1
EXHIBIT 4.3
2
(FACE OF NOTE)
[FORM OF NEW NOTE]
CUSIP
------------
Number
XXXXXX COMMUNICATIONS CORPORATION
11 5/8% SENIOR SUBORDINATED NOTE DUE 2002
Xxxxxx Communications Corporation, a Delaware corporation (the
"Company", which term includes any successor corporation), for value received
promises to pay to ________________________ or registered assigns the principal
sum of ___________________ Dollars, on October 1, 2002.
Interest Payment Dates: April 1 and October 1, commencing April 1,
1996
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
3
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
XXXXXX COMMUNICATIONS CORPORATION
By:
--------------------------------
By:
--------------------------------
[SEAL]
Certificate of Authentication:
This is one of the 11 5/8% Senior
Subordinated Notes due 2002 referred to in
the within-mentioned Indenture
Dated:
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------
Authorized Signatory
2
4
(REVERSE SIDE)
XXXXXX COMMUNICATIONS CORPORATION
11 5/8% SENIOR SUBORDINATED NOTE DUE 2002
1. INTEREST.
Xxxxxx Communications Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
semiannually on April 1 and October 1 of each year (each an "Interest Payment
Date"), commencing on April 1, 1996, at the rate of 11 5/8% per annum.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Notes.
The Company shall pay interest on overdue principal, and on
overdue premium, if any, and overdue interest, to the extent lawful, at the
rate equal to 1% per annum in excess of the rate borne by the Notes.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided for in
Paragraph 1 above (except defaulted interest) to the person who is the
registered Holder of this Note at the close of business on the March 15 or
September 15 preceding the Interest Payment Date (whether or not such day is a
Business Day). The Holder must surrender this Note to a Paying Agent to
collect principal payments. The Company will pay principal, premium, if any,
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts; provided, however, that the
Company may pay principal, premium, if any, and interest by check payable in
such money. It may mail an interest check to the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, The Bank of New York, a New York banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to the Holders
of the Notes. Neither the Company nor any of its Subsidiaries or Affiliates
may act as Paying Agent but may act as registrar or co-registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated as of
September 28, 1995 (the "Indenture") among the Company, the
3
5
Guarantors and the Trustee. The terms of this Note 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. Code Section Section 77aaa-77bbbb) as in effect
on the date of the Indenture. This Note is subject to all such terms, and the
Holder of this Note is referred to the Indenture and said Trust Indenture Act
for a statement of them. All capitalized terms in this Note, unless otherwise
defined, have the meanings assigned to them by the Indenture.
The Notes are general unsecured obligations of the Company
limited to $230,000,000 aggregate principal amount. The Indenture imposes
certain restrictions on, among other things, the incurrence of indebtedness,
the incurrence of liens and the issuance of preferred stock by the Company and
its subsidiaries, mergers and sale of assets, the payments of dividends on, or
the repurchase of, capital stock of the Company and its subsidiaries, certain
other restricted payments by the Company and its subsidiaries, certain
transactions with, and investments in, its affiliates, certain sale and
lease-back transactions and a provision regarding change-of-control
transactions.
5. SUBORDINATION.
The Indebtedness evidenced by the Notes is, to the extent and
in the manner provided in the Indenture, subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness as defined in
the Indenture, and this Note is issued subject to such provisions. Each Holder
of this Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder,
to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided, however, that the
Indebtedness evidenced by this Note shall cease to be so subordinate and
subject in right of payment upon any defeasance of this Note referred to in
Paragraph 18 below.
6. OPTIONAL REDEMPTION.
The Company may redeem the Notes, in whole or in part, at any
time on or after October 1, 1999 at the redemption prices set forth in Section
3.07 of the Indenture, together, in each case, with accrued and unpaid
interest to the redemption date.
In addition, the Company may redeem Notes out of the Net
Proceeds of one or more Public Equity Offerings or Major Asset Sales at the
redemption price, in the amount and under the terms set forth in the Indenture.
4
6
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at
least 30 days but not more than 60 days prior to the redemption date to each
Holder of Notes to be redeemed at its registered address as it shall appear on
the register of the Notes maintained by the Registrar. On and after any
Redemption Date, interest will cease to accrue on the Notes or portions thereof
called for redemption unless the Company shall fail to redeem any such Note.
8. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales
be used, subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set forth
in the Indenture. The Company is also required to make an offer to purchase
Notes upon occurrence of a Change of Control in accordance with procedures set
forth in the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples thereof. A Holder may register
the transfer or exchange of Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Note selected for redemption or register the
transfer of or exchange any Note for a period of 15 days before a selection of
Notes to be redeemed or any Note after it is called for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner
of it for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on
any Note remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the Company at its request. After that, Holders entitled to
money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another person.
5
7
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may
be modified, amended or supplemented by the Company, the Guarantors and the
Trustee with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding and any existing default or compliance
with any provision may be waived in a particular instance with the consent of
the Holders of a majority in principal amount of the Notes then outstanding.
Without the consent of Holders, the Company, the Guarantors and the Trustee may
amend the Indenture or the Notes or supplement the Indenture for certain
specified purposes including providing for uncertificated Notes in addition to
certificated Notes, and curing any ambiguity, defect or inconsistency, or
making any other change that does not materially and adversely affect the
rights of any Holder.
13. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of
its predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation will be released from those obligations.
14. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event
of Default (other than an Event of Default pursuant to Section 6.01(6) or (7)
of the Indenture with respect to the Company) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding, may declare to be
immediately due and payable the entire principal amount of all the Notes then
outstanding plus accrued but unpaid interest to the date of acceleration;
provided, however, that after such acceleration but before judgement or decree
based on such acceleration is obtained by the Trustee, the Holders of a
majority in aggregate principal amount of the outstanding Notes may, under
certain circumstances, rescind and annul such acceleration and its consequences
if all existing Events of Default, other than the nonpayment of principal,
premium or interest that has become due solely because of the acceleration,
have been cured or waived and if the rescission would not conflict with any
judgment or decree. No such rescission shall affect any subsequent Default or
impair any right consequent thereto. In case an Event of Default specified in
Section 6.01(6) or (7) of the Indenture with respect to the Company occurs,
such principal amount, together with premium, if any, and interest with respect
to all of the Notes, shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders of the
Notes.
6
8
15. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company, any Guarantor or their Affiliates, and may otherwise deal with
the Company, any Guarantor or their Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Company or any Guarantor shall not
have any liability for any obligations of the Company or any Guarantor under
the Notes or the Indenture or for any claim based on, in respect or by reason
of, such obligations or their creation. The Holder of this Note by accepting
this Note waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of this Note.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Company with certain conditions set forth in
the Indenture.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of
a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Note 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 of the Notes. 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.
20. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED 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
7
9
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE OR THE NOTES.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
XXXXXX COMMUNICATIONS CORPORATION, 000 Xxxxxxxxxx Xxxx Xxxx, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000, Attention:
8
10
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
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 Guarantee:
--------------------------------------
11
FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE
Each Guarantor (the "Guarantor", which term includes any
successor Person under the Indenture) has unconditionally guaranteed, on a
senior subordinated basis, jointly and severally, to the extent set forth in
the Indenture and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on overdue principal, and, to the extent permitted by law, interest,
and the due and punctual performance of all other Obligations of the Company to
the Noteholders or the Trustee all in accordance with the terms set forth in
Article 10 of the Indenture, and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, that the same
will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.
The obligations of each Guarantor to the Noteholders and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set
forth in Article 10 of the Indenture and reference is hereby made to the
Indenture for the precise terms of this Guarantee.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized signatories.
Guarantors:
XXXXXX COMMUNICATIONS TELEVISION, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF FLORIDA, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS LP, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS MANAGEMENT
COMPANY
(a Florida corporation)
XXXXXX COMMUNICATIONS MARKETING, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS NETWORKS, INC.
(a Florida corporation)
12
-2-
XXXXXX OUTDOOR, INC.
(a Florida corporation)
XXXXXX NETWORKS, INC.
(a Florida corporation)
EXCEL MARKETING ENTERPRISES, INC.
(a Florida corporation)
INFOMALL CABLE NETWORK, INC.
(a Delaware corporation)
INFOMALL TV NETWORK, INC.
(a Delaware corporation)
INFOMALL LOS ANGELES, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF AKRON-23, INC.
(a Florida corporation)
XXXXXX AKRON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF ATLANTA-14, INC.
(a Florida corporation)
XXXXXX ATLANTA LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF BOSTON-60, INC.
(a Florida corporation)
XXXXXX BOSTON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF CLEVELAND-67,
INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF COOKEVILLE, INC.
(a Florida corporation)
XXXXXX COOKEVILLE LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF DALLAS-68, INC.
(a Florida corporation)
13
-3-
XXXXXX XXXXXX LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF DAYTON-26, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF DENVER-59, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF FT. XXXXXX-34, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF HOUSTON-49, INC.
(a Florida corporation)
XXXXXX HOUSTON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF LOS ANGELES-30,
INC.
(a Florida corporation)
XXXXXX LOS ANGELES LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF MIAMI-35, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF MILWAUKEE-55,
INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF MINNEAPOLIS-45,
INC.
(a Florida corporation)
XXXXXX MINNEAPOLIS LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF NEW LONDON-26,
INC.
(a Florida corporation)
XXXXXX NEW LONDON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF NEW YORK-43,
INC.
(a Florida corporation)
14
-4-
XXXXXX NEW YORK LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF ORLANDO-56,
INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF PHILADELPHIA-61,
INC.
(a Florida corporation)
XXXXXX PHILADELPHIA LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF PHOENIX-13,
INC.
(a Florida corporation)
XXXXXX PHOENIX LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF ST. LOUIS, INC.
(a Florida corporation)
XXXXXX ST. XXXXX LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF SAN XXXX-65,
INC.
(a Florida corporation)
XXXXXX SAN XXXX LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF TAMPA-66,
INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF WASHINGTON-60,
INC.
(a Florida corporation)
XXXXXX WASHINGTON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF WEST PALM
BEACH-25, INC.
(a Florida corporation)
15
-5-
XXXXXX WEST PALM BEACH LICENSE, INC.
(a Florida corporation)
By:
--------------------------------------
Name:
Title:
XXXXXX BROADCASTING OF JACKSONVILLE,
LIMITED PARTNERSHIP
(a Florida partnership)
XXXXXX JACKSONVILLE LICENSE LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX BROADCASTING OF MIAMI, LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX MIAMI LICENSE LIMITED PARTNERSHIP
(a Florida partnership)
XXXXXX BROADCASTING OF ORLANDO, LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX XXXXXXX LICENSE LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX BROADCASTING OF TAMPA, LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX TAMPA LICENSE LIMITED PARTNERSHIP
(a Florida partnership)
By: Xxxxxx Communications of Florida,
Inc., their general partner
By:
--------------------------------------
Name:
Title:
16
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.10 or Section 4.19 of the
Indenture, check the appropriate box:
[ ] Section 4.10 [ ] Section 4.19
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.19 of the Indenture, state the
amount you elect to have purchased:
$
--------------------------
Date:
---------------------
Your Signature:
------------------------------------
(Sign exactly as your name appears on the face
of this Note)
--------------------------------------------
Signature Guaranteed
