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Exhibit 10.9
SECOND AMENDMENT TO
SECURITIES PURCHASE AND EXCHANGE AGREEMENT
This SECOND AMENDMENT TO SECURITIES PURCHASE AND EXCHANGE AGREEMENT
(this "Second Amendment") is made as of March 17, 1997 by and among CITADEL
COMMUNICATIONS CORPORATION, a Nevada corporation (the "Company"); CITADEL
BROADCASTING COMPANY, a Nevada corporation ("Citadel"); DESCHUTES ACQUISITION
CORPORATION, a Nevada corporation ("DAC"); ABRY BROADCAST PARTNERS II, L.P., a
Delaware limited partnership ("ABRY"); ABRY/CITADEL INVESTMENT PARTNERS, L.P., a
Delaware limited partnership ("ABRY/CIP"); BAKER, FENTRESS & COMPANY, a Delaware
corporation ("BFC"); OPPENHEIMER & CO., INC., a Delaware corporation
("Oppenheimer") BANK OF AMERICA ILLINOIS, an Illinois banking corporation
formerly known as Continental Bank, N.A. ("BofA"); CHRISTOPHER J. PERRY, ROBERT
F. PERILLE, M. ANN O'BRIEN, FORD S. BARTHOLOW, JEFFREY M. MANN, MATTHEW W.
CLARY, SHERYL E. BARTOL, and ANDREA P. JOSELIT (Bartol and Joselit being
successors in interest to Thomas E. Van Pelt, Jr.) (collectively, the "BofA
Co-Investors"); THE ENDEAVOUR CAPITAL FUND LIMITED PARTNERSHIP, an Oregon
limited partnership ("Endeavour"); and JOSEPH P. TENNANT, THE SCHAFBUCH FAMILY
TRUST u/a/d 2-15-94, BABSON CAPITAL PARTNERS LIMITED PARTNERSHIP, an Oregon
limited partnership; TAL JOHNSON, EDWARD T. HARDY, and RALPH W. MCKEE
(collectively, the "Endeavour Co-Investors").
RECITALS
A. As of June 28, 1996, certain parties to this Second Amendment
entered into that certain Securities Purchase and Exchange Agreement (as amended
by the First Amendment thereto dated as of December 31, 1996 and as supplemented
by the Agreement Regarding Facility A Advances dated as of the date of this
Second Amendment among the Company, ABRY and ABRY/CIP, the "Securities Purchase
and Exchange Agreement"). Capitalized terms that are not otherwise defined
herein shall have the meanings ascribed to those terms in the Securities
Purchase and Exchange Agreement.
B. In connection with their entry into a letter agreement dated the
date of this Agreement, the parties to the Securities Purchase and Exchange
Agreement have agreed to make certain changes to the terms thereof.
ACCORDINGLY, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Second Amendment agree as follows:
1. AMENDMENTS.
(a) Section 1 of the Securities Purchase and Exchange Agreement
is amended to add the following additional defined terms and the accompanying
definitions:
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"BACK-UP TRUSTEE" means a "Back-Up Trustee," as
that term is defined in the Voting Trust Agreement.
A "QUALIFIED STATION ACQUISITION" means
(a) the Tele-Media Acquisition,
(b) the Sabre Communications Acquisition, or
(c) any other direct or indirect acquisition by the
Company or any Subsidiary of all or substantially all of the
assets of any radio station by means of a transaction of a
type described in clause (b)(i) or (b)(ii) of Section 11, or
any arrangement by the Company or any Subsidiary of a type
described in clause (b)(iii) of Section 11 with respect to any
radio station, which is consummated after March 17, 1997, so
long as (i) the aggregate fair value of the consideration
payable by the Company and the Subsidiaries in connection with
such transaction and all related transactions of any such type
with any single Person or two or more affiliated Persons is
not greater than $30,000,000, (ii) if such aggregate fair
value is greater than $10,000,000, then the amount of such
aggregate fair value is not greater than the product of 12
multiplied by the net operating cash flow of the radio station
in question (together with the net operating cash flow of all
radio stations which are the subject of such transaction or
any related transaction of any such type with any single
Person or two or more affiliated Persons, and in each case
giving pro forma effect to all cost and expense reductions or
increases reasonably expected to be realized following such
acquisition, to the extent such pro forma adjustments are
approved by holders of a majority of the Series D Preferred
Stock) for the twelve full calendar months ending prior to the
date upon which the Company or the Subsidiary in question
entered into a definitive agreement to consummate such
transaction, and (iii) such transaction or series of related
transactions is consummated solely with the proceeds of
Indebtedness which the Company or any Subsidiary incurs in a
manner which does not require a Consent pursuant to clause (f)
above and cash on hand.
