Exhibit 4.3
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XXXXXXXX CORPORATION
FIRST AMENDMENT
Dated As Of March 1, 2002
to
NOTE AGREEMENTS
Dated as of March 1, 1999
Re: $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
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FIRST AMENDMENT TO NOTE AGREEMENTS
THIS FIRST AMENDMENT dated as of March 1, 2002 (the or this "First Amendment")
to the Note Agreements each dated as of March 1, 1999 is between Xxxxxxxx
Corporation, an Iowa corporation (the "Company"), and each of the institutions
which is a signatory to this First Amendment (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into
separate and several Note Agreements each dated as of March 1, 1999
(collectively, the "Note Agreements"). The Company has heretofore issued the
$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 and $75,000,000 6.65% Senior
Notes, Series C, Due March 1, 2006 (collectively, the "Notes") dated March 1,
1999 pursuant to the Note Agreements. Pursuant to Section 17.1 of the Note
Agreements, this First Amendment shall become effective when executed by the
Company and the holders of at least 66-2/3 % of the outstanding principal
amount of the Notes.
B. The Company and the Noteholders now desire to amend the Note
Agreements in the respects, but only in the respects, hereinafter set forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreements unless herein defined or the context
shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this First Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed
have been done or performed.
NOW, THEREFORE, the Company and the Noteholders, in consideration of good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. Amendment to Section 10.4 (Limitations on Debt). Section 10.4(b) shall
be and hereby is amended by deleting the percentage "15%" and replacing it with
the percentage "25%".
1.2. Amendments to Section 10.5 (Liens).
(a) Section 10.5(g) of the Note Agreements shall be and is hereby amended
in its entirety to read as follows:
"(g) Liens on all existing or hereafter acquired or arising
Receivables of the Company or any Subsidiary, the Related Security
with respect thereto, the collections and proceeds of such
Receivables and Related Security, all lockboxes, lockbox accounts,
collection accounts or other deposit accounts into which such
collections are deposited and all other rights and payments relating
to such Receivables, which are transferred to the Company, a
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Subsidiary or a Receivables Purchaser in connection with Receivables
Facility Attributed Indebtedness; provided such Receivables Facility
Attributed Indebtedness is permitted under Section 10.4(b)."
(b) Section 10.5(k) of the Note Agreements shall be and hereby is amended
by deleting the percentage "15%" and replacing it with the percentage
"25%".
1.3. Amendments to Section 10.6 (Mergers, Consolidations and Sales of Assets).
(a) Section 10.6(a) of the Note Agreements shall be and is hereby amended
to replace the period at the end of clause (iii) with the words "; and"
and add a new clause (iv) reading as follows:
"(iv) the Company or any Subsidiary may sell or otherwise dispose of
assets as part of any Permitted Receivables Transaction."
(b) Section 10.6(b) of the Note Agreements shall be and is hereby amended
to delete the percentage "5%" in clause (i) and replace it with the
percentage "10%", renumber clauses (ii) and (iii) as clauses (iii) and
(iv), respectively, and add a new clause (ii) reading as follows:
"(ii) the sale or other disposition of assets as part of any
Permitted Receivables Transaction;"
1.4. Amendment to Section 10.7 (Limitation on Sale-and-Leaseback
Transactions). Section 10.7 shall be and hereby is amended by deleting the
percentage "15%" and replacing it with the percentage "25%".
1.5. Amendment to Section 10.8 (Termination of Pension Plans). Section 10.8
of the Note Agreements shall be and is hereby amended by adding the following
words at the end thereof:
", which withdrawal liability or Lien could reasonably be expected to
have a Material Adverse Effect."
