Exhibit 4.1
-----------
=============================================================================
Meredith Corporation
$75,000,000 6.51% Senior Notes, Series A, Due March 1, 2005
$50,000,000 6.57% Senior Notes, Series B, Due September 1, 2005
$75,000,000 6.65% Senior Notes, Series C, Due March 1, 2006
-----------------------
Note Purchase Agreement
-----------------------
Dated as of March 1, 1999
=============================================================================
- 1 -
Table of Contents
(Not a part of the Agreement)
Section Heading Page
Section 1. Authorization of Notes 5
Section 2. Sale and Purchase of Notes 5
Section 3. Closing 6
Section 4. Conditions to Closing 6
Section 4.1. Representations and Warranties 6
Section 4.2. Performance; No Default 6
Section 4.3. Compliance Certificates 7
Section 4.4. Opinions of Counsel 7
Section 4.5. Purchase Permitted By Applicable Law, Etc. 7
Section 4.6. [Intentionally Omitted.] 7
Section 4.7. Sale of Other Notes 7
Section 4.8. Payment of Special Counsel Fees. 7
Section 4.9. Private Placement Number 8
Section 4.10. Changes in Corporate Structure 8
Section 4.11. Funding Instructions 8
Section 4.12. Proceedings and Documents 8
Section 5. Representations and Warranties of the Company 8
Section 5.1. Organization; Power and Authority 8
Section 5.2. Authorization, Etc 8
Section 5.3. Disclosure 9
Section 5.4. Organization and Ownership of Shares of Subsidiaries 9
Section 5.5. Financial Statements 10
Section 5.6. Compliance with Laws, Other Instruments, Etc 10
Section 5.7. Governmental Authorizations, Etc 10
Section 5.8. Litigation 10
Section 5.9. Taxes 10
Section 5.10. Title to Property 11
Section 5.11. Licenses, Permits, Etc 11
Section 5.12. Compliance with ERISA 11
Section 5.13. Private Offering by the Company 12
Section 5.14. Use of Proceeds; 12
Section 5.15. Existing Debt; Future Liens 13
Section 5.16. Foreign Assets Control Regulations, Etc 13
Section 5.17. Status under Certain Statutes 13
Section 5.18. Notes Rank Pari Passu 13
Section 5.19. Environmental Matters 13
Section 5.20. Computer 2000 Compliant 14
Section 6. Representations of the Purchaser 14
Section 6.1. Purchase for Investment 14
Section 6.2. Source of Funds 14
Section 7. Information as to the Company 15
Section 7.1. Financial and Business Information 15
Section 7.2. Officer's Certificate. 18
Section 7.3. Inspection 18
Section 8. Prepayment of the Notes 19
Section 8.1. Required Prepayments 19
Section 8.2. Optional Prepayments with Make-Whole Amount 19
Section 8.3. Change in Control 19
Section 8.4. Allocation of Partial Prepayments 22
- 2 -
Section 8.5. Maturity; Surrender, Etc. 22
Section 8.6. Purchase of Notes 22
Section 8.7. Make-Whole Amount 22
Section 9. Affirmative Covenants 23
Section 9.1. Compliance with Law 23
Section 9.2. Insurance 24
Section 9.3. Maintenance of Properties 24
Section 9.4. Payment of Taxes and Claims 24
Section 9.5. Corporate Existence, Etc 24
Section 9.6. Notes to Rank Pari Passu 24
Section 9.7. Year 2000 Compliance 25
Section 10. Negative Covenants 25
Section 10.1. Transactions with Affiliates 25
Section 10.2. Consolidated Net Worth 26
Section 10.3. Interest Coverage Ratio 26
Section 10.4. Limitations on Debt 26
Section 10.5. Liens 26
Section 10.6. Mergers, Consolidations and Sales of Assets 28
Section 10.7. Limitation on Sale-and-Leaseback Transactions. 30
Section 10.8. Termination of Pension Plans 30
Section 10.9. Nature of Business 30
Section 11. Events of Default 30
Section 12. Remedies on Default, Etc 32
Section 12.1. Acceleration 32
Section 12.2. Other Remedies 33
Section 12.3. Rescission 33
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc 33
Section 13. Registration; Exchange; Substitution of Notes. 34
Section 13.1. Registration of Notes 34
Section 13.2. Transfer and Exchange of Notes 34
Section 13.3. Replacement of Notes 34
Section 14. Payments on Notes 35
Section 14.1. Place of Payment 35
Section 14.2. Home Office Payment 35
Section 15. Expenses, Etc. 35
Section 15.1. Transaction Expenses 35
Section 15.2. Survival 36
Section 16. Survival of Representations and Warranties; 36
Section 17. Amendment and Waiver 36
Section 17.1. Requirements 36
Section 17.2. Solicitation of Holders of Notes 36
Section 17.3. Binding Effect, Etc. 37
Section 17.4. Notes Held by Company, Etc. 37
Section 18. Notices 37
Section 19. Reproduction of Documents 38
Section 20. Confidential Information 38
Section 21. Substitution of Purchaser 39
Section 22. Miscellaneous 39
Section 22.1. Successors and Assigns 39
Section 22.2. Payments Due on Non-Business Days 39
Section 22.3. Severability 40
Section 22.4. Construction 40
Section 22.5. Counterparts 40
Section 22.6. Governing Law 40
Section 22.7. Submission to Jurisdiction 40
Signature 41
- 3 -
Schedule A -- Information Relating to Purchasers
Schedule B -- Defined Terms
Schedule 5.4 -- Subsidiaries of the Company and Ownership of
Subsidiary Stock
Schedule 5.5 -- Financial Statements
Schedule 5.14 -- Use of Proceeds
Schedule 5.15 -- Existing Debt
Exhibit 1-A -- Form of 6.51% Senior Note, Series A, due March 1,
2005
Exhibit 1-B -- Form of 6.57% Senior Note, Series B, due September 1,
2005
Exhibit 1-C -- Form of 6.65% Senior Note, Series C, due March 1,
2006
Exhibit 4.4(a) -- Form of Opinion of Special Counsel for the Company
Exhibit 4.4(b) -- Form of Opinion of Special Counsel for the Purchasers
- 4 -
Meredith Corporation
1716 Locust Street
Des Moines, Iowa 50309
$75,000,000 6.51% Senior Notes, Series A, Due March 1, 2005
$50,000,000 6.57% Senior Notes, Series B, Due September 1, 2005
$75,000,000 6.65% Senior Notes, Series C, Due March 1, 2006
Dated as of March 1, 1999
To the Purchaser listed in the attached
Schedule A who is a signatory hereto:
Ladies and Gentlemen:
Meredith Corporation, an Iowa corporation (the "Company"), agrees with you
as follows:
Section 1. Authorization of Notes.
The Company will authorize the issue and sale of
(a) $75,000,000 aggregate principal amount of its 6.51% Senior
Notes, Series A, due March 1, 2005 (the "Series A Notes");
(b) $50,000,000 aggregate principal amount of its 6.57% Senior
Notes, Series B, due September 1, 2005 (the "Series B Notes"); and
(c) $75,000,000 aggregate principal amount of its 6.65% Senior
Notes, Series C, due March 1, 2006 (the "Series C Notes").
The terms "Series A Notes", "Series B Notes" and "Series C Notes" as used in
this Agreement shall include each Series A Note, Series B Note and Series C
Note, respectively, delivered pursuant to this Agreement and the Other
Agreements (as hereinafter defined) and any such notes issued in substitution
therefor pursuant to Section 13 of this Agreement or the Other Agreements. The
term "Notes" as used in this Agreement shall include the Series A Notes, the
Series B Notes and the Series C Notes. The Series A Notes, Series B Notes and
Series C Notes shall be substantially in the forms set forth in Exhibits 1A, 1B
and 1C, respectively, with such changes therefrom, if any, as may be approved
by you, the Other Purchasers (as hereinafter defined) and the Company. Certain
capitalized terms used in this Agreement are defined in Schedule B; references
to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule
or an Exhibit attached to this Agreement.
Section 2. Sale and Purchase of Notes.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and you will purchase from the Company, at the Closing
provided for in Section 3, Notes in the principal amount and of the Series
specified opposite your name in Schedule A at the purchase price of 100% of the
principal amount and of the Series thereof. Contemporaneously with entering
- 5 -
into this Agreement, the Company is entering into separate Note Purchase
Agreements (the "Other Agreements") identical with this Agreement with each of
the other purchasers named in Schedule A (the "Other Purchasers"), providing
for the sale at such Closing to each of the Other Purchasers of Notes in the
principal amount and of the Series specified opposite its name in Schedule A.
Your obligation hereunder, and the obligations of the Other Purchasers under
the Other Agreements, are several and not joint obligations, and you shall have
no obligation under any Other Agreement and no liability to any Person for the
performance or nonperformance by any Other Purchaser thereunder.
Section 3. Closing.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Chapman and Cutler, 111 West Monroe
Street, Chicago, Illinois, at 10:00 a.m. Chicago time, at a closing (the
"Closing") on March 1, 1999. At the Closing the Company will deliver to you
the Notes to be purchased by you in the form of a single Note (or such greater
number of Notes in denominations of at least $500,000 as you may request) dated
the date of the Closing and registered in your name (or in the name of your
nominee), against delivery by you to the Company or its order of immediately
available funds in the amount of the purchase price therefor by wire transfer
of immediately available funds for the account of the Company as indicated in
the written funding instructions delivered pursuant to Section 4.11. If at the
Closing the Company shall fail to tender such Notes to you as provided above in
this Section 3, or any of the conditions specified in Section 4 shall not have
been fulfilled to your satisfaction, you shall, at your election, be relieved
of all further obligations under this Agreement, without thereby waiving any
rights you may have by reason of such failure or such nonfulfillment.
Section 4. Conditions to Closing.
Your obligation to purchase and pay for the Notes to be sold to you at the
Closing is subject to the fulfillment to your satisfaction, prior to or at the
Closing, of the following conditions:
Section 4.1. Representations and Warranties. The representations and
warranties of the Company in this Agreement shall be correct when made and at
the time of the Closing.