For purposes of this definition, the "net operating cash
flow" of any radio station for any period will have the same
meaning with respect to such radio station as Operating Cash
Flow (as that term is defined in the Stockholders Agreement)
has with respect to the Company for any period. No holder of
Series D Preferred Stock
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will unreasonably withhold the approval of pro forma
adjustments described in the preceding paragraph.
A "QUALIFIED STATION DISPOSITION" means any sale,
conveyance, lease, exchange or other disposition by the Company or any
Subsidiary (in each case, a "DISPOSITION TRANSACTION") of any assets
of any broadcast radio station, or the equity securities of any
Subsidiary which owns only the assets of one or more broadcast radio
stations, which were the subject of a Qualified Station Acquisition,
so long as the fair value of the consideration received by the Company
and its Subsidiaries (other than any Subsidiary the equity securities
of which are being so disposed of), net of related fees, taxes and
expenses, is not less than the fair value of the consideration
furnished by the Company and/or its Subsidiaries with respect to such
radio station in the Acquisition Transaction for such radio station,
plus the amount of fees and expenses incurred by the Company and the
Subsidiaries in connection with such Qualified Station Acquisition.
For purposes of this definition, if more than one radio station is
acquired or disposed of by the Company or any Subsidiary in any
Qualified Station Acquisition or Disposition Transaction or in any
series of related Qualified Station Acquisitions or Disposition
Transactions, then, for purposes of this definition, the consideration
paid or received by the Company and the Subsidiaries in such
transaction(s), and the fees and expenses incurred by them in
connection with such transaction(s), shall be deemed to have been
paid, received or incurred by them pro rata, in proportion to the
respective fair values of such radio stations at the time of such
transaction(s). For purposes of this definition, the fair value of any
consideration will be based upon any independent appraisal thereof
performed in connection with the transaction in question; if no such
appraisal has been performed, the same will be based on any reasonable
allocation made by the parties thereto, if their interests with
respect to such allocation are adverse; and if no such appraisal or
allocation is performed, then such fair value will be the amount
determined by the Company and approved by the holders of a majority of
the Series D Preferred Stock. No holder of Series D Preferred Stock
will unreasonably withhold any approval described in the preceding
sentence.
"SABRE COMMUNICATIONS ACQUISITION" means the
acquisition by a Subsidiary of the Company of all of the
then-outstanding capital stock and other equity securities of Sabre
Communications, Inc. ("Sabre") for aggregate consideration consisting
solely of shares of a series of the Company's preferred stock (the
shares being so issued being the "Sabre Shares"), so long as:
(a) Sabre and/or one or more of its
Subsidiaries then owns and operates radio stations WHTO FM
and WZXR FM (each, Williamsport, Pennsylvania), WRQK FM
(Canton, Ohio), WPIG FM and WHDL AM (each, Olean, New York),
and WNKI FM, WPGI AM and WQIX AM (each, Elmira, New York),
and operates under local marketing or similar arrangements
and has options to acquire radio stations WILQ FM, WLYC
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FM and WLYC AM (each, Williamsport, Pennsylvania) and WCXR FM
(Lewisburg, Pennsylvania);
(b) the Sabre Shares are issued in a quantity
and have terms such that the Sabre Shares are convertible
into not more than 275,000 shares of Class A Common (subject
to antidilution adjustments which are comparable to those
applicable to the Series E Preferred) and the aggregate
initial liquidation value of the Sabre Shares is not greater
than $5,500,000;
(c) the terms and conditions relating to the
Sabre Shares and their issuance, including rights granted to
the holders thereof by contract or otherwise, are not less
favorable to the Company, its Subsidiaries and its other
stockholders than the terms and conditions relating to the
issuance of Class E Common pursuant to the Merger Agreement;
(d) the sum of the consolidated indebtedness
for borrowed money of Sabre and its Subsidiaries, the
aggregate amount of any deferred purchase price payable by
them in connection with any radio station acquisition and the
aggregate exercise price payable in connection with the
exercise of the options described in clause (a) above
(whether or not any such option has been exercised) at the
time of such acquisition does not exceed $11,300,000; and
(e) such acquisition has been approved by the
prior vote or written consent of a majority of the members of
the Board of Directors.
