EXHIBIT 4.2
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
September __, 2002, among Xxxx Television, Inc. (f/k/a Xxxx
Communications Systems, Inc.), a Georgia corporation (the "Company"),
Xxxx MidAmerica Television, Inc., a Delaware corporation and a newly
formed wholly-owned subsidiary of the Company (the "New Guarantor"),
the Subsidiary Guarantors (as listed on the signature pages hereof)
and Deutsche Bank Trust Company Americas (f/k/a Bankers Trust
Company), a New York banking corporation, as trustee under the
indenture referred to below (the "Trustee"). All capitalized terms
used in this Supplemental Indenture that are defined in the Indenture,
either directly or by reference therein, have the respective meanings
assigned to them therein.
WITNESSETH:
WHEREAS, the Company and the subsidiaries of the Company existing as such on
December 15, 2001 (the "Existing Guarantors") have heretofore executed and
delivered to the Trustee an Indenture (the "Indenture"), dated as of December
15, 2001, providing for the issuance of an aggregate principal amount of up to
$280,000,000 of 9.25% Senior Subordinated Notes due 2011 (the "Notes");
WHEREAS, Section 2.16 of the Indenture provides that the Company may, from time
to time, without the consent of the Holders, create and issue, pursuant to the
Indenture, Additional Notes;
WHEREAS, the Company intends to issue Additional Notes that will be registered
under the Securities Act;
WHEREAS, Sections 2.16 and 9.01(a) of the Indenture permit the making by the
Company, the Subsidiary Guarantors and the Trustee of certain amendments and
supplements to the Indenture with respect to the issuance of Additional Notes
without the consent of any Holder;
WHEREAS, Section 4.17 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all of the Company's obligations
under the Notes pursuant to a Guarantee on the terms and conditions set forth
herein;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company
and the Subsidiary Guarantors are authorized to execute and deliver this
Supplemental Indenture to add the New Guarantor pursuant to Section 4.17 of the
Indenture; and
WHEREAS, the Company, the New Guarantor and each of the Subsidiary Guarantors
have duly authorized the execution and delivery of this Supplemental Indenture,
and all things necessary to make this Supplemental Indenture (when executed by
each of them) a valid and binding
agreement of the Company, the New Guarantor and the Subsidiary Guarantors have
been done and performed;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the New Guarantor, the Subsidiary Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Notes as follows:
1. Amendment to Section 1.01. Pursuant to the terms and
provisions of Section 9.01(a) of the Indenture, Section 1.01 of the Indenture
is hereby amended to replace the definitions of "Company" and "Trustee" with
the following respective definitions:
"Company" means Xxxx Television, Inc. (f/k/a Xxxx Communications
Systems, Inc.), a Georgia corporation, unless and until a successor replaces it
in accordance with Article V and thereafter means such successor.
"Trustee" means Deutsche Bank Trust Company Americas (f/k/a Bankers
Trust Company) until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means such successor.
In addition, all references in the Indenture, and the Exhibits thereto, to Xxxx
Communications Systems, Inc. and Bankers Trust Company hereafter shall be
deemed to be references to Xxxx Television, Inc. and Deutsche Bank Trust
Company Americas, respectively.
2. Amendment to Section 2.16. Pursuant to the terms and
provisions of Sections 2.16 and 9.01(a) of the Indenture, Section 2.16 of the
Indenture is hereby amended and restated in its entirety to read as follows:
"Section 2.16 Additional Notes. The Company may, from time to
time, subject to compliance with any other applicable provisions of this
Indenture (including, without limitation, the covenant under Section 4.07),
without the consent of the Holders, create and issue pursuant to this Indenture
Additional Notes having terms and conditions set forth in Exhibit A identical
to those of other Notes, except that Additional Notes:
(i) may have a different issue date from other
Notes;
(ii) may have a different amount of interest
payable on the first interest payment date after issuance than is payable on
other Notes;
(iii) may have terms specified in the Additional
Note Board Resolution or Additional Note Supplemental Indenture for such
Additional Notes making appropriate adjustments to this Article II and Exhibit
A (and related definitions) applicable to such Additional Notes in order to
conform to and ensure compliance with the Securities Act (or other applicable
securities laws) and any registration rights or similar agreement applicable to
such Additional Notes, which are not adverse in any material respect to the
Holder of any outstanding Notes (other than such Additional Notes) (which such
adjustments, for the avoidance of doubt, may include, without limitation, the
removal of any legend not required by the Securities Act (or
other applicable securities laws), and related conforming changes, as a result
of the issuance of such Additional Notes in an offering registered with the
Commission); and
(iv) may entitle the Holders thereof to
liquidated damages as provided in Section 2.15 not applicable to Holders of
other outstanding Notes and may not entitle the Holders thereof to such
liquidated damages applicable to Holders of other outstanding Notes."
