EXHIBIT 99.1
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Execution Copy
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as
of July 13, 2004, among Xxxxxxxxx International Publishing Inc., a Delaware
corporation (the "COMPANY"), Xxxxxxxxx International Inc., a Delaware
corporation, as guarantor (the "GUARANTOR"), and Wachovia Trust Company,
National Association, as trustee (the "TRUSTEE").
WHEREAS, the Company, the Guarantor and the Trustee are parties to that
certain Indenture, dated as of December 23, 2002 (the "INDENTURE"), pursuant to
which the Company's 9% Senior Notes due 2010 (the "NOTES") were issued.
Capitalized terms used but not defined herein shall have the same meanings
ascribed to such terms in the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that the Company, the
Guarantor and the Trustee may make certain amendments to the Indenture with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes;
WHEREAS, the Company distributed an Offer to Purchase and Consent
Solicitation Statement dated as of June 24, 2004 (the "OFFER TO PURCHASE") in
order to, among other things, make an offer to purchase (the "OFFER") all
Outstanding Notes upon terms and conditions described in the Offer to Purchase
and to solicit consents (the "CONSENTS") from the Holders to amendments to the
Indenture (the "AMENDMENTS");
WHEREAS, Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes have given and, as of the date hereof, have not
withdrawn their consent to the Amendments; and
WHEREAS, the execution of this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture, the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel with respect to such execution and all things necessary to make this
Supplemental Indenture a valid agreement among the Company, the Guarantor and
the Trustee in accordance with its terms have been done.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Guarantor and the Trustee mutually covenant and agree as follows:
1. EFFECT. This Supplemental Indenture shall become effective
upon its execution and delivery by the parties hereto. Notwithstanding the
foregoing, the Amendments set forth in Section 2 below will only become
operative on the date (the "OPERATIVE DATE") when validly tendered Notes
representing at least a majority in aggregate principal amount of the
Outstanding Notes are accepted for purchase pursuant to the Offer. Upon such
acceptance for purchase, the Company shall promptly deliver written notice of
the Operative Date to the Trustee, stating that it has accepted for purchase
such Notes. If, after the date hereof, either the Offer is terminated or
withdrawn or all payments in respect of the Notes accepted for payment pursuant
to the Offer are not made on the applicable Payment Date (as defined in the
Offer to Purchase), the Amendments set forth in Section 2 shall have no effect
and the Indenture shall be deemed to be amended so that it reads the same as it
did immediately prior to the date hereof.
2. AMENDMENTS.
The Indenture is hereby amended as follows:
(a) Section 1.01 is hereby amended as follows:
The definitions of "Acceleration Right," "Acquired
Indebtedness," "Average Life to Stated Maturity," "Business
Opportunities Agreement," "Cash Equivalents," "Consolidated Cash Flow
Ratio," "Consolidated Interest Expense", "Consolidated Net Income
(Loss)," "Consolidated Net Worth," "Consolidated Tangible Assets,"
"Consolidation," "CST Real Estate," "CST Real Estate Transaction,"
"Cumulative Credit," "Dollar Equivalent," "Incur," "Independent
Committee," "Independent Director," "Investment," "Marketable
Security," "Media Business," "Net Cash Proceeds," "Newspaper Business,"
"9-1/4% Notes due 2006," "9-1/4% Notes due 2007," "Operating Cash
Flow," "Pari Passu Indebtedness," "Permitted Distribution," "Permitted
Indebtedness," "Permitted Investment," "Permitted Liens," "Permitted
Real Estate Sale," "Permitted Subsidiary Indebtedness," "Public Equity
Offering," "Qualified Capital Stock," "Rating Category," "Restricted
Investment," "Services Agreement," "Tax Sharing Agreement," "Total
Return Equity Swap," "Trilon Loan Agreement," "Unrestricted
Subsidiary," and "Wholly Owned Restricted Subsidiary" are hereby
deleted in their entirety.
(b) The definition is "Maturity" is hereby amended to
read as follows:
"when used with respect to any Note means the date on
which the principal of such Note becomes due and payable as therein
provided or as provided in this Indenture, whether at Stated Maturity
or the Redemption Date and whether by declaration of acceleration,
Change of Control, call for redemption or otherwise."
(c) Section 1.02 is hereby amended by deleting the
following terms and their corresponding section numbers in their entirety:
"Deficiency," "Excess Proceeds," "Note Amount," "Offer," "Offered Price," "Pari
Passu Debt Amount," "Pari Passu Offer," "Permitted Payment," "Purchase Date,"
"refinancing," "Required Filing Dates," "Restricted Payments," and "Surviving
Entity."
(d) Section 4.04 is hereby amended by deleting the text
of clauses (2), (3) and (8) and by replacing such text with the words
"[INTENTIONALLY DELETED]".
(e) Section 5.01 is hereby amended by deleting the text
of clauses c(ii), (d) and (f) and by replacing such text with the words
"[INTENTIONALLY DELETED]".
(f) Section 7.04 is hereby amended by deleting the text
of clause (a) and by replacing such text with the words "[INTENTIONALLY
DELETED]".
(g) The text of Article VIII is hereby deleted in its
entirety and the words "[INTENTIONALLY DELETED]" shall be inserted in place of
the deleted text.
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(h) The text of Sections 10.04, 10.05, 10.06, 10.07,
10.08, 10.09, 10.10, 10.11, 10.12, 10.13, 10.15, 10.16, 10.17, 10.18 and 10.20
of the Indenture is hereby deleted in its entirety and these Sections shall be
of no further force and effect and the words "[INTENTIONALLY DELETED]" shall be
inserted, in each case, in place of the deleted text.
3. GOVERNING LAW. This Supplemental Indenture shall be governed
by and construed in accordance with the laws of the State of New York (without
giving effect to the conflict of laws principles thereof).
4. COUNTERPARTS. This Supplemental Indenture may be executed in
one or more counterparts, each of which shall be an original, but all of which
together shall constitute one and the same document.
5. EFFECT ON INDENTURE. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby. Except as expressly
set forth herein, the Indenture is in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall remain in full force and
effect, including with respect to this Supplemental Indenture.
6. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act that may not be so limited, qualified or conflicted with,
such provision of such Act shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the provision of such Act shall be deemed to apply
to the Indenture as so modified or to be excluded by this Supplemental
Indenture, as the case may be.
7. SEPARABILITY CLAUSE. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
8. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
9. BENEFITS OF SUPPLEMENTAL INDENTURE, ETC. Nothing in this
Supplemental Indenture, the Indenture or the Notes, express or implied, shall
give to any person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of Notes, any benefit of any
legal or equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Notes.
10. SUCCESSORS. All agreements of the Company in this Supplemental
Indenture, the Indenture and the Notes shall bind its successors.
11. TRUSTEE. The Trustee makes no representations as to the
validity or sufficiency of this Supplemental Indenture. The recitals and
statements herein are deemed to be those of the Company and not of the Trustee,
and the Trustee assumes no responsibility for their incorrectness.
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IN WITNESS WHEREOF, the parties have executed this First Supplemental
Indenture as of the date first written above.
XXXXXXXXX INTERNATIONAL
PUBLISHING INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
XXXXXXXXX INTERNATIONAL INC., solely
in its capacity as Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity,
but solely as Trustee
By: /s/ Xxxxxxx Xxxxxxx-Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxx-Xxxxxxxxx
Title: Corporate Turst Officer