"SABRE COMMUNICATIONS FINANCING" means the issuance
of the Sabre Shares as described in the definition of the term "Sabre
Communications Acquisition."
"SABRE SHARES" has the meaning set forth in the
definition of the term "Sabre Communications Acquisition."
"TELE-MEDIA ACQUISITION" means the purchase and sale
of certain capital stock proposed to be consummated by the Company
and/or its Subsidiaries on material terms and conditions which are not
less favorable to the Company and its Subsidiaries than those set
forth in the draft (dated March 13, 1997) of the Agreement of Purchase
and Sale proposed to be entered into among the Company, Citadel,
Tele-Media Broadcasting Company, Tele-Media Broadcasting Company of
Centre Region, Tele-Media Broadcasting Holding Corporation and the
shareholders of the latter three corporations, so long as such
purchase and sale is consummated on or prior to February 28, 1998.
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"TELE-MEDIA FINANCING" means transactions necessary
for the Company and its Subsidiaries to obtain the funds necessary to
pay the purchase price and expenses to be incurred by them in
connection with the Tele-Media Acquisition, by means of the issuance
of approximately $100,000,000 in face amount of Senior Subordinated
Notes, and approximately $100,000,000 in face amount of Exchangeable
Preferred Stock, of the Company, as such financing transactions are
more particularly described in the Citadel Communications Corporation,
Presentation to The Board of Directors dated February 14, 1997
prepared by Prudential Securities, so long as such financing
transactions are consummated on or prior to February 28, 1998.
"VOTING TRUSTEE" means the "Trustee," as that term
is defined in the Voting Trust Agreement.
"VOTING TRUST AGREEMENT" means the Voting Trust
Agreement dated as of March 17, 1997 among the Company, ABRY,
ABRY/CIP, the initial Trustee named therein and the initial
Back-Up Trustees named therein, as in effect from time to
time.
(b) Section 1 of the Securities Purchase and Exchange
Agreement is further amended by amending and restating in its entirety the
definition of the term "FINOVA Credit Agreement" as follows:
"FINOVA CREDIT AGREEMENT" means the Loan Agreement
dated as of October 9, 1996 among Citadel, certain other
Borrowers referred to therein, NationsBank of Texas, N.A.,
The First National Bank of Boston, Union Bank, The Bank of
New York and FINOVA Capital Corporation, a Delaware
corporation, in its individual capacity and as agent for all
lenders, as amended by First Amendment to Loan Instruments
dated as of December 31, 1996 and Second Amendment to Loan
Instruments dated February 14, 1997, and as the same may be
further amended, supplemented or modified in a manner which
is not prohibited by either this Agreement or the Voting
Agreement.
(c) Section 10.b.iii. of the Securities Purchase and
Exchange Agreement is amended and restated in its entirety to read as set forth
on the attached Exhibit A.
(d) Section 11 of the Securities Purchase and Exchange
Agreement is amended and restated in its entirety to read as set forth on the
attached Exhibit B.
(e) Section 13.c.ii. of the Securities Purchase and Exchange
Agreement is amended and restated to read in its entirety as follows:
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ii. if to the Company or Citadel, at 140 South Ash
Avenue, Tempe, Arizona 85281, and to 1015 Eastman Drive,
Bigfork, Montana 59911.