3. Amendment to Section 12.02. Pursuant to the terms and
provisions of Section 9.01(a) of the Indenture, Section 12.02 of the Indenture
is hereby amended to provide a new address for the Trustee as follows:
Deutsche Bank Trust Company Americas
c/o DB Services New Jersey, Inc.
100 Plaza One
Mail Stop JCY03-0603
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Corporate Trust and Agency Services
Facsimile: (000) 000-0000
4. Amendment to Appendix A. Pursuant to the terms and provisions
of Section 9.01(a) of the Indenture, Section 2.3(e) of Appendix A to the
Indenture is hereby amended and restated in its entirety to read as follows:
"(e) Legend.
(i) Except as permitted by the following paragraphs
(ii), (iii), (iv) or (vii), each Note certificate evidencing the
Global Notes and the Definitive Notes (and all Notes issued in
exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form (each defined term in the legend
being defined as such for purposes of the legend only):
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION."
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE NOTE FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF
$500,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER
OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
Each Note evidencing a Global Note offered and sold to QIBs pursuant to Rule
144A shall bear a legend in substantially the following form:
"EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER."
Each Definitive Note shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Note that is a Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Note for a Definitive
Note that does not bear the legends set forth above and shall rescind
any restriction on the transfer of such Transfer Restricted Note if
the Holder certifies in writing to the Registrar that its request for
such exchange was made in reliance on Rule 144 (such certification to
be in the form set forth on the reverse of the Initial Note).
(iii) After a transfer of any Initial Notes, Additional
Notes or Private Exchange Notes during the period of the effectiveness
of a Shelf Registration Statement with respect to such Initial Notes,
Additional Notes or Private Exchange Notes, as the case may be, all
requirements pertaining to the Restricted Notes Legend on such Initial
Notes, Additional Notes or Private Exchange Notes shall cease to apply
and the requirements that any such Initial Notes, Additional Notes or
Private Exchange Notes be issued in global form shall continue to
apply.
(iv) Upon the consummation of a Registered Exchange Offer
with respect to the Initial Notes (or Additional Notes) pursuant to
which Holders of such Notes are offered Exchange Notes in exchange for
their Notes, all requirements pertaining to such Initial Notes (or
Additional Notes) that such Notes be issued in global form shall
continue to apply, and Exchange Notes in global form without the
Restricted Notes Legend shall be available to Holders that exchange
such Initial Notes (or such Additional Notes) in such Registered
Exchange Offer.
(v) Upon the consummation of a Private Exchange with
respect to the Initial Notes (or Additional Notes) pursuant to which
Holders of such Notes are offered Private Exchange Notes in exchange
for their Notes, all requirements pertaining to such Initial Notes (or
such Additional Notes) that such Notes be issued in global form shall
continue to apply, and Private Exchange Notes in global form bearing
the Restricted Notes Legend shall be available to Holders that exchange
such Initial Notes (or such Additional Notes) in such Private Exchange.
(vi) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Note (or Additional Note) acquired
pursuant to Regulation S, all requirements that such Initial Note (or
such Additional Note) bear the Restricted Notes Legend shall cease to
apply and the requirements requiring any such Initial Note (or such
Additional Note) be issued in global form shall continue to apply.
(vii) Upon the issuance of Additional Notes in an offering
registered with the Commission, all requirements pertaining to such
Additional Notes that such Additional Notes be issued bearing the
Restricted Notes Legend shall not apply, and, furthermore, such
Additional Notes so registered and issued may be issued in global form
in the form of Exhibit A hereto."
5. Amendment to Exhibit A. Pursuant to the terms and provisions
of Sections 2.16 and 9.01(a) of the Indenture, Exhibit A to the Indenture is
hereby amended and restated in its entirety to read as set forth in Exhibit 1
attached hereto.
6. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with the Existing Guarantors, to unconditionally
guarantee the Company's obligations under the Notes on the terms and subject to
the conditions set forth in Article XI of the Indenture and to be bound by all
other applicable provisions of the Indenture and the Notes to the same extent
as the Existing Guarantors.
7. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect, and by its execution hereof, each
Existing Guarantor hereby confirms its obligations under the Indenture and the
guarantee of the Notes. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of a Note heretofore or hereafter
authenticated and delivered shall be bound hereby.
8. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
9. Trustee's Assumption; Trustee Makes No Representation. The
Trustee assumes no duties, responsibilities or liabilities under this
Supplemental Indenture other than as set forth in the Indenture. The Trustee
makes no representation as to the validity or sufficiency of this Supplemental
Indenture. The Trustee's execution of this Supplemental Indenture should not be
construed to be an approval or disapproval of the amendment to the Indenture as
provided herein.
10. Compliance with TIA. The Company represents and warrants
that, upon execution, this Supplemental Indenture shall comply with the TIA, as
in effect on the date hereof.
11. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together shall constitute the same agreement.
12. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to be duly executed as of the date first above written.
XXXX TELEVISION, INC.
By
--------------------------------------------------
Name:
Title:
XXXX MIDAMERICA TELEVISION, INC.
By
--------------------------------------------------
Name:
Title:
THE SUBSIDIARY GUARANTORS:
THE ALBANY HERALD PUBLISHING COMPANY, INC.
POST-CITIZEN MEDIA, INC.
XXXX COMMUNICATIONS OF INDIANA, INC.
WEAU-TV, INC.
WVLT-TV, INC.
WRDW-TV, INC.
WITN-TV, INC
XXXX KENTUCKY TELEVISION, INC.
XXXX COMMUNICATIONS OF TEXAS, INC.
XXXX COMMUNICATIONS OF TEXAS - XXXXXXX, INC.
XXXX TRANSPORTATION COMPANY, INC.
XXXX REAL ESTATE AND DEVELOPMENT CO.
XXXX FLORIDA HOLDINGS, INC.
KOLN/KGIN, INC.
WEAU LICENSEE CORP.
KOLN/KGIN LICENSE, INC.
WJHG LICENSEE CORP.
WCTV LICENSEE CORP.
WVLT LICENSEE CORP.
WRDW LICENSEE CORP.
WITN LICENSEE CORP.
WKYT LICENSEE CORP.
WYMT LICENSEE CORP.
KWTX-KBTX LICENSEE CORP.
KXII LICENSEE CORP.
XXXX TELEVISION MANAGEMENT, INC.
XXXX MIDAMERICA HOLDINGS, INC.
XXXX PUBLISHING, INC.
XXXX DIGITAL, INC.
KWTX-KBTX LP CORP.
KXII LP CORP.
PORTA-PHONE PAGING LICENSEE CORP.
KXII L.P.
KWTX - KBTX L.P.
LYNQX COMMUNICATIONS, INC.
For each of the above:
By:
-------------------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By
--------------------------------------------------
Name:
Title:
Exhibit 1 to the Supplemental Indenture
EXHIBIT A
[FORM OF FACE OF ADDITIONAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK,
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
No. N- $
9.25% Senior Subordinated Note due 2011
CUSIP No. 000000XX0
Xxxx Television, Inc., a Georgia corporation, promises to pay to Cede & Co., or
registered assigns, the principal sum listed on the Schedule of Increases or
Decreases in Global Note attached hereto on December 15, 2011.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Note are set forth on the other side of this
Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
Dated:
XXXX TELEVISION, INC.
By
--------------------------------------------------
Name:
Title:
By
--------------------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 9.25% Senior Subordinated Notes due 2011 referred to in the
Indenture.
Dated:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By
--------------------------------------------------
Authorized Signatory
[FORM OF REVERSE SIDE OF ADDITIONAL NOTE]
9.25% Senior Subordinated Note Due 2011
1. Interest
Xxxx Television, Inc., a Georgia corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Note at the rate per annum shown above. The Company shall pay interest
semiannually on June 15 or December 15 of each year (or if such day is not a
Business Day, on the next succeeding Business Day) commencing on December 15,
2002. Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid or duly provided for,
from June 15, 2002 until the principal hereof is due. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay cash interest on overdue principal at the rate borne by the Notes
plus 1% per annum, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
2. Method of Payment
The Company shall pay interest on the Notes (except defaulted interest) to the
Persons who are registered Holders at the close of business on the June 1 or
December 1 next preceding the interest payment date even if Notes are canceled
after the record date and on or before the interest payment date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal, premium and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Notes represented by a Global Note
(including principal, premium and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company. The Company will make all payments in respect of a certificated Note
(including principal, premium and interest), by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on
the Notes may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Notes, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
3. Paying Agent and Registrar
The Company initially appoints Deutsche Bank Trust Company Americas, a New York
banking corporation (the "Trustee"), as Registrar, Paying Agent and agent for
service of notices and demands in connection with the Notes. If the Company
fails to appoint or maintain a Registrar and/or Paying Agent, the Trustee shall
act as such.
