Execution Copy
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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 herein
and
NATWEST CAPITAL MARKETS LIMITED
as Initial Purchaser
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$3,000,000 Aggregate Principal Amount of
APPRECIATION NOTES DUE 2007
TABLE OF CONTENTS
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange Offer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3. Shelf Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . 12
6. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 21
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8. Rules 144 and 144A. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9. Underwritten Registrations. . . . . . . . . . . . . . . . . . . . . . . 27
10. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(a) No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . 27
(b) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . 27
(c) Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(d) Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 29
(e) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(f) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(g) Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(h) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(i) Notes Held by the Issuers or their Affiliates. . . . . . . . . . . 30
(j) Third Party Beneficiaries. . . . . . . . . . . . . . . . . . . . . 30
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APPRECIATION NOTES REGISTRATION RIGHTS AGREEMENT
This Appreciation Notes Registration Rights Agreement (the
"Agreement") is dated as of December 30, 1997, by and among Brill Media
Company, LLC, a Virginia limited liability company ("BMC"), Brill Media
Management, Inc., a Virginia corporation ("Media" and, collectively with
BMC, the "Company"), the subsidiary guarantors of the Company's obligations
hereunder as listed on Schedule A hereto (collectively, the "Guarantors"),
and NatWest Capital Markets Limited (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated December 22, 1997, among the Company, the Guarantors and
the Initial Purchaser (the "Purchase Agreement"), which provides, among
other things, for the sale by the Company to the Initial Purchaser of
$3,000,000 aggregate principal amount of the Company's Appreciation Notes
due 2007 (the "Appreciation Notes"), which Appreciation Notes will be
guaranteed by the Guarantors. The Company and the Guarantors are
collectively referred to herein as the "Issuers." In order to induce the
Initial Purchaser to enter into the Purchase Agreement, the Issuers have
agreed to provide the registration rights set forth in this Agreement for
the benefit of the Initial Purchaser and its direct and indirect
transferees. The execution and delivery of this Agreement is a condition
to the obligation of the Initial Purchaser to purchase the Appreciation
Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: Has the meaning provided in Section 4(a)
hereof.
Advice: Has the meaning provided in the last paragraph of
Section 5 hereof.
Agreement: Has the meaning provided in the first introductory
paragraph hereto.
Applicable Period: Has the meaning provided in Section 2(b)
hereof.
Appreciation Exchange Notes: Has the meaning provided in Section
2(a) hereof.
Appreciation Notes: Has the meaning provided in the second
introductory paragraph hereto.
Appreciation Notes Indenture: The Indenture, dated as of
December 30, 1997 between the Company, the Guarantors and United States
Trust Company of New York, as trustee, pursuant to which the Appreciation
Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Closing Date: Has the meaning provided in the Purchase
Agreement.
Company: Has the meaning provided in the first introductory
paragraph hereto.
Effectiveness Date: The 90th day after the Filing Date.
Effectiveness Period: Has the meaning provided in Section 3(a)
hereof.
Event Date: Has the meaning provided in Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: Has the meaning provided in Section 2(a) hereof.
Exchange Registration Statement: Has the meaning provided in
Section 2(a) hereof.
Filing Date: The 60th day after the Issue Date.
Guarantors: Has the meaning provided in the first introductory
paragraph hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: Has the meaning provided in Section 7(c)
hereof.
Indemnifying Person: Has the meaning provided in Section 7(c)
hereof.
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Indenture: The Indenture, dated as of December 30, 1997 between
the Company, the Guarantors and United States Trust Company of New York, as
trustee, pursuant to which $105,00,000 aggregate principal amount of the
Company's 12% Senior Notes due 2007 are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchaser: Has the meaning provided in the first
introductory paragraph hereto.
Inspectors: Has the meaning provided in Section 5(o) hereof.
Issue Date: The date on which the original Appreciation Notes
were sold to the Initial Purchaser pursuant to the Purchase Agreement.
Issuers: Has the meaning provided in the second introductory
paragraph hereto.
NASD: Has the meaning provided in Section 5(s) hereof.
Participant: Has the meaning provided in Section 7(a) hereof.
Participating Broker-Dealer: Has the meaning provided in Section
2(b) hereof.
Persons: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Private Exchange: Has the meaning provided in Section 2(b)
hereof.
Private Appreciation Exchange Notes: Has the meaning provided in
Section 2(b) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act),
as amended or supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, with respect to the terms of
the offering of any portion of the Registrable Notes covered by such
Registration Statement including post-effective
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amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: Has the meaning provided in the second
introductory paragraph hereto.
Records: Has the meaning provided in Section 5(o) hereof.
Registrable Notes: Each Appreciation Note upon original issuance
of the Appreciation Notes and at all times subsequent thereto and each
Private Appreciation Exchange Note upon original issuance thereof and at
all times subsequent thereto, until in the case of any such Appreciation
Note or Private Appreciation Exchange Note, as the case may be, the
earliest to occur of (i) a Registration Statement covering such
Appreciation Note or Private Appreciation Exchange Note, as the case may
be, has been declared effective by the SEC and such Appreciation Note
(unless such Appreciation Note was not tendered for exchange by the Holder
thereof), or Private Appreciation Exchange Note, as the case may be, has
been disposed of in accordance with such effective Registration Statement,
(ii) such Appreciation Note or Private Appreciation Exchange Note, as the
case may be, is, or may be, sold in compliance with Rule 144, or (iii) such
Appreciation Note or Private Appreciation Exchange Note, as the case may
be, ceases to be outstanding for purposes of the Indenture.