2. FACILITY A NOTES.
(a) ABRY and ABRY/CIP have made, or soon after the date hereof
will make, Facility A Advances in the aggregate amount of $1,000,000,
the proceeds of which Facility A Advances have been or will be used to
make certain non-refundable payments to the sellers in connection with
Citadel's entry into a definitive agreement to consummate the
Tele-Media Acquisition and thereafter as required by such agreement.
ABRY and ABRY/CIP hereby waive the fifteen (15) business days' prior
written notice requirement set forth in Section 4.g.v of the Securities
Purchase and Exchange Agreement with respect to such Facility A
Advances, so long as such Facility A Advances are made on or prior to
March 31, 1997. ABRY and ABRY/CIP agree that such Facility A Advances
will not be deemed to have been made for purposes of the application of
the first sentence of Section 4.g.v. of the Securities Purchase and
Exchange Agreement.
(b) ABRY, ABRY/CIP and the Company anticipate that the Company
will request that ABRY and ABRY/CIP provide Facility A Advances in the
aggregate amount of not greater than $1,000,000, the proceeds of which
Facility A Advances will be used to make a deposit in escrow in
connection with the Company's (and/or one or more Subsidiaries') entry
into a definitive agreement to consummate the Sabre Communications
Acquisition. ABRY and ABRY/CIP agree that such Facility A Advances will
not be deemed to have been made for purposes of the application of the
first sentence of Section 4.g.v. of the Securities Purchase and
Exchange Agreement.
(c) Notwithstanding the terms and conditions of the Securities
Purchase and Exchange Agreement and the Facility A Notes: (i)
contemporaneously with the consummation of the Tele-Media Acquisition,
the Company and Citadel will cause a portion of the proceeds of the
related financing to be applied to the prepayment in full of the entire
unpaid principal amount of, and all unpaid accrued interest in respect
of, all Facility A Notes which are then outstanding, and (ii) effective
at the time of such consummation, the Facility A Commitments shall
terminate and be of no further effect, and ABRY and ABRY/CIP shall have
no further obligations to make Facility A Advances to the Company.
3. VOTING TRUST. On the date hereof, ABRY and ABRY/CIP have
contributed the shares of the Company's capital stock which are held by them,
and have agreed to contribute all other shares of the Company's capital stock
which hereafter may be acquired by them, to a voting trust (the "Voting Trust")
established pursuant to a Voting Trust Agreement dated as of the date hereof
among the Company, ABRY, ABRY/CIP and the initial Voting Trustee thereunder. For
purposes of the Securities Purchase and Exchange Agreement, ABRY and ABRY/CIP
(and any Persons who from time to time may hold Voting Trust Certificates
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issued in respect of capital stock of the Company held in the Voting Trust), as
the beneficial owners of the capital stock in the Voting Trust, will be deemed
to hold the capital stock of the Company which is held in the Voting Trust.
4. CHOICE OF LAW. It is the intention of the parties that the
internal laws, and not the laws of conflicts, of Arizona should govern the
enforceability and validity of this Second Amendment, the construction of its
terms and the interpretation of the rights and duties of the parties; provided,
however, that the laws of the State of Nevada shall govern the relationship
between the Company and its stockholders.
5. COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, with the same effect as if all parties had signed the same
document. All such counterparts shall be deemed an original, shall be
construed together and shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Second Amendment
to be duly executed and delivered by their respective duly authorized officers
on the day and year first above written.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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[SIGNATURE PAGE FOR SECOND AMENDMENT TO SECURITIES
PURCHASE AND EXCHANGE AGREEMENT]
CITADEL COMMUNICATIONS CORPORATION
By /s/ Lawrence R. Wilson
-------------------------------
Its President
----------------------------
CITADEL BROADCASTING COMPANY
By /s/ Lawrence R. Wilson
-------------------------------
Its President
----------------------------
ABRY BROADCAST PARTNERS II, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By /s/ Royce Yudkoff
-------------------------
Its President
-------------------------
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By /s/ Royce Yudkoff
-------------------------
Its President
-------------------------
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[SIGNATURE PAGE FOR SECOND AMENDMENT TO SECURITIES
PURCHASE AND EXCHANGE AGREEMENT]
BAKER, FENTRESS & COMPANY
By /s/ Scott E. Smith
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Its
---------------------------------
OPPENHEIMER & CO., INC.