4. Indenture
The Company issued the Notes under an Indenture, dated as of December 15, 2001
(the "Indenture"), among the Company, the subsidiaries of the Company, as
guarantors (the "Subsidiary Guarantors"), and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Capitalized terms used herein and not defined herein have the meanings assigned
thereto in the Indenture. The Notes are subject to all terms and provisions of
the Indenture, and Holders are referred to the Indenture and the TIA for a
statement of such terms and provisions.
The Notes are senior subordinated unsecured obligations of the Company limited
to $280,000,000 aggregate principal amount at any one time outstanding (subject
to Section 2.07 of the Indenture). This Note is one of the Additional Notes
referred to in the Indenture. The Notes include the Initial Notes, Additional
Notes and any Exchange Notes and Private Exchange Notes issued in exchange for
Initial Notes or Additional Notes. The Initial Notes, Additional Notes,
Exchange Notes and Private Exchange Notes are treated as a single class of
notes under the Indenture. The Indenture imposes certain limitations on the
ability of the Company and its Subsidiaries to, among other things, make
certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by Subsidiaries, enter into or
permit certain transactions with Affiliates and Asset Sales. The Indenture also
imposes limitations on the ability of the Company to consolidate or merge with
or into any other Person or convey, transfer or lease all or substantially all
of the property of the Company.
To guarantee the due and punctual payment of the principal and interest on the
Notes and all other amounts payable by the Company under the Indenture and the
Notes when and as the same shall be due and payable, whether, by acceleration
or otherwise, according to the terms of the Notes and the Indenture, the
Subsidiary Guarantors jointly and severally, unconditionally guarantee the
Obligations of the Company under the Indenture and the Notes on a senior
subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as described below in this Section 5, the Notes are not redeemable at
the Company's option prior to December 15, 2006. On and after such date, the
Notes will be subject to redemption at the option of the Company, in whole or
in part, at the redemption prices (expressed as percentages of the principal
amount of the Notes) set forth below, plus accrued and unpaid interest to the
date fixed for redemption, if redeemed during the twelve-month period beginning
on December 15, of the years indicated below.
YEAR PERCENTAGE
2006..................................................... 104.625%
2007..................................................... 103.083%
2008..................................................... 101.542%
2009 and thereafter...................................... 100.000%
Notwithstanding the foregoing, at any time prior to December 15, 2004, the
Company may, at its option, use the net proceeds of one or more Public Equity
Offerings to redeem up to 35% of the aggregate principal amount of the Notes
originally issued at a redemption price equal to 109.250% of the principal
amount thereof, together with accrued and unpaid interest to the date fixed for
redemption; provided, however, that at least $117.0 million in aggregate
principal amount of the Notes remains outstanding immediately after any such
redemption.
At any time prior to December 15, 2006, the Notes may be redeemed as a whole
but not in part at the option of the Company, upon not less than 30 or more
than 60 days' prior notice mailed by first-class mail to each holder's
registered address, at a redemption price equal to 100% of the principal amount
thereof plus the Make Whole Premium as of, and accrued but unpaid interest, if
any, to, the redemption date, subject to the right of holders on the relevant
record date to receive interest due on the relevant interest payment date.
"Make Whole Premium" means with respect to a Note at any redemption date, the
greater of (i) 1.0% of the principal amount of such Note or (ii) the excess of
(A) the present value of (1) the redemption price of such Note at December 15,
2006 (such redemption price being set forth in the table above) plus (2) all
required interest payments due on such Note through December 15, 2006, computed
using a discount rate equal to the Treasury Rate plus 50 basis points, over (B)
the then-outstanding principal amount of such Note.
"Treasury Rate" means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H. 15(519)
which has become publicly available at least two Business Days prior to the
redemption date or, if such Statistical Release is no longer published, any
publicly available source or similar market data) most nearly equal to the
period from the redemption date to December 15, 2006; provided, however, that
if the period from the redemption date to December 15, 2006 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the redemption date to December 15, 2006
is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be
used.
