23.6 Joint and Several Liability. If more than one Pledgor signs this Agreement, the obligations of all such persons shall be joint and several. 23.7 Terminology. Where the context or construction requires, all words applied in the plural shall be deemed to have been used in the singular and vice versa, the neuter shall include the masculine and feminine and all references to "Pledgor" shall mean all or any one or more of them. All terms used herein shall have the same meaning as in the provisions of the New York Uniform Commercial Code, as amended. 23.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 23.9 Applicable Law. Governing Law; Jurisdiction. Waiver of Trial by Jury: (a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS (EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY SET FORTH THEREIN) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. (b) JURISDICTION AND VENUE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS MAY BE TRIED AND LITIGATED IN THE STATE OF NEW YORK OR, AT THE SOLE OPTION OF SECURED PARTY, IN ANY OTHER COURT IN WHICH SECURED PARTY INITIATES LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS JURISDICTION OVER THE SUBJECT MATTER AND PARTIES IN CONTROVERSY. TO THE EXTENT THEY MAY LEGALLY DO SO, THE PARTIES HERETO HEREBY WAIVE ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 23.9(b) AND STIPULATE THAT ANY SUCH COURT SHALL HAVE IN PERSONAM JURISDICTION AND VENUE OVER EACH SUCH PARTY FOR THE PURPOSE OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE CREDIT DOCUMENTS. SERVICE OF PROCESS SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST THE PLEDGOR MAY BE MADE BY -18- REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THEIR ADDRESS SPECIFIED FOR NOTICES PURSUANT TO SECTION 9.1 OF THE CREDIT AGREEMENT. (c) WAIVER OF TRIAL BY JURY. THE PARTIES HERETO EACH AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including without limitation contract claims, tort claims, breach of duty claims and all other common law and statutory claims. The parties hereto each (i) acknowledges that this waiver is a material inducement for the parties to enter into a business relationship, that the parties hereto have already relied on this waiver in entering into this Pledge Agreement or accepting the benefits thereof, as the case may be, and that each will continue to rely on this waiver in their related future dealings, and (ii) further warrants and represents that each has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS OF THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. 23.10 Agent. Agent has been appointed to act as Agent hereunder on behalf of Secured Party pursuant to the Credit Agreement and shall act as Agent hereunder in accordance with the provisions of this Agreement and the Credit Agreement. Agent hereunder shall all times be the same person as the Agent under the Credit Agreement. Resignation or removal of the Agent hereunder and appointment of a successor agent under the Credit Agreement shall constitute appointment as successor agent hereunder. Upon resignation or removal, Agent shall promptly transfer all Collateral and any related records or documents to the successor agent and shall execute and deliver any documents or instruments or take such other actions as may be reasonably necessary in connection with the transfer of the Collateral and substitution of agents. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. "PLEDGOR" LLC, ----------------------------- a Virginia limited liability company By: Inc., -----------------------, a Virginia corporation, -19- Managing Member By: --------------------------------- President MANAGEMENT, INC., a ------------------ Virginia corporation By: --------------------------------- Alan R. Brill, President "SECURED PARTY AND AGENT" AMRESCO FUNDING CORPORATION, a Delaware corporation, individually and as Agent By: --------------------------------- Its: --------------------------------- GOLDMAN SACHS CREDIT PARTNERS L.P., a Bermuda limited partnership By: --------------------------------- Authorized Signatory -20- EXHIBIT D PLEDGE AGREEMENT COVERING STOCK This PLEDGE AGREEMENT COVERING STOCK (this "Agreement") is made and entered into as of _______, by and among [owner of stock of managing member of New Acquisition Company] ("Pledgor"); AMRESCO FUNDING CORPORATION, a Delaware corporation ("AMRESCO"), and GOLDMAN SACHS CREDIT PARTNERS L.P., a Bermuda limited partnership, (collectively referred to as "Secured Party"); and AMRESCO, as agent for Secured Party ("Agent"), and is made with reference to the following facts: A. [Managing member of New Acquisition Company] (the "Company"), and Secured Party have entered into that certain Pledge of Membership Interest in LLC of even date herewith (as hereafter amended, supplemented or otherwise modified from time to time, the "Pledge Agreement"). [New Acquisition Company] (the "Debtor") and Secured Party have entered into that certain Acknowledgment and Ratification Agreement ("Ratification Agreement"), pursuant to which the Debtor has agreed to be bound by the terms, covenants, conditions and representations set forth in that certain Amended and Restated Credit Agreement dated September 30, 1997 (as hereafter amended, supplemented or otherwise modified from time to time, the "Credit Agreement") entered into by and among Secured Party and the Borrowers described therein; B. Pledgor is the owner of the 100% of the issued and outstanding shares of the stock of the Company (the "Stock"); C. Pledgor has agreed to pledge to Secured Party all of the issued and outstanding shares of the Company as collateral for the obligations specified in Section 2 below; and D. Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual promises and agreements hereinafter contained and for other good and valuable consideration, the parties hereto hereby agree as follows: 1. Grant of Security Interest. 1.1 Pledge. As security for payment and performance of the Secured Obligations specified in Section 2 hereof, Pledgor hereby pledges, assigns, transfers and grants to Secured Party and Secured Party's successors, endorsees and assignees a security interest in and to (a) any Stock now owned by Pledgor, (b) all additional shares 1 of the capital stock of the Company and any other monies, securities, rights and property issued or received in exchange therefor or with respect thereto, including, but not limited to, any cash dividends or distributions, any shares that may be issued to Pledgor as a stock dividend and any securities, rights or other property which Pledgor may hereafter receive or be entitled to receive in exchange therefor, whether upon a merger, reorganization, consolidation, stock split or reclassification, or otherwise; and (c) any and all additions and substitutions thereto and therefor and the proceeds of any of the foregoing (collectively the "Collateral"). 1.2 Delivery. In furtherance of the pledge, assignment, transfer and grant of the security interest referred to in Section 1.1 hereof, Pledgor shall (a) deliver to Agent, concurrently with the execution hereof; all certificates or instruments representing the Collateral, stamped or marked as Secured Party may require, together with duly executed or endorsed blank stock powers and proxies or such other instruments of assignment or transfer relating thereto as Secured Party may require and (b) deliver to Agent, as soon as possible after receipt thereof; certificates and other indicia of ownership representing any securities or other instruments referred to in Section 1.1(b) hereof; stamped or marked as Agent may require, together with duly executed or endorsed blank stock powers or such other instruments of assignment or transfer relating thereto as Agent may require. Upon the occurrence and during the continuance of an Event of Default under Section 7.1(a) or 7.1(b) of the Credit Agreement, which Event of Default has not been cured within applicable Cure Period, Agent shall have the right to transfer to or to register in the name of Secured Party or any of their nominees any or all of the Collateral. Secured Party shall also have the right to appoint one or more agents, including without limitation Agent, for the purpose of retaining physical possession of the Collateral. In addition, Agent shall have the. right at any time to exchange certificates or instruments representing or evidencing any of the Collateral for certificates or instruments of small or larger denominations. 1.3 Additional Collateral Received by Pledgor. Subject to the provisions of Section 7 hereof; any money, securities or other properly hereafter received by Pledgor in respect of or in exchange or substitution for any of the Collateral, and any additional shares of the capital stock or securities of Borrowers of whatever class or nature, shall be, and shall be deemed to have been, received by Pledgor as trustee for Secured Party, and Pledgor shall pay and deliver all such sums, securities and other property to Agent immediately, without demand or notice and Pledgor shall promptly thereafter deliver to Agent a certificate executed by a duly authorized officer of Pledgor describing such sums, securities and other property and certifying that the same have been duly pledged to Secured Party hereunder. The same shall then be held as Collateral by Secured Party as security for the obligations secured hereby or, in the case of money, applied to the indebtedness and obligations secured hereby as provided in Section 13 hereof. 1.4 Uncertificated Securities. Notwithstanding anything to the contrary 2 contained in Sections 1.1, 1.2 and 1.3 hereof; if any of the Collateral (whether now owned or hereafter acquired) is evidenced by an uncertificated security, Pledgor shall promptly notify Agent thereof and shall promptly take all actions required to perfect the security interest of Secured Party therein under applicable law (including, in any event under ss.ss.8-313 and 8-321 of the Uniform Commercial Code as amended, in effect in the State of New York or other applicable jurisdiction). Pledgor further agrees to take such actions as Secured Party deems necessary or desirable to effect the foregoing and to permit Secured Party to exercise any of its rights and remedies hereunder, and Pledgor agrees to provide an opinion of counsel satisfactory to Secured Party with respect to any such pledge of uncertificated securities promptly upon request of Secured Party. 1.5 If Pledgor is a married individual, Pledgor acknowledges that by this Agreement Pledgor is also granting to Secured Party a security interest in the entire community property interest, if any, of Pledgor's spouse in and to the Collateral. 1.6 Duties and Rights of Secured Party and Agent. Pledgor agrees that neither Agent nor Secured Party shall have any liability of any kind or nature whatsoever with respect to the Collateral, other than to hold, release or dispose of the same in accordance with the terms and provisions of this Agreement. With respect to each particular item of Collateral, the security interest herein granted shall attach immediately upon Pledgor's execution hereof or as soon as Pledgor acquires rights in and to such item of Collateral, whichever is later. 