Exhibit 10.6 - Limited Waiver and Amendment
No. 5 to Note Agreement
EXECUTION COPY
LIMITED WAIVER AND AMENDMENT NO.
5 TO NOTE AGREEMENT
THIS LIMITED WAIVER AND AMENDMENT
NO. 5 TO NOTE AGREEMENT (this “ Amendment ”) is
entered into as of February 18, 2009 by and between ST. LOUIS
POST-DISPATCH LLC, a Delaware limited liability company (the
“ Company ”), and the undersigned holders of
Notes (as hereinafter defined).
Recitals
A. The Company entered into
that certain Note Agreement dated as of May 1, 2000, as
amended by (i) Amendment No. 1 to Note Agreement dated as
of November 23, 2004, (ii) Amendment No. 2 to Note
Agreement dated as of February 1, 2006, (iii) Amendment
No. 3 to Note Agreement dated as of November 19, 2008,
(iv) the Limited Waiver to Note Agreement and Guaranty
Agreement (as amended), dated as of December 26, 2008 and
(v) Amendment No. 4 and First Amendment to Limited Waiver
to Note Agreement and Guaranty Agreement, dated as of
January 16, 2009 (as so amended and as the same may be further
amended, restated, supplemented or otherwise modified from time to
time, the “ Note Agreement ”), with the several
Purchasers listed in the Purchaser Schedule attached thereto,
pursuant to which the Company issued and sold to such Purchasers
the Company’s 8.05% Senior Notes due April 28, 2009 in
the aggregate principal amount of $306,000,000 (together with any
such promissory notes that may have been issued in substitution or
exchange therefor prior to the date hereof, the “
Notes ”).
B. As of the Effective Date (as
hereinafter defined), the undersigned holders of Notes together
hold 100% of the aggregate outstanding principal amount of the
Notes.
C. The Company and the
Guarantor have informed the holders of Notes that certain Events of
Default do or may exist under the Note Agreement as a result of,
(i) the Company failing to deliver audited financial
statements and compliance certificates for the fiscal year ended
September 28, 2008, (ii) the inclusion of certain
limiting conditions in the audited reports of the Company for the
fiscal year ended September 28, 2008, (iii) the violation
of the requirement to have Consolidated Net Worth at a specified
level for the fiscal quarters ended September 28, 2008 and
December 28, 2008, as required by Section 5.1(ii) of the
Guaranty Agreement, (iv) the violation of the requirement to
have the ratio of Consolidated Debt as of December 28, 2008 to
EBITDA for the four fiscal quarters ended on such date not be
greater than 4.25 to 1.00, as required by Section 5.1(i) of
the Guaranty Agreement and (v) the asserted violation of the
requirements of paragraph 6C(7) of the Note Agreement and Sections
5.2, 5.4 and 5.8 of the Guaranty Agreement (collectively, the
“ Existing Defaults ”).
D. The Company has requested
that the holders of Notes waive the Existing Defaults and amend the
Note Agreement in certain respects, as set forth in this Amendment,
and the undersigned holders of Notes, subject to the terms and
conditions set forth herein, are willing to agree to such waivers
and amendments.
NOW, THEREFORE, in consideration of
the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions . Capitalized
terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Note Agreement (as
amended by this Amendment) or the Guaranty Agreement (as defined in
the Note Agreement).
2. Amendments to Paragraph 4
(Prepayments) . Paragraph 4 of the Note Agreement is hereby
amended and restated in its entirety to read as follows:
4A. Mandatory Scheduled
Prepayments.
(i) On June 28, 2009 and
on the 28th day of each September, December, March and June
thereafter to and including March 28, 2012, the Company will
prepay $4,000,000 principal amount (or such lesser principal amount
as shall then be outstanding) of the Notes at par and without
payment of the Yield-Maintenance Amount or any premium. The Company
shall pay the entire remaining outstanding principal amount of the
Notes on April 28, 2012.
(ii) On October 28, 2010,
the Company will prepay a principal amount of Notes equal to the
lesser of (i) $4,500,000 and (ii) the amount of cash on
deposit in the Restricted Cash Reserve Account in excess of
$4,500,000 at par and without payment of the Yield-Maintenance
Amount or any premium. Such prepayment shall be funded from the
Restricted Cash Reserve Account.
