EXECUTION VERSION
Exhibit 4.5
MEREDITH CORPORATION
AMENDMENT NO. 1 TO NOTE PURCHASE
AGREEMENT
As of July 13, 2009
To the Holders
of Notes
Named in
Annex 1 Hereto
Ladies and
Gentlemen:
Meredith Corporation, an Iowa corporation (the
“ Company ”) agrees with you as
follows:
1.1.
Note Issuances,
etc.
Pursuant to that certain Note Purchase Agreement
dated as of June 16, 2008 (as in effect immediately prior to giving
effect to the Amendments (as defined below) provided for hereby,
the “ Existing Note Purchase Agreement ”,
and as amended by this Amendment Agreement (as defined below) and
as may be further amended, restated or otherwise modified from time
to time, the “ Note Purchase Agreement ”) the
Company issued and sold (a) Fifty Million Dollars ($50,000,000) in
aggregate principal amount of its 4.70% Senior Notes, Series J, due
June 16, 2011 (as amended, restated or otherwise modified from time
to time as of the date hereof, the “ Series J
Notes ”) and (b) Fifty Million Dollars ($50,000,000)
in aggregate principal amount of its 5.04% Senior Notes, Series K,
due June 16, 2012 (as amended, restated or otherwise modified from
time to time as of the date hereof, the “ Series K
Notes ”, and together with the Series J Notes,
collectively, the “ Notes ”). The
register for the registration and transfer of the Notes indicates
that the parties named in Annex 1 (the “
Noteholders ”) to this Amendment No. 1 to Note
Purchase Agreement (the “ Amendment Agreement ”)
are currently the holders of the entire outstanding principal
amount of the Notes.
Capitalized terms used herein and not otherwise
defined herein have the meanings ascribed to them in the Existing
Note Purchase Agreement.
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AMENDMENTS
TO THE EXISTING NOTE PURCHASE AGREEMENT.
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Subject to Section 5 of this Amendment
Agreement, the Required Holders and the Company hereby agree to
each of the amendments to the Existing Note Purchase Agreement as
provided for by this Amendment Agreement and specified in
Exhibit A . Such amendments are referred to
herein, collectively, as the “ Amendments
”.
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REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
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To induce you to enter into this Amendment
Agreement and to consent to the Amendments, the Company represents
and warrants as follows:
4.1.
Reaffirmation of Representations
and Warranties.
All of the representations and warranties
contained in Section 5 of the Existing Note Purchase Agreement,
other than the representation and warranty set forth in Section
5.12(b) of the Existing Note Purchase Agreement, are correct with
the same force and effect as if made by the Company on the date
hereof (or, if any representation or warranty is expressly stated
to have been made as of a specific date, as of such date); provided
that for this purpose the Schedules 5.3, 5.4 and 5.5 shall be
deemed to be in the respective forms attached hereto.
4.2.
Organization, Power and
Authority, etc.
The Company has all requisite corporate power
and authority to enter into and perform its obligations under this
Amendment Agreement.
The execution and delivery of this Amendment
Agreement by the Company and compliance by the Company with its
obligations hereunder and under the Note Purchase Agreement: (a)
are within the corporate powers of the Company; and (b) do not
violate or result in any breach of, constitute a default under, or
result in the creation of any Lien upon any property of the Company
under the provisions of: (i) its organizational and governing
documents; (ii) any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority applicable to either the
Company or its property; or (iii) any agreement or instrument to
which the Company is a party or by which the Company or any of its
property may be bound or any statute or other rule or regulation of
any Governmental Authority applicable to the Company or its
property.
This Amendment Agreement has been duly
authorized by all necessary action on the part of the Company, has
been executed and delivered by a duly authorized officer of the
Company, and constitutes 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 applicable
bankruptcy, reorganization, arrangement, insolvency, moratorium, or
other similar laws affecting the enforceability of creditors’
rights generally and subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
As of the date hereof and after giving effect to
this Amendment Agreement, no event has occurred and no condition
exists that constitutes or would constitute a Default or an Event
of Default.