By /s/ Rob Blum
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Its Assistant Secretary
---------------------------------
BANK OF AMERICA ILLINOIS
By /s/ Robert F. Perille
-------------------------------------
Its
---------------------------------
BOFA CO-INVESTORS:
*
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Christopher J. Perry
*
---------------------------------------
Robert F. Perille
*
---------------------------------------
M. Ann O'Brien
*
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Ford S. Bartholow
*
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Jeffrey M. Mann
*
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Matthew W. Clary
*
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Sheryl E. Bartol
*
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Andrea P. Joselit
* By: Robert F. Perille
------------------------------------
Name:
Attorney-In-Fact
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[SIGNATURE PAGE FOR SECOND AMENDMENT TO SECURITIES
PURCHASE AND EXCHANGE AGREEMENT]
ENDEAVOUR:
THE ENDEAVOUR CAPITAL FUND LIMITED PARTNERSHIP
By DVS Management, Inc.
Its General Partner
By /s/ John von Schlegell
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Its Managing Partner
-----------------------------------
ENDEAVOUR CO-INVESTORS:
/s/ Joseph P. Tennant
-----------------------------------------
Joseph P. Tennant
THE SCHAFBUCH FAMILY TRUST u/a/d 2-15-94
By: /s/ Richard M. Schafbuch
--------------------------------------
Richard M. Schafbuch, Trustee
By: /s/ Susan P. Schafbuch
--------------------------------------
Susan P. Schafbuch, Trustee
BABSON CAPITAL PARTNERS LIMITED PARTNERSHIP
By /s/ Stephen E. Babson
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Its General Partner
----------------------------------
/s/ Tal Johnson
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Tal Johnson
/s/ Edward T. Hardy
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Edward T. Hardy
/s/ Ralph W. McKee
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Ralph W. McKee
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EXHIBIT A
11. ACTIONS REQUIRING SUPERMAJORITY APPROVAL. Without the
prior vote or written consent of the holders of a majority of the Series D
Preferred Stock (each a "Consent"), the Company shall not take and shall not
permit any Subsidiary to take any of the following actions:
(A) TRANSFERS; DISPOSITIONS. Other than pursuant to
Section 6 of the Stockholders Agreement, sell, convey, lease (as lessor),
exchange or otherwise dispose of or transfer in any fiscal year, any portion of
or any interest in any property of the Company or any Subsidiary in the
aggregate having a fair market value of more than $5,000,000; provided that no
Consent shall be required for any Qualified Station Disposition (as that term
is defined below).
(B) ACQUISITIONS; INVESTMENTS; CERTAIN OTHER TRANSACTIONS.
Other than in a Qualified Station Acquisition:
(i) directly or indirectly, by operation of law or
otherwise, merge with, consolidate with, acquire, directly or
indirectly, all or any substantial portion of the assets, Equity
Securities or business of any Person or any radio station, or otherwise
combine with any Person (in each case other than the Company or any
wholly owned Subsidiary of the Company);
(ii) Purchase or otherwise directly or indirectly acquire,
hold or invest in the Equity Securities of any other Person (other than
any wholly-owned Subsidiary of the Company), or make any loan to, or
enter into any arrangement for the purpose of directly or indirectly
providing funds or credit to, or make any other investment, whether by
way of capital contribution, time deposit or otherwise, in, through or
with any Person (other than any wholly owned Subsidiary of the
Company), other than up to $100,000 in aggregate principal amount
outstanding at any time of loans made to other Persons in the ordinary
course of business; or
(iii) Enter into any joint venture agreement, or enter into
local marketing, time brokerage or similar arrangement if such
arrangement is entered into in connection with the grant of an option
to purchase or agreement to purchase the station that is the subject of
such arrangement.
(C) ISSUANCE OR REPURCHASE OF EQUITY SECURITIES. Except for
any issuance described in any of clauses (ii) through (vi) of Section 2.4 of the
Stockholders Agreement or any issuance of Equity Securities as part of the
Tele-Media Financing or the Sabre Communications Financing, any issuance upon
the conversion, exercise or exchange in accordance with its terms of any Equity
Security issued in accordance with this Section 1(c), the grant of any option
pursuant to the 1996 Equity Incentive Plan or any other stock option plan which
is approved by
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the holders of a majority of the Series C Preferred Stock after the date
hereof, or any repurchase pursuant to any of Sections 3, 4 and 5 of the
Stockholders Agreement:
(i) authorize, issue or enter into any agreement,
stock option, incentive, compensation or other plan or arrangement
providing for the issuance (contingent or otherwise) of any Equity
Securities, whether for cash or for non-cash consideration (provided
that this clause (i) will not apply to any issuance of Equity
Securities of any Subsidiary of the Company to the Company or any
wholly-owned Subsidiary of the Company),
(ii) redeem, repurchase or otherwise retire any of the
Company's Equity Securities, other than (A) the Class A Common Stock
owned by certain members of management of the Company or any
Subsidiary (other than Wilson) upon the termination of the employment
thereof (which such repurchases shall not in the aggregate exceed
$500,000 in an amount during any twelve-month period) or (B) any
payment in respect of any Facility A Note, or
(iii) with respect to the Company, make any dividend,
distribution or other stockholder expenditures with respect to any
Equity Securities or apply any of its assets to the purchase,
redemption or other retirement of, or set apart any sum or any
non-cash consideration for the payment of, or make any other
distributions or reduction or capital or otherwise in respect of any
of its Equity Securities or in respect of any Facility A Note;
provided, that this clause (iii) shall not apply to any Subsidiary.
(D) AMENDMENT OF CERTIFICATE OF INCORPORATION; BYLAWS.
Except as contemplated by Section 4(g) of the Securities Purchase and Exchange
Agreement, make any amendment to the certificate or articles of incorporation
or the bylaws of the Company or any of its Subsidiaries, or file any resolution
of the Board or the board of directors of any Subsidiary designating or
amending the terms of any Additional Preferred Stock.
(E) PUBLIC OFFERINGS. Except as part of the Tele-Media
Financing, issue, sell or offer to sell any of the securities of the Company or
any Subsidiary in a public offering that is registered under the Securities
Act.
(F) INDEBTEDNESS; AMENDMENT OF DEBT DOCUMENTS.
(i) Create, incur, issue, assume, become liable with
respect to, or extend that maturity of, or permit any Subsidiary to
create, incur, issue, assume, become liable with respect to, or extend
the maturity of any Indebtedness for Borrowed Money (as defined in the
Securities Purchase and Exchange Agreement) except:
1) Up to $150,000,000 in principal amount of
Indebtedness for Borrowed Money outstanding at any time and incurred
pursuant to the FINOVA Credit Agreement (or pursuant to a replacement
facility entered into in connection with the
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Tele-Media Acquisition which (i) permits all or a portion of the
amounts of prior borrowings which have been repaid to be reborrowed to
pay the purchase price and expenses associated with radio station
acquisitions, and (ii) otherwise has terms and conditions not less
favorable to the Company and its Subsidiaries than the terms and
conditions of the FINOVA Credit Agreement) and any notes issued
pursuant thereto, and all Indebtedness for Borrowed Money outstanding
as of the date hereof and disclosed on Schedule to this Agreement;
2) the Facility A Notes;
3) any Indebtedness for Borrowed Money pursuant to a
Permitted Senior Substitution (as defined in the Securities Purchase
and Exchange Agreement);
4) Indebtedness for Borrowed Money incurred as part
of the Tele- Media Financing or the Sabre Communications Financing; and
5) other Indebtedness for Borrowed Money in an
aggregate principal which does not exceed $3,000,000 at any time; and
the Company will not, and will not permit any Subsidiary to, extend
the maturity of any Indebtedness for Borrowed Money described in
clause (A) or (C) above without Consent.