2. Obligations to be Secured. Whether or not recovery upon any of the following secured obligations is now or hereafter becomes barred by any statute of limitations or is now or hereafter becomes otherwise unenforceable, the security interests herein granted shall secure the following (collectively, the "Secured Obligations"): 2.1 Obligations Under Credit Agreement. The prompt and complete payment and performance of all of the Obligations under the Credit Agreement (including the payment of amounts which would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a) and interest which, but for the filing of a petition in bankruptcy, would accrue on such Obligations); and 2.2 Fees and Expenses. The payment and reimbursement of all sums and expenses, including, without limitation, attorney's fees (including allocated costs of internal counsel), court costs and collection, legal and receivers' expenses, advanced or incurred by Agent or Secured Party in connection with the perfection and protection of the security interest herein panted, the preservation or disposition of the Collateral, or any part thereof; or the enforcement by Agent or Secured Party of any of the foregoing obligations of Pledgor, the Borrower or any guarantor thereof to Secured Party whether upon default by Pledgor, the Borrower or any such guarantor, or otherwise. 3 3. Representations and Warranties of Pledgor. Pledgor hereby represents and warrants to Secured Party that: 3.1 Validity of Collateral/Title to Collateral. The issued Collateral has been duly authorized and validly issued, is fully paid and nonassessable and has been issued in compliance in all material respects with all applicable federal and state securities laws. Pledgor is the sole legal and beneficial owner of the Collateral, and, except for the security interests granted to Secured party herein Pledgor has, and will at all times during the term hereof have, good and marketable title to all and every part of the Collateral, free and clear of any security interest, lien, pledge, encumbrance, option, conditional sale contract, lease or other tide retention agreement, or any other adverse claim of any nature whatsoever. 3.2 Nature of Collateral. The Collateral will at all times during the term hereof constitute one hundred percent (100%) of the issued and outstanding securities of the Company. 3.3 Priority. Upon the execution and delivery of this Agreement by Pledgor and Agent's taking possession on behalf of Secured Party of the Collateral, Secured Party shall have perfected security interests in and to the Collateral having first priority for the full amount of all of the Secured Obligations. 3.4 No Default or Required Consent. Neither the execution or delivery of this Agreement by Pledgor nor the effectuation by Agent or Secured Party of any of its rights or remedies herein, whether upon default or otherwise, will result in a breach of or constitute a default under any charter provision or bylaw of Pledgor or the Company or any other agreement or instrument to which the Pledgor or the Company is a party or by which any of the Collateral or the assets of the Company is bound, or violate any law or any rule or regulation of any administrative agency or any order, writ, injunction or decree of any court or administrative agency, nor does any of the foregoing require the consent of any person, entity or governmental agency or any notice or filing with any governmental or regulatory body (except as may be required in connection with any sale or disposition of the Collateral by laws and regulations of the FCC or by laws affecting the offering and sale of securities generally and except for the filing of this Agreement with the FCC subsequent to its execution). 3.5 No litigation. There is no action, legal, administrative or other proceeding pending or threatened against Pledgor's title to or interest in the Collateral or against Pledgor's pledge of the Collateral hereunder, nor does Pledgor know of any basis for the assertion of any such claim. 3.6 Charter Documents and Shareholder Agreements. Accurate copies of the Articles of Incorporation and bylaws of the Company, all irrevocable proxies executed by Pledgor, all voting trust agreements and agreements among the shareholders 4 of the Company in their shareholder capacity to which the Pledgor is a party, all pre-incorporation agreements adopted by the Company, and all agreements among shareholders or between shareholders and the Company which affect in excess of 5% of the then outstanding capital stock of the Company on a fully diluted basis and contain buy/sell rights, options, warrants, registration rights, rights of first refusal, rights of co-sale or similar rights affecting the free transferability of share ownership or control, and all amendments of any of the foregoing (the "Shareholder Agreements") (i) have heretofore been delivered to Secured Party (ii) have been duly authorized, executed and delivered by the parties thereto, (iii) have not been further amended or otherwise modified and (iv) are in full force and effect and are binding upon and enforceable against the parties thereto in accordance with their respective terms subject to the effect of any applicable bankruptcy or similar law affecting creditors' rights generally and to the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law). There exists no default under any of the Shareholder Agreements by Pledgor, or to Pledgor's knowledge, by any other party hereto. 4. Affirmative Covenants. Pledgor covenants that until such time as all of the Secured Obligations are paid in full unless Secured Party shall otherwise consent in writing: 4.1 Protection of Security and Legal Proceedings. Pledgor shall, at its own expense, take any and all actions necessary to preserve, protect and defend the security interest of Secured Party in the Collateral and the perfection and priority thereof against any and all adverse claims, including appearing in and defending any and all actions and proceedings which purport to affect any of the foregoing; promptly reimburse Secured Party or Agent on behalf of Secured Party for any and all sums, including reasonable costs, expenses and actual attorneys' fees, which Secured Party or Agent on behalf of Secured Party may pay or incur in defending, protecting or enforcing its security interest in the Collateral or the perfection or priority thereof; or in discharging any prior or subsequent lien or adverse claim against the Collateral or any part thereof, or by reason of becoming or being made a party to or intervening in any action or proceeding affecting the Collateral or the rights of Secured Party therein, all of which actions Pledgor hereby agrees that Secured Party or Agent on behalf of Secured Party shall have the right to take in their sole and absolute discretion; 4.2 Authorized Sale. Pledgor shall keep the proceeds of any collection, sale or disposition of any Collateral authorized by Secured Party in accordance with the Credit Agreement separate from Pledgor's other property and, until otherwise notified by Agent, shall enforce all of Pledgor's rights with respect to any such collection, sale or disposition, maintain accurate and complete records thereof and promptly deliver to Agent the proceeds thereof as and when received. 4.3 Inspection. Prior to the occurrence of an Event of Default, Pledgor shall give Secured Party and Agent such information as may be reasonably requested 5 concerning the Collateral and permit Secured Party and its agents and representatives (including Agent), after notice and at reasonable times, to enter upon any premises upon which Pledgor's records concerning the Collateral or the Company are located for the purpose of inspecting and auditing the same. Pledgor shall also cause the Company to permit Secured Party and its agents and representatives (including Agent) full access upon reasonable request to all properties and records of the Company for the purpose of inspecting and auditing the same. After the occurrence and during the continuance of an Event of Default, Pledgor shall allow Secured Party and Agent immediate access to Pledgor's records concerning the Collateral or the Company for the purpose of inspecting and auditing same, including full access to all properties and records of the Company. 4.4 Notification. Pledgor shall promptly notify Secured Party in writing of any event which materially and adversely affects the ability of Pledgor or Secured Party to dispose of the Collateral or the rights and remedies of Secured Party in relation thereto, including, but not limited to, the levy of any legal process against the Collateral and the adoption of any order, arrangement or procedure affecting the Collateral, whether governmental or otherwise; Pledgor shall also promptly notify Secured Party in writing of any event which materially and adversely affects the financial condition, assets, liabilities, business, operations or prospects of the Company in any material respect. 4.5 Authority of Secured Party. With respect to any Collateral, Pledgor hereby consents and agrees that the Company shall be entitled to accept the provisions of this Agreement as conclusive evidence of the right of Secured Party or Agent on behalf of Secured Party to effect any transfer or exercise any right hereunder with respect to any such Collateral, notwithstanding any other notice or direction to the contrary heretofore or hereafter given by Pledgor or any other person to the Company or to any registrar, transfer agent or trustee thereof. 4.6 Further Assurances. Pledgor shall from time to time make, execute, acknowledge and deliver all such further documents, instruments and assurances and take such further acts as reasonably may be requested by Secured Party or Agent to perfect or preserve the security interest created by and to carry out the intent of this Agreement. Without limiting the generality of the foregoing, Pledgor shall, upon request of Secured Party or Agent, execute and deliver to Secured Party such financing statements and security agreements, in form and substance satisfactory to the Secured Party, as Secured Party may require to effect and perfect Secured Party's security interest in the Collateral, including any distributions or dividends paid in property other than cash or cash equivalents. 4.7 Shareholder Agreements. Pledgor shall, at its own expense, unless Secured Party shall otherwise consent in writing in advance: (a) Except as to the extent otherwise provided in Section 7.1, use 6 its best efforts to perform and observe all of the terms and provisions of each Shareholder Agreement to be performed or observed by it, maintain each Shareholder Agreement to which it is a party in full force and effect, take all reasonable and prudent action to enforce in accordance with its terms each Shareholder Agreement to which it is a party, and take all such action to such end as may be from time to time reasonably requested by Secured Party. (b) Furnish to Secured Party promptly after receipt thereof copies of (i) all notices, requests and other documents, other than financial statements, received by Pledgor under or pursuant to each Shareholder Agreement relating to any matter requiring consent from Secured Party under Section 7.1, (ii) all amendments to, restatements of, and newly executed, as the case may be Shareholder Agreements, and (iii) such other information and reports regarding the Collateral as Secured Party may reasonably request; (c) Upon the reasonable request of Secured Party, make such demands and requests for information and reports, or make such demands or request for action Pledgor is entitled to make under each Shareholder Agreement, to the Company and the parties to the respective Shareholder Agreements. 