Registration Statement: Any registration statement of the
Company, including, but not limited to, the Exchange Registration
Statement, that covers any of the Registrable Notes pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and
sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery
requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.
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Rule 415: Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: Has the meaning provided in Section 2(c) hereof.
Shelf Registration: Has the meaning provided in Section 3(a)
hereof.
Shelf Registration Statement: shall mean a "shelf" registration
statement of the Company and the Guarantors which covers all of the
Registrable Notes on an appropriate form under Rule 415 under the 1933 Act,
or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee(s): The trustee under the Indenture and, if existent,
the trustee under any indenture governing the Exchange Notes and Private
Exchange Notes (if any).
Underwritten registration or underwritten offering: A
registration in which securities of one or more of the Issuers are sold to
an underwriter for reoffering to the public.
2. Exchange Offer
(a) Each of the Issuers agrees to file with the SEC no later
than the Filing Date an offer to exchange (the "Exchange Offer") any and
all of the Appreciation Notes for a like aggregate principal amount of debt
securities of the Company, guaranteed by the Guarantors, which are
identical in all material respects to the Appreciation Notes (the
"Appreciation Exchange Notes") (and which are entitled to the benefits of
the Appreciation Notes Indenture or a trust indenture that is identical in
all material respects to the Appreciation Notes Indenture (other than such
changes to the Appreciation Notes Indenture or any such identical trust
indenture as are necessary to comply with any requirements of the SEC to
effect or maintain the qualification thereof under the TIA) and
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which, in either case, has been qualified under the TIA), except that (i) the
Appreciation Exchange Notes shall have been registered pursuant to an
effective Registration Statement under the Securities Act and shall contain
no restrictive legend thereon and (ii) the Appreciation Exchange Notes shall
not be entitled to any further registration rights hereunder or to any
Additional Interest. The Exchange Offer shall be registered under the
Securities Act on the appropriate form (the "Exchange Registration
Statement") and shall comply with all applicable tender offer rules and
regulations under the Exchange Act. The Issuers agree to use their
reasonable best efforts to (x) cause the Exchange Registration Statement to
be declared effective under the Securities Act no later than the 90th day
after the Filing Date; (y) keep the Exchange Offer open for at least 20
business days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to the Holders; and (z) consummate the
Exchange Offer on or prior to the 120th day following the Filing Date. If
after such Exchange Registration Statement is declared effective by the SEC,
the Exchange Offer or the issuance of the Appreciation Exchange Notes
thereunder is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Exchange Registration Statement shall be deemed not to have become effective
for purposes of this Agreement until such stop order, injunction or other
order or requirement is no longer in effect. Each Holder who participates in
the Exchange Offer will be required to represent that any Appreciation
Exchange Notes received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange Offer such
Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Appreciation Exchange Notes in
violation of the provisions of the Securities Act, that such Holder is not an
"affiliate" of any of the Issuers within the meaning of the Securities Act
and that such Holder is not acting on behalf of any person who could not
truthfully make the foregoing representations. Upon consummation of the
Exchange Offer in accordance with this Section 2, the Issuers shall have no
further obligation to register Registrable Notes (other than Private
Appreciation Exchange Notes pursuant to Section 3 hereof). No securities
other than the Appreciation Exchange Notes shall be included in the Exchange
Registration Statement.
(b) The Issuers shall include within the Prospectus contained in
the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchaser, which shall
contain a summary statement of the positions taken or policies made by the
Staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of Appreciation Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"),
whether such positions or policies have been publicly disseminated by the
Staff of the SEC or such positions or policies, in the judgment of the
Initial Purchaser, represent the prevailing views of the Staff of the SEC.
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Such "Plan of Distribution" section shall also expressly permit the use of
the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Appreciation Exchange Notes.
Each of the Issuers shall use its reasonable best efforts to keep
the Exchange Registration Statement effective and to amend and supplement
the Prospectus contained therein, in order to permit such Prospectus to be
lawfully delivered by any Participating Broker-Dealer subject to the
prospectus delivery requirements of the Securities Act for such period of
time as is necessary to comply with applicable law in connection with any
resale of the Appreciation Exchange Notes; provided, however, that such
period shall not exceed 180 days after the consummation of the Exchange
Offer (or such longer period if extended pursuant to the last paragraph of
Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Appreciation Notes acquired by it and having the status
of an unsold allotment in the initial distribution, the Issuers shall, upon
the request of the Initial Purchaser, simultaneously with the delivery of
the Appreciation Exchange Notes in the Exchange Offer issue and deliver to
the Initial Purchaser in exchange (the "Private Exchange") for such
Appreciation Notes held by the Initial Purchaser a like principal amount of
debt securities of the Company, guaranteed by the Guarantors, that are
identical in all material respects to the Appreciation Exchange Notes (the
"Private Appreciation Exchange Notes") (and which are issued pursuant to
the same Appreciation Notes Indenture as the Appreciation Exchange Notes)
except for the placement of a restrictive legend on such Private
Appreciation Exchange Notes. The Private Appreciation Exchange Notes shall
if permissible bear the same CUSIP number as the Appreciation Exchange
Notes.
Interest on the Appreciation Exchange Notes and the Private
Appreciation Exchange Notes will accrue from the last interest payment date
on which interest was paid on the Appreciation Notes surrendered in
exchange therefor or, if no interest has been paid on the Appreciation
Notes, from the Issue Date.
In connection with the Exchange Offer, the Issuers shall:
(1) mail to each Holder a copy of the Prospectus forming part of
the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
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(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of
New York;
(3) permit Holders to withdraw tendered Appreciation Notes at
any time prior to the close of business, New York time, on the last
business day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or
the Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Appreciation Notes tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver to the Trustee for cancellation all Appreciation
Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Appreciation Notes, Appreciation Exchange Notes or
Private Appreciation Exchange Notes, as the case may be, equal in
principal amount to the Appreciation Notes of such Holder so accepted
for exchange.
The Appreciation Exchange Notes and the Private Appreciation
Exchange Notes are to be issued under (i) the Appreciation Notes Indenture
or (ii) an indenture identical in all material respects to the Appreciation
Notes Indenture, which in either event shall provide that (1) the
Appreciation Exchange Notes shall not be subject to the transfer
restrictions set forth in the Appreciation Notes Indenture and (2) the
Private Appreciation Exchange Notes shall be subject to the transfer
restrictions set forth in the Indenture. The Appreciation Notes Indenture
or such indenture shall provide that the Appreciation Exchange Notes, the
Private Appreciation Exchange Notes and the Appreciation Notes shall vote
and consent together on all matters as one class and that none of the
Appreciation Exchange Notes, the Private Appreciation Exchange Notes or the
Appreciation Notes will have the right to vote or consent as a separate
class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the Staff of the SEC, the Issuers are not
permitted to effect an Exchange Offer, (ii) the Exchange Offer is not
consummated within 120 days after the Filing Date, (iii) any
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holder of Private Appreciation Exchange Notes so requests at any time after
the consummation of the Private Exchange, or (iv) if any Holder (other than
the Initial Purchaser) is not eligible to participate in the Exchange Offer
or such Holder does not receive Appreciation Exchange Notes on the date of
the exchange that may be sold without restriction under the state and federal
securities laws (other than due solely to the status of such Holder as an
affiliate of any of the Issuers within the meaning of the Securities Act),
then the Issuers shall promptly deliver to the Holders and the Appreciation
Notes Trustee written notice thereof (the "Shelf Notice") and, in the case of
clauses (i) and (ii) above, to all Holders, in the case of clause (iii)
above, to the Holders of the Private Appreciation Exchange Notes and, in the
case of clause (iv) above, to the affected Holder, and shall as promptly as
reasonably practicable file a Shelf Registration pursuant to Section 3
hereof, provided, however, that in the case of clause (iii) above such holder
shall pay all reasonable registration expenses of the Company as described in
Section 6 hereof in connection with such Shelf Registration of such Private
Appreciation Exchange Notes.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Issuers shall as promptly as
reasonably practicable file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all
of the Registrable Notes (the "Shelf Registration"). If the Issuers shall
not have yet filed an Exchange Registration Statement, each of the Issuers
shall use its best efforts to file with the SEC the Shelf Registration on
or prior to the Filing Date. The Shelf Registration shall be on Form S-1
or another appropriate form permitting registration of such Registrable
Notes for resale by Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The
Issuers shall not permit any securities other than the Registrable Notes to
be included in the Shelf Registration.
Each of the Issuers shall use its reasonable best efforts to
cause the Shelf Registration to be declared effective under the Securities
Act by the 180th day after the Issue Date and to keep the Shelf
Registration continuously effective under the Securities Act until the date
which is two years from the Issue Date, subject to extension pursuant to
the last paragraph of Section 5 hereof, or such shorter period ending when
all Registrable Notes covered by the Shelf Registration have been sold in
the manner set forth and as contemplated in the Shelf Registration or when
the Appreciation Notes become eligible for transfer without volume
restrictions pursuant to Rule 144 under the Securities Act (the
"Effectiveness Period").
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(b) Withdrawal of Stop Orders. If the Shelf Registration ceases
to be effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), each of the Issuers shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Issuers shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested for such purpose by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement or by any underwriter of such Registrable Notes.
4. Additional Interest
(a) The Issuers and the Initial Purchaser agree that the Holders
of Registrable Notes will suffer damages if the Issuers fail to fulfill their
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuers agree to pay, as the sole liquidated damages, for such failure
additional interest on the Appreciation Notes ("Additional Interest") shall
become payable with respect to the Appreciation Notes under the circumstances
and to the extent set forth below:
(i) if neither the Exchange Registration Statement nor the Shelf
Registration has been filed on or prior to the Filing Date, then,
commencing on the 61st day after the Issue Date, Additional Interest
shall accrue on $3,000,000 at a rate of 0.50% per annum for the first
30 days commencing on the 61st day after the Issue Date, such
Additional Interest rate increasing by an additional 0.50% per annum
at the beginning of each subsequent 30-day period;
(ii) if neither the Exchange Registration Statement nor the Shelf
Registration is declared effective by the SEC on or prior to the
Effectiveness Date, then, commencing on the 91st day after the Filing
Date, Additional Interest shall accrue on $3,000,000 at a rate of
0.50% per annum for the first 30 days commencing on the 91st day after
the Filing Date, such Additional Interest rate increasing by an
additional 0.50% per annum at the beginning of each subsequent 30-day
period; and
(iii) if (A) the Issuers have not exchanged Exchange Notes
for all Appreciation Notes validly tendered in accordance with the
terms of the Exchange Offer on or prior to the 120th day after the
Filing Date or (B) the Exchange
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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 has been declared effective and such Shelf
Registration ceases to be effective at any time during the Effectiveness
Period (unless all Appreciation Notes have been sold thereunder), then
Additional Interest shall accrue on $3,000,000 at a rate of 0.50% per
annum for the first 30 days commencing on (x) the 121st day after the
Filing Date with respect to the Appreciation Notes validly tendered and
not exchanged by the Company, in the case of (A) above, or (y) the day
the Exchange Registration Statement ceases to be effective in the case
of (B) above, or (z) the day such Shelf Registration 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
such subsequent 30-day period;
provided, however, that in any event the Additional Interest rate on any
affected Appreciation Notes may not exceed at any one time in the aggregate
1.5% per annum; and provided, further, that (1) upon the filing of the
Exchange Registration Statement or a Shelf Registration (in the case of
clause (i) of this Section 4(a)), (2) upon the effectiveness of the Exchange
Registration Statement or the Shelf Registration (in the case of clause (ii)
of this Section 4(a)), or (3) upon the exchange of Appreciation Exchange
Notes for all Appreciation Notes tendered (in the case of clause (iii)(A) of
this Section 4(a)), or upon the effectiveness of the Exchange Registration
Statement which had ceased to remain effective (in the case of (iii)(B) of
this Section 4(a)), or upon the effectiveness of the Shelf Registration which
had ceased to remain effective (in the case of (iii)(C) of this Section
4(a)), Additional Interest on the affected Appreciation Notes as a result of
such clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue.
(b) The Issuers shall notify the Trustee within one business day
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). The Company
shall pay the Additional Interest due on the transfer restricted Appreciation
Notes by depositing with the paying agent (which shall not be the Company for
these purposes) for the transfer restricted Appreciation Notes, in trust, for
the benefit of the holders thereof, prior to 11:00 A.M. on each June 15 and
December 15, sums sufficient to pay the Additional Interest then due. Any
amounts of Additional Interest due pursuant to clauses (a)(i), (a)(ii) or
(a)(iii) of this Section 4 will be payable to the Holders of affected
Appreciation Notes in cash semi-annually on each interest payment date
specified by the Indenture (or such other indenture) to the record holders
entitled to receive the interest payment to be made on such date, commencing
with the first such date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount
of the affected Registrable Notes of such Holders,
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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, in the case of
a partial month, the actual number of days elapsed), and the denominator of
which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Issuers shall effect such
registration(s) to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by
the Issuers hereunder, the Issuers shall:
(a) Prepare and file with the SEC prior to the Filing Date a
Registration Statement or Registration Statements as prescribed by
Sections 2 or 3 hereof, and use their reasonable best efforts to cause
each such Registration Statement to become effective and remain
effective as provided herein; provided, however, that, if (1) such
filing is pursuant to Section 3 hereof, or (2) a Prospectus contained
in an Exchange Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Appreciation Exchange
Notes during the Applicable Period, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Issuers shall, if requested in writing, furnish to and afford the
Holders of the Registrable Notes covered by such Registration
Statement or each such Participating Broker-Dealer, as the case may
be, their counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including copies
of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (in each case at least three
business days prior to such filing). The Issuers shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document under the
immediately preceding sentence, if the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or any such Participating Broker-Dealer, as
the case may be, their counsel, or the managing underwriters, if any,
shall reasonably object thereto in writing.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously
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effective for the Effectiveness Period or the Applicable Period or until
consummation of the Exchange Offer, as the case may be; cause the
related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) promulgated under
the Securities Act; and comply with the provisions of the Securities Act
and the Exchange Act applicable to it with respect to the disposition of
all securities covered by such Registration Statement as so amended or
in such Prospectus as so supplemented and with respect to the subsequent
resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus; the Company shall be deemed not to have
used its best efforts to keep a Registration Statement effective during
the Applicable Period if it voluntarily takes any action that would
result in selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Appreciation Exchange Notes
not being able to sell such Registrable Notes or such Appreciation
Exchange Notes during that period unless such action is required by
applicable law or unless the Company complies with this Agreement,
including without limitation, the provisions of paragraph 5(k) hereof
and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Appreciation Exchange Notes during the Applicable
Period, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, promptly (but in any event within two
business days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuers,
one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits),
(ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) if at any time when a
Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of
Appreciation Exchange Notes by Participating Broker-Dealers the
representations and warranties of the Issuers contained in any
agreement (including any underwriting agreement), contemplated by
Section 5(n) hereof cease
13
to be true and correct, (iv) of the receipt by the Issuers of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Appreciation Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, (v) of
the happening of any event, the existence of any condition or any
information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (vi) of the
determination by the Issuers that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Registrable Notes or the Appreciation Exchange Notes for sale in any
jurisdiction, and, if any such order is issued, to use its best
efforts to obtain the withdrawal of any such order at the earliest
possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3
hereof and if requested by the managing underwriter or underwriters
(if any), or the Holders of a majority in aggregate principal amount
of the Registrable Notes being sold in connection with an underwritten
offering, (i) promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter
or underwriters (if any), such Holders, or counsel for any of them
reasonably request to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Issuers have received notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to
such Registration Statement.
14
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Appreciation Exchange Notes during the Applicable
Period, furnish to each selling Holder of Registrable Notes and to
each such Participating Broker-Dealer who so requests and to counsel
and each managing underwriter, if any, at the sole expense of the
Issuers, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Appreciation Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, their respective
counsel, and the underwriters, if any, at the sole expense of the
Issuers, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request; and, subject to the last paragraph of
this Section 5, each Issuer hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case-may be, and the underwriters or agents, if
any, and dealers (if any), in connection with the offering and sale of
the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Appreciation Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell
Appreciation Exchange Notes during the Applicable Period, to use its
best efforts to register or qualify such Registrable Notes (and to
cooperate with selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Notes) for
offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder,
Participating Broker-
15
Dealer, or the managing underwriter or underwriters reasonably request in
writing; provided, however, that where Appreciation Exchange Notes held
by Participating Broker-Dealers or Registrable Notes are offered other
than through an underwritten offering, the Issuers agree to cause their
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep
each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Appreciation Exchange Notes held by Participating Broker-Dealers
or the Registrable Notes covered by the applicable Registration
Statement; provided, however, that none of the Issuers shall be required
to (A) qualify generally to do business in any jurisdiction where it is
not then so qualified, (B) take any action that would subject it to
general service of process in any such jurisdiction where it is not then
so subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and
the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with
The Depository Trust Company; and enable such Registrable Notes to be
in such denominations and registered in such names as the managing
underwriter or underwriters, if any, or Holders may reasonably
request.
(j) Use its best efforts to cause the Registrable Notes covered
by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the Holders thereof or the underwriter or underwriters, if any,
to dispose of such Registrable Notes, except as may be required solely
as a consequence of the nature of a selling Holder's business, in
which case each of the Issuers will cooperate in all reasonable
respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Appreciation Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated by paragraph
16
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the SEC, at the sole
expense of the Issuers, a supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold
thereunder or to the purchasers of the Appreciation Exchange Notes to
whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(l) Use its best efforts to cause the Registrable Notes covered
by a Registration Statement or the Appreciation Exchange Notes, as the
case may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount
of Registrable Notes covered by such Registration Statement or the
Appreciation Exchange Notes, as the case may be, or the managing
underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes or Appreciation Exchange
Notes, as the case may be, in a form eligible for deposit with The
Depositary Trust Company and (ii) provide a CUSIP number for the
Registrable Notes or Appreciation Exchange Notes, as the case may be.
(n) In connection with any underwritten offering initiated by
the Company of Registrable Notes pursuant to a Shelf Registration,
enter into an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Appreciation Notes and
take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and
covenants with, the underwriters with respect to the business of the
Issuers and their respective subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
17
made by Issuers to underwriters in underwritten offerings of debt
securities similar to the Appreciation Notes, and confirm the same in
writing if and when requested; (ii) obtain the written opinion of
counsel to the Issuers and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of
debt similar to the Appreciation Notes and such other matters as may
be reasonably requested by the managing underwriter or underwriters;
(iii) obtain "cold comfort" letters and updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Issuers (and, if necessary, any other independent certified public
accountants of any subsidiary of any of the Issuers or of any business
acquired by any of the Issuers for which financial statements and
financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings of debt similar to the
Appreciation Notes and such other matters as reasonably requested by
the managing underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in
Section 7 hereof (or such other provisions and procedures acceptable
to Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to
be indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting agreement, or as and to the
extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Appreciation Exchange Notes during the Applicable
Period, make available for inspection by any selling Holder of such
Registrable Notes being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in
any such disposition of Registrable Notes, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and instruments of the Issuers and their
respective subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Issuers and their respective subsidiaries to make
available for inspection all information reasonably requested by any
such Inspector in connection with such Registration Statement.
Records which any of the Issuers determine, in good faith, to be
confidential and any Records which it notifies the
18
Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (ii)
the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel (a copy of which shall be
delivered to the Issuers) for any Inspector, necessary or advisable in
connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement, or
any transactions contemplated hereby or arising hereunder, or (iv) the
information in such Records has been made generally available to the
public. Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Issuers unless and until
such information is generally available to the public. Each selling
Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Issuers and allow the Issuers
to undertake appropriate action to prevent disclosure of the Records
deemed confidential at the Issuers' sole expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Appreciation Exchange Notes, as the case may be, and cause the
Appreciation Notes Indenture or the trust indenture provided for in
Section 2(a) hereof, as the case may be, to be qualified under the TIA
not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such
changes to such indenture as may be required for such indenture to be
so qualified in accordance with the terms of the TIA; and execute, and
use its best efforts to cause such trustee to execute, all documents
as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such indenture
to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which
19
Registrable Notes are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal
quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(r) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuers (or to such other Person as directed by the Issuers) in
exchange for the Appreciation Exchange Notes or the Private
Appreciation Exchange Notes, as the case may be, the Issuers shall
mark, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Appreciation
Exchange Notes or the Private Appreciation Exchange Notes, as the case
may be; in no event shall such Registrable Notes be marked as paid or
otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(t) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the Registrable Notes covered
by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to
which any Registration Statement is being effected to furnish to the Issuers
such information regarding such seller and the distribution of such
Registrable Notes as the Issuers may, from time to time, reasonably request.
