EX-10.5(a)
THE WITHIN NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE
TRANSFERRED OR DISPOSED OF UNLESS AND UNTIL (i) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT OR (ii) IN
THE OPINION OF COUNSEL, WHICH OPINION IS REASONABLY SATISFACTORY IN
FORM AND SUBSTANCE TO COUNSEL FOR THE MAKER, SUCH OFFER, SALE, OR
OTHER TRANSFER IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
TSB III, LLC
Managed Affiliate
Promissory Note
$6,455,000.00 December 30, 1997
For value received, TSB III, LLC, a Virginia limited liability company
("Maker"), promises to pay to Tri-State Broadcasting, Inc. ("Payee"), or
order, at Payee's address located at 420 N.W. Fifth St., Evansville, Indiana,
the principal sum of Six Million Four Hundred Fifty Five Thousand and no/100
Dollars ($6,455,000.00) in lawful money of the United States of America,
together with simple interest in like money at the rate of twelve per cent
(12.0%) per annum from the date hereof for so long as payment on any
principal balance hereof remains unpaid, such principal and interest to be
due and payable on the following obligatory schedule (except as and to the
extent offset, anticipated, or prepaid, in whole or in part, as hereinafter
provided):
Beginning June 15, 1998, and on December 15 and June 15 of each year
thereafter Maker shall pay to the holder hereof interest accrued on the
outstanding principal balance hereof until January 1, 2001, when final payment
of all then unpaid principal and accrued interest thereon shall be due and
payable.
The Maker reserves the right to anticipate and prepay at any time or from
time to time, without penalty, all or any part of the indebtedness evidenced by
this note. Any partial prepayment of principal also shall include accrued
interest on the unpaid principal balance to the date of such prepayment, and
each prepayment shall be applied to and be deducted from the scheduled
obligatory payments falling due hereunder in the inverse order of their
scheduled due dates. All prepayments on this note shall be
recorded when made on the reverse side hereof by the then holder of this note.
The following, and only the following, shall constitute an "Event of
Default" under this note:
(a) any failure of Maker to make (or to cause to be made) to the then
holder of this note any scheduled obligatory payment of principal or interest on
this note when due and payable, which failure continues for a period of at least
thirty (30) consecutive calendar days after written notice of such failure has
been given to Maker by such holder, or
(b) the commencement by maker of a voluntary case under and within the
meaning of the United States Bankruptcy Code, or
(c) entry by a court of competent jurisdiction of an order in an
involuntary case commenced against Maker under and within the meaning of the
United States Bankruptcy Code that (i) forbids the Maker to continue to use,
acquire, or dispose of property as if no such involuntary case had been
commenced, or (ii) is for relief against Maker, or (iii) appoints an interim
trustee to take possession of Maker's property, or (iv) orders the liquidation
of Maker, and, in each case, sixty (60) consecutive calendar days shall have
elapsed since entry of any such order, such order shall then be unstayed and
effective, and such involuntary case shall then still be pending and not
dismissed.
Upon the occurrence and during the continuation of an Event of Default,
and not otherwise, the then holder of this note, at such holder's sole election
made by a written notice executed by such holder (expressly referring to and
describing this note and the Event of Default) and given to Maker, may declare
all of the then unpaid principal balance of this note, together with any
interest accrued thereon, to be, and they shall thereupon become, immediately
due and payable without presentment, demand, protest, or other notice of any
kind.
Any notice to Maker shall be deemed to have been given only upon the
earlier to occur of (a) actual receipt of such notice by Maker (whether by hand
delivery or facsimile transmission), or (b) the eighth day after the date of
deposit of such notice in the U.S. mail, postage prepaid, certified or
registered, with return receipt or proof of deliver required, addressed to Maker
at the address for Maker shown herein or at such other address as Maker may
theretofore establish by notice to Payee as provided in the Agreement.
Mere delay or failure to act shall not preclude the exercise or
enforcement of any right or remedy hereunder; all such rights
and remedies shall be cumulative and may be exercised singularly or
concurrently, and the exercise or enforcement of any one such right or remedy
shall neither be a condition to nor bar the exercise or enforcement of any other
right or remedy.
The rights of all parties hereto and of each holder hereof shall be
governed by and enforced or construed only in accordance with the domestic,
substantive laws of the Commonwealth of Virginia, excluding those relating to
conflicts of laws.
The payment of any management fee by the Maker pursuant to any management
agreement [other than a Managed Affiliate Management Agreement with the Payee as
an affiliate of Brill Media Company, LLC and Brill Media Management, Inc. (the
"Issuer")] shall be subordinated to the obligation of the Maker under this note
to the same extent as the obligation of the Issuer and its subsidiaries under
the management agreements with Brill Media Company, L.P. are subordinated to the
obligation of the Issuer and its subsidiaries under the Notes and the Subsidiary
Guarantees issued and made by such persons under and pursuant to an Offering
Memorandum dated December 23, 1997, and entered into by the Issuer and the
subsidiaries therein identified.
Maker agrees to pay all reasonable attorneys' fees that may be incurred in
collecting this note after an Event of Default, but not to exceed 5% of any then
due and payable principal balance.
IN WITNESS WHEREOF, Maker has caused this note to be executed by its duly
authorized officer on the day, month, and year first above written.
TSB III, LLC
By: Tri-State Management, Inc.
Its Manager
By:_______________________________
a duly authorized officer