Section 4.2. Performance; No Default. The Company shall have performed
and complied with all agreements and conditions contained in this Agreement
required to be performed or complied with by it prior to or at the Closing, and
after giving effect to the issue and sale of the Notes (and the application of
the proceeds thereof as contemplated by Schedule 5.14), no Default or Event of
Default shall have occurred and be continuing. Neither the Company nor any
Subsidiary shall have entered into any transaction since the date of the
Memorandum that would have been prohibited by Sections 9 or 10 hereof had such
Sections applied since such date.
- 6 -
Section 4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to you an
Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have delivered to you a
certificate of its Secretary, dated the date of the Closing, certifying as to
the resolutions attached thereto and other corporate proceedings relating to
the authorization, execution and delivery of the Notes, this Agreement and the
Other Agreements.
Section 4.4. Opinions of Counsel. You shall have received opinions in
form and substance satisfactory to you, dated the date of the Closing (a) from
Winston & Strawn, counsel for the Company, covering the matters set forth in
Exhibit 4.4(a) and covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably request (and the
Company hereby instructs its counsel to deliver such opinion to you) and (b)
from Chapman and Cutler, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b) and
covering such other matters incident to such transactions as you may reasonably
request.
Section 4.5. Purchase Permitted By Applicable Law, Etc. On the date of
the Closing your purchase of Notes shall (a) be permitted by the laws and
regulations of each jurisdiction to which you are subject, without recourse to
provisions (such as Section 1405(a)(8) of the New York Insurance Law)
permitting limited investments by insurance companies without restriction as to
the character of the particular investment, (b) not violate any applicable law
or regulation (including, without limitation, Regulation T, U or X of the Board
of Governors of the Federal Reserve System) and (c) not subject you to any tax,
penalty or liability under or pursuant to any applicable law or regulation,
which law or regulation was not in effect on the date hereof. If requested by
you, you shall have received an Officer's Certificate certifying as to such
matters of fact as you may reasonably specify to enable you to determine
whether such purchase is so permitted.
Section 4.6. [Intentionally Omitted.].
Section 4.7. Sale of Other Notes. Contemporaneously with the Closing,
the Company shall sell to the Other Purchasers, and the Other Purchasers shall
purchase, the Notes to be purchased by them at the Closing as specified in
Schedule A.
Section 4.8. Payment of Special Counsel Fees. Without limiting the
provisions of Section 15.1, the Company shall have paid on or before the
Closing the fees, charges and disbursements of your special counsel referred to
in Section 4.4 to the extent reflected in a statement of such counsel rendered
to the Company at least one Business Day prior to the Closing.
- 7 -
Section 4.9. Private Placement Number. A Private Placement Number issued
by Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for the Notes.
Section 4.10. Changes in Corporate Structure. The Company shall not have
changed its jurisdiction of incorporation or been a party to any merger or
consolidation and shall not have succeeded to all or any substantial part of
the liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
Section 4.11. Funding Instructions. At least two Business Days prior to
the date of the Closing, you shall have received written instructions executed
by a Responsible Officer of the Company directing the manner of the payment of
funds and setting forth (a) the name and address of the transferee bank, (b)
such transferee bank's ABA number, (c) the account name and number into which
the purchase price for the Notes is to be deposited, and (d) the name and
telephone number of the account representative responsible for verifying
receipt of such funds.
Section 4.12. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
satisfactory to you and your special counsel, and you and your special counsel
shall have received all such counterpart originals or certified or other copies
of such documents as you or they may reasonably request.
Section 5. Representations and Warranties of the Company.
The Company represents and warrants to you that:
Section 5.1. Organization; Power and Authority. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the failure to be so qualified or in good standing could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
The Company has the corporate power and authority to own or hold under lease
the properties it purports to own or hold under lease, to transact the business
it transacts and proposes to transact, to execute and deliver this Agreement
and the Other Agreements and the Notes and to perform the provisions hereof and
thereof.
Section 5.2. Authorization, Etc. This Agreement, the Other Agreements
and the Notes have been duly authorized by all necessary corporate action on
the part of the Company, and this Agreement constitutes, and upon execution and
delivery thereof each Note will constitute, a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (b) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
- 8 -
Section 5.3. Disclosure. The Company, through its agent, Schroder & Co.,
Inc., has delivered to you and each Other Purchaser a copy of a Private
Placement Memorandum, dated November, 1998 (the "Memorandum"), relating to the
transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Company and its Subsidiaries. This Agreement, the Memorandum, the
documents, certificates or other writings delivered to you by or on behalf of
the Company in connection with the transactions contemplated hereby and the
financial statements listed in Schedule 5.5, taken as a whole, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Since June 30, 1998, there has been
no change in the financial condition, operations, business, properties or
prospects of the Company or any Subsidiary except changes that individually or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect. To the best knowledge and belief of senior management of the Company,
there is no fact known to the Company that could reasonably be expected to have
a Material Adverse Effect that has not been set forth herein or in the
Memorandum or in the other documents, certificates and other writings delivered
to you by or on behalf of the Company specifically for use in connection with
the transactions contemplated hereby.
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates. (a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its organization, and
the percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, (ii) of
the Company's Affiliates, other than Subsidiaries, and (iii) of the Company's
directors and senior officers.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and clear
of any Lien (except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other
legal entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to, any legal
restriction or any agreement (other than this Agreement, the agreements listed
on Schedule 5.4 and customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of profits or
make any other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Subsidiary.
- 9 -
Section 5.5. Financial Statements. The Company has delivered to you and
each Other Purchaser copies of the financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All of said financial statements
(including in each case the related schedules and notes) fairly present in all
material respects the consolidated financial position of the Company and its
Subsidiaries as of the respective dates specified in such financial statements
and the consolidated results of their operations and cash flows for the
respective periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments).
Section 5.6. Compliance with Laws, Other Instruments, Etc. The
execution, delivery and performance by the Company of this Agreement and the
Notes will not (a) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of the
Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument to which the Company or any Subsidiary is bound or by
which the Company or any Subsidiary or any of their respective properties may
be bound or affected, (b) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable to the Company or
any Subsidiary or (c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary.
Section 5.7. Governmental Authorizations, Etc. (a) No consent, approval
or authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the execution, delivery
or performance by the Company of this Agreement or the Notes.
(b) The Company has applied for all regulatory approvals necessary from
any Governmental Authority in connection with the WGNX Acquisition and no
default or breach exists under, and no waiver of any default or breach has been
granted in respect of, the terms of the WGNX Acquisition Documents.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) There are no actions, suits or proceedings pending or, to the knowledge of
the Company, threatened against or affecting the Company or any Subsidiary or
any property of the Company or any Subsidiary in any court or before any
arbitrator of any kind or before or by any Governmental Authority that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any term
of any agreement or instrument to which it is a party or by which it is bound,
or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance,
rule or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have filed all tax
returns that are required to have been filed in any jurisdiction, and have paid
all taxes shown to be due and payable on such returns and all other taxes and
- 10 -
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (a) the
amount of which is not individually or in the aggregate Material or (b) the
amount, applicability or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which the Company or a
Subsidiary, as the case may be, has established adequate reserves in accordance
with GAAP. The Company knows of no basis for any other tax or assessment that
could reasonably be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company and its Subsidiaries in
respect of Federal, state or other taxes for all fiscal periods are adequate.
The Federal income tax liabilities of the Company and its Subsidiaries have
been determined by the Internal Revenue Service and paid for all fiscal years
up to and including the fiscal year ended June 30, 1995.
Section 5.10. Title to Property; Leases. The Company and its
Subsidiaries have good and sufficient title to their respective properties that
individually or in the aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred to in Section 5.5
or purported to have been acquired by the Company or any Subsidiary after said
date (except as sold or otherwise disposed of in the ordinary course of
business), in each case free and clear of Liens prohibited by this Agreement.
All leases that individually or in the aggregate are Material are valid and
subsisting and are in full force and effect in all material respects.
Section 5.11. Licenses, Permits, Etc. (a) The Company and its
Subsidiaries own or possess all licenses, permits, franchises, authorizations,
patents, copyrights, service marks, trademarks and trade names, or rights
thereto, that individually or in the aggregate are Material, without known
conflict with the rights of others;
(b) To the best knowledge of the Company, no product of the Company
infringes in any Material respect any license, permit, franchise,
authorization, patent, copyright, service mark, trademark, trade name or other
right owned by any other Person; and
(c) To the best knowledge of the Company, there is no Material violation
by any Person of any right of the Company or any of its Subsidiaries with
respect to any patent, copyright, service mark, trademark, trade name or other
right owned or used by the Company or any of its Subsidiaries.
Section 5.12. Compliance with ERISA. (a) The Company and each ERISA
Affiliate have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as have not resulted
in and could not reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any ERISA Affiliate has incurred any liability pursuant
to Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in Section 3 of ERISA), and no
event, transaction or condition has occurred or exists that could reasonably be
expected to result in the incurrence of any such liability by the Company or
any ERISA Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in either case
pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions
or to Section 401(a)(29) or 412 of the Code, other than such liabilities or
Liens as would not be individually or in the aggregate Material.
- 11 -
(b) The present value of the aggregate benefit liabilities under each of
the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities. The term "benefit liabilities" has the
meaning specified in Section 4001 of ERISA and the terms "current value" and
"present value" have the meaning specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
Section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected post-retirement benefit obligation (determined as of the
last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by Section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance and
sale of the Notes hereunder will not involve any transaction that is subject to
the prohibitions of Section 406 of ERISA or in connection with which a tax
could be imposed pursuant to Section 4975(c)(1)(A)(D) of the Code. The
representation by the Company in the first sentence of this Section 5.12(e) is
made in reliance upon and subject to the accuracy of your representation in
Section 6.2 as to the sources of the funds used to pay the purchase price of
the Notes to be purchased by you.
(f) Neither the Company nor any Subsidiary maintains any Non-U.S. Pension
Plan.
Section 5.13. Private Offering by the Company. Neither the Company nor
anyone acting on its behalf has offered the Notes or any similar securities for
sale to, or solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any Person other than you,
the Other Purchasers and not more than three other Institutional Investors,
each of which has been offered the Notes at a private sale for investment.