4B. Excess
Cash Flow Sweep. On the 45th day after the last day of each
fiscal quarter of the Guarantor (commencing with the first fiscal
quarter ending closest to March 31, 2009 through and including
the last day of the fiscal quarter ending closest to
December 31, 2011), the Company will prepay a principal amount
of Notes (subject to the proviso to the penultimate sentence of
this paragraph 4B, an “ Excess Cash Flow Sweep
Prepayment ”) equal to the largest integral multiple of
$500,000 that is evenly divisible into the sum of (i) 20% of
Excess Cash Flow for such fiscal quarter plus (ii) the entire
amount on deposit in the Excess Cash Flow Reserve Account on each
due date for the Excess Cash Flow Sweep Prepayment. The Excess Cash
Flow Sweep Prepayment shall be made at par and without payment of
the Yield-Maintenance Amount or any premium. Any portion of 20% of
Excess Cash Flow for any fiscal quarter of the Guarantor not
applied to an Excess Cash Flow Sweep Prepayment on a due date
therefor shall be deposited into the Excess Cash Flow Reserve
Account on such date and such portion, together with any amount on
deposit in the Excess Cash Flow Reserve Account on such due date
that is also not so applied, shall be retained therein until the
next due date for an Excess Cash Flow Sweep Prepayment; provided
that the entire amount on deposit in the Excess Cash Flow Reserve
Account on the 45 th day after the end of the
Guarantor’s fiscal quarter ending closest to
December 31, 2011 shall be part of the Excess Cash Flow Sweep
Prepayment due on such date. Simultaneously with each prepayment
made pursuant to this paragraph 4B, the Company shall deliver to
each holder of Notes the calculation, in reasonable detail, of the
amount of the Excess Cash Flow Sweep Prepayment and the amount held
in the Excess Cash Flow Reserve Account in each case as of such
prepayment date.
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4C. Optional
Prepayments.
(i) The Notes shall be subject
to prepayment, in whole at any time or from time to time in part
(in a minimum principal amount of $500,000 and integral multiples
of $100,000 above that amount) at the option of the Company, at
100% of the principal amount so prepaid, but without payment of the
Yield-Maintenance Amount or any premium.
(ii) The Company shall give the
holder of each Note irrevocable written notice of any prepayment
pursuant to paragraph 4C(i) not less than 10 Business Days prior to
the prepayment date (which shall be a Business Day), specifying
such prepayment date and the principal amount of the Notes, and of
the Notes held by such holder, to be prepaid on such date and
stating that such prepayment is to be made pursuant to paragraph
4C(i). Notice of prepayment having been given as aforesaid, the
principal amount of the Notes specified in such notice (but without
the Yield-Maintenance Amount or any premium) shall become due and
payable on such prepayment date.
4D. Asset Sale
Prepayments. The Company shall, and shall cause each Subsidiary
to, deposit all Asset Sale Proceeds into the Asset Sale Proceeds
Reserve Account immediately upon receipt thereof. At any time when
the amount on deposit in the Asset Sale Proceeds Reserve Account
shall exceed $500,000, the Company will prepay a principal amount
of Notes (an “ Asset Sale Prepayment ”) equal to
the largest integral multiple of $500,000 that is evenly divisible
into the amount on deposit in the Asset Sale Proceeds Reserve
Account. Such payment shall be due and payable by the Company on
the third Business Day after the amount on deposit in such account
exceeds $500,000 and shall be made without the Yield-Maintenance
Amount or any premium. Simultaneously with each prepayment made
pursuant to this paragraph 4D, the Company shall deliver to each
holder of Notes a description, in reasonable detail, of the Asset
Sales giving rise to the Asset Sale Prepayment.
4E. Prepayment upon Change
of Control. Promptly and in any event within 5 Business Days
after the occurrence of a Change of Control, the Company will give
written notice thereof (a “ Change of Control Notice
”) to the holders of all outstanding Notes, which Change of
Control Notice shall (i) refer specifically to this paragraph
4E, (ii) describe the Change of Control in reasonable detail
and specify the Change of Control Prepayment Date and the Response
Date (as respectively defined below) in respect thereof and
(iii) offer to prepay all outstanding Notes at the price
specified below on the date therein specified (the “
Change of Control Prepayment Date ”), which shall be a
Business Day not more than 15 days after the date of such Change of
Control Notice. Each holder of a Note will notify the Company of
such holder’s acceptance or rejection of such offer by giving
written notice of such acceptance or rejection to the Company on or
before the date specified in such Change of Control Notice (the
“ Response Date ”), which specified date shall
be a Business Day not less than 7 days nor more than 12 days after
the date of such Change of Control Notice. The Company shall prepay
on the Change of Control Prepayment Date all of the outstanding
Notes held by the holders as to which such offer has been so
accepted (it being understood that failure of any holder to accept
such offer on or before the Response Date shall be deemed to
constitute acceptance by such holder), at the principal amount of
each such Note, together with
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interest accrued thereon to the
Change of Control Prepayment Date but without payment of the
Yield-Maintenance Amount or any premium. If any holder shall reject
such offer on or before the Response Date, such holder shall be
deemed to have waived its rights under this paragraph 4E to require
prepayment of all Notes held by such holder in respect of such
Change of Control but not in respect of any subsequent Change of
Control. For purposes of this paragraph 4E, any holder of more than
one Note may act separately with respect to each Note so held (with
the effect that a holder of more than one Note may accept such
offer with respect to one or more Notes so held and reject such
offer with respect to one or more other Notes so held).