6. Sinking Fund
The Notes are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30 days but
not more than 60 days before the redemption date to each Holder of Notes that
are to be redeemed at his or her registered address. Notes in denominations
larger than $1,000 of principal amount may be redeemed in part but only in
whole multiples of $1,000 of principal amount. If money sufficient to pay the
redemption price of and accrued and unpaid interest and liquidated damages, if
any, on all Notes (or portions thereof) to be redeemed on the redemption date
is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or
such portions thereof) called for redemption.
8. Repurchase of Notes at the Option of Holders upon Change of
Control
Upon a Change of Control, each Holder will have the right, subject to certain
conditions specified in the Indenture, to require the Company to repurchase all
or any part of such Holder's Notes at a purchase price in cash equal to 101% of
the principal amount on the Change of Control Purchase Date, plus accrued and
unpaid interest, if any, to the Change of Control Purchase Date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date), as provided in, and subject to the
terms of, the Indenture.
9. Subordination
The Notes are subordinated to Senior Debt. To the extent provided in the
Indenture, Senior Debt must be paid before the Notes may be paid. The Company
and each Subsidiary Guarantor agrees, and each Holder by accepting a Note
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of $1,000 and
whole multiples of $1,000. A Holder may transfer or exchange Notes in
accordance with the Indenture. Upon any transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Notes selected for redemption (except, in the case of a Note to be
redeemed in part, the portion of the Note not to be redeemed) or to transfer or
exchange any Notes for a period of 15 days prior to a selection of Notes to be
redeemed.
11. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all
purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate some of or
all its obligations under the Notes and the Indenture if the Company deposits
with the Trustee money or U.S. Government Obligations for the payment of
principal and interest on the Notes to redemption or maturity, as the case may
be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or
the Notes may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Notes (including consents obtained in connection with a tender offer or
exchange offer for the Notes) and (ii) any existing Default or Event of Default
or noncompliance with any provision of the Indenture or the Notes may be waived
with the consent of Holders of at least a majority in principal amount of the
outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes). Subject to certain exceptions set forth
in the Indenture, without the consent of any Holder, the Company, the
Subsidiary Guarantors and the Trustee may amend the Indenture or the Notes to:
(i) cure any ambiguity, defect or inconsistency; (ii) provide for
uncertificated Notes in addition to or in place of certificated Notes; (iii)
provide for the assumption of the Company's obligations to the Holders in the
event of any Disposition involving the Company that is permitted under Article
V of the Indenture in which the Company is not the Surviving Person; (iv) make
any change that would provide any additional rights or benefits to Holders or
does not adversely affect the interests of any Holder; (v) comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA; (vi) add additional Subsidiary Guarantors
pursuant to Section 4.17 of the Indenture; (vii) provide for the issuance of
Exchange Notes or Private Exchange Notes, subject to the provisions of the
Indenture; or (viii) provide for the issuance of Additional Notes as permitted
by Section 2.16 of the Indenture.
15. Defaults and Remedies
If any Event of Default (other than an Event of Default specified under Section
6.01(a)(ix) or (x) of the Indenture with respect to the Company or any
Subsidiary Guarantor) occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes may, and the
Trustee at the request of such Holders shall, declare all the Notes to be due
and payable immediately. In the case of any Event of Default arising from the
events specified in Section 6.01(a)(ix) or (x) of the Indenture with respect to
the Company or any Subsidiary Guarantor occurs, the principal of, premium, if
any, and accrued and unpaid interest on all outstanding Notes shall ipso facto
become immediately due and payable without further action or Notice. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
If an Event of Default occurs and is continuing, the Trustee shall be under no
obligation to exercise any of its rights or powers under the Indenture at the
request of any Holders unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against any loss, liability or
expense. Except to enforce the right to receive payment of principal, premium
(if any) or interest when due, no Holder may pursue any remedy with respect to
the Indenture or the Notes unless (1) the Holder gives to the Trustee notice of
a continuing Event of Default; (2) the Holders of at least 25% in principal
amount of the then outstanding Notes make a request to the Trustee to pursue
the remedy; (3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense; (4) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and (5) during such 60-day period the
Holders of a majority in aggregate principal amount of the then outstanding
Notes do not give the Trustee a direction inconsistent with the request.