Neither the Company nor anyone acting on its behalf has taken, or will take,
any action that would subject the issuance or sale of the Notes to the
registration requirements of Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will
apply the proceeds of the sale of the Notes as set forth in Schedule 5.14. No
part of the proceeds from the sale of the Notes hereunder will be used,
directly or indirectly, for the purpose of buying or carrying any margin stock
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System (12 CFR 221), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve the Company in
a violation of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin
stock does not constitute any portion of the value of the consolidated assets
of the Company and its Subsidiaries and the Company does not have any present
intention that margin stock will constitute more than 1.0% of the value of such
assets. As used in this Section, the terms "margin stock" and "purpose of
buying or carrying" shall have the meanings assigned to them in said Regulation
U.
- 12 -
Section 5.15. Existing Debt; Future Liens. (a) Schedule 5.15 sets forth
a complete and correct list of all outstanding Debt of the Company and its
Subsidiaries as of the date of the Closing. Neither the Company nor any
Subsidiary is in default and no waiver of default is currently in effect, in
the payment of any principal or interest on any Debt of the Company or such
Subsidiary and no event or condition exists with respect to any Debt of the
Company or any Subsidiary that would permit (or that with notice or the lapse
of time, or both, would permit) one or more Persons to cause such Debt to
become due and payable before its stated maturity or before its regularly
scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by Section 10.5.
Section 5.16. Foreign Assets Control Regulations, Etc. Neither the sale
of the Notes by the Company hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, or any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
Section 5.17. Status under Certain Statutes. Neither the Company nor any
Subsidiary is subject to regulation under the Investment Company Act of 1940,
as amended, the Public Utility Holding Company Act of 1935, as amended, the ICC
Termination Act of 1995, as amended, or the Federal Power Act, as amended.
Section 5.18. Notes Rank Pari Passu. The obligations of the Company
under this Agreement and the Notes rank at least pari passu in right of
payment with all other senior unsecured Debt (actual or contingent) of the
Company, including, without limitation, all senior unsecured Debt of the
Company described in Schedule 5.15 hereto.
Section 5.19. Environmental Matters. Neither the Company nor any
Subsidiary has knowledge of any claim or has received any notice of any claim,
and no proceeding has been instituted raising any claim against the Company or
any of its Subsidiaries or any of their respective real properties now or
formerly owned, leased or operated by any of them or other assets, alleging any
damage to the environment or violation of any Environmental Laws, except, in
each case, such as could not reasonably be expected to result in a Material
Adverse Effect. Except as otherwise disclosed to you in writing:
(a) neither the Company nor any Subsidiary has knowledge of any facts
which would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from, occurring on or
in any way related to real properties now or formerly owned, leased or operated
by any of them or to other assets or their use, except, in each case, such as
could not reasonably be expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or
operated by any of them or has disposed of any Hazardous Materials in a manner
contrary to any Environmental Laws in each case in any manner that could
reasonably be expected to result in a Material Adverse Effect; and
- 13 -
(c) all buildings on all real properties now owned, leased or operated by
the Company or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.20. Computer 2000 Compliant. The Company reasonably believes
that the internal computer systems of the Company and its Subsidiaries will be
Year 2000 Compliant in all Material respects on a timely basis and, in any
event, on or before September 30, 1999, and that the advent of the year 2000
and its impact on said internal computer systems could not reasonably be
expected to result in a Material Adverse Effect. The term "Year 2000
Compliant" means that all computer applications and equipment containing
embedded microchips material to the business and operations of the Company and
its Subsidiaries will be able to recognize correctly and perform properly date-
sensitive functions for all dates before and after January 1, 2000 or,
alternatively, the Company will have designed and implemented contingency plans
so that any failure of its computer applications and equipment to recognize
correctly or to perform properly such functions for such dates will not have a
Material Adverse Effect.
Section 6. Representations of the Purchaser.
Section 6.1. Purchase for Investment. You represent that you are
purchasing the Notes for your own account or for one or more separate accounts
maintained by you or for the account of one or more pension or trust funds and
not with a view to the distribution thereof; provided that the disposition of
your or their property shall at all times be within your or their control. You
understand that the Notes have not been registered under the Securities Act and
may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Company is not required to register the Notes.
Section 6.2. Source of Funds. You represent that at least one of the
following statements is an accurate representation as to each source of funds
(a "Source") to be used by you to pay the purchase price of the Notes to be
purchased by you hereunder:
(a) the Source is an "insurance company general account" within the
meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60
(issued July 12, 1995) and there is no employee benefit plan, treating as a
single plan, all plans maintained by the same employer or employee
organization, with respect to which the amount of the general account reserves
and liabilities for all contracts held by or on behalf of such plan, exceed ten
percent (10%) of the total reserves and liabilities of such general account
(exclusive of separate account liabilities) plus surplus, as set forth in the
NAIC Annual Statement filed with your state of domicile; or
(b) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 901 (issued January 29, 1990), or (ii) a
bank collective investment fund, within the meaning of the PTE 9138 (issued
July 12, 1991) and, except as you have disclosed to the Company in writing
pursuant to this paragraph (b), no employee benefit plan or group of plans
maintained by the same employer or employee organization beneficially owns more
than 10% of all assets allocated to such pooled separate account or collective
investment fund; or
- 14 -
(c) the Source constitutes assets of an "investment fund" (within the
meaning of Part V of the QPAM Exemption) managed by a "qualified professional
asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption),
no employee benefit plan's assets that are included in such investment fund,
when combined with the assets of all other employee benefit plans established
or maintained by the same employer or by an affiliate (within the meaning of
Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client assets
managed by such QPAM, the conditions of Part l(c) and (g) of the QPAM Exemption
are satisfied, neither the QPAM nor a Person controlling or controlled by the
QPAM (applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (i) the identity of
such QPAM and (ii) the names of all employee benefit plans whose assets are
included in such investment fund have been disclosed to the Company in writing
pursuant to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans, each of
which has been identified to the Company in writing pursuant to this paragraph
(e); or
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
If you or any subsequent transferee of the Notes indicates that you or
such transferee are relying on any representation contained in paragraph (b),
(c) or (e) above, the Company shall deliver on the date of Closing or on the
date of transfer, as applicable, a certificate, which shall state whether that
(i) it is a party in interest or a "disqualified person" (as defined in Section
4975(e)(2) of the Code), with respect to any plan identified pursuant to
paragraphs (b) or (e) above, or (ii) with respect to any plan, identified
pursuant to paragraph (c) above, it or any "affiliate" (as defined in Section
V(c) of the QPAM Exemption) has at such time, and during the immediately
preceding one year, exercised the authority to appoint or terminate said QPAM
as manager of any plan identified in writing pursuant to paragraph (c) above or
to negotiate the terms of said QPAM's management agreement on behalf of any
such identified plan.
As used in this Section 6.2, the terms "employee benefit plan",
"governmental plan", "party in interest" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
Section 7. Information as to the Company.
Section 7.1. Financial and Business Information. The Company shall
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than the last
quarterly fiscal period of each such fiscal year), duplicate copies of:
(i) a consolidated balance sheet of the Company and its Subsidiaries
as at the end of such quarter, and
- 15 -
(ii) consolidated statements of earnings and cash flows of the
Company and its Subsidiaries for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending with such
quarter, setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year of the Company, all in
reasonable detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial Officer as
fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows,
subject to changes resulting from year-end adjustments; provided that delivery
within the time period specified above of copies of the Company's Quarterly
Report on Form 10Q prepared in compliance with the requirements therefor and
filed with the Securities and Exchange Commission shall be deemed to satisfy
the requirements of this Section 7.1(a);
(b) Annual Statements -- within 105 days after the end of each fiscal
year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of earnings and cash flows of the
Company and its Subsidiaries, for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP, and accompanied by:
(1) an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that
such financial statements present fairly, in all material respects, the
financial position of the companies being reported upon and their results of
operations and cash flows and have been prepared in conformity with GAAP, and
that the examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for such opinion in
the circumstances, and
(2) a certificate of such accountants stating that they have
reviewed this Agreement and stating further whether, in making their audit,
they have become aware of any condition or event that then constitutes a
Default or an Event of Default, and, if they are aware that any such condition
or event then exists, specifying the nature and period of the existence thereof
(it being understood that such accountants shall not be liable, directly or
indirectly, for any failure to obtain knowledge of any Default or Event of
Default unless such accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted auditing standards or did
not make such an audit), provided that the delivery within the time period
specified above of the Company's Annual Report on Form 10K for such fiscal year
(together with the Company's annual report to shareholders, if any, prepared
pursuant to Rule 14a3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and Exchange Commission,
together with the accountant's certificate described in clause (2) above, shall
be deemed to satisfy the requirements of this Section 7.1(b);
- 16 -
(c) SEC and Other Reports -- promptly upon their becoming available, one
copy of (i) each financial statement, report, notice or proxy statement sent by
the Company or any Subsidiary to public securities holders generally, (ii) each
regular or periodic report, each registration statement (without exhibits
except as expressly requested by such holder), and each prospectus and all
amendments thereto filed by the Company or any Subsidiary with the Securities
and Exchange Commission and of all press releases and other statements made
available generally by the Company or any Subsidiary to the public concerning
developments that are Material and (iii) copies of all written disclosure
materials provided to the lenders under the Term Loan Agreement;
(d) Notice of Default or Event of Default promptly, and in any event
within five days after a Responsible Officer becoming aware of the existence of
any Default or Event of Default or that any Person has given any notice or
taken any action with respect to a claimed default hereunder or that any Person
has given any notice or taken any action with respect to a claimed default of
the type referred to in Section 11(f), a written notice specifying the nature
and period of existence thereof and what action the Company is taking or
proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days after a
Responsible Officer becoming aware of any of the following, a written notice
setting forth the nature thereof and the action, if any, that the Company or an
ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in
Section 4043(c) of ERISA and the regulations thereunder, for which notice
thereof has not been waived pursuant to such regulations as in effect on the
date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Plan, or the receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the PBGC with respect
to such Multiemployer Plan; or
(iii) any event, transaction or condition that could result in the
incurrence of any liability by the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, or in the imposition of any Lien on any of
the rights, properties or assets of the Company or any ERISA Affiliate pursuant
to Title I or IV of ERISA or such penalty or excise tax provisions, if such
liability or Lien, taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in any event
within 30 days of receipt thereof, copies of any notice to the Company or any
Subsidiary from any Federal or state Governmental Authority relating to any
order, ruling, statute or other law or regulation that could reasonably be
expected to have a Material Adverse Effect; and
- 17 -
(g) Requested Information -- with reasonable promptness, such other data
and information relating to the business, operations, affairs, financial
condition, assets or properties of the Company or any of its Subsidiaries or
relating to the ability of the Company to perform its obligations hereunder and
under the Notes as from time to time may be reasonably requested by any such
holder of Notes, including without limitation, such information as is required
by SEC Rule 144A under the Securities Act to be delivered to the prospective
transferee of the Notes.
Section 7.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
hereof shall be accompanied by a certificate of a Senior Financial Officer
setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 10.2 through Section 10.7 hereof,
inclusive, during the quarterly or annual period covered by the statements then
being furnished (including with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or percentage, as the
case may be, permissible under the terms of such Sections, and the calculation
of the amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and its
Subsidiaries from the beginning of the quarterly or annual period covered by
the statements then being furnished to the date of the certificate and that
such review shall not have disclosed the existence during such period of any
condition or event that constitutes a Default or an Event of Default or, if any
such condition or event existed or exists (including, without limitation, any
such event or condition resulting from the failure of the Company or any
Subsidiary to comply with any Environmental Law), specifying the nature and
period of existence thereof and what action the Company shall have taken or
proposes to take with respect thereto.
Section 7.3. Inspection. The Company shall permit the representatives of
each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at the
expense of such holder and upon reasonable prior notice to the Company, to
visit the principal executive office of the Company, to discuss the affairs,
finances and accounts of the Company and its Subsidiaries with the Company's
officers, and (with the consent of the Company, which consent will not be
unreasonably withheld) its independent public accountants, and (with the
consent of the Company, which consent will not be unreasonably withheld) to
visit the other offices and properties of the Company and each Subsidiary, all
at such reasonable times and as often as may be reasonably requested in
writing, but not more frequently than twice in any twelve month period; and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Company and upon not less than one Business Day's prior notice,
to visit and inspect any of the offices or properties of the Company or any
Subsidiary, to examine all their respective books of account, records, reports
and other papers, to make copies and extracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective officers and
- 18 -
independent public accountants (and by this provision the Company authorizes
said accountants to discuss the affairs, finances and accounts of the Company
and its Subsidiaries), all at such times and as often as may be requested.
Section 8. Prepayment of the Notes.
Section 8.1. Required Prepayment.
(a) Series A Notes. The Series A Notes shall not be subject to scheduled
principal prepayments. On March 1, 2005, the entire unpaid principal amount of
each Series A Note, together with accrued interest thereon, shall be due and
payable.
(b) Series B Notes. The Series B Notes shall not be subject to scheduled
principal prepayments. On September 1 2005, the entire unpaid principal amount
of each Series B Note, together with accrued interest thereon, shall be due and
payable.
(c) Series C Notes. The Series C Notes shall not be subject to scheduled
principal prepayments. On March 1, 2006, the entire unpaid principal amount of
each Series C Note, together with accrued interest thereon, shall be due and
payable.
Section 8.2. Optional Prepayments with Make-Whole Amount. The Company
may, at its option, upon notice as provided below, prepay at any time all, or
from time to time any part of, the Notes, on a pro rata basis in respect of all
Notes of all Series outstanding at such time, in an amount not less than 10% of
the aggregate principal amount of all Notes of all Series then outstanding in
the case of a partial prepayment, at 100% of the principal amount so prepaid,
together with interest accrued thereon to the date of such prepayment, plus the
Make-Whole Amount determined for the prepayment date with respect to such
principal amount. The Company will give each holder of Notes written notice of
each optional prepayment under this Section 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment. Each such
notice shall specify such date, the aggregate principal amount and the Series
of the Notes to be prepaid on such date, the principal amount of each Note held
by such holder to be prepaid (determined in accordance with Section 8.4), and
the interest to be paid on the prepayment date with respect to such principal
amount being prepaid, and shall be accompanied by a certificate of a Senior
Financial Officer as to the estimated Make-Whole Amount due in connection with
such prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes a
certificate of a Senior Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment date.
Section 8.3. Change in Control.
(a) Notice of Change in Control or Control Event. The Company will,
within five Business Days after any Responsible Officer has knowledge of the
occurrence of any Change in Control or Control Event, give written notice of
such Change in Control or Control Event to each holder of Notes unless notice
in respect of such Change in Control (or the Change in Control contemplated by
such Control Event) shall have been given pursuant to subparagraph (b) of this
Section 8.3. If a Change in Control has occurred, such notice shall contain
- 19 -
and constitute an offer to prepay the Notes, on a pro rata basis in respect of
all Notes of all Series outstanding at such time, as described in subparagraph
(c) of this Section 8.3 and shall be accompanied by the certificate described
in subparagraph (g) of this Section 8.3.
(b) Condition to Company Action. The Company will not take any action
that consummates or finalizes a Change in Control unless (i) at least 30 days
prior to such action it shall have given to each holder of Notes written notice
containing and constituting an offer to prepay the Notes, on a pro rata basis
in respect of all Notes of all Series outstanding at such time, as described in
subparagraph (c) of this Section 8.3, accompanied by the certificate described
in subparagraph (g) of this Section 8.3, and (ii) contemporaneously with such
action, it prepays all Notes required to be prepaid in accordance with this
Section 8.3.
(c) Offer to Prepay Notes. The offer to prepay Notes contemplated by
subparagraphs (a) and (b) of this Section 8.3 shall be an offer to prepay, in
accordance with and subject to this Section 8.3, all, but not less than all, of
the Notes of each Series held by each holder (in this case only, "holder" in
respect of any Note registered in the name of a nominee for a disclosed
beneficial owner shall mean such beneficial owner) on a date specified in such
offer (the "Proposed Prepayment Date"). If such Proposed Prepayment Date is in
connection with an offer contemplated by subparagraph (a) of this Section 8.3,
such date shall be not less than 30 days and not more than 120 days after the
date of such offer (if the Proposed Prepayment Date shall not be specified in
such offer, the Proposed Prepayment Date shall be the first Business Day after
the 45th day after the date of such offer).
(d) Acceptance. A holder of Notes may accept the offer to prepay made
pursuant to this Section 8.3 by causing a notice of such acceptance to be
delivered to the Company not later than 15 days after receipt by such holder of
the most recent offer of prepayment. A failure by a holder of Notes to respond
to an offer to prepay made pursuant to this Section shall be deemed to
constitute a rejection of such offer by such holder.
(e) Prepayment. Prepayment of the Notes to be prepaid pursuant to this
Section 8.3 shall be at 100% of the principal amount of such Notes, together
with interest on such Notes accrued to the date of prepayment, plus the Make-
Whole Amount determined for the prepayment date with respect to such principal
amount. The prepayment shall be made on the Proposed Prepayment Date except as
provided in subparagraph (f) of this Section 8.3.
(f) Deferral Pending Change in Control. The obligation of the Company to
prepay Notes pursuant to the offers required by subparagraph (c) and accepted
in accordance with subparagraph (d) of this Section 8.3 is subject to the
occurrence of the Change in Control in respect of which such offers and
acceptances shall have been made. In the event that such Change in Control has
not occurred on the Proposed Prepayment Date in respect thereof, the prepayment
shall be deferred until, and shall be made on, the date on which such Change in
Control occurs. The Company shall keep each holder of Notes reasonably and
timely informed of (i) any such deferral of the date of prepayment, (ii) he
date on which such Change in Control and the prepayment are expected to occur,
and (iii) any determination by the Company that efforts to effect such Change
in Control have ceased or been abandoned (in which case the offers and
acceptances made pursuant to this Section 8.3 in respect of such Change in
Control shall be deemed rescinded).
- 20 -
(g) Officer's Certificate. Each offer to prepay the Notes pursuant to
this Section 8.3 shall be accompanied by a certificate, executed by a Senior
Financial Officer of the Company and dated the date of such offer, specifying:
(i) he Proposed Prepayment Date; (ii) that such offer is made pursuant to this
Section 8.3; (iii) the principal amount and Series of each Note offered to be
prepaid; (iv) the interest that would be due on each Note offered to be
prepaid, accrued to the Proposed Prepayment Date; (v) an estimate of the
Make-Whole Amount payable in connection with such prepayment; (vi) that the
conditions of this Section 8.3 have been fulfilled; and (vii) in reasonable
detail, the nature and date or proposed date of the Change in Control.
(h) Certain Definitions. "Change in Control" shall be deemed to have
occurred if any of the following events shall occur: (i) any person (as such
term is used in Section 13(d) and Section 14(d)(2) of the Exchange Act as in
effect on the date of the Closing) or related persons constituting a group (as
such term is used in Rule 13d-5 under the Exchange Act), other than members of
the Meredith Family,
(1) become the "beneficial owners" (as such term is used in
Rule 13d-3 under the Exchange Act as in effect on the date of the Closing),
directly or indirectly, of more than 50% of the total voting power of all
classes then outstanding of the Company's Voting Stock, or
(2) acquire after the date of the Closing (x) the power to elect,
appoint or cause the election or appointment of at least a majority of the
members of the board of directors of the Company, through beneficial ownership
of the capital stock of the Company or otherwise, or (y) all or substantially
all of the properties and assets of the Company; or (ii) members of the
Meredith Family cease to hold in the aggregate the requisite shares of the
Company's Voting Stock necessary to permit the members of the Meredith Family
to elect a majority of the corporate directors of the Company.
"Control Event" means:
(i) the execution by the Company or any of its Subsidiaries or
Affiliates of any agreement or letter of intent with respect to any proposed
transaction or event or series of transactions or events which, individually or
in the aggregate, may reasonably be expected to result in a Change in Control,
(ii) the execution of any written agreement which, when fully
performed by the parties thereto, would result in a Change in Control, or
(iii) the making of any written offer by any person (as such
term is used in Section 13(d) and Section 14(d)(2) of the Exchange Act as in
effect on the date of the Closing) or related persons constituting a group (as
such term is used in Rule 13d-5 under the Exchange Act as in effect on the date
of the Closing) to the holders of the common stock of the Company, which offer,
if accepted by the requisite number of holders, would result in a Change in
Control.
(i) All calculations contemplated in this Section 8.3 involving the
capital stock of any Person shall be made with the assumption that all
convertible Securities of such Person then outstanding and all convertible
Securities issuable upon the exercise of any warrants, options and other rights
outstanding at such time were converted at such time and that all options,
warrants and similar rights to acquire shares of capital stock of such Person
were exercised at such time.
- 21 -
Section 8.4. Allocation of Partial Prepayments. In the case of each
partial prepayment of the Notes pursuant to Section 8.2, the principal amount
of the Notes to be prepaid shall be allocated among all of the Notes of all
Series at the time outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof not theretofore called for
prepayment. All partial prepayments made pursuant to Section 8.3 shall be
applied only to the Notes of the holders who have elected to participate in
such prepayment.
Section 8.5. Maturity; Surrender, Etc. In the case of each prepayment of
Notes pursuant to this Section 8, the principal amount of each Note to be
prepaid shall mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued to such
date and the applicable Make-Whole Amount, if any. From and after such date,
unless the Company shall fail to pay such principal amount when so due and
payable, together with the interest and Make-Whole Amount, if any, as
aforesaid, interest on such principal amount shall cease to accrue. Any Note
paid or prepaid in full shall be surrendered to the Company and cancelled and
shall not be reissued, and no Note shall be issued in lieu of any prepaid
principal amount of any Note.
Section 8.6. Purchase of Notes. The Company will not and will not permit
any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except upon the payment or prepayment
of the Notes in accordance with the terms of this Agreement and the Notes. The
Company will promptly cancel all Notes acquired by it or any Affiliate pursuant
to any payment, prepayment or purchase of Notes pursuant to any provision of
this Agreement and no Notes may be issued in substitution or exchange for any
such Notes.
Section 8.7. Make-Whole Amount. The term "Make-Whole Amount" means, with
respect to any Note of any Series, an amount equal to the excess, if any, of
the Discounted Value of the Remaining Scheduled Payments with respect to the
Called Principal of such Note over the amount of such Called Principal;
provided that the Make-Whole Amount may in no event be less than zero. For the
purposes of determining the Make-Whole Amount, the following terms have the
following meanings:
"Called Principal" means, with respect to any Note, the principal of such
Note that is to be prepaid pursuant to Section 8.2 or Section 8.3 or has become
or is declared to be immediately due and payable pursuant to Section 12.1, as
the context requires.
"Discounted Value" means, with respect to the Called Principal of any
Note, the amount obtained by discounting all Remaining Scheduled Payments with
respect to such Called Principal from their respective scheduled due dates to
the Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any
Note, the sum of (a) 0.50% per annum plus (b) the yield to maturity implied by
(i) the yields reported, as of 10:00 A.M. (New York City time) on the second
Business Day preceding the Settlement Date with respect to such Called
Principal, on the display designated as "Page USD" of the Bloomberg Financial
- 22 -
Markets Services Screen (or, if not available, any other nationally recognized
trading screen reporting online intraday trading in the U.S. Treasury
securities) for actively traded U.S. Treasury securities having a maturity
equal to the Remaining Average Life of such Called Principal as of such
Settlement Date, or (ii) if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for which such yields have
been so reported as of the second Business Day preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical Release
H.15 (519) (or any comparable successor publication) for actively traded U.S.
Treasury securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date. Such implied yield
will be determined, if necessary, by (1) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted financial
practice and (2) interpolating linearly between (A) the actively traded U.S.
Treasury security with the maturity closest to and greater than the Remaining
Average Life and (B) the actively traded U.S. Treasury security with the
maturity closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal, the
number of years (calculated to the nearest one-twelfth year) obtained by
dividing (a) such Called Principal into (b) the sum of the products obtained by
multiplying (i) the principal component of each Remaining Scheduled Payment
with respect to such Called Principal by (ii) the number of years (calculated
to the nearest one-twelfth year) that will elapse between the Settlement Date
with respect to such Called Principal and the scheduled due date of such
Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called Principal
of any Note, all payments of such Called Principal and interest thereon that
would be due after the Settlement Date with respect to such Called Principal if
no payment of such Called Principal were made prior to its scheduled due date;
provided that if such Settlement Date is not a date on which interest payments
are due to be made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of interest
accrued to such Settlement Date and required to be paid on such Settlement Date
pursuant to Section 8.2, 8.3 or 12.1.
"Settlement Date" means, with respect to the Called Principal of any Note,
the date on which such Called Principal is to be prepaid pursuant to Section
8.2 or Section 8.3 or has become or is declared to be immediately due and
payable pursuant to Section 12.1, as the context requires.
Section 9. Affirmative Covenants.
The Company covenants that so long as any of the Notes are outstanding:
Section 9.1. Compliance with Law. The Company will, and will cause each
of its Subsidiaries to, comply with all laws, ordinances or governmental rules
or regulations to which each of them is subject, including, without limitation,
ERISA and applicable laws in respect of Non-U.S. Pension Plans and all
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct of
their respective businesses, in each case to the extent necessary to ensure
- 23 -
that non-compliance with such laws, ordinances or governmental rules or
regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 9.2. Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated.
Section 9.3. Maintenance of Properties. The Company will, and will cause
each of its Subsidiaries to, maintain and keep, or cause to be maintained and
kept, their respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried on in
connection therewith may be properly conducted at all times; provided that this
Section shall not prevent the Company or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties if such discontinuance
is desirable in the conduct of its business and the Company has concluded that
such discontinuance could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes and Claims. The Company will, and will
cause each of its Subsidiaries to, file all tax returns required to be filed in
any jurisdiction and to pay and discharge all taxes shown to be due and payable
on such returns and all other taxes, assessments, governmental charges, or
levies imposed on them or any of their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and
payable and before they have become delinquent and all claims for which sums
have become due and payable that have or might become a Lien on properties or
assets of the Company or any Subsidiary; provided that neither the Company nor
any Subsidiary need pay any such tax or assessment or claims if (a) the amount,
applicability or validity thereof is contested by the Company or such
Subsidiary on a timely basis in good faith and in appropriate proceedings, and
the Company or a Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Company or such Subsidiary or (b) the
nonpayment of all such taxes and assessments in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, Etc. The Company will at all times
preserve and keep in full force and effect its corporate existence. Subject to
Section 10.6, the Company will at all times preserve and keep in full force and
effect the corporate existence of each of its Subsidiaries (unless merged into
the Company or a Subsidiary) and all rights and franchises of the Company and
its Subsidiaries unless, in the good faith judgment of the Company, the
termination of or failure to preserve and keep in full force and effect such
corporate existence, right or franchise could not, individually or in the
aggregate, have a Material Adverse Effect.
Section 9.6. Notes to Rank Pari Passu. The Notes and all other
obligations under this Agreement of the Company are and at all times shall
remain direct and unsecured obligations of the Company ranking pari passu as
- 24 -
against the assets of the Company with all other Notes from time to time issued
and outstanding hereunder without any preference among themselves and pari
passu with all other present and future unsecured Debt (actual or contingent)
of the Company which is not expressed to be subordinate or junior in rank to
any other unsecured Debt of the Company.
Section 9.7. Year 2000 Compliance. The Company shall, and shall cause
each Subsidiary to, on a timely basis and, in any event, on or before June 30,
1999, take all commercially reasonable steps to ascertain the extent of the
business and financial risks facing such Person as a result of the "Year 2000
Problem" (that is, the risk that computer applications or equipment containing
embedded microchips may be unable to recognize correctly and perform properly
date-sensitive functions involving all dates before and after January 1, 2000),
and shall take all commercially reasonable steps to prioritize such business
and financial risks and to quantify the costs associated with addressing the
Year 2000 Problem as it relates the Company and its Subsidiaries. The Company
shall, on or before September 30, 1999, adopt a reasonably detailed time line
for taking all necessary steps (including the preparation of contingency plans)
to ensure that the Year 2000 Problem will not have a Material Adverse Effect
and shall provide a copy of such time line to each holder of the Notes
requesting the same. The Company shall, on or before September 30, 1999,
complete all testing which senior management believes in good faith to be
commercially reasonable relating to the Year 2000 Problem and initiate and
complete all necessary steps to ensure that the Year 2000 Problem will not have
a Material Adverse Effect. The Company shall, and shall cause each Subsidiary
to, promptly notify the holders of the Notes in the event such Person (1)
deviates in any material respect from the aforesaid time line or (2) determines
that any computer application or equipment containing embedded microchips owned
or used by (i) such Person or (ii) any material supplier, vendor or customer of
such Person will present a Year 2000 Problem, except to the extent that such
Year 2000 Problem, if it were to remain uncorrected or if the implementation of
a contingency plan is not successful, could not reasonably be expected to have
a Material Adverse Effect.
Notwithstanding the foregoing, it is understood by the parties hereto that
until the WGNX Acquisition is consummated and the Company is capable of
conducting an analysis on its own behalf of the computer applications and
equipment of WGNX-TV, Channel 46, in Atlanta, Georgia, the Company is unable to
represent or agree that it will be capable of strictly complying with the terms
of Section 5.20 and this Section 9.7 with respect to WGNX-TV, except that the
Company represents and agrees that it will take all actions which senior
management believes in good faith are commercially reasonable in order to
address any Year 2000 Problem which may exist with respect to WGNX-TV.
Section 10. Negative Covenants.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Transactions with Affiliates. The Company will not and
will not permit any Subsidiary to enter into directly or indirectly any
Material transaction or Material group of related transactions (including
without limitation the purchase, lease, sale or exchange of properties of any
kind or the rendering of any service) with any Affiliate (other than the
Company or another Subsidiary), except in the ordinary course and pursuant to
the reasonable requirements of the Company's or such Subsidiary's business and
- 25 -
upon fair and reasonable terms no less favorable to the Company or such
Subsidiary than would be obtainable in a comparable arm's-length transaction
with a Person not an Affiliate.
Section 10.2. Consolidated Net Worth. The Company will not at any time
permit Consolidated Net Worth to be an amount less than the sum of (a)
$280,000,000 plus (b) 331/3% of Consolidated Net Income computed on a
cumulative basis for each of the elapsed fiscal years ending after June 30,
1998; provided that notwithstanding that Consolidated Net Income for any such
elapsed fiscal year may be a deficit figure, no reduction in such amount as a
result thereof shall be made on the sum to be maintained pursuant hereto.
Section 10.3. Interest Coverage Ratio. The Company will keep and
maintain the ratio of (a) Consolidated EBIT to (b) Consolidated Interest
Expense for each period of four consecutive fiscal quarters at not less than
2.5 to 1.0.
Section 10.4. Limitations on Debt. (a) The Company will not at any time
permit the ratio of (i) Consolidated Total Debt to (ii) Consolidated EBITDA for
the period of the four consecutive fiscal quarters then most recently ended to
exceed 3.5 to 1.0. The maximum amount of Consolidated Total Debt permitted
pursuant to the terms of this Section 10.4(a) is hereafter referred to as
"Maximum Permitted Total Debt".
(b) The Company will not at any time permit Priority Debt to exceed an
amount equal to 15% of Maximum Permitted Total Debt.
Section 10.5. Liens. The Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly create, incur, assume or permit to
exist (upon the happening of a contingency or otherwise) any Lien on or with
respect to any property or asset (including, without limitation, any document
or instrument in respect of goods or accounts receivable) of the Company or any
such Subsidiary, whether now owned or held or hereafter acquired, or any income
or profits therefrom, or assign or otherwise convey any right to receive income
or profits, except:
(a) Liens for taxes, assessments or other governmental charges which are
not yet due and payable or the payment of which is not at the time required by
Section 9.4;
(b) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other similar Liens, in each case, incurred in the
ordinary course of business for sums not yet due and payable or the payment of
which is not at the time required by Section 9.1 or Section 9.4;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business (i) in connection with workers'
compensation, unemployment insurance and other types of social security or
retirement benefits, or (ii) to secure (or to obtain letters of credit that
secure) the performance of tenders, statutory obligations, surety bonds, appeal
bonds (not in excess of $5,000,000), bids, leases (other than Capital Leases),
performance bonds, purchase, construction or sales contracts and other similar
obligations, in each case not incurred or made in connection with the borrowing
of money, the obtaining of advances or credit or the payment of the deferred
purchase price of property;
- 26 -
(d) any attachment or judgment Lien, unless (i) the judgment it secures
shall not, within 60 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within 60 days after the expiration of any such stay or (ii) the uninsured
portion of the judgment such Lien secures, including any portion for which the
insurer has not acknowledged responsibility, exceeds $5,000,000;
(e) leases or subleases granted to others, easements, rights-of-way,
restrictions and other similar charges or encumbrances, in each case incidental
to, and not interfering with, the ordinary conduct of the business of the
Company or any of its Subsidiaries, provided that such Liens do not, in the
aggregate, materially detract from the value of such property;
(f) Liens on property or assets of the Company or any of its Subsidiaries
securing Debt owing to the Company or to any of its Wholly-Owned Subsidiaries;
(g) [Intentionally Omitted];
(h) any Lien created to secure all or any part of the purchase price, or
to secure Debt incurred or assumed to pay all or any part of the purchase price
or cost of construction, of property (or any improvement thereon) acquired or
constructed by the Company or a Subsidiary after the date of the Closing,
provided that:
(i) any such Lien shall extend solely to the item or items of such
property (or improvement thereon) so acquired or constructed and, if required
by the terms of the instrument originally creating such Lien, other property
(or improvement thereon) which is an improvement to or is acquired for specific
use in connection with such acquired or constructed property (or improvement
thereon) or which is real property being improved by such acquired or
constructed property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall
at no time exceed an amount equal to the lesser of (1) the cost to the Company
or such Subsidiary of the property (or improvement thereon) so acquired or
constructed and (2) the fair market value (as determined in good faith by the
board of directors of the Company) of such property (or improvement thereon) at
the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with, or
within 180 days after, the acquisition or construction of such property;
(i) any Lien existing on property of a Person immediately prior to its
being consolidated with or merged into the Company or a Subsidiary or its
becoming a Subsidiary, or any Lien existing on any property acquired by the
Company or any Subsidiary at the time such property is so acquired (whether or
not the Debt secured thereby shall have been assumed), provided that (i) no
such Lien shall have been created or assumed in contemplation of such
consolidation or merger or such Person's becoming a Subsidiary or such
acquisition of property, and (ii) each such Lien shall extend solely to the
item or items of property so acquired and, if required by the terms of the
instrument originally creating such Lien, other property which is an
improvement to or is acquired for specific use in connection with such acquired
property;
- 27 -
(j) any Lien renewing, extending or refunding any Lien permitted by
paragraphs (h) or (i) of this Section 10.5, provided that (i) the principal
amount of Debt secured by such Lien immediately prior to such extension,
renewal or refunding is not increased or the maturity thereof reduced, (ii)
such Lien is not extended to any other property, and (iii) immediately after
such extension, renewal or refunding no Default or Event of Default would
exist;
(k) other Liens not otherwise permitted by subparagraphs (a) through (j)
securing Debt, provided that all Debt secured by such Liens shall have been
incurred within the applicable limitations of Section 10.4, including, without
limitation, that after giving effect thereto Priority Debt will not exceed 15%
of Maximum Permitted Total Debt.
Section 10.6. Mergers, Consolidations and Sales of Assets. (a) The
Company will not, and will not permit any of its Subsidiaries to, consolidate
with or be a party to a merger with any other Person, or sell, lease or
otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into the Company or
any Subsidiary so long as in (1) any merger or consolidation involving the
Company, the Company shall be the surviving or continuing corporation, (2) any
merger or consolidation involving a Wholly-owned Subsidiary (and not the
Company), the Wholly-owned Subsidiary shall be the surviving or continuing
corporation;
(ii) the Company may consolidate or merge with or into any other
corporation if (1) the corporation which results from such consolidation or
merger (the "surviving corporation") is organized under the laws of any state
of the United States or the District of Columbia, (2) the due and punctual
payment of the principal of and premium, if any, and interest on all of the
Notes, according to their tenor, and the due and punctual performance and
observation of all of the covenants in the Notes and this Agreement to be
performed or observed by the Company are expressly assumed in writing by the
surviving corporation and the surviving corporation shall furnish to the
holders of the Notes an opinion of counsel satisfactory to the Required Holders
to the effect that the instrument of assumption has been duly authorized,
executed and delivered and constitutes the legal, valid and binding contract
and agreement of the surviving corporation enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles,
(3) at the time of such consolidation or merger and immediately after giving
effect thereto, no Default or Event of Default would exist, and (4) the Company
or such surviving corporation shall have complied with all obligations under
this Agreement with respect to any Change in Control resulting from such
transaction;
(iii) the Company may sell or otherwise dispose of all or substantially
all of its assets to any Person for consideration which represents the fair
market value of such assets (as determined in good faith by the Board of
Directors of the Company) at the time of such sale or other disposition if (1)
the Person which is acquiring all or substantially all of the assets of the
Company is a corporation organized under the laws of any state of the United
States or the District of Columbia, (2) the due and punctual payment of the
principal of and premium, if any, and interest on all the Notes, according to
- 28 -
their tenor, and the due and punctual performance and observance of all of the
covenants in the Notes and in this Agreement and the Other Agreements to be
performed or observed by the Company are expressly assumed in writing by the
acquiring corporation and the acquiring corporation shall furnish to the
holders of the Notes an opinion of counsel satisfactory to the Required Holders
to the effect that the instrument of assumption has been duly authorized,
executed and delivered and constitutes the legal, valid and binding contract
and agreement of such acquiring corporation enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles,
(3) at the time of such sale or disposition and immediately after giving effect
thereto, no Default or Event of Default would exist, and (4) the Company or
such acquiring corporation shall have complied with all obligations under this
Agreement with respect to any Change in Control resulting from such
transaction.
(b) The Company will not, and will not permit any of its Subsidiaries to,
sell, lease, transfer, abandon or otherwise dispose of assets (except assets
sold in the ordinary course of business for fair market value and except as
provided in Section 10.6(a)(iii)); provided that the foregoing restrictions do
not apply to:
(i) (1) the sale, lease, transfer or other disposition of assets of
a Subsidiary to the Company or a Wholly-owned Subsidiary or (2) the sale,
lease, transfer or other disposition of assets (valued at net book value) of
the Company to a Wholly-owned Subsidiary not to exceed in any 12month period 5%
of Consolidated Total Assets as of the last day of the fiscal quarter
immediately preceding such sale, lease, transfer or other disposition; or
(ii) the sale of inventory in the ordinary course of business; or
(iii) the sale of assets for cash or other property to a Person or
Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together
with all other assets of the Company and its Subsidiaries previously disposed
of during the immediately preceding 36 calendar month period (other than in the
ordinary course of business), exceed 30% of the average of Consolidated Total
Assets as of the last day of each of the 12 consecutive fiscal quarters then
most recently ended;
(2) in the opinion of the Board of Directors of the Company,
the sale is for fair value and is in the best interests of the Company and its
Subsidiaries; and
(3) immediately after the consummation of the transaction and
after giving effect thereto, no Default or Event of Default would exist;
provided, however, that for purposes of the foregoing calculation, there shall
not be included any assets the proceeds of which were or are applied either (A)
within 12 months before or 12 months after the effective date of such asset
disposition to the acquisition of assets useful and intended to be used in the
operation of the business of the Company and its Subsidiaries as described in
Section 10.9 and having a fair market value (as determined in good faith by the
Board of Directors of the Company) at least equal to that of the assets so
- 29 -
disposed of or (B) within 180 days after the effective date of such asset
disposition to the prepayment at any applicable prepayment premium of all
Senior Debt of the Company on a pro rata basis (other than Senior Debt owing to
the Company, any of its Subsidiaries or any Affiliate), based upon principal
amount then outstanding. It is understood and agreed by the Company that, to
the extent any such proceeds are applied to the prepayment of the Notes, such
prepayment will be made on a pro rata basis in respect of all Notes of all
Series outstanding at such time in the manner and with the premium, if any,
then required pursuant to the optional prepayment provisions provided in
Section 8.2.
Section 10.7. Limitation on Sale-and-Leaseback Transactions. The Company
will not, and will not permit any Subsidiary to, enter into any Sale-and-
Leaseback Transaction unless immediately after giving effect thereto, the
aggregate amount of Priority Debt (including the Attributable Debt to be
incurred in connection with such Sale-and-Leaseback Transaction) does not
exceed 15% of Maximum Permitted Total Debt.