1.6. Amendments to Schedule B. Schedule B to the Note Agreements shall be and
hereby is amended as follows:
(i) Consolidated Net Income. The definition of "Consolidated Net income"
shall be amended by:
(x) adding the words "or losses resulting from writedowns of
goodwill or other intangibles relating to Existing Properties, other
than Incremental Writedowns exceeding $25 million in the aggregate,
under Statement of Financial Accounting Standards No. 142 or any
successor statement or principle" at the end of clause (h) thereof;
and
(y) adding the words "or nonrecurring" after the word
"extraordinary" in clause (l) thereof.
(ii) Consolidated Net Worth. The definition of "Consolidated Net Worth"
shall be amended by adding the words "plus the amount of any losses
resulting from writedowns of goodwill or other intangibles relating to
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Existing Properties, other than Incremental Writedowns exceeding $25
million in the aggregate" at the end thereof.
(iii) Debt. The definition of "Debt" shall be amended by:
(x) deleting the word "and" at the end of clause (f) thereof;
(y) deleting the period at the end of clause (g) thereof and
replacing it with the words "; and"; and
(z) adding a new clause (h) reading as follows:
"(h) Receivables Facilities Attributed Indebtedness."
(iv) Priority Debt. The definition of "Priority Debt" shall be amended
by:
(x) deleting the words "Sections 10.5(g) and (k)" and replacing them
with the words "Sections 10.5(h) and (k)";
(y) deleting the period at the end of clause (iii) and replacing it
with the words ", plus"; and
(z) adding a new clause (iv) reading as follows:
"(iv) all Receivables Facility Attributed Indebtedness of the
Company and its Subsidiaries."
(v) Addition of Definitions. The following shall be added as new
definitions in alphabetical order in Schedule B to the Note Agreements:
"Existing Properties" shall mean publications, broadcast stations or other
assets or properties owned by the Company or a Subsidiary as of March 1, 2002,
or any publications, broadcast stations or other assets or properties acquired
in a swap or other exchange involving Existing Properties.
"Incremental Writedowns" shall mean writedowns of goodwill or other
intangibles with respect to an Existing Property that was acquired after March
1, 2002 (an "Acquired Existing Property") in a swap or exchange involving one
or more Existing Properties where (a) the Company or its Subsidiaries paid cash
or delivered debt obligations to the other parties to such swap or exchange and
such cash or debt obligations constituted more than 10% of the total value of
the consideration delivered by the Company or its Subsidiaries to the other
parties in such swap or exchange and (b) the writedowns of goodwill or other
intangibles with respect to such Acquired Existing Property exceed the
aggregate amount of goodwill or other intangibles relating to the Existing
Properties transferred by the Company or its Subsidiaries in such swap or other
exchange shown on the books of the Company or its Subsidiaries prior to such
transfer.
"Permitted Receivables Transaction" means each of (a) the sale or other
transfer by the Company or Subsidiary of Receivables Assets to a Subsidiary or
the Company, (b) the entry by the Company or one or more Subsidiaries into one
or more Receivables Purchase Agreements, and (c) the entry by the Company and
any such Subsidiaries into such ancillary agreements, guarantees, documents or
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instruments as are necessary or advisable in connection with such receivables
purchase agreements or receivables financing agreements.
"Receivable" means all indebtedness and other obligations owed by a Person to
the Company or any Subsidiary or in which the Company or any Subsidiary has a
security interest or other interest, including, without limitation, any
indebtedness, obligation or interest constituting an account, chattel paper,
instrument or general intangible, arising in connection with the sale or lease
of goods or the rendering of services by the Company or such Subsidiary,
including the obligation to pay finance charges with respect thereto.
"Receivables Assets" means all the assets described in Section 10.5(g).
"Receivables Facility Attributed Indebtedness" means, on any date of
determination, the amount of obligations outstanding as of such date under a
Receivables Purchase Agreement that would be characterized as principal if such
facility were structured as a secured lending transaction rather than as a
purchase.
"Receivables Purchase Agreement" means a receivables purchase agreement or
other receivables financing agreement with one or more Receivables Purchasers,
pursuant to which some or all of such Receivables Purchasers will purchase
undivided interests in, or otherwise finance, the Receivables Assets.