5. Negative Covenants. Pledgor covenants that (without the prior written consent of Secured Party) until such time as all of the Secured Obligations are paid in full and: 5.1 Sale or Hypothecation of Collateral. Pledgor shall not directly or indirectly, whether voluntarily, involuntarily, by operation of law or otherwise (a) exchange, lease, lend, sell, encumber or dispose of the Collateral or any part thereof; or any of Pledgor's rights therein, or grant any option with respect thereto, nor (b) cause, suffer or permit the Collateral to be affected by any encumbrance, security interest, option or adverse claim of any kind or nature whatsoever. The inclusion of "proceeds" as a component of the Collateral shall not be deemed a consent by Secured Party to any sale or disposition of all or any part of the Collateral. 5.2 No Issuance of Additional Securities. Pledgor shall not cause, suffer, or permit the Company to issue any additional securities of any class or nature, nor to take any other act, or omit to take any act, the result of which is to render the Collateral less than 100% of the issued and outstanding securities of the Company. 5.3 Certain Agreements. Pledgor shall not make any compromise, adjustment, amendment, modification, settlement, substitution or termination in respect to the Collateral; nor cause, suffer or permit anything to be done which might impair, or fail to do anything necessary or advisable in order to preserve the value of the Collateral 7 and the credit interest of Secured Party therein. 6. Additional Covenants of Pledgor. 6.1 Preservation of Collateral. In case of any failure of Pledgor to keep the Collateral free from liens or adverse claims, or to pay taxes on or in respect thereof, or fully and punctually to keep and perform any other covenant hereof, then after reasonable notice to Pledgor, Secured Party or Agent on behalf of Secured Party may (but shall not be required to) pay or contest or settle such taxes, liens or adverse claims, or any judgments based thereon, take any action to preserve any rights of or against any prior or other parties in connection with the Collateral, exercise managerial rights with respect to any Collateral, make or give any presentments, demands for performance, notices of nonperformance, protests, notices of protests, notices of dishonor or notices or any other nature whatsoever in connection with the Collateral or the Secured Obligations, or otherwise make good any other aforesaid failure of Pledgor. Pledgor shall promptly reimburse Secured Party or Agent for any sums reasonably paid or advanced by Secured Party or Agent for any such purpose, together with interest at the rate specified in the Credit Agreement from the date of any such advance to the date of reimbursement. 6.2 Attorney-in-Fact. Pledgor hereby appoints Agent on behalf of Secured Party its attorney-in-fact with full power of substitution, to do any and all acts which Pledgor is obliged by this Agreement to do and for the purpose of carrying out the purposes of this Agreement and taking any action and executing any instruments which Agent reasonably may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, after the occurrence and during the continuance of an Event of Default, Agent on behalf of Secured Party shall have the right and power to receive, endorse and collect all checks made payable to Pledgor representing any payment or distribution in respect of the Collateral or any part thereof and to give full discharge for the same, and to execute and deliver as such attorney-in-fact on behalf of Pledgor all necessary instruments of sale, assignment, lease and transfer of the Collateral, and any part thereof, as may be sold, leased or otherwise disposed of pursuant to this Agreement; subject to the prior consent of the FCC to the extent required. 7. Rights Incident to Collateral. 7.1 Irrevocable Proxy/Voting Rights. Pledgor hereby irrevocably appoints Agent on behalf of Secured Party as Pledgor's proxy holder with respect to the Collateral with full power and authority to vote, give consents, ratifications and waivers and otherwise act with respect to such Collateral on behalf of Pledgor, provided that this proxy shall be operative only upon the occurrence and during the continuance of an Event of Default under Section 7.1(a) or 7.1(b) of the Credit Agreement, which is not 8 cured within the applicable Cure Period, or the occurrence and continuation of an event which, with notice or lapse of time, or both, would become such an Event of Default and which is not cured within the applicable Cure Period. This proxy shall be irrevocable for so long as any Secured Obligation remains outstanding. Until such time, if any, as an Event of Default which is not cured within the applicable Cure Period occurs, or there occurs an event which, with notice or lapse of time, or both, would become an Event of Default under Section 7.1(a) or 7.1(b) of the Credit Agreement which is not cured within the applicable Cure Period, Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Collateral or any part thereof for any purpose not inconsistent with the terms of this Agreement. Without limiting the generality of the foregoing, Pledgor shall not in Pledgor's capacity as a shareholder of the Company, without Secured Party's prior written consent (a) Cancel or terminate any Shareholder Agreement or consent to any cancellation or termination thereof; (b) Vote or consent to amend or restate the Articles of Incorporation; (c) Vote or consent to amend the bylaws of the Company, if such amendment affects provisions relating to the calling or conducting of meetings of shareholders, shareholder voting rights (including, without limitation, quorum and super majority provisions), shareholder written consents, shareholder proxies, the powers of directors, filling of director vacancies, meetings of directors, voting rights of directors, written consent of directors, action by committee of directors, or the rights of shareholders or directors to amend the bylaws; (d) Execute any irrevocable proxies or enter into any voting trust agreements, or vote or consent to amend irrevocable proxies or voting trust agreements in effect on the date hereof with respect to the Company; (e) Enter into or vote or consent to amend any agreement among shareholders or between shareholders and the Company to which Pledgor is a party to reduce or eliminate registration, option, warrant, first refusal or co-sale or similar rights running in the Pledgor's favor, or to create or increase rights of first refusal or co-sale or similar rights attaching to, and adversely affecting the free transferability of, the ownership or control of the Collateral, or to restrict in any manner Pledgor's ability to freely exercise his voting rights with respect to the Collateral; (f) Waive any repurchase, first refusal, registration, option, co-sale or similar right attaching to the Collateral under any of the Shareholder Agreements; or (g) Waive any material default under or breach of any 9 Shareholder Agreement. 7.2 Rights to Distributions. So long as no Event of Default has occurred and is continuing the Pledgor may retain any distributions made in cash or cash equivalents, but after the occurrence and during the continuance of an Event of Default Pledgor shall cause the Company to pay directly to Agent on behalf of Secured Party (a) one hundred percent (100%) of all distributions made in the ordinary course in cash or cash equivalents in respect of any Collateral, (b) one hundred percent (100%) of all distributions made other than in cash or cash equivalents in respect of any Collateral, and (c) one hundred percent (100%) of all distributions of cash or cash equivalents made in respect of any Collateral in connection with a partial or total liquidation or dissolution of the Company or in connection with a reduction of capital, capital surplus or paid-in-surplus thereof, whether such distributions be made by way of dividend, interest, distribution or otherwise. Distributions received by Agent under (a) and (c) above shall be applied by Secured Party against the Secured Obligations in the manner specified in Section 14 hereof. 7.3 Distributions Held in Trust. All distributions from the Company which are received by Pledgor contrary to the provisions of this Agreement shall be received in trust for the benefit of Secured Party, shall be segregated from other funds of Pledgor, and shall forthwith be paid over to Agent as pledged Collateral in the same form as so received (with any necessary endorsements). 8. Events of Default The occurrence of any of the following shall constitute an event of default ("Event of Default") hereunder: 8.1 Default Under Credit Agreement. The occurrence of any Event of Default under the Credit Agreement; 8.2 Deterioration of Collateral. If, in the reasonable judgment of Secured Party, there is any material deterioration, depreciation or impairment of the value of the Collateral which causes the Collateral to become unsatisfactory as to value so as to impair the Secured Party's security for the Secured Obligations; 8.3 Company's Actions. The failure of the Company, for any reason, to take any of the actions specified in Sections 4.3, 4.5, 4.6 or 7.2 hereof or the taking by the Company of any of the actions specified in Sections 5,1, 5.2, or 5.3, in any such case without prior written consent of Secured Party; 8.4 Bankruptcy. The insolvency or appointment of a receiver to take charge of the business or property of the Company or (the commission of an act of bankruptcy) the making of a general assignment for the benefit of creditors or the filing of any petition in bankruptcy by or against the Company or for relief under the Bankruptcy Code, as amended, or under any other laws, whether federal or state, for the 10 relief of debtors, now or hereafter existing, unless the same is dismissed within sixty (60) days after the filing thereof; 8.5 Liens on Property of the Company. The initiation of steps by any third party to obtain a lien, levy or writ of attachment or garnishment upon substantially all of the property of the Company or to the affect any such property by other legal process, where the same is not dismissed within thirty (30) days after the initiation thereof; 8.6 Inability to Pay Debts. Any written admission by the Company of their inability to pay their debts as they mature; 8.7 Certain Transfers. Any transfer of property by the Company under circumstances which would entitle a trustee in a bankruptcy or similar fiduciary to avoid such transfer under the Bankruptcy Code, as amended, or under any other laws, whether state or federal, for the relief of debtors, now or hereafter existing; 8.8 Appointment of Receiver. The appointment of a receiver, trustee or custodian for the Company or for any substantial part of the assets of any of the Company or the institution of proceedings for the dissolution or the full or partial liquidation of the Company, and such receiver or trustee shall not be discharged within sixty (60) days of his or its appointment, or such proceedings shall not be discharged within sixty (60) days of their commencement, or the discontinuance of the business or a material change in the nature of the business of any of the foregoing parties; 8.9 Dissolution of the Company, Etc. If the Company should cease for any reason to be a going concern; 8.10 Misrepresentation. Should any material representation of the Company to Secured Party concerning the financial condition or credit standing of the Company or any representation or warranty of the Company contained in the Credit Agreement or this Agreement or in any other Credit Document prove to have been materially false or misleading when made; or 8.11 Adverse Judgments. If final judgment for the payment of money in excess of $25,000 per Pledgor or $100,000 in the aggregate for all Pledgors shall have been rendered by any court of competent jurisdiction against the Pledgors and the same shall not have been discharged or execution thereunder stayed, whether pursuant to appeal or otherwise, within thirty (30) days of the entry of thereof, or if any final order, ruling or direction of any competent authority is issued in a proceeding with respect to the Pledgors which materially adversely affects the Pledgors, or which requires a substantial or material adverse change in the business or affairs of the Pledgors. 