Section 10.8. Termination of Pension Plans. The Company will not and
will not permit any Subsidiary to withdraw from any Multiemployer Plan or
permit any employee benefit plan maintained by it to be terminated if such
withdrawal or termination could result in withdrawal liability (as described in
Part 1 of Subtitle E of Title IV of ERISA) or the imposition of a Lien on any
property of the Company or any Subsidiary pursuant to Section 4068 of ERISA.
Section 10.9. Nature of Business. Neither the Company nor any Subsidiary
will engage in any business if, as a result, the general nature of the
business, taken on a consolidated basis, which would then be engaged in by the
Company and its Subsidiaries would be substantially changed from the general
nature of the business engaged in by the Company and its Subsidiaries on the
date of this Agreement.
Section 11. Events of Default.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for
more than five Business Days after the same becomes due and payable; or
(c) the Company defaults in the performance of or compliance with any
term contained in Sections 10.1 through 10.7 and such default is not remedied
within 10 days after the earlier of (i) a Responsible Officer obtaining actual
knowledge of such default and (ii) the Company receiving written notice of such
default from any holder of a Note (any such written notice to be identified as
a "notice of default" and to refer specifically to this paragraph (c) of
Section 11); or
(d) the Company defaults in the performance of or compliance with any term
contained herein or in any Other Agreement (other than those referred to in
paragraphs (a), (b) and (c) of this Section 11) and such default is not
- 30 -
remedied within 30 days after the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) the Company receiving
written notice of such default from any holder of a Note (any such written
notice to be identified as a "notice of default" and to refer specifically to
this paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or on behalf of the
Company or by any officer of the Company in this Agreement or in any Other
Agreement or in any writing furnished in connection with the transactions
contemplated hereby or thereby proves to have been false or incorrect in any
material respect on the date as of which made; or
(f) the Company defaults in the performance of or compliance with any
term contained in the Acquisition Credit Agreement and such default continues
beyond any period of grace provided with respect thereto; or
(g) (i) the Company or any Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium or
make-whole amount or interest on any Debt that is outstanding in an aggregate
principal amount of at least $10,000,000 (or the equivalent in other applicable
currencies) beyond any period of grace provided with respect thereto, or (ii)
the Company or any Subsidiary is in default in the performance of or compliance
with any term of any evidence of any Debt in an aggregate outstanding principal
amount of at least $10,000,000 (or the equivalent in other applicable
currencies) or of any mortgage, indenture or other agreement relating thereto
or any other condition exists, and as a consequence of such default or
condition such Debt has become, or has been declared (or one or more Persons
are entitled to declare such Debt to be), due and payable before its stated
maturity or before its regularly scheduled dates of payment, or (iii) as a
consequence of the occurrence or continuation of any event or condition (other
than the passage of time or the right of the holder of Debt to convert such
Debt into equity interests), (1) the Company or any Subsidiary has become
obligated to purchase or repay Debt before its regular maturity or before its
regularly scheduled dates of payment in an aggregate outstanding principal
amount of at least $10,000,000 (or the equivalent in other applicable
currencies), or (2) one or more Persons have the right to require the Company
or any Subsidiary so to purchase or repay such Debt; or
(h) the Company or any Material Subsidiary (i) is generally not paying,
or admits in writing its inability to pay, its debts as they become due, (ii)
files, or consents by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction, (iii)
makes an assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes
corporate action for the purpose of any of the foregoing; or
(i) a court or governmental authority of competent jurisdiction enters an
order appointing, without consent by the Company or any of its Material
Subsidiaries, a custodian, receiver, trustee or other officer with similar
powers with respect to the Company or any Material Subsidiary or with respect
to any substantial part of the property of the Company or any Material
Subsidiary, or constituting an order for relief or approving a petition for
- 31 -
relief or reorganization or any other petition in bankruptcy or for liquidation
or to take advantage of any bankruptcy or insolvency law of any jurisdiction,
or ordering the dissolution, winding-up or liquidation of the Company or any of
its Material Subsidiaries, or any such petition shall be filed against the
Company or any of its Material Subsidiaries and such petition shall not be
dismissed within 60 days; or
(j) a final judgment or judgments for the payment of money aggregating in
excess of $5,000,000 (or the equivalent in other applicable currencies) are
rendered against one or more of the Company and its Subsidiaries and which
judgments are not, within 60 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 60 days after the
expiration of such stay; or
(k) if (i) any Plan shall fail to satisfy the minimum funding standards
of ERISA or the Code for any plan year or part thereof or a waiver of such
standards or extension of any amortization period is sought or granted under
Section 412 of the Code, (ii) a notice of intent to terminate any Plan shall
have been or is reasonably expected to be filed with the PBGC or the PBGC shall
have instituted proceedings under ERISA Section 4042 to terminate or appoint a
trustee to administer any Plan or the PBGC shall have notified the Company or
any ERISA Affiliate that a Plan may become a subject of any such proceedings,
(iii) the aggregate "amount of unfunded benefit liabilities" (within the
meaning of Section 4001(a)(18) of ERISA) under all Plans, determined in
accordance with Title IV of ERISA, shall exceed $5,000,000, (iv) the Company or
any ERISA Affiliate shall have incurred or is reasonably expected to incur any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, (v) the Company or
any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company
or any Subsidiary establishes or amends any employee welfare benefit plan that
provides post-employment welfare benefits in a manner that would increase the
liability of the Company or any Subsidiary thereunder; and any such event or
events described in clauses (i) through (vi) above, either individually or
together with any other such event or events, could reasonably be expected to
have a Material Adverse Effect.
As used in Section 11(k), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
Section 12. Remedies on Default, Etc.
Section 12.1. Acceleration. (a) If an Event of Default with respect to
the Company described in paragraph (h) or (i) of Section 11 (other than an
Event of Default described in clause (i) of paragraph (h) or described in
clause (vi) of paragraph (h) by virtue of the fact that such clause encompasses
clause (i) of paragraph (h)) has occurred, all the Notes then outstanding shall
automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of more than 51% in principal amount of the Notes at the time
outstanding may at any time at its or their option, by notice or notices to the
Company, declare all the Notes then outstanding to be immediately due and
payable.
- 32 -
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of Notes at
the time outstanding affected by such Event of Default may at any time, at its
or their option, by notice or notices to the Company, declare all the Notes
held by it or them to be immediately due and payable.
Upon any Note's becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (i) all accrued and unpaid interest
thereon and (ii) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the
Company (except as herein specifically provided for), and that the provision
for payment of a Make-Whole Amount by the Company in the event that the Notes
are prepaid or are accelerated as a result of an Event of Default, is intended
to provide compensation for the deprivation of such right under such
circumstances.
Section 12.2. Other Remedies. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become
or have been declared immediately due and payable under Section 12.1, the
holder of any Note at the time outstanding may proceed to protect and enforce
the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement
contained herein or in any Note, or for an injunction against a violation of
any of the terms hereof or thereof, or in aid of the exercise of any power
granted hereby or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been declared
due and payable pursuant to clause (b) or (c) of Section 12.1, the holders of
not less than 66-2/3% in principal amount of the Notes then outstanding, by
written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Company has paid all overdue interest on the Notes,
all principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17, and
(c) no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this
Section 12.3 will extend to or affect any subsequent Event of Default or
Default or impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No
course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power
or remedy conferred by this Agreement or by any Note upon any holder thereof
shall be exclusive of any other right, power or remedy referred to herein or
therein or now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company under Section 15,
- 33 -
the Company will pay to the holder of each Note on demand such further amount
as shall be sufficient to cover all costs and expenses of such holder incurred
in any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
Section 13. Registration; Exchange; Substitution of Notes.
Section 13.1. Registration of Notes. The Company shall keep at its
principal executive office a register for the registration and registration of
transfers of Notes. The name and address of each holder of one or more Notes,
each transfer thereof and the name and address of each transferee of one or
more Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note
at the principal executive office of the Company for registration of transfer
or exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly executed by
the registered holder of such Note or its attorney duly authorized in writing
and accompanied by the address for notices of each transferee of such Note or
part thereof), the Company shall execute and deliver, at the Company's expense
(except as provided below), one or more new Notes (as requested by the holder
thereof) in exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request and shall be substantially in
the form of Exhibit 1. Each such new Note shall be dated and bear interest
from the date to which interest shall have been paid on the surrendered Note or
dated the date of the surrendered Note if no interest shall have been paid
thereon. The Company may require payment of a sum sufficient to cover any
stamp tax or governmental charge imposed in respect of any such transfer of
Notes. Notes shall not be transferred in denominations of less than $500,000;
provided that if necessary to enable the registration of transfer by a holder
of its entire holding of Notes, one Note may be in a denomination of less than
$500,000. Any transferee, by its acceptance of a Note registered in its name
(or the name of its nominee), shall be deemed to have made the representation
set forth in Section 6.2.
Section 13.3. Replacement of Notes. Upon receipt by the Company of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a
nominee for, an original Purchaser or another holder of a Note with a minimum
net worth of at least $10,000,000, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof,
- 34 -
the Company at its own expense shall execute and deliver, in lieu thereof, a
new Note, dated and bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Note or dated the date
of such lost, stolen, destroyed or mutilated Note if no interest shall have
been paid thereon.
Section 14. Payments on Notes.
Section 14.1. Place of Payment. Subject to Section 14.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in Des Moines, Iowa at the principal office of the
Company in such jurisdiction. The Company may at any time, by notice to each
holder of a Note, change the place of payment of the Notes so long as such
place of payment shall be either the principal office of the Company in the
United States of America or the principal office of a bank or trust company in
the United States of America.
Section 14.2. Home Office Payment. So long as you or your nominee shall
be the holder of any Note, and notwithstanding anything contained in Section
14.1 or in such Note to the contrary, the Company will pay all sums becoming
due on such Note for principal, Make-Whole Amount, if any, and interest by the
method and at the address specified for such purpose below your name in
Schedule A, or by such other method or at such other address as you shall have
from time to time specified to the Company in writing for such purpose, without
the presentation or surrender of such Note or the making of any notation
thereon, except that upon written request of the Company made concurrently with
or reasonably promptly after payment or prepayment in full of any Note, you
shall surrender such Note for cancellation, reasonably promptly after any such
request, to the Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to Section 14.1.