Subject to certain restrictions, the Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it by the Indenture. However, the
Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or would involve the Trustee in personal liability.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or any of its Affiliates with the same
rights it would have if it were not Trustee. However, if the Trustee acquires
any conflicting interest, it must eliminate such conflict within 90 days, apply
to the Commission for permission to continue as Trustee, or resign.
17. No Recourse Against Others
No director, officer, employee, incorporator or stockholder, of the Company or
any Subsidiary Guarantor shall have any liability for any obligation of the
Company or any Subsidiary Guarantor under the Indenture, the Notes or the
Subsidiary Guarantees. Each Holder, by accepting a Note (including Subsidiary
Guarantees), waives and releases such Persons from all such liability and such
waiver and release are part of the consideration for the issuance of the Notes.
18. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or
an authenticating agent) manually signs the certificate of authentication on
the other side of this Note.
19. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee,
such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT
TEN (=joint tenants with rights of survivorship and not as tenants in common),
CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
20. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed
on the Notes and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge
to the Holder a copy of the Indenture which has in it the text of this Note.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _______________________ agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
Date: Your Signature:
------------------ ----------------------------
-------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note. Signature
must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the Trustee.
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $100,000,000.00. The
following increases or decreases in this Global Note have been made:
Date of Amount of decrease in Amount of increase in Principal Amount of Signature of
Exchange Principal amount of Principal Amount of this authorized
this this Global Note following signatory of Trustee
Global Note Global Note such decrease or or Notes Custodian
increase
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.13 (Change of Control) or 4.14 (Limitation on Asset Sales) of the
Indenture, check the box:
Change of Control [ ] Asset Sales [ ]
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 4.13 or 4.14 of the Indenture, state the principal amount:
$______________
Date: Your Signature:
------------------ ----------------------------
(Sign exactly as your name
appears on the other side
of the Note)
Signature Guarantee:
-----------------------------------------------------------
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee
FORM OF NOTATION ON NOTE
RELATING TO SUBSIDIARY GUARANTEE
Each Subsidiary Guarantor, jointly and severally, unconditionally guarantees,
to the extent set forth in the Indenture and subject to the provisions of the
Indenture that: (i) the principal of, premium, if any, and interest on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, to the extent lawful, and all other
Obligations of the Company to the Holders or the Trustee under the Indenture
and the Notes will be promptly paid in full, all in accordance with the terms
of the Indenture and the Notes; and (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, that the
Notes will be promptly paid in full when due in accordance with the terms of
such extension or renewal, whether at stated maturity, by acceleration or
otherwise.
The obligations of each Subsidiary Guarantor to the Holders of Notes and the
Trustee pursuant to this guarantee and the Indenture are set forth in Article
XI of the Indenture, to which reference is hereby made.
THE SUBSIDIARY GUARANTORS:
THE ALBANY HERALD PUBLISHING COMPANY, INC.
POST-CITIZEN MEDIA, INC.
XXXX COMMUNICATIONS OF INDIANA, INC.
WEAU-TV, INC.
WVLT-TV, INC.
WRDW-TV, INC.
WITN-TV, INC
XXXX KENTUCKY TELEVISION, INC.
XXXX COMMUNICATIONS OF TEXAS, INC.
XXXX COMMUNICATIONS OF TEXAS - XXXXXXX, INC.
XXXX TRANSPORTATION COMPANY, INC.
XXXX REAL ESTATE AND DEVELOPMENT CO.
XXXX FLORIDA HOLDINGS, INC.
KOLN/KGIN, INC.
WEAU LICENSEE CORP.
KOLN/KGIN LICENSE, INC.
WJHG LICENSEE CORP.
WCTV LICENSEE CORP.
WVLT LICENSEE CORP.
WRDW LICENSEE CORP.
WITN LICENSEE CORP.
WKYT LICENSEE CORP.
WYMT LICENSEE CORP.
KWTX-KBTX LICENSEE CORP.
KXII LICENSEE CORP.
XXXX TELEVISION MANAGEMENT, INC.
XXXX MIDAMERICA HOLDINGS, INC.
XXXX PUBLISHING, INC.
XXXX DIGITAL, INC.
KWTX-KBTX LP CORP.
KXII LP CORP.
PORTA-PHONE PAGING LICENSEE CORP.
KXII L.P.
KWTX - KBTX L.P.
LYNQX COMMUNICATIONS, INC.
XXXX MIDAMERICA TELEVISION, INC.
For each of the above:
By
-----------------------------------------
Name:
Title: