EXHIBIT 4.4
Execution Copy
SECOND SUPPLEMENTAL INDENTURE
     SECOND SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as ofApril 26, 2004, among Emmis Operating Company, an Indiana corporation (the“Company”), and The Bank of New York, a New York banking corporation, astrustee (the “Trustee”).
     WHEREAS, the Company, the guarantors named therein and the Trustee areparties to that certain Indenture, dated as of February 12, 1999 (assupplemented on June 22, 2001, the “Indenture”), pursuant to which theCompany’s 8-1/8% Senior Subordinated Notes due 2009 (the “Notes”) were issued.Capitalized terms used but not defined herein shall have the same meaningsascribed to such terms in the Indenture;
     WHEREAS, Section 9.02 of the Indenture provides that the Company and theTrustee may make certain amendments to the Indenture with the consent of theHolders of at least a majority in principal amount of the Notes thenoutstanding;
     WHEREAS, the Company distributed an Offer to Purchase and ConsentSolicitation Statement dated as of April 14, 2004 (the “Offer to Purchase”) inorder to, among other things, make an offer to purchase (the “Offer”) alloutstanding Notes upon terms and conditions described in the Offer to Purchaseand to solicit consents (the “Consents”) from the Holders to amendments to theIndenture (the “Amendments”);
     WHEREAS, Holders of at least a majority in aggregate principal amount ofthe Notes outstanding have given and, as of the date hereof, have not withdrawntheir consent to the Amendments; and
     WHEREAS, the execution of this Supplemental Indenture by the partieshereto is in all respects authorized by the provisions of the Indenture, theCompany has delivered to the Trustee an Officers’ Certificate and an Opinion ofCounsel with respect to such authorization, and all things necessary to makethis Supplemental Indenture a valid agreement of the Company and the Trustee inaccordance with its terms have been done.
     NOW THEREFORE, in consideration of the foregoing and for other good andvaluable consideration, the receipt of which is hereby acknowledged, theCompany and the Trustee mutually covenant and agree as follows:
     1. Effect. This Supplemental Indenture shall become effective upon itsexecution and delivery by the parties hereto. Notwithstanding the foregoing,the amendments set forth in Section 2 below will only become operative whenvalidly tendered Notes are accepted for purchase pursuant to the Offer. If,after the date hereof, either the Offer is terminated or withdrawn or allpayments in respect of the Notes accepted for payment pursuant to the Offer arenot made on the applicable Settlement Date (as defined in the Offer toPurchase), the amendments set forth in Section 2 shall have no effect and theIndenture shall be deemed to be amended so that it reads the same as it didimmediately prior to the date hereof.
     2. Amendments.
 

 

     The Indenture is hereby amended as follows:
          (a) Section 1.01 is hereby amended as follows:
               (i) The definitions of “Acquired Debt,” “Attributable Debt,”“Cash Equivalents,” “Change of Control,” “Consolidated EBITDA,”“Consolidated Net Income,” “Consolidated Net Worth,” “ContinuingDirectors”, “Disqualified Stock,” “Domestic Restricted Subsidiary,”“Existing Indebtedness,” “Fixed Changes,” “Investments,” “LeverageRatio,” “Marketable Securities,” “Net Income,” “Offering,”“Permitted Business,” “Permitted Investments,” “Permitted JointVentures,” “Permitted Liens,” “Permitted Refinancing Indebtedness,”“Principal,” “Productive Assets,” “Reference Period,” “RelatedParty,” “Restricted Investment,” “S&P,” “Stated Maturity,” “WeighedAverage Life to Maturity,” and “Wholly Owned Restricted Subsidiary”are hereby deleted in their entirety.
               (ii) the definition of “Additional Notes” is hereby amended bydeleting the words “Sections 2.02 and 4.09” and by replacing suchtext with the words “Section 2.02”.
               (iii) the definition of “Asset Sale” is hereby amended to readas follows:
 “(1)  the sale, lease,conveyance or other disposition of any assets orrights, other than sales of inventory in theordinary course of business consistent with pastpractices; provided that the sale, conveyance orother disposition of all or substantially all ofthe assets of Emmis and its RestrictedSubsidiaries taken as a whole will be governed bySection 5.01 of this Indenture; and  (2) the issuance of EquityInterests by any of Emmis’ Restricted Subsidiariesor the sale of Equity Interests in any of itsSubsidiaries.
  Notwithstanding the preceding, the following items shall not bedeemed to be Asset Sales:
 (1) any single transaction orseries of related transactions that: (a) involvesassets having a fair market value of less than$1.0 million; or (b) results in net proceeds toEmmis and its Restricted Subsidiaries of less than$1.0 million;  (2) a transfer of assetsbetween or among Emmis and any of its Guarantors;  (3) an issuance of EquityInterests by a Guarantor to Emmis or to aGuarantor; and
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 (4) a transfer by Emmis ofassets in a transaction that qualifies as acharitable contribution or donation and which doesnot exceed $2.0 million in the aggregate.”
               (iv) The last paragraph of the definition of “UnrestrictedSubsidiary” is hereby amended to read as follows:
  “Any designation of a Subsidiary of the Company as an UnrestrictedSubsidiary shall be evidenced to the Trustee by filing with theTrustee a certified copy of the Board Resolution giving effect tosuch designation and an Officers’ Certificate certifying that suchdesignation complied with the preceding conditions. If, at anytime, any Unrestricted Subsidiary would fail to meet the precedingrequirements as an Unrestricted Subsidiary, it shall thereaftercease to be an Unrestricted Subsidiary for purposes of thisIndenture and any Indebtedness of such Subsidiary shall be deemedto be incurred by a Restricted Subsidiary of the Company as of suchdate. The Board of Directors of the Company may at any timedesignate any Unrestricted Subsidiary to be a RestrictedSubsidiary; *provided*that such designation shall be deemed to be anincurrence of Indebtedness by a Restricted Subsidiary of theCompany of any outstanding Indebtedness of such UnrestrictedSubsidiary and such designation shall only be permitted if noDefault or Event of Default would be in existence following suchdesignation.”
          (b) Section 1.02 is hereby amended by deleting the following terms intheir entirety: “Affiliate Transaction,” “Change of Control Offer,” “Change ofControl Payment,” “Change of Control Payment Date,” “Excess Proceeds,” “incur,”“Permitted Debt” and “Restricted Payment”.
          (c) Section 4.03 is hereby amended to read as follows:
“The Company shall at any time comply with TIA § 314(a).”
          (d) The text of Sections 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 of the Indenture is herebydeleted in its entirety and these Sections shall be of no further force andeffect and the words “[INTENTIONALLY DELETED]” shall be inserted, in each case,in place of the deleted text.
          (e) Section 4.21 is hereby amended to read as follows:
  “The Board of Directors may designate any Restricted Subsidiary tobe an Unrestricted Subsidiary if that designation would not cause aDefault. The Board of Directors may redesignate any UnrestrictedSubsidiary to be a Restricted Subsidiary if the redesignation wouldnot cause a Default.”
          (f) Section 5.01 is hereby amended to read as follows:
  “The Company shall not, directly or indirectly: (1) consolidate ormerge with or into another Person (whether or not the Company isthe surviving corporation); or (2) sell, assign, transfer, conveyor otherwise dispose of all or substantially all of 
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  its propertiesor assets, in one or more related transactions, to another Person;unless:
 (1) either: (a) the Company is the survivingcorporation; or (b) the Person formed by or surviving anysuch consolidation or merger (if other than the Company) orto which such sale, assignment, transfer, conveyance or otherdisposition shall have been made is a corporation organizedor existing under the laws of the United States, any statethereof or the District of Columbia; and  (2) the Person formed by or surviving any suchconsolidation or merger (if other than the Company) or thePerson to which such sale, assignment, transfer, conveyanceor other disposition shall have been made assumes all theobligations of the Company under the Notes and this Indenturepursuant to agreements reasonably satisfactory to theTrustee.
  This “Merger, Consolidation, or Sale of Assets” covenant will notapply to a sale, assignment, transfer, conveyance or otherdisposition of assets between or among the Company and any of itsWholly Owned Subsidiaries.”
          (g) Section 6.01 is hereby amended by deleting the text of clauses (c),(d), (e) and (f) and by replacing such text with the words “[INTENTIONALLYDELETED]”.
          (h) Section 8.04 is hereby amended by deleting the text of clause (c) andby replacing such text with the words “[INTENTIONALLY DELETED]”.
          (i) Section 11.05 is hereby amended by deleting the text of clauses (3)and (4) by replacing such text with the words “[INTENTIONALLY DELETED].”
     3. Notice of Supplemental Indenture. The Company shall mail notice ofthis Supplemental Indenture to the Holders as required by Section 9.02 of theIndenture.
     4. Governing Law. This Supplemental Indenture shall be governed by andconstrued in accordance with the laws of the State of New York.
     5. Counterparts. This Supplemental Indenture may be executed in one ormore counterparts, each of which shall be an original, but all of whichtogether shall constitute one and the same document.
     6. Effect on Indenture. This Supplemental Indenture shall form a part ofthe Indenture for all purposes, and every Holder of Notes heretofore orhereafter authenticated and delivered shall be bound hereby. Except asexpressly set forth herein, the Indenture is in all respects ratified andconfirmed and all the terms, conditions and provisions thereof shall remain infull force and effect, including with respect to this Supplemental Indenture.
     7. Conflict with Trust Indenture Act. If any provision of thisSupplemental Indenture limits, qualifies or conflicts with any provision of theTrust Indenture Act that may not be so limited, qualified or conflicted with,such provision of such Act shall control. If any
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provision of thisSupplemental Indenture modifies or excludes any provision of the TrustIndenture Act that may be so modified or excluded, the provision of such Actshall be deemed to apply to the Indenture as so modified or to be excluded bythis Supplemental Indenture, as the case may be.
     8. Separability Clause. In case any provision in this SupplementalIndenture shall be invalid, illegal or unenforceable, the validity, legalityand enforceability of the remaining provisions shall not in any way be affectedor impaired thereby.
     9. Effect of Headings. The Article and Section headings herein are forconvenience only and shall not affect the construction hereof.
     10. Benefits of Supplemental Indenture, etc. Nothing in this SupplementalIndenture, the Indenture or the Notes, express or implied, shall give to anyperson, other than the parties hereto and thereto and their successorshereunder and thereunder and the Holders of Notes, any benefit of any legal orequitable right, remedy or claim under the Indenture, this SupplementalIndenture or the Notes.
     11. Successors and Assigns. All agreements of the Company in thisSupplemental Indenture and the Notes shall bind its successors.
     12. Trustee. The Trustee makes no representations as to the validity orsufficiency of this Supplemental Indenture. The recitals and statements hereinare deemed to be those of the Company and not of the Trustee.
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     IN WITNESS WHEREOF, the parties have executed this Supplemental Indentureas of the date first written above.      EMMIS OPERATING COMPANY