4F. Application of Certain
Prepayments. Any prepayment of the Notes pursuant to any
provision hereof, other than paragraph 4A(i) or paragraph 4E, shall
be applied to the payment of principal of the Notes in the inverse
order of maturity, as set forth in paragraph 4A(i), beginning with
the payment due on the maturity date of the Notes. Any prepayment
of the Notes pursuant to paragraph 4E shall be applied ratably to
reduce each prepayment or payment of principal of the Notes due
pursuant to paragraph 4A(i).
4G. Partial Payments Pro
Rata. Upon any partial prepayment of the Notes pursuant to any
provision hereof (other than paragraph 4E), the principal amount so
prepaid shall be allocated to all Notes at the time outstanding in
proportion to the respective outstanding principal amounts
thereof.
4H. Retirement of
Notes. The Company shall not, and shall not permit any of its
Subsidiaries or Affiliates to, prepay or otherwise retire in whole
or in part prior to their stated final maturity (other than by
prepayment pursuant to this paragraph 4 or upon acceleration of
such final maturity pursuant to paragraph 7A), or purchase or
otherwise acquire, directly or indirectly, Notes held by any
holder.
4I. Use of Debt to Make
Prepayment. No prepayment of less than the entire outstanding
principal amount of the Notes will be made with the proceeds of any
Debt incurred by the Guarantor, the Company or any of the
Guarantor’s other Subsidiaries, except unsecured Debt
subordinated to payment of the Notes on terms and conditions
satisfactory to the Required Holders.
4J. Prepayment of Interest
upon Payment in Full of Notes. Any payment or prepayment of any
Notes pursuant to this paragraph 4 which results in the payment or
prepayment of the entire outstanding principal amount of such Notes
shall be made together with all accrued and unpaid interest thereon
as of the date of such payment or prepayment.
3. Amendments to Paragraph 5
(Affirmative Covenants) .
(a) Paragraph 5A(ii) of the
Note Agreement is amended by adding “and shall not in any
event include any scope limitation or any going concern or other
material qualification (except that such opinion for the
Guarantor’s fiscal year ending in September 2011 may include
a going concern limitation related only to the refinancing of the
Notes and the Debt outstanding under the Credit Agreement)”
after “Required Holder(s)” and before “and”
in the penultimate line thereof.
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(b) Paragraph 5A of the Note
Agreement is amended by (i) deleting “and” at the
end of clause (iv), (ii) renaming clause (v) as clause
(vii), and (iii) adding the following new clauses (v) and
(vi) immediately following clause (iv):
“(v) within 30 days after
the end of each fiscal month of Lee, the consolidated balance sheet
of Lee and its Subsidiaries as at the end of such fiscal month and
the related consolidated statements of income for such fiscal month
and for the elapsed portion of the fiscal year ended with the last
day of such fiscal month, in each case setting forth comparative
figures for the corresponding fiscal month in the prior fiscal
year;
(vi) no later than the first
Business Day of each week (beginning on March 2, 2009), a
forecast for the succeeding 13-week period of the projected
consolidated cash flows of Lee and its Subsidiaries, taken as a
whole, together with a variance report of actual cash flow for the
immediately preceding period for which a forecast was delivered
against the then current forecast for such preceding period
provided that such reports shall be required to be delivered
pursuant to this clause (vi) only so long as they shall be
required to be delivered pursuant to the Credit Agreement;
and”.
(c) Paragraph 5A of the Note
Agreement is further amended by adding the following sentence to
the end of the paragraph:
“Nothing herein shall require,
or be deemed to require, the Company to deliver any audited
financial statements, or a certificate of accountants related to
any Event of Default or Default, for the Company.”