Prior to any sale or other disposition of any Note held by you or your nominee
you will, at your election, either endorse thereon the amount of principal paid
thereon and the last date to which interest has been paid thereon or surrender
such Note to the Company in exchange for a new Note or Notes pursuant to
Section 13.2. The Company will afford the benefits of this Section 14.2 to any
Institutional Investor that is the direct or indirect transferee of any Note
purchased by you under this Agreement and that has made the same agreement
relating to such Note as you have made in this Section 14.2.
Section 15. Expenses, Etc.
Section 15.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all costs and
expenses (including reasonable attorneys' fees of a special counsel and, if
reasonably required, local or other counsel) incurred by you and each Other
Purchaser or holder of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or in respect of this
Agreement or the Notes (whether or not such amendment, waiver or consent
becomes effective), including, without limitation: (a) the costs and expenses
incurred in enforcing or defending (or determining whether or how to enforce or
defend) any rights under this Agreement or the Notes or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement or the Notes, or by reason of being a holder of
any Note, and (b) the costs and expenses, including financial advisors' fees,
- 35 -
incurred in connection with the insolvency or bankruptcy of the Company or any
Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will pay, and
will save you and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses, if any, of brokers and finders (other
than those retained by you).
Section 15.2. Survival The obligations of the Company under this Section
15 will survive the payment or transfer of any Note, the enforcement, amendment
or waiver of any provision of this Agreement or the Notes, and the termination
of this Agreement.
Section 16. Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or
transfer by you of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of you or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant to this Agreement
shall be deemed representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, this Agreement and the Notes
embody the entire agreement and understanding between you and the Company and
supersede all prior agreements and understandings relating to the subject
matter hereof.
Section 17. Amendment and Waiver.
Section 17.1. Requirements. This Agreement and the Notes may be amended,
and the observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of
the Company and the Required Holders, except that (a) no amendment or waiver of
any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined
term (as it is used therein), will be effective as to you unless consented to
by you in writing, and (b) no such amendment or waiver may, without the written
consent of the holder of each Note at the time outstanding affected thereby,
(i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation
of interest or of the Make-Whole Amount on, the Notes, (ii) change the
percentage of the principal amount of the Notes the holders of which are
required to consent to any such amendment or waiver, or (iii) amend any of
Sections 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
- 36 -
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause to
be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any holder of
Notes of any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then outstanding
even if such holder did not consent to such waiver or amendment.
Section 17.3. Binding Effect, Etc. Any amendment or waiver consented to
as provided in this Section 17 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Company
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly
amended or waived or impair any right consequent thereon. No course of dealing
between the Company and the holder of any Note nor any delay in exercising any
rights hereunder or under any Note shall operate as a waiver of any rights of
any holder of such Note. As used herein, the term "this Agreement" and
references thereto shall mean this Agreement as it may from time to time be
amended or supplemented.
Section 17.4. Notes Held by Company, Etc. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not to
be outstanding.
Section 18. Notices.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telefacsimile if the sender on the same day sends a confirming
copy of such notice by a recognized overnight delivery service (charges
prepaid), or (b) by registered or certified mail with return receipt requested
(postage prepaid), or (c) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address specified for
such communications in Schedule A, or at such other address as you or it shall
have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such address
as such other holder shall have specified to the Company in writing, or
(iii) if to the Company, to the Company at its address set forth at the
beginning hereof to the attention of the Chief Financial Officer with a copy to
- 37 -
the General Counsel, or at such other address as the Company shall have
specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
Section 19. Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process and you may destroy any original document so reproduced.
The Company agrees and stipulates that, to the extent permitted by applicable
law, any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by you
in the regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
This Section 19 shall not prohibit the Company or any other holder of Notes
from contesting any such reproduction to the same extent that it could contest
the original, or from introducing evidence to demonstrate the inaccuracy of any
such reproduction.
Section 20. Confidential Information.
For the purposes of this Section 20, "Confidential Information" means
information delivered to you by or on behalf of the Company or any Subsidiary
in connection with the transactions contemplated by or otherwise pursuant to
this Agreement that is proprietary in nature and that was clearly marked or
labeled or otherwise adequately identified when received by you as being
confidential information of the Company or such Subsidiary; provided that such
term does not include information that (a) was publicly known or otherwise
known to you prior to the time of such disclosure, (b) subsequently becomes
publicly known through no act or omission by you or any Person acting on your
behalf, (c) otherwise becomes known to you other than through disclosure by the
Company or any Subsidiary or (d) constitutes financial statements delivered to
you under Section 7.1 that are otherwise publicly available. You will maintain
the confidentiality of such Confidential Information in accordance with
procedures adopted by you in good faith to protect confidential information of
third parties delivered to you; provided that you may deliver or disclose
Confidential Information to (i) your directors, trustees, officers, employees,
agents, attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of the investment represented by your Notes),
(ii) your financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the
terms of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell such Note or any part
thereof or any participation therein (if such Person has agreed in writing
prior to its receipt of such Confidential Information to be bound by the
provisions of this Section 20), (v) any Person from which you offer to purchase
any security of the Company (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
- 38 -
Section 20), (vi) any federal or state regulatory authority having jurisdiction
over you, (vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that requires
access to information about your investment portfolio or (viii) any other
Person to which such delivery or disclosure may be necessary or appropriate (w)
to effect compliance with any law, rule, regulation or order applicable to you,
(x) in response to any subpoena or other legal process, (y) in connection with
any litigation to which you are a party or (z) if an Event of Default has
occurred and is continuing, to the extent you may reasonably determine such
delivery and disclosure to be necessary or appropriate in the enforcement or
for the protection of the rights and remedies under your Notes and this
Agreement. Each holder of a Note, by its acceptance of a Note, will be deemed
to have agreed to be bound by and to be entitled to the benefits of this
Section 20 as though it were a party to this Agreement. On reasonable request
by the Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or
requested by such holder (other than a holder that is a party to this Agreement
or its nominee), such holder will enter into an agreement with the Company
embodying the provisions of this Section 20.
Section 21. Substitution of Purchaser.
You shall have the right to substitute any one of your Affiliates as the
purchaser of the Notes that you have agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than
in this Section 21), such word shall be deemed to refer to such Affiliate in
lieu of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
Section 22. Miscellaneous.
Section 22.1. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether so expressed or
not.
Section 22.2. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of
principal of or Make-Whole Amount or interest on any Note that is due on a date
other than a Business Day shall be made on the next succeeding Business Day
without including the additional days elapsed in the computation of the
interest payable on such next succeeding Business Day.
- 39 -
Section 22.3. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 22.4. Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
Where the character or amount of any asset or liability or item of income
or expense is required to be determined or any consolidation or other
accounting computation is required to be made by the Company for the purposes
of this Agreement, the same shall be done by the Company in accordance with
GAAP, to the extent applicable, except where such principles are inconsistent
with the requirements of this Agreement.
Section 22.5. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of the
parties hereto.
Section 22.6. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the law of the State of New York, excluding choice-of-law principles of the
law of such State that would require the application of the laws of a
jurisdiction other than such State.
Section 22.7. Submission to Jurisdiction. The Company hereby irrevocably
submits and consents to the jurisdiction of the federal court located within
the County of New York, State of New York (or if such court lacks jurisdiction,
the State courts located therein), and irrevocably agrees that all actions or
proceedings relating to this Agreement and the Notes may be litigated in such
courts, and the Company waives any objection which it may have based on
improper venue or forum non conveniens to the conduct of any proceeding in any
such court and waives personal service of any and all process upon it, and
consents that all such service of process be made by delivery to it at the
address of the Company set forth in Section 18 above and that service so made
shall be deemed to be completed upon actual receipt. Nothing contained in this
section shall affect the right of any holder of Notes to serve legal process in
any other manner permitted by law or to bring any action or proceeding in the
courts of any jurisdiction against the Company or to enforce a judgment
obtained in the courts of any other jurisdiction.
* * * * *
- 40 -
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to
the Company, whereupon the foregoing shall become a binding agreement between
you and the Company.
Very truly yours,
MEREDITH CORPORATION
By /s/ Michael A. Sell
--------------------------
Treasurer
Accepted as of March 1, 1999.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By /s/ Mary Ann McCarthy
-------------------------
Managing Director
CM LIFE INSURANCE COMPANY
By /s/ Mary Ann McCarthy
-------------------------
Investment Officer
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC, a
Delaware limited liability company, its
authorized signatory
By /s/ James C. Fifield
-------------------------
Counsel
By /s/ Clint Woods
-------------------------
Counsel
PRUCO LIFE INSURANCE COMPANY
By /s/ P. Scott von Fischer
-------------------------
Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By /s/ P. Scott von Fischer
-------------------------
Vice President
- 41 -
THE TRAVELERS INSURANCE COMPANY
By /s/ Pamela Westmoreland
-------------------------
Investment Officer
TRAVELERS CASUALTY AND SURETY COMPANY
By /s/ Pamela Westmoreland
-------------------------
Investment Officer
AMERICAN HEALTH AND LIFE INSURANCE COMPANY
By /s/ Pamela Westmoreland
-------------------------
Investment Officer
COMMERCIAL UNION LIFE INSURANCE COMPANY OF AMERICA,
a Delaware corporation
By: Principal Life Insurance Company, an Iowa
corporation, its attorney in fact
By /s/ James C. Fifield
-------------------------
Counsel
By /s/ Clint Woods
-------------------------
Counsel
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ Gerald P. Marcus
-------------------------
Director
PRINCIPAL LIFE INSURANCE COMPANY, on behalf
of one or more separate accounts
By: Principal Capital Management, LLC, a Delaware
limited liability company, its authorized signatory
By /s/ James C. Fifield
-------------------------
Counsel
By /s/ Clint Woods
-------------------------
Counsel
- 42 -
TEXAS LIFE INSURANCE COMPANY
By /s/ Gerald P. Marcus
-------------------------
Authorized Signatory
TRITON INSURANCE COMPANY
By /s/ Pamela Westmoreland
-------------------------
Investment Officer