9. Rights and Remedies of Secured Party. Upon the occurrence of any Event 11 of Default hereunder, Secured Party or Agent on behalf of Secured Party may exercise any and all of the following rights and remedies. all of which shall be cumulative and not mutually exclusive: 9.1 Rights and Remedies Under the Credit Agreement. Secured Party or Agent may pursue and enforce all of its rights and remedies provided under the Credit Agreement; 9.2 Other Rights and Remedies. Secured Party or Agent may pursue and enforce all of the rights and remedies provided to secured parties at law or in equity, including, without limitation, the provisions of the Uniform Commercial Code of the State of New York, as amended, but in no event may the Secured Party or its Agent obtain any deficiency judgment against Pledgor. Without limiting the generality of the foregoing, Secured Party or Agent may sell or otherwise dispose of the Collateral or retain it in satisfaction of the Secured Obligations and Secured Party or Agent may obtain specific performance of any obligation of Pledgor contained herein without the necessity of posting bond or proving that money damages are an adequate remedy; and 9.3 Voting Rights. Anything herein or in any other Credit Document to the contrary notwithstanding, Pledgor shall have the sole right to freely exercise all voting rights with respect to the Stock until the occurrence and during the continuance of an Event of Default described in Section 7.1(a) and 7.1(b) of the Credit Agreement that is not cured within the applicable Cure Period. Secured Party or Agent shall have the right to exercise all voting rights with respect to the Stock only upon and during the continuance of an Event of Default described in Section 7.1(a) or 7.1(b) of the Credit Agreement that is not cured during the applicable Cure Period. 10. Demands. Notices Etc.; Commercially Reasonable Sale. Subject to Section 15 hereof, all demands of performance, advertisements, notices of sale or retention, as well as the presence of the Collateral at any sale and the constructive possession of the Collateral by the person and conducting any sale, except only as provided by Section 9-504(3) of the Uniform Commercial Code of the State of New York are hereby specifically waived by Pledgor. The Secured Party shall give Pledgor ten (10) days notice, of the time and place of any public sale of the Collateral, or of the time after which any private sale or other disposition of the Collateral is proposed to be made which Pledgor hereby agrees constitutes reasonable notice. With respect to any Collateral consisting of securities, and whether or not any of such Collateral has been effectively registered under the Securities Act of 1933 or other applicable laws, Secured Party or Agent on behalf of Secured Party may, in its sole and absolute discretion, sell all or any part of such Collateral at private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable in order that the sale may be lawfully conducted. Without limiting the foregoing, Secured Party or Agent on behalf of Secured Party may (a) approach and negotiate with a limited number of potential purchasers and (b) restrict the prospective bidders or purchasers to persons 12 who will represent and agree that they are purchasing such Collateral for their own account for investment and not with a view to the distribution or resale thereof. In the event that such Collateral is sold at private sale, Pledgor agrees that if such Collateral is sold for a price which Secured Party in good faith believes to be reasonable under the circumstances then existing, then (i) the sale shall be deemed to be commercially reasonable in all respects, (ii) Pledgor shall not be entitled to a credit against any Secured Obligations in an amount in excess of the purchase price and (iii) Secured Party shall not incur any liability or responsibility to Pledgor in connection therewith, notwithstanding the possibility that a substantially higher price might have been realized at a public sale. In this regard Pledgor understands and agrees that Secured Party is under no obligation to seek prior approval of or to make any registration statement with respect to a "public offering" of the Collateral, that any decision of Secured Party not to do so shall be conclusively deemed a reasonable decision of Secured Party, and that such a decision may very strictly limit the course of conduct of Secured Party with respect to any disposition of all or any portion of the Collateral by Secured Party, and also may limit the extent to which or the manner in which any subsequent transferee of all or any portion of the Collateral may dispose of the same. Similarly, there may be other legal restrictions or limitations affecting Secured Party in any attempt to dispose of all or any part of the Collateral under applicable State Blue Sky or other State securities laws or similar laws analogous in purpose or effect. Without limiting the generality of the foregoing, the foregoing provisions of this Section shall be applicable if, for example, Secured Party were to transfer all or any part of the Collateral for private placement by an investment banking firm of reputation satisfactory to Secured Party, or if Secured Party were to place all or any part of the Collateral privately with a purchaser or purchasers thereof. 11. Information As to Compliance with Law. If Secured Party determines to exercise its right to sell any or all of the Collateral, upon written request, Pledgor shall and shall cause each issuer of any Collateral to be sold hereunder from time to time to furnish to Secured Party or Agent all such information as Secured Party or Agent may reasonably request in order to determine the number of shares and other instruments included in the Collateral which may be sold by Secured Party or Agent on behalf of Secured Party as exempt transactions under the Securities Act of 1933 and the rules of the Securities Exchange Commission thereunder, as the same are from time to time in effect. 12. Further Assurances. Pledgor further agrees to use its best efforts to do or cause to be done all such other acts as reasonably may be necessary to make any sale or sales of all or any portion of the Collateral pursuant to Section 10 hereof valid and binding and in compliance with any and all applicable requirements of law. Pledgor further agrees that Pledgor's failure to use such best efforts will cause irreparable injury to Secured Party, that Secured Party has no adequate remedy at law in respect to such breach and, as a consequence, that such covenant shall be specifically enforceable against Pledgor. Pledgor hereby waives and agrees not to assert any defenses against an action 13 for specific performance of such covenants except for a defense that no Event of Default has occurred under the terms of the Credit Agreement 13. Application of Proceeds. The proceeds of any sale, or of collection, of all or any part of the Stock shall be applied by Agent, without any marshalling of assets, in the following order: (a) first, to the payment of all of the costs and expenses of such sale, including, without limitation, reasonable compensation to Agent, Secured Party and their agents, attorneys and counsel, and all other expenses, liabilities and advances made or incurred by the lender in connection therewith; and (b) second, to the payment in full of the principal of and premium, if any, and interest on the Notes; and then to pay all other Obligations; and (c) finally, to the payment to the Pledgor, his successors or assigns, or his heirs, executors or administrators, or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct, of any surplus remaining from such proceeds after payments of the character referred to in Subsections (a) and (b) of this Section 13 shall have been made. 14. Return of Collateral. Subject to any duty imposed by law or otherwise to the holder of any subordinate lien on the Collateral known to Secured Party, and subject to the direction of a court of competent jurisdiction, upon the extinguishment of any commitment of Secured Party to make further advances under the Credit Agreement and upon the payment in full of the Secured Obligations, Pledgor shall be entitled to return of the Collateral. Upon payment in full of the Secured Obligations, this Agreement shall terminate and the Agent shall transfer and deliver to Pledgor, or Pledgor's nominee(s), the Collateral and all certificates therefor, and Secured Party, at the sole expense of Pledgor, shall execute such termination statements or other instruments as Pledgor reasonably may request acknowledging satisfaction and discharge of this Agreement, and each Secured Party shall, upon request of Pledgor, duly execute and deliver to Pledgor a copy of this Agreement marked terminated, canceled and released. The return of Collateral, shall be without recourse to Secured Party and Agent and Secured Party and Agent shall be entitled to receive appropriate documentation to such effect. The return of Collateral shall be effected without representation or warranty and shall not entitle Pledgor to any right to any endorsement. 15. Obtaining of Required Approvals. To the extent the exercise by Secured Party of any remedy afforded herein requires the consent or approval of any governmental agency or regulatory body, including without limitation the Federal Communications Commission (`FCC), the right of Secured Party or Agent to exercise such remedy, or the power to vote the Stock, shall be conditioned upon receipt by Secured Party or Agent of such consent or approval. In furtherance of the exercise by 14 Secured Party of the power of sale granted to it herein, Pledgor agrees that upon request of Secured Party or Agent and without expense to Secured Party or Agent, Pledgor shall use its best efforts to obtain all necessary approvals from the FCC and all other applicable federal, state and local governmental agencies, authorities and instrumentalities for the sale by Secured Party of the Collateral, or the exercise of any voting powers over the Collateral, or any part thereof, or the transfer to the successful bidder or prospective purchaser of any governmental licenses or franchises necessary to allow it to conduct the business or activities for which the Collateral is intended. 16. Cumulative Rights, No Waiver. The several rights and remedies of Secured Party hereunder or referred to herein shall, to the full extent permitted by law, be construed as cumulative, and no one of them is exclusive of the others. No delay or omission of Secured Party in exercising any right or remedy created by, connected with or provided in this Agreement or arising from any Event of Default hereunder shall be construed as or deemed to be an acquiescence therein or a waiver of such default or a waiver of or limitation upon the right of Secured Party to exercise, at any time and from time to time thereafter, any right or remedy under this Agreement. No waiver of any breach of any of the covenants or conditions of this Agreement shall be construed to be a waiver of or acquiescence in or consent to any preceding or subsequent breach of the same of any other condition or covenant. If the performance of any Secured Obligation is at any time secured by any other instrument or instruments, the exercise by Secured Party of any right or remedy under any such other instrument shall not be construed as or deemed to be a waiver of any limitation upon the right of Secured Party to exercise, at any time and from time to time thereafter, any right or remedy under this Agreement or under any such other instrument. Without limiting the generality of the foregoing, Pledgor acknowledges that the Secured Obligations are also secured by the Collateral described in the Credit Agreement and that Secured Party may, in its absolute discretion, proceed against any other debtor or Collateral prior to, after or concurrently with any proceedings against Pledgor and/or the Collateral hereunder and the order in which Secured Party may proceed against any other debtor or Collateral shall not in any way affect Secured Party's right to proceed against Pledgor and/or the Collateral under this Agreement. 17. Secured Party's Possession of Collateral. Each of Secured Party's and Agent's sole duty with respect to the Collateral in its possession shall be to use reasonable care in the custody and preservation thereof. Secured Party and Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which each of Secured Party and Agent accords its own property, it being understood that Secured Party and Agent shall not have any responsibility for (a) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not Secured Party or Agent has or is deemed to have knowledge of such matters, or (b) taking any necessary steps to preserve rights against any parties with respect to any Collateral. Under no 15 circumstances shall Secured Party or Agent be responsible for any injury or loss to the Collateral, or any part thereof, arising from theft, acts of God, flood, fire or from any other cause beyond the reasonable control of Secured Party. 18. Indemnification. Secured Party shall incur no liability if any action taken by Secured Party or on Secured Party's behalf in good faith pursuant to any provisions of this Agreement shall prove to be in whole or in part inadequate or invalid and, except for claims arising from the Secured Party's gross negligence, Pledgor agrees to indemnify and hold each of Secured Party and Agent, and their officers, directors, partners, shareholders, employees, agents and attorneys free and harmless from and against any loss, liability, claim or damage, including without limitation, all attorneys' fees and court costs actually incurred (a) in connection with any such action or actions, and (b) in respect of any claims or allegations of third parties arising out of Pledgors use and ownership of the Collateral or Secured Party's or Agent's possession of the Collateral or its security interest therein. 19. Assignment of Obligations. Secured Party may transfer or negotiate any Secured Obligation as and to the extent permitted by Section 9.5 of the Credit Agreement and applicable law. 20. Modification of Secured Obligations. Pledgor consents and agrees that Secured Party may, at any time and from time to time, in Secured Party's sole and absolute discretion, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) supplement, modify, amend, extend, renew, accelerate, waive or otherwise change the time for payment or the terms of the Secured Obligations or any part thereof or any additional security or guaranties now or hereafter held therefor; (b) enter into or give any agreement, approval or consent with respect to the Secured Obligations or any part thereof or any additional security or guaranties now or hereafter held therefor; (c) accept new or additional instruments, documents or agreements in exchange for or relative to the Secured Obligations or any part thereof; (d) accept partial payments on the Secured Obligations; (e) receive and hold additional security or guaranties for the Secured Obligations or any part thereof; (f) settle, release, liquidate and/or fail to enforce any Secured Obligation; (g) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, transfer and/or fail to enforce any other security or guaranties now or hereafter held for the Secured Obligations or any part thereof; (h) substitute, exchange, amend or alter any other security or guaranty now or hereafter held for the Secured Obligations or any part thereof, whether or not the security or guaranty received upon the exercise of such power is of the same character or value as the security or pledge so affected; (i) release any person from any personal liability with respect to the Secured Obligations or any part thereof; (j) consent to the transfer of any such other security and bid and purchase the same at any sale thereof; and/or (k) consent to any merger, change or other restructuring or termination of the corporate existence of the Company or any other person, and correspondingly restructure the Secured Obligations. 16 21. Waivers. To the fullest extent permitted by law, Pledgor waives any duty on the part of Secured Party to disclose to Pledgor any facts Secured Party may now know or may hereafter know about the Company or the Company's successors in interest (if any) regardless of whether Secured Party (i) has reason to believe that any such facts materially increase the risk beyond the risk which Pledgor intends to assume by executing this Agreement, (ii) has reason to believe that these facts are unknown to Pledgor, or (ii) has a reasonable opportunity to communicate such facts to Pledgor, it being understood and agreed that Pledgor is fully responsible for being and keeping informed of the financial condition of the Company or any successor in interest of the Company and of all circumstances bearing on the risk of non-payment of any indebtedness of the Company to Secured Party that is secured hereby. Pledgor also waives with respect to the Company, its successor and assigns and any other person, including other guarantors, who may have similar rights against the Company, any and all rights of subrogation, reimbursement, exoneration, contribution or setoff, any and all rights to participate in any claim or remedy of Secured Party against the Company or any Collateral, and any and all rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated or to a holder or transferee against a maker, and which Pledgor may have or hereafter acquire against the Company or any such other person by contract, at law or in equity in connection with or as a result of Pledgor's execution, delivery and/or performance of this Pledge Agreement or any other Credit Document. Pledgor shall not at any time hereafter have or assert any such claims or rights against the Company, its successors and assigns or any such other persons either directly or as an attempted setoff to any action commenced against Pledgor by the Company, Secured Party or any other person. Pledgor hereby acknowledges and agrees that this waiver is intended to be for the benefit of the Company, as a thirty party beneficiary, as well as for the benefit of Secured Party. Therefore, the waiver set forth herein shall remain at all times hereafter in full force and effect, and may be enforced by the Company in its own name and right, notwithstanding that all indebtedness and obligations of the Company to Secured Party arising under the Credit Documents have been repaid in full. Pledgor further agrees that, to the extent the waiver of rights of subrogation as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation which Pledgor may have against the Company or against any Collateral or security shall be junior and subordinate to any right Secured Party may have against the Company and to all right, title and interest Secured Party may have in any Collateral or security. Secured Party may use, sell or dispose or any item of Collateral or security as herein permitted as it sees fit without regard to any subrogation right Pledgor may have, and upon disposition or sale, any right of subrogation Pledgor may have shall terminate. Pledgor acknowledges, and agrees that by virtue of this pledge, it has specifically assumed any and all risks of bankruptcy or reorganization with respect to the Company and that any modification of the Secured Obligations in any bankruptcy or 17 reorganization of the Company shall not affect Secured Party's rights to pursue its remedies against the Collateral in respect of any Event of Default under the original terms of the Secured Obligations as though no such bankruptcy or reorganization case had occurred. Before executing this Agreement, Pledgor has made such independent legal and factual inquiries and investigations as Pledgor deemed necessary or desirable with respect to the ability of the Company to honor all of the Company's covenants and agreements which are secured hereby, and Pledgor has relied solely on said independent inquiries and investigations preparatory to entering into this Agreement. Pledgor warrants and agrees that each of the waivers and consents set forth herein is made after consultation with legal counsel and with full knowledge of their significance and consequences, with the understanding that events giving rise to any defense or right waived may diminish, destroy or otherwise adversely affect rights which Pledgor otherwise may have against the Company, Secured Party or others, or against the Collateral, and that under the circumstances, the waivers and consents herein given are reasonable and not contrary to public policy or law. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law. 22. Miscellaneous. 22.1 Attorneys' Fees. Pledgor shall pay to Secured Party all reasonable attorneys' fees and all reasonable costs and other expenses paid or incurred by Secured Party in enforcing or exercising its rights or remedies created by, connected with or provided in this Agreement, whether or not suit is filed, expressly including, without limitation, all reasonable costs, attorneys fees and expenses actually incurred by Secured Party in connection with any insolvency, bankruptcy, reorganization, arrangement or similar proceeding involving Pledgor or any other person that in any way affects the exercise by Secured Party of its rights hereunder, and the proceeds of disposition of any or all of the Collateral shall be applied to the payment of such attorneys' fees, costs and other expenses as provided herein. 22.2 Notices. All written notices, demands and requests of any kind which either party may be required or may desire to serve upon the other party herein in connection with this Agreement shall be delivered in accordance with the notice provision of the Credit Agreement. 22.3 Revival of Security Interests. To the extent permitted and as provided by applicable law, Secured Party's rights and security interests hereunder shall be reinstated and revived, and the enforceability of this Agreement shall continue, with respect to any amount at any time paid on account of Secured Obligations that thereafter shall be required to be restored or returned by Secured Party upon the bankruptcy, insolvency or reorganization of Pledgor, the Company or any other person, 18 all as though such amount had not been paid. 22.4 Amendment; Waiver, Construction. This Agreement may not be altered or amended except by the written agreement of the parties hereto. No provision of this Agreement or right of Secured Party hereunder can be waived nor can Pledgor be released from its obligations hereunder except by a writing duly executed by Secured Party. Each of the parties hereto hereby acknowledges that it has been represented by independent counsel of its own choice throughout all negotiations which have preceded the execution of this Agreement and that it has executed the same with the consent and upon the advice of said independent counsel. All parties and their respective counsel have cooperated in the drafting and preparation of this Agreement, such that it shall be deemed to be their joint work product and may not be construed against any party by reason of its preparation. 22.5 Severability. Should any one or more provisions of this Agreement be determined to be illegal or unenforceable, all other provisions of this Agreement nevertheless shall be effective. 22.6 Joint and Several Liability. If more than one Pledgor signs this Agreement, the obligations of all such persons shall be joint and several. 22.7 Terminology. Where the context or construction requires, all words applied in the plural shall be deemed to have been used in the singular and vice versa, the neuter shall include the masculine and feminine and all references to "Pledgor" shall mean all or any one or more of them. All terms used herein shall have the same meaning as in the provisions of the New York Uniform Commercial Code, as amended. 22.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 22.9 Applicable Law, Governing Law; Jurisdiction, Waiver of Trial by Jury: (a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS (EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY SET FORTH THEREIN) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. (b) JURISDICTION AND VENUE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS MAY BE TRIED AND LITIGATED IN THE STATE 19 OF NEW YORK OR, AT THE SOLE OPTION OF SECURED PARTY, IN ANY OTHER COURT IN WHICH SECURED PARTY INITIATES LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS JURISDICTION OVER THE SUBJECT MATTER AND PARTIES IN CONTROVERSY. TO THE EXTENT THEY MAY LEGALLY DO SO, THE PARTIES HERETO HEREBY WAIVE ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 22.9(b) AND STIPULATE THAT ANY SUCH COURT SHALL HAVE IN PERSONAM JURISDICTION AND VENUE OVER EACH SUCH PARTY FOR THE PURPOSE OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE CREDIT DOCUMENTS. SERVICE OF PROCESS SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST THE PLEDGOR MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THEIR ADDRESS SPECIFIED FOR NOTICES PURSUANT TO SECTION 9.1 OF THE CREDIT AGREEMENT. (c) WAIVER OF TRIAL BY JURY. THE PARTIES HERETO EACH AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including without limitation contract claims, tort claims, breach of duty claims and all other common law and statutory claims. The parties hereto each (i) acknowledges that this waiver is a material inducement for the parties to enter into a business relationship, that the parties hereto have already relied on this waiver in entering into this Pledge Agreement or accepting the benefits thereof, as the case may be, and that each will continue to rely on this waiver in their related future dealings, and (ii) further warrants and represents that each has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. This waiver IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS OF THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. 22.10 Agent. Agent has been appointed to act as Agent hereunder on behalf of Secured Party pursuant to the Credit Agreement and shall act as Agent hereunder in accordance with the provisions of this Agreement and the Credit Agreement. Agent hereunder shall all times be the same person as the Agent under the Credit Agreement. Resignation or removal of the Agent hereunder and appointment of a successor agent under the Credit Agreement shall constitute appointment as successor agent hereunder Upon resignation or removal, Agent shall promptly transfer all Collateral and any related records or documents to the successor agent and shall execute 20 and deliver any documents or instruments or take such other actions as may be reasonably necessary in connection with the transfer of the Collateral and substitution of agents. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. "PLEDGOR" _____________ Holdings, Inc., By: ------------------------------------- Alan R. Brill, President "SECURED PARTY AND AGENT" AMRESCO FUNDING CORPORATION, a Delaware corporation, individually and as Agent By: ------------------------------------- Its: ------------------------------------- GOLDMAN SACHS CREDIT PARTNERS L.P., a Bermuda limited partnership By: ------------------------------------- Authorized Signatory 21 EX-12.1 28 EXHIBIT 12.1
EXHIBIT 12.1 BRILL MEDIA COMPANY, LLC RATIO OF EARNINGS TO FIXED CHARGERS ($000s) Historical ----------------------------------------------------------------------------------- Nine Months Nine Months Ended Ended Year Ended February 28 or 29, November 30, November 30, 1993 1994 1995 1996 1997 1996 1997 ---- ---- ---- ---- ---- ---- ---- EARNINGS Income (loss) before income taxes and extraordinary item $(2,863) $ 952 $(3,753) $(5,186) $(2,486) $(1,259) $(2,938) Fixed charges 4,523 4,682 5,882 7,200 7,514 5,631 6,594 ------- ------ ------- ------ ------- ------ ------- $ 1,660 $5,634 $ 2,129 $ 2,014 $ 5,028 $ 4,372 $ 3,656 ======= ====== ======= ======= ======= ======= ======= FIXED CHARGES Interest expense $ 4,351 $4,466 $ 5,636 $ 6,633 $ 6,943 $ 5,150 $ 6,037 Portion of rent expense representative of interest 39 37 40 70 82 66 75 Amortization of deferred financing costs 133 179 206 497 489 415 482 ------- ------ ------- ------ ------- ------ ------- $ 4,523 $4,682 $ 5,882 $ 7,200 $ 7,514 $ 5,631 $ 6,594 ======= ====== ======= ======= ======= ======= ======= Ratio of earnings to fixed charges - 1.20 - - - - - ======= ====== ======= ======= ======= ======= ======= Pro Forma ----------------------------------- Year Nine Months Ended Ended February 28, November 30, 1997 1997 ---- ---- EARNINGS Income (loss) before income taxes and extraordinary item $(8,185) $(5,517) Fixed charges 12,633 9,495 ------ ------- $ 4,448 $ 3,978 ======= ======= FIXED CHARGES Interest expense $11,996 $ 9,007 Portion of rent expense representative of interest 82 75 Amortization of deferred financing costs 555 413 ------ ------- $12,633 $ 9,495 ======= ======= Ratio of earnings to fixed charges - - ======= =======
EX-21 29 EXHIBIT 21 EX-21 Subsidiaries Subsidiaries of Brill Media Company, LLC Brill Media Management, Inc. BMC Holdings, LLC Huron Holdings, LLC Northern Colorado Holdings, LLC NCR III, LLC NCH II, LLC Northland Holdings, LLC CMN Holding, Inc. Brill Radio, Inc. Brill Newspapers, Inc. Reading Radio, Inc. Tri-State Broadcasting, Inc. Northern Colorado Radio, Inc. NCR II, Inc. Central Missouri Broadcasting, Inc. CMB II, Inc. Northland Broadcasting, LLC NB II, Inc. Central Michigan Newspapers, Inc. Cadillac Newspapers, Inc. CMN Associated Publications, Inc. Central Michigan Distribution Co., L.P. Central Michigan Distribution Co., Inc. Gladwin Newspapers, Inc. Graph Ads Printing, Inc. Midland Buyer's Guide, Inc. St. Johns Newspapers, Inc. Huron P.S., LLC Huron Newspapers, LLC Advertisers P.S., LLC Central Printing Service, LLC Upper Michigan Holdings, Inc. Upper Michigan Holdings, LLC Upper Michigan Management, Inc. Upper Michigan Newspapers, LLC BMC Holdings, Inc. Huron Holdings Management, Inc. Huron Newspapers Management, Inc. Huron P.S. Management, Inc. Northern Colorado Holdings Management, Inc. Northland Broadcasting Management, Inc. Northland Holdings Management, Inc. EX-23.2 30 EXHIBIT 23.2 EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP We consent to the reference to our firm under the caption "Experts" and to the use of our report dated March 16, 1998, with respect to the balance sheet of Brill Media Company, LLC, and our report dated November 14, 1997, except for Note 2 as to which the date is December 12, 1997 and Note 10 and Note 12 as to which the date is December 30, 1997, with respect to the financial statements of The Radio and Newspaper Businesses of Alan R. Brill, both included in the Registration Statement (Form S-4) and related Prospectus of Brill Media Company, LLC and Brill Media Management, Inc. for the registration of $105,000,000 of their 12% Senior Notes due 2007 and $3,000,000 of Appreciation Notes due 2007, and the guarantees thereof issued by the subsidiaries of Brill Media Company, LLC. Ernst & Young LLP Chicago, Illinois March 20, 1998 EX-25.1 31 FORM T-1 (SERIES B 12%) EX-25.1 Statement of Eligibility - Series B 12% Senior SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 -------------------------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE -------------------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _______ -------------------------- UNITED STATES TRUST COMPANY OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-3818954 (Jurisdiction of incorporation (I. R. S. Employer if not a U. S. national bank) Identification No.) 114 West 47th Street 10036 New York, New York (Zip Code) (Address of principal executive offices) -------------------------- Brill Media Company LLC (Exact name of obligor as specified in its charter) Virginia 52-2071822 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Brill Media Management, Inc (Exact name of obligor as specified in its charter) Virginia 54-1877458 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) c/o Brill Media Company 47732 P. O. Box 3353 (Zip code) Evansville, IN (Address of principal executive offices) -------------------------- Advertisers P.S., LLC (Exact name of obligor as specified in its charter) Virginia 38-3393217 (State or other jurisdiction of (I. R. S. Employer) incorporation or organization) Identification No.) - 2 - -------------------------- BMC Holdings, LLC (Exact name of registrant as specified in its charter) Viriginia 52-2071824 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Brill Newspapers, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1170289 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Brill Radio, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1148743 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Cadillac Newspapers, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1170305 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Central Michigan Distribution Co., Inc. (Exact name of registrant as specified