(ii) Amend, supplement, modify or waive in any material
respect, any term or provision of the FINOVA Credit Agreement, the
Facility A Notes or any other agreement or arrangement relating to
Indebtedness for Borrowed Money (other than (A) to add any wholly-owned
Subsidiary of the Company as a party thereto or as an additional
guarantor of the Indebtedness for Borrowed Money incurred thereunder,
(B) to identify, refer to or reflect any Person, radio station or
assets acquired, or to effect any required deletion so that such
agreement or arrangement no longer identifies, refers to or reflects
any Person, radio station or assets disposed of, in any Qualified
Station Acquisition or Qualified Station Disposition), (C) to amend
Exhibit 1E to the FINOVA Credit Agreement to remove Peggy Koenig, Royce
Yudkoff and Jay Grossman and to refer to the members of the Board of
Directors the expenses of whom are reimbursed by the Company, each
Observer, the Voting Trustee and the Back-Up Trustees, or (D) to modify
the exhibits to the FINOVA Credit Agreement to reflect the addition of
liabilities and expenses undertaken in connection with any Qualified
Station Acquisition, to the extent such liabilities and expenses are
not material to the acquired stations(s) in question); or
(G) AGREEMENT; COMMITMENT. Agree or commit to take any
action which, by reason of any of clauses (a) through (f) above, would require
Consent.
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EXHIBIT B
iii. Attendance at Board Meetings.
A. For purposes of this Section, a "Qualifying
Investor" means any holder of Underlying Common Stock which at the time in
question, either alone or together with its Affiliates, holds Underlying Common
Stock which is neither BFC Underlying Common Stock (as that term is defined in
the Voting Agreement) nor Endeavour Underlying Common Stock (as that term is
defined in the Voting Agreement) and which represents not less than 10% of the
Underlying Common Stock.
B. The Company will give each Qualifying Investor
written notice of each meeting of the Board of Directors, the board of directors
of any Subsidiary (each a "Sub Board") or any committee of the Board of
Directors or of any Sub Board, at the same time and in the same manner as notice
is given to the directors who are members thereof (which notice shall be
promptly confirmed in writing to each Qualifying Investor if such notice is not
given to such directors in writing) and, in any event, a sufficient time to
permit a person designated by such Qualifying Investor a reasonable opportunity
to attend such meeting (or to listen to such meeting by telephone, in the case
of a telephonic meeting).
C. The Company shall permit, and shall cause each
Subsidiary to permit, a representative of each Qualifying Investor (each an
"Observer") to attend (or, in the case of a telephonic meeting, to listen by
telephone to) each meeting of its board of directors or any committee thereof as
an observer. The Company shall pay the reasonable out-of-pocket expenses
incurred by each Observer in connection with attending the meetings of the Board
of Directors, any Sub Board and any committees thereof.
D. Each Observer shall be entitled to receive all
written materials and other information (including, without limitation, copies
of meeting minutes) given to directors in connection with any such meeting at
the same time as such materials and information are given to the directors in
question and, in any event, will be informed by the Company as to the material
terms and conditions of each Qualified Station Acquisition or Qualified Station
Disposition which is effected or proposed to be effected.
E. If the Company or any Subsidiary proposes to take
any action by written consent in lieu of a meeting of its board of directors or
of any committee thereof, then the Company shall give written notice of such
action to the person then most-recently designated by each Qualified Investor as
an Observer, prior to the effective date of such consent, describing in
reasonable detail the nature and substance of such action.
F. Nothing contained herein shall be construed to
entitle an Observer to do any more than monitor the meeting activities of the
Board of Directors, any Sub Board or any committee thereof; no Observer shall be
entitled to participate in any such meeting by voicing comments or suggestions
with respect to matters being considered in the meeting or documents relating
thereto.
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