The Issuers may exclude from such Registration Statement the Registrable
Notes of any seller who unreasonably fails to furnish such information within
a reasonable time after receiving such request. Each seller as to which any
Shelf Registration is being effected agrees to furnish promptly to the
Issuers all information required to be disclosed in order to make the
information previously furnished to the Issuers by such seller not materially
misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Appreciation
Exchange Notes to be sold by such Participating Broker-Dealer, as the case
may be, that, upon actual receipt of any notice from the Issuers of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv),
5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith dis-
20
continue disposition of such Registrable Notes covered by such Registration
Statement or Prospectus or Appreciation Exchange Notes to be sold by such
Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or
until it is advised in writing (the "Advice") by the Issuers that the use of
the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Issuers shall give any
such notice, each of the Effectiveness Period and the Applicable Period shall
be extended by the number of days during such periods from and including the
date of the giving of such notice to and including the date when each seller
of Registrable Notes covered by such Registration Statement or Appreciation
Exchange Notes to be sold by such Participating Broker-Dealer, as the case
may be, shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
(a) Except as otherwise provided in Section 2(c) hereof, all fees
and expenses incident to the performance of or compliance with this Agreement
by the Issuers shall be borne by the Issuers whether or not the Exchange
Offer or a Shelf Registration is filed or becomes effective, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the
NASD in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of the Issuer's counsel in
connection with Blue Sky qualifications of the Registrable Notes or
Appreciation Exchange Notes and determination of the eligibility of the
Registrable Notes or Appreciation Exchange Notes for investment under the
laws of such jurisdictions (x) where the holders of Registrable Notes are
located, in the case of the Appreciation Exchange Notes, or (y) as provided
in Section 5(h) hereof, in the case of Registrable Notes or Appreciation
Exchange Notes to be sold by a Participating Broker-Dealer during the
Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Notes or Appreciation
Exchange Notes in a form eligible for deposit with The Depository Trust
Company and of printing Prospectuses if the printing of Prospectuses is
requested by the managing underwriter or underwriters, if any, by the Holders
of a majority in aggregate principal amount of the Registrable Notes included
in any Registration Statement or sold by any Participating Broker-Dealer, as
the case may be, (iii) messenger, telephone and delivery expenses, (iv) fees
and disbursements of counsel for the Issuers, (v) fees and disbursements of
all independent certified public accountants referred to in Section 5(n)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance by or
incident to such performance), (vi) rating agency
21
fees, if any, and any fees associated with making the Registrable Notes or
Appreciation Exchange Notes eligible for trading through The Depository Trust
Company, (vii) Securities Act liability insurance, if the Issuers desire such
insurance, (viii) fees and expenses of all other Persons retained by the
Issuers, (ix) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the
Issuers performing legal or accounting duties), (x) the expense of any annual
audit, (xi) the fees and expenses incurred in connection with the listing of
the securities to be registered on any securities exchange or any
inter-dealer quotation system, if applicable, and (xii) the expenses relating
to printing, word processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements, indentures and any
other documents necessary in order to comply with this Agreement.
(b) The Issuers, jointly and severally, shall (i) reimburse the
Holders of the Registrable Notes being registered in a Shelf Registration for
the reasonable fees and disbursements of not more than one counsel (in
addition to appropriate local counsel) chosen by the Holders of a majority in
aggregate principal amount of the Registrable Notes to be included in such
Registration Statement and (ii) reimburse out-of-pocket expenses (other than
legal expenses) of Holders of Registrable Notes incurred in connection with
the registration and sale of the Registrable Notes pursuant to a Shelf
Registration or in connection with the exchange of Registrable Notes pursuant
to the Exchange Offer. In addition, the Issuers, jointly and severally,
shall reimburse the Initial Purchaser for 50% (but not more than $30,000) of
the reasonable fees and expenses of one counsel in connection with the
Exchange Offer which shall be White & Case, and shall not be required to pay
any other legal expenses of the Initial Purchaser in connection therewith.
7. Indemnification. (a) Each of the Issuers, jointly and
severally, agrees to indemnify and hold harmless each Holder of Registrable
Notes offered pursuant to a Shelf Registration Statement and each
Participating Broker-Dealer selling Appreciation Exchange Notes during the
Applicable Period, the affiliates, directors, officers, agents,
representatives and employees of each such Person or its affiliates, and each
other Person, if any, who controls any such Person or its affiliates within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "Participant") from and against any and all losses,
claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other expenses actually incurred in connection with
any suit, action or proceeding or any claim asserted) caused by, arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement pursuant to which the
offering of such Registrable Notes or Appreciation Exchange Notes, as the
case may be, is registered (or any amendment thereto) or related Prospectus
(or any amendments or supplements thereto) or any related preliminary
prospectus, or caused by, arising out of or based upon any omission or
alleged omission to
22
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Issuers will not be
required to indemnify a Participant if (i) such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with
information relating to any Participant furnished to the Issuers in writing
by or on behalf of such Participant expressly for use therein or (ii) if such
Participant sold to the person asserting the claim the Registrable Notes or
Appreciation Exchange Notes which are the subject of such claim and such
untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the
Prospectus or any amendment or supplement thereto and the Prospectus does not
contain any other untrue statement or omission or alleged untrue statement or
omission of a material fact that was the subject matter of the related
proceeding and it is established by the Issuers in the related proceeding
that such Participant failed to deliver or provide a copy of the Prospectus
(as amended or supplemented) to such Person with or prior to the confirmation
of the sale of such Registrable Notes or Appreciation Exchange Notes sold to
such Person if required by applicable laws, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Issuers with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, their respective directors and
officers and each Person who controls the Issuers within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Issuers to each Participant,
but only (i) with reference to information relating to such Participant
furnished to the Issuers in writing by or on behalf of such Participant
expressly for use in any Registration Statement or Prospectus, any amendment
or supplement thereto, or any preliminary prospectus or (ii) with respect to
any untrue statement or representation made by such Participant in writing to
the Issuers. The liability of any Participant under this paragraph shall in
no event exceed the proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person,
shall have the right to retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the
23
reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which
it may have hereunder or otherwise (unless and only to the extent that such
failure results in the loss or compromise of any material rights or defenses
by the Indemnifying Person). In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed
in writing to the contrary, (ii) the Indemnifying Person shall have failed
within a reasonable period of time to retain counsel reasonably satisfactory
to the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that, unless there exists a conflict among
Indemnified Persons, the Indemnifying Person shall not, in connection with
any one such proceeding or separate but substantially similar related
proceeding in the same jurisdiction arising out of the same general
allegations, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such reasonable fees and expenses shall be reimbursed promptly as they
are incurred. Any such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by Participants who
sold a majority in interest of Registrable Notes and Appreciation Exchange
Notes sold by all such Participants and any such separate firm for the
Issuers, their directors, their officers and such control Persons of the
Issuers shall be designated in writing by the Issuers. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected
without its prior written consent, but if settled with such consent or if
there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
the Indemnifying Person agrees to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an Indemnified Person shall have requested an Indemnifying Person to
reimburse the Indemnified Person for reasonable fees and expenses actually
incurred by counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of
the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to
the date of such settlement; provided, however, that the Indemnifying Person
shall not be liable for any settlement effected without its consent pursuant
to this sentence if the Indemnifying Person is contesting, in good faith, the
request for reimbursement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement or
com-
24
promise of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party, and indemnity could have
been sought hereunder by such Indemnified Person, unless such settlement (A)
includes an unconditional written release of such Indemnified Person, in form
and substance reasonably satisfactory to such Indemnified Person, from all
liability on claims that are the subject matter of such proceeding and (B)
does not include any statement as to an admission of fault, culpability or
failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in Section 7(a) and 7(b)
hereof is for any reason unavailable to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, than each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to
provide for just and equitable contribution, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to
reflect (i) the relative benefits received by the Indemnifying Person or
Persons on the one hand and the Indemnified Person or Persons on the other
from the offering of the Appreciation Notes or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the Indemnifying
Person or Persons on the one hand and the Indemnified Person or Persons on
the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Issuers on the one hand or such Participant or such other Indemnified
Person, as the case may be, on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in
the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purposes) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any reasonable legal or other expenses actually incurred by
such Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, in
no event shall a Participant be required to contribute any
25
amount in excess of the amount by which proceeds received by such Participant
from sales of Registrable Notes or Appreciation Exchange Notes, as the case
may be, exceeds the amount of any damages that such Participant has otherwise
been required to pay or has paid by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A. The Company covenants that it will file
the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder in a
timely manner in accordance with the requirements of the Securities Act and
the Exchange Act and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Notes, make
publicly available annual reports and such information, documents and other
reports of the type specified in Sections 13 and 15(d) of the Exchange Act.
The Company further covenants for so long as any Registrable Notes remain
outstanding, to make available to any Holder or beneficial owner of
Registrable Notes in connection with any sale thereof and any prospective
purchaser of such Registrable Notes from such Holder or beneficial owner the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Registrable Notes pursuant to Rule 144A.
9. Underwritten Registrations. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Holders of a majority in
aggregate principal amount of such Registrable Notes included in such
offering and reasonably acceptable to the Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
10. Miscellaneous. (a) No Inconsistent Agreements. None of the
Issuers have entered, as of the date hereof, and none of the Issuers shall,
after the date of
26
this Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with
the prior written consent of the Holders of not less than a majority in
aggregate principal amount of the then outstanding Registrable Notes.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Notes whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being sold by such Holders pursuant
to such Registration Statement; provided, however, that the provisions of
this sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(c) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case may be, set
forth on the records of the registrar under the Indenture, with a
copy in like manner to the Initial Purchaser as follows:
NatWest Capital Markets Limited
135 Bishopgate
London, England
Attention: Roger Hoit
with a copy to:
White & Case
1155 Avenue of the Americas
New York, NY 10036
Facsimile No: (212) 354-8113
27
Attention: Timothy B. Goodell, Esq.