in its charter) Virginia 38-2438162 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Central Michigan Distribution Co., LP (Exact name of registrant as specified in its charter) Virginia 62-1356763 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) - 3 - -------------------------- Central Michigan Newspapers, Inc. (Exact name of registrant as specified in its charter) Viriginia 54-1170307 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Central Missouri Broadcasting, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1163979 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Central Printing Service, LLC (Exact name of registrant as specified in its charter) Virginia 38-3393221 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- CMB II, Inc. (Exact name of registrant as specified in its charter) Virginia 43-1671356 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- CMN Associated Publiciations, Inc. (Exact name of registrant as specified in its charter) Virginia 38-2438130 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- CMN Holding, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1170293 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Gladwin Newspapers, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1170304 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) - 4 - -------------------------- Graph Ads Printing, Inc. (Exact name of registrant as specified in its charter) Viriginia 38-2438126 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron Holdings, LLC (Exact name of registrant as specified in its charter) Virginia 54-1867829 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron Newspapers, LLC (Exact name of registrant as specified in its charter) Virginia 38-3372402 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron P.S., LLC (Exact name of registrant as specified in its charter) Virginia 38-3372410 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Midland Buyers Guide, Inc. (Exact name of registrant as specified in its charter) Virginia 38-2438164 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- NB II, Inc. (Exact name of registrant as specified in its charter) Virginia 41-1803205 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) - 5 - -------------------------- NCH II, LLC (Exact name of registrant as specified in its charter) Viriginia 54-1851918 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- NCR II, Inc. (Exact name of registrant as specified in its charter) Virginia 84-1347311 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- NCR III, LLC (Exact name of registrant as specified in its charter) Virginia 54-1851920 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northern Colorado Holdings, LLC (Exact name of registrant as specified in its charter) Virginia 54-1862076 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northern Colorado Radio, Inc. (Exact name of registrant as specified in its charter) Virginia 84-1091274 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northland Broadcasting, LLC (Exact name of registrant as specified in its charter) Virginia 41-1862832 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) - 6 - -------------------------- Northland Holdings, LLC (Exact name of registrant as specified in its charter) Viriginia 54-1838750 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Reading Radio, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1163978 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- St. Johns Newspapers, Inc. (Exact name of registrant as specified in its charter) Virginia 38-3299223 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Tri-State Broadcasting, Inc. (Exact name of registrant as specified in its charter) Virginia 35-1888093 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) c/o Brill Media Company 47732 P. O. Box 3353 (Zip code) Evansville, IN (Address of principal executive offices) -------------------------- Upper Michigan Holdings, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1882775 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Upper Michigan Holdings, LLC (Exact name of registrant as specified in its charter) Virginia 54-1882773 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Upper Michigan Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1882776 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Upper Michigan Newspapers, LLC (Exact name of registrant as specified in its charter) Virginia 38-3393224 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- BMC Holdings, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889308 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron Holdings Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889311 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron Newspapers Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889312 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron P.S. Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889314 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northern Colorado Holdings Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889315 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northland Broadcasting Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889316 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northland Holdings Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889317 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- 12% Series B Senior Notes due 2007 Series B Appreciation Notes due 2007 (Titles of the indenture securities) ================================================================================ - 7 - GENERAL 1. General Information Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Reserve Bank of New York (2nd District), New York, New York (Board of Governors of the Federal Reserve System). Federal Deposit Insurance Corporation, Washington, D. C. New York State Banking Department, Albany, New York (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. 2. Affiliations with the Obligor If the obligor is an affiliate of the trustee, describe each such affiliation. None. 3,4,5,6,7,8,9,10,11,12,13,14 and 15. The obligors and the registrants are currently not in default under any of its outstanding securities for which United States Trust Company of New York is Trustee. Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of Form T-1 are not required under General Instruction B. 16. List of Exhibits T-1.1 -- Organization Certificate, as amended, issued by the State of New York Banking Department to transact business as a Trust Company, is incorporated by reference to Exhibit T-1.1 to Form T-1 filed on September 15, 1995 with the Commission pursuant to the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (Registration No. 33-97056). - 8 - 16. List of Exhibits (cont'd) T-1.2 -- Included in Exhibit T-1.1. T-1.3 -- Included in Exhibit T-1.1. T-1.4 -- The By-Laws of United States Trust Company of New York, as amended, is incorporated by reference to Exhibit T-1.4 to Form T-1 filed on September 15, 1995 with the Commission pursuant to the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (Registration No. 33-97056). T-1.6 -- The consent of the trustee required by Section 321(b) of the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990. T-1.7 -- A copy of the latest report of condition of the trustee pursuant to law or the requirements of its supervising or examining authority. NOTE As of March 10, 1998, the trustee had 2,999,020 shares of Common Stock outstanding, all of which are owned by its parent company, U. S. Trust Corporation. The term "trustee" in Item 2, refers to each of United States Trust Company of New York and its parent company, U. S. Trust Corporation. In answering Item 2 in this statement of eligibility, as to matters peculiarly within the knowledge of the obligor or its directors, the trustee has relied upon information furnished to it by the obligor and will rely on information to be furnished by the obligor and the trustee disclaims responsibility for the accuracy or completeness of such information. --------------------- - 9 - Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee, United States Trust Company of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 10th day of March, 1998. UNITED STATES TRUST COMPANY OF NEW YORK, Trustee By: /s/ Patricia Stermer ------------------------------- Patricia Stermer Assistant Vice President RFL/pg (rev:PST010998) Exhibit T-1.6 The consent of the trustee required by Section 321(b) of the Act. United States Trust Company of New York 114 West 47th Street New York, NY 10036 September 1, 1995 Securities and Exchange Commission 450 5th Street, N.W. Washington, DC 20549 Gentlemen: Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and subject to the limitations set forth therein, United States Trust Company of New York ("U.S. Trust") hereby consents that reports of examinations of U.S. Trust by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. Very truly yours, UNITED STATES TRUST COMPANY OF NEW YORK /s/Gerard F. Ganey ---------------------- By: Gerard F. Ganey Senior Vice President EXHIBIT T-1.7 UNITED STATES TRUST COMPANY OF NEW YORK CONSOLIDATED STATEMENT OF CONDITION SEPTEMBER 30, 1997 ($ IN THOUSANDS) ASSETS Cash and Due from Banks $ 116,582 Short-Term Investments 183,652 Securities, Available for Sale 691,965 Loans 1,669,611 Less: Allowance for Credit Losses 16,067 ---------- Net Loans 1,653,544 Premises and Equipment 61,796 Other Assets 125,121 ---------- Total Assets $2,832,660 ========== LIABILITIES Deposits: Non-Interest Bearing $ 541,619 Interest Bearing 1,617,028 ---------- Total Deposits 2,158,647 Short-Term Credit Facilities 365,235 Accounts Payable and Accrued Liabilities 141,793 ---------- Total Liabilities $2,665,675 ========== STOCKHOLDER'S EQUITY Common Stock 14,995 Capital Surplus 49,542 Retained Earnings 99,601 Unrealized Gains (Losses) on Securities Available for Sale, Net of Taxes 2,847 ---------- Total Stockholder's Equity 166,985 ---------- Total Liabilities and Stockholder's Equity $2,832,660 ========== I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank do hereby declare that this Statement of Condition has been prepared in conformance with the instructions issued by the appropriate regulatory authority and is true to the best of my knowledge and belief. Richard E. Brinkmann, SVP & Controller November 13, 1997 EX-25.2 32 FORM T-1 (SERIES B APPRECIATION) EX-25.2 Statement of Eligibility - Series B Appreciation SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 -------------------------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE -------------------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _______ -------------------------- UNITED STATES TRUST COMPANY OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-3818954 (Jurisdiction of incorporation (I. R. S. Employer if not a U. S. national bank) Identification No.) 114 West 47th Street 10036 New York, New York (Zip Code) (Address of principal executive offices) -------------------------- Brill Media Company LLC (Exact name of obligor as specified in its charter) Virginia 52-2071822 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Brill Media Management, Inc (Exact name of obligor as specified in its charter) Virginia 54-1877458 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) c/o Brill Media Company 47732 P. O. Box 3353 (Zip code) Evansville, IN (Address of principal executive offices) -------------------------- Advertisers P.S., LLC (Exact name of obligor as specified in its charter) Virginia 38-3393217 (State or other jurisdiction of (I. R. S. Employer) incorporation or organization) Identification No.) - 2 - -------------------------- BMC Holdings, LLC (Exact name of registrant as specified in its charter) Viriginia 52-2071824 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Brill Newspapers, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1170289 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Brill Radio, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1148743 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Cadillac Newspapers, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1170305 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Central Michigan Distribution Co., Inc. (Exact name of registrant as specified in its charter) Virginia 38-2438162 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Central Michigan Distribution Co., LP (Exact name of registrant as specified in its charter) Virginia 62-1356763 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) - 3 - -------------------------- Central Michigan Newspapers, Inc. (Exact name of registrant as specified in its charter) Viriginia 54-1170307 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Central Missouri Broadcasting, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1163979 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Central Printing Service, LLC (Exact name of registrant as specified in its charter) Virginia 38-3393221 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- CMB II, Inc. (Exact name of registrant as specified in its charter) Virginia 43-1671356 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- CMN Associated Publiciations, Inc. (Exact name of registrant as specified in its charter) Virginia 38-2438130 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- CMN Holding, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1170293 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Gladwin Newspapers, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1170304 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) - 4 - -------------------------- Graph Ads Printing, Inc. (Exact name of registrant as specified in its charter) Viriginia 38-2438126 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron Holdings, LLC (Exact name of registrant as specified in its charter) Virginia 54-1867829 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron Newspapers, LLC (Exact name of registrant as specified in its charter) Virginia 38-3372402 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron P.S., LLC (Exact name of registrant as specified in its charter) Virginia 38-3372410 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Midland Buyers Guide, Inc. (Exact name of registrant as specified in its charter) Virginia 38-2438164 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- NB II, Inc. (Exact name of registrant as specified in its charter) Virginia 41-1803205 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) - 5 - -------------------------- NCH II, LLC (Exact name of registrant as specified in its charter) Viriginia 54-1851918 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- NCR II, Inc. (Exact name of registrant as specified in its charter) Virginia 84-1347311 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- NCR III, LLC (Exact name of registrant as specified in its charter) Virginia 54-1851920 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northern Colorado Holdings, LLC (Exact name of registrant as specified in its charter) Virginia 54-1862076 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northern Colorado Radio, Inc. (Exact name of registrant as specified in its charter) Virginia 84-1091274 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northland Broadcasting, LLC (Exact name of registrant as specified in its charter) Virginia 41-1862832 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) - 6 - -------------------------- Northland Holdings, LLC (Exact name of registrant as specified in its charter) Viriginia 54-1838750 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Reading Radio, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1163978 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- St. Johns Newspapers, Inc. (Exact name of registrant as specified in its charter) Virginia 38-3299223 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Tri-State Broadcasting, Inc. (Exact name of registrant as specified in its charter) Virginia 35-1888093 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) c/o Brill Media Company 47732 P. O. Box 3353 (Zip code) Evansville, IN (Address of principal executive offices) -------------------------- Upper Michigan Holdings, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1882775 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Upper Michigan Holdings, LLC (Exact name of registrant as specified in its charter) Virginia 54-1882773 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Upper Michigan Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1882776 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Upper Michigan Newspapers, LLC (Exact name of registrant as specified in its charter) Virginia 38-3393224 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- BMC Holdings, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889308 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron Holdings Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889311 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron Newspapers Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889312 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Huron P.S. Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889314 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northern Colorado Holdings Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889315 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northland Broadcasting Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889316 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- Northland Holdings Management, Inc. (Exact name of registrant as specified in its charter) Virginia 54-1889317 (State or other jurisdiction of (I. R. S. Employer incorporation or organization) Identification No.) -------------------------- 12% Series B Senior Notes due 2007 Series B Appreciation Notes due 2007 (Titles of the indenture securities) ================================================================================ - 7 - GENERAL 1. General Information Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Reserve Bank of New York (2nd District), New York, New York (Board of Governors of the Federal Reserve System). Federal Deposit Insurance Corporation, Washington, D. C. New York State Banking Department, Albany, New York (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. 2. Affiliations with the Obligor If the obligor is an affiliate of the trustee, describe each such affiliation. None. 3,4,5,6,7,8,9,10,11,12,13,14 and 15. The obligors and the registrants are currently not in default under any of its outstanding securities for which United States Trust Company of New York is Trustee. Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of Form T-1 are not required under General Instruction B. 16. List of Exhibits T-1.1 -- Organization Certificate, as amended, issued by the State of New York Banking Department to transact business as a Trust Company, is incorporated by reference to Exhibit T-1.1 to Form T-1 filed on September 15, 1995 with the Commission pursuant to the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (Registration No. 33-97056). - 8 - 16. List of Exhibits (cont'd) T-1.2 -- Included in Exhibit T-1.1. T-1.3 -- Included in Exhibit T-1.1. T-1.4 -- The By-Laws of United States Trust Company of New York, as amended, is incorporated by reference to Exhibit T-1.4 to Form T-1 filed on September 15, 1995 with the Commission pursuant to the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (Registration No. 33-97056). T-1.6 -- The consent of the trustee required by Section 321(b) of the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990. T-1.7 -- A copy of the latest report of condition of the trustee pursuant to law or the requirements of its supervising or examining authority. NOTE As of March 10, 1998, the trustee had 2,999,020 shares of Common Stock outstanding, all of which are owned by its parent company, U. S. Trust Corporation. The term "trustee" in Item 2, refers to each of United States Trust Company of New York and its parent company, U. S. Trust Corporation. In answering Item 2 in this statement of eligibility, as to matters peculiarly within the knowledge of the obligor or its directors, the trustee has relied upon information furnished to it by the obligor and will rely on information to be furnished by the obligor and the trustee disclaims responsibility for the accuracy or completeness of such information. --------------------- - 9 - Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee, United States Trust Company of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 10th day of March, 1998. UNITED STATES TRUST COMPANY OF NEW YORK, Trustee By: /s/ Patricia Stermer ------------------------------- Patricia Stermer Assistant Vice President RFL/pg (rev:PST010998) Exhibit T-1.6 The consent of the trustee required by Section 321(b) of the Act. United States Trust Company of New York 114 West 47th Street New York, NY 10036 September 1, 1995 Securities and Exchange Commission 450 5th Street, N.W. Washington, DC 20549 Gentlemen: Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and subject to the limitations set forth therein, United States Trust Company of New York ("U.S. Trust") hereby consents that reports of examinations of U.S. Trust by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. Very truly yours, UNITED STATES TRUST COMPANY OF NEW YORK /s/Gerard F. Ganey ---------------------- By: Gerard F. Ganey Senior Vice President EXHIBIT T-1.7 UNITED STATES TRUST COMPANY OF NEW YORK CONSOLIDATED STATEMENT OF CONDITION SEPTEMBER 30, 1997 ($ IN THOUSANDS) ASSETS Cash and Due from Banks $ 116,582 Short-Term Investments 183,652 Securities, Available for Sale 691,965 Loans 1,669,611 Less: Allowance for Credit Losses 16,067 ---------- Net Loans 1,653,544 Premises and Equipment 61,796 Other Assets 125,121 ---------- Total Assets $2,832,660 ========== LIABILITIES Deposits: Non-Interest Bearing $ 541,619 Interest Bearing 1,617,028 ---------- Total Deposits 2,158,647 Short-Term Credit Facilities 365,235 Accounts Payable and Accrued Liabilities 141,793 ---------- Total Liabilities $2,665,675 ========== STOCKHOLDER'S EQUITY Common Stock 14,995 Capital Surplus 49,542 Retained Earnings 99,601 Unrealized Gains (Losses) on Securities Available for Sale, Net of Taxes 2,847 ---------- Total Stockholder's Equity 166,985 ---------- Total Liabilities and Stockholder's Equity $2,832,660 ========== I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank do hereby declare that this Statement of Condition has been prepared in conformance with the instructions issued by the appropriate regulatory authority and is true to the best of my knowledge and belief. Richard E. Brinkmann, SVP & Controller November 13, 1997 -----END PRIVACY-ENHANCED MESSAGE-----