"Receivables Purchaser" means any purchaser or investor which purchases
undivided interests in or otherwise finances the Receivables Assets, and
includes any agent of any such purchaser or investor.
"Related Security" means with respect to any Receivable (i) the inventory and
goods, the sale, financing or lease of which gave rise to such Receivable and
all insurance contracts with respect thereto, (ii) all security interests or
liens and the property subject thereto purporting to secure payment of such
Receivable, together with all financing statements and security agreements
describing any collateral securing such Receivable, (iii) all guaranties,
letters of credit, insurance and other agreements or arrangements supporting or
securing the payment of such Receivable, (iv) all invoices, agreements,
contracts, records, books and other information relating to such Receivable or
the Person obligated to pay such Receivable, (v) any rights of the Company or
any Subsidiary under any agreement, document or guaranty executed or delivered
in connection with a Permitted Receivables Transaction, and (vi) all proceeds
of the foregoing.
SECTION 2. REPRESENTATION AND WARRANTY OF THE COMPANY
2.1. To induce the Noteholders to execute and deliver this First Amendment
(which representation shall survive the execution and delivery of this First
Amendment), the Company represents and warrants to the Noteholders that the
Company is not paying any fee or other consideration to any Noteholder for the
execution of this First Amendment.
SECTION 3. MISCELLANEOUS
3.1. This First Amendment shall be construed in connection with and as part of
each of the Note Agreements, and except as modified and expressly amended by
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this First Amendment, all terms, conditions and covenants contained in the Note
Agreements and the Notes are hereby ratified and shall be and remain in full
force and effect.
3.2. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this First Amendment
may refer to the Note Agreements without making specific reference to this
First Amendment but nevertheless all such references shall include this First
Amendment unless the context otherwise requires.
3.3. The descriptive headings of the various Sections or parts of this First
Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
3.4. This First Amendment shall be governed by and construed in accordance
with New York law.
3.5. The execution hereof by you shall constitute a contract between us for
the uses and purposes hereinabove set forth, and this First Amendment may be
executed in any number of counterparts, each executed counterpart constituting
an original, but all together only one agreement.
XXXXXXXX CORPORATION
By: /s/ XXXXXX XXXXXX
Its Corporate Controller
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ACCEPTED AND AGREED TO:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc.
as Investment Adviser
By: /s/ XXXX X. XXXXX
Managing Director
C. M. LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc.
as Investment Sub-Advisor
By: /s/ XXXX X. XXXXX
Managing Director
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ACCEPTED AND AGREED TO:
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ XXXX X. XXXX
TEXAS LIFE INSURANCE COMPANY
By: /s/ XXXX X. XXXX
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ACCEPTED AND AGREED TO:
PRINCIPAL LIFE INSURANCE
COMPANY
By: Principal Capital Management, LLC,
a Delaware limited liability company,
its authorized signatory
By: /s/ XXXXXXX X. XXXXX
Counsel
By: /s/ XXXXX XXXXX
Counsel
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/ XXXXXXX X. XXXXX
Counsel
By: /s/ XXXXX XXXXX
Counsel
COMMERCIAL UNION LIFE
INSURANCE COMPANY OF
AMERICA
By: Principal Life Insurance Company, an
Iowa corporation, its attorney-in-fact
By: /s/ XXXXXXX X. XXXXX
Counsel
By: /s/ XXXXX XXXXX
Counsel
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ACCEPTED AND AGREED TO:
THE TRAVELERS INSURANCE
COMPANY
By: /s/ XXXX XXXXXXXX
Vice President
TRAVELERS CASUALTY AND
SURETY COMPANY
By: /s/ XXXX XXXXXXXX
Vice President
AMERICAN HEALTH AND LIFE
INSURANCE COMPANY
By: /s/ XXXX XXXXXXXX
Vice President
TRITON INSURANCE COMPANY
By: /s/ XXXX XXXXXXXX
Vice President
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