2. if to the Initial Purchaser, at the addresses specified
in Section 10(c)(1);
3. if to an Issuer, as follows:
Brill Media Company, LLC
420 N.W. Fifth Street, Suite 3-B
P.O. Box 3353
Evansville, Indiana 47732
Attention: Alan Brill
with a copy to:
Thompson & McMullan
100 Shockoe Slip
Richmond, VA 2329-4140
Attention: Charles W. Laughlin
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one
business day after being timely delivered to a next-day air courier; and when
receipt is acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties hereto; provided, however, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign holds Registerable Notes.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
28
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning thereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(h) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(i) Notes Held by the Issuers or their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registerable
Notes is required hereunder, Registerable Notes held by the Issuers or their
affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(j) Third Party Beneficiaries. Holders of Registerable Notes and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
29
IN WITNESS WHEREOF, the parties have executed the Agreement as of
the date first written above.
Company:
BRILL MEDIA COMPANY, LLC, a Virginia Limited
Liability Company
By: BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation, its Manager
By: _______________________________
Name: Alan R. Brill
Title: President
BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: President
30
Guarantors:
BMC HOLDINGS, LLC, a Virginia Limited
Liability Company
By: BRILL MEDIA COMPANY, LLC., its Manager
By: BRILL MEDIA MANAGEMENT, INC. its Manager
By: _______________________________
Name: Alan R. Brill
Title: President
READING RADIO, INC.,
a Virginia Corporation
By: _______________________________
Name: Alan R. Brill
Title: President
TRI-STATE BROADCASTING, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
31
NORTHERN COLORADO RADIO, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
NCR II, INC., a Virginia Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MISSOURI BROADCASTING, INC., a
Virginia Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
CMB II, INC.
By: _______________________________
Name: Alan R. Brill
Title: Vice President
32
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: _______________________________
Name: Alan R. Brill
Title: President
NB II, INC., a Virginia Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN NEWSPAPERS, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
33
CADILLAC NEWSPAPERS, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
CMN ASSOCIATED PUBLICATIONS, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN DISTRIBUTION CO., L.P.
By: CENTRAL MICHIGAN DISTRIBUTION CO., INC.
its General Partner
By: _______________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN DISTRIBUTION CO., INC., a
Virginia Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
34
GLADWIN NEWSPAPERS, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
GRAPH ADS PRINTING, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
MIDLAND BUYER'S GUIDE, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
ST. JOHNS NEWSPAPERS, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
35
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, its Manager
By: BRILL MEDIA MANAGEMENT, INC., a
Virginia Corporation, its Manager
By: _______________________________
Name: Alan R. Brill
Title: President
HURON 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: _______________________________
Name: Alan R. Brill
Title: President
36
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: _______________________________
Name: Alan R. Brill
Title: President
NORTHERN COLORADO HOLDINGS, LLC
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: _______________________________
Name: Alan R. Brill
Title: President
NCR III, LLC, a Virginia Limited Liability
Company
37
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
By: _______________________________
Name: Alan R. Brill
Title: President
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: _______________________________
Name: Alan R. Brill
Title: President
NORTHLAND HOLDINGS, LLC, a Virginia Limited
Liability Company
38
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: _______________________________
Name: Alan R. Brill
Title: President
CMN HOLDING, INC., a Virginia Corporation
By: _______________________________
Name: Alan R. Brill
Title: Vice President
BRILL RADIO INC., a Virginia Corporation
By: _______________________________
Name: Alan R. Brill
Title: President
BRILL NEWSPAPERS, INC., a Virginia
Corporation
By: _______________________________
Name: Alan R. Brill
Title: President
39
40
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written:
NATWEST CAPITAL MARKETS LIMITED
By: __________________________
Name:
Title:
1
SCHEDULE A
SUBSIDIARY GUARANTORS
1. Holdings
2. Reading Radio, Inc.
3. Tri-State Broadcasting, Inc.
4. Northern Colorado Radio, Inc.
5. NCR II, Inc.
6. Central Missouri Broadcasting, Inc.
7. CMB II, Inc.
8. Northland Broadcasting, LLC
9. NB II, Inc.
10. Central Michigan Newspapers, Inc.
11. Cadillac Newspapers, Inc.
12. CMN Associated Publications, Inc.
13. Central Michigan Distribution Co., L.P.
14. Central Michigan Distribution Co., Inc.
15. Gladwin Newspapers, Inc.
16. Graph Ads Printing, Inc.
17. Midland Buyer's Guide, Inc.
18. St. Johns Newspapers, Inc.
19. Huron P.S., LLC
20. Huron Newspapers, LLC
21. Huron Holdings, LLC
22. Northern Colorado Holdings, LLC
23. NCR III, LLC
24. NCH II, LLC
25. Northland Holdings, LLC
26. CMN Holdings, Inc.
27. Brill Radio Inc.
28. Brill Newspapers, Inc.