This Amendment Agreement and the documents,
certificates or other writings delivered to the Noteholders by or
on behalf of the Company in connection therewith, 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. 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 other documents, certificates
and other writings delivered to the Noteholders by or on behalf of
the Company specifically for use in connection with the
transactions contemplated by this Amendment Agreement.
4.6.
Compliance with
ERISA.
The present value of the aggregate benefit
liabilities under each of the Plans subject to Title IV of ERISA
(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 by more than $1,000,000 in the case of any
single Plan and by more than $1,000,000 in the aggregate for all
Plans. 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.
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EFFECTIVENESS OF AMENDMENTS.
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The Amendments shall become effective only upon
the date of the satisfaction in full of the following conditions
precedent (the “ Effective Date ”):
5.1.
Execution and Delivery of this
Amendment Agreement.
The Company and the Required Holders shall have
executed and delivered this Amendment Agreement.
5.2.
Representations and Warranties
True.
The representations and warranties set forth in
Section 4 shall be true and correct on such date in all
respects.
The Company shall have authorized, by all
necessary action, the execution, delivery and performance of all
documents, agreements and certificates in connection with this
Amendment Agreement.
5.4.
2009 Note Purchase
Agreement.
Each of the Noteholders shall have received, on
or before the date hereof, a fully executed copy of the Note
Purchase Agreement (the “ 2009 Note Purchase Agreement
”), dated as of July 13, 2009, by and among the Company and
the purchasers party thereto, in form and substance satisfactory to
the Required Holders, and the conditions to the effectiveness
thereof, and all conditions to the obligations of the purchasers
party thereto to purchase the notes to be issued thereunder shall
have been satisfied or waived.
5.5.
Special Counsel
Fees.
The Company shall have paid the reasonable fees
and disbursements of Noteholders’ special counsel in
accordance with Section 6 below.
5.6.
Proceedings
Satisfactory.
All proceedings taken in connection with this
Amendment Agreement and all documents and papers relating thereto
shall be satisfactory to the Noteholders signatory hereto and their
special counsel, and such Noteholders and their special counsel
shall have received copies of such documents and papers as they or
their special counsel may reasonably request in connection
herewith.
Whether or not the Amendments become effective,
the Company will promptly (and in any event within thirty (30) days
of receiving any statement or invoice therefor) pay all fees,
expenses and costs relating to this Amendment Agreement, including,
but not limited to, the reasonable fees of the Noteholders’
special counsel, Bingham McCutchen LLP, incurred in connection with
the preparation, negotiation and delivery of this Amendment
Agreement and any other documents related thereto. In
addition, the Company will pay all such fees, expenses and costs
set forth in any subsequent statement within thirty (30) days of
its receipt thereof. Nothing in this Section shall limit
the Company’s obligations pursuant to Section 15.1 of the
Existing Note Purchase Agreement.
7.1.
Part of Existing Note Purchase
Agreement; Future References, etc.
This Amendment Agreement shall be construed in
connection with and as a part of the Note Purchase Agreement and,
except as expressly amended by this Amendment Agreement, all terms,
conditions and covenants contained in the Existing Note Purchase
Agreement are hereby ratified and shall be and remain in full force
and effect. Any and all notices, requests, certificates
and other instruments executed and delivered after the execution
and delivery of this Amendment Agreement may refer to the Note
Purchase Agreement without making specific reference to this
Amendment Agreement, but nevertheless all such references shall
include this Amendment Agreement unless the context otherwise
requires.
7.2.
Counterparts, Facsimiles
.
This Amendment 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. Delivery of an executed signature page by
facsimile or e-mail transmission shall be effective as delivery of
a manually signed counterpart of this Amendment
Agreement.
THIS AMENDMENT 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 PERMIT
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH
STATE.
[Remainder of page intentionally left
blank. Next page is signature page.]
If you are in agreement with the foregoing,
please so indicate by signing the acceptance below on the
accompanying counterpart of this Amendment Agreement and returning
it to the Company, whereupon it will become a binding agreement
among you and the Company.
By:
/s/ Joseph H. Ceryanec
Title: Vice President-Chief Financial
Officer
Signature Page to Amendment No. 1 to
Note Purchase Agreement
The foregoing Amendment Agreement is hereby
accepted as of the date first above written. By its
execution below, each of the undersigned represents that it is the
owner of one or more of the Notes and is authorized to enter into
this Amendment Agreement in respect thereof.
METROPOLITAN
LIFE INSURANCE COMPANY
METLIFE
INVESTORS INSURANCE COMPANY,
By: Metropolitan
Life Insurance Company,
METLIFE
INSURANCE COMPANY OF CONNECTICUT
By: Metropolitan
Life Insurance Company,
By:
/s/ Judith A. Gulotta
(executed by
Metropolitan Life Insurance Company (i) as to itself
as a Noteholder
and (ii) as investment manager to MetLife Investors
Insurance
Company as a Noteholder and MetLife Insurance Company
of Connecticut
as a Noteholder)
Signature Page to Amendment No. 1 to
Note Purchase Agreement
EXHIBIT A
AMENDMENTS
(a)
Section 8.3(h)
– Definition of Control
Event . The definition of “Control
Event” in Section 8.3(h) of the Existing Note Purchase
Agreement is hereby amended and restated in its entirety to read as
follows:
““ 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.”
(b)
Section 9 – Affirmative Covenants
. Section 9 of the Existing Note Purchase Agreement is
hereby amended by adding thereto the following new Sections 9.8 and
9.9 to read as follows:
“
Section 9.8
Guaranty by Subsidiaries; Liens .
(a) If at any time, pursuant to the
terms and conditions of any Major Credit Facility, any existing or
newly acquired or formed Subsidiary of the Company becomes
obligated as a guarantor or obligor under such Major Credit
Facility, the Company will, at its sole cost and expense, cause
such Subsidiary to, prior to or concurrently therewith, become a
Guarantor in respect of this Agreement and the Notes and deliver to
each of the holders of the Notes the following items:
(1) an executed guaranty in form and
substance reasonably satisfactory to the Required
Holders;
(2) such documents and evidence with
respect to such Subsidiary as the Required Holders may reasonably
request in order to establish the existence and good standing of
such Subsidiary and the authorization of the transactions
contemplated by such guaranty;
(3) an opinion letter of counsel to
such Subsidiary in form and substance reasonably satisfactory to
the Required Holders which shall include, without limitation,
opinions to the effect, subject to customary assumptions,
qualifications and exceptions, that (x) such guaranty has been duly
authorized, executed and delivered by such Subsidiary, (y) such
guaranty constitutes the legal, valid and binding contract and
agreement of such Subsidiary, enforceable in accordance with its
terms (except as enforcement of such terms may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and similar laws affecting the enforcement of
creditors’ rights generally and by general equitable
principles) and (z) the execution, delivery and performance by such
Subsidiary of such guaranty do not (A) violate any law, rule or
regulation applicable to such Subsidiary, or (B) (1) require the
creation or imposition of any Lien not permitted by Section 10.4 or
(2) conflict with or result in any breach of any of the provisions
of or constitute a default under (I) the provisions of the charter,
bylaws, certificate of formation, operating agreement or other
constitutive documents of such Subsidiary, or (II) any material
agreement or other instrument to which such Subsidiary is a party
or by which such Subsidiary may be bound; and
(4) such other certificates,
resolutions, opinions, documents and instruments as may be
reasonably requested by the Required Holders to give effect to the
undertaking of such Subsidiary becoming a Guarantor.
(b) If at any time, pursuant to the
terms and conditions of any Major Credit Facility, any Guarantor is
discharged and released from its Guaranty of Debt under such Major
Credit Facility and (i) such Guarantor is not a co-obligor under
such Major Credit Facility and (ii) the Company will have delivered
to each holder of Notes an Officer’s Certificate certifying
that (x) the condition specified in clause (i) above has been
satisfied and (y) immediately preceding the