4. Amendment to Paragraph 6B
(Limitation on Distributions) . Paragraph 6B of the Note
Agreement is hereby amended and restated as follows:
“ 6B.
Limitation on Distributions. Neither the Company nor any
Subsidiary will declare or make, or incur any liability to declare
or make, any distributions or payments in respect of its Equity
Interests, except distributions or payments to the Guarantor, the
Company or any Subsidiary of the Company.”
5. Amendments to Paragraph 6C(1)
(Liens) . Paragraph 6C(1) of the Note Agreement is hereby
amended by (i) deleting clause (i) thereof and replacing
it with “(i) [Reserved]”, (ii) deleting the
reference to “and” in clause (viii),
(iii) deleting the “.” at the end of clause
(ix) and inserting in lieu thereof “; and”, and
(iv) inserting the following clause (x) to the end
thereof:
“(x) Liens in favor of the
Collateral Agent to secure the Secured
Obligations.”
6. Amendments to Paragraph 6C(2)
(Debt) . Paragraph 6C(2) of the Note Agreement is hereby
amended by (i) amending clause (i) thereof to add the
phrase “and the Subsidiary Guaranty Agreement” after
the word “Notes”, (ii) amending clause
(ii) thereof to add “or any of its Subsidiaries or Debt
owing by a Subsidiary of the Company to the Company or
the
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Guarantor” immediately after
“Guarantor”, (iii) deleting the reference to
“$15,000,000” in clause (v) and inserting
“$5,000,000” in lieu thereof, and (iv) deleting
“and” at the end of clause (v), (v) deleting
“.” at the end of clause (vi) and inserting
“; and” in lieu thereof, and (vi) inserting the
following clauses (vii) and (viii) to the end
thereof:
“(vii) unsecured Debt in
respect of the reimbursement obligations of letters of credit
issued or in respect of worker’s compensation arrangements
not to exceed $5,000,000 outstanding at any time; and
“(viii) unsecured Debt
subordinated to the Secured Obligations on terms and conditions
satisfactory to the Required Holders.
7. Amendments to Paragraph
6C(3) (Loans, Advances and Investments) .
(a) Paragraph 6C(3) of the Note
Agreement is hereby amended by (i) inserting “or the
Guarantor” after the word “Subsidiary” in clause
(i) thereof, (ii) inserting the words “the
Guarantor,” immediately before “the Company” in
clause (ii) thereof, and (iii) amending and restating
clause (iv) in its entirety as follows:
“(iv) make and permit to
remain outstanding investments in notes receivable or other
consideration to the extent permitted by paragraph 6C(4) but only
to the extent that the aggregate uncollected amount of all such
notes receivable and other consideration, together with all such
notes receivable and other consideration of the Guarantor and its
Subsidiaries, would be permitted under clause (iv) of
Section 5.4 of the Guaranty Agreement;”
(b) Paragraph 6C(3) of the Note
Agreement is hereby amended by inserting the following to the end
thereof:
“The Company shall only redeem
the “phantom equity interest” referred to in clause
(iii) of the definition of “Change of Control”
with common stock of Lee at any time when the Notes, or any other
obligations under the Transaction Documents, are
outstanding.”
8. Amendment to Paragraph 6C(4) (Sale
or Disposition of Capital Assets) . Paragraph 6C(4) of the
Note Agreement is hereby amended and restated in its entirety as
follows:
“ 6C(4).
Asset Sales. Engage in any Asset Sale (i) if the
aggregate amount of Asset Sale Proceeds in respect of any one
transaction or series of related transactions would be equal to or
less than $500,000 unless at least 75% of such Asset Sale Proceeds
consist of cash or (ii) if the aggregate amount of Asset Sale
Proceeds in respect of any one transaction or series of related
transactions would be more than $500,000 unless such Asset Sale
Proceeds consist only of cash and the Required Holders have given
their prior written consent thereto.”
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9. Amendment to Paragraph 6C(6)
(Merger) . Paragraph 6C(6) of the Note Agreement is hereby
amended and restated in its entirety as follows:
“ 6C(6).
Merger. Merge or consolidate with any other Person, except
that any Subsidiary may merge or consolidate with the Company
(provided that the Company shall be the continuing or surviving
Person) or any one or more other Subsidiaries; provided that
nothing in this paragraph 6C(6) shall restrict the ability of any
Subsidiary which is not a Material Subsidiary to merge or
consolidate with any Person (so long as in connection with any such
merger with a Person which is not the Company, the Guarantor or
another Subsidiary, the Company or a Subsidiary shall have received
only cash consideration for such merger).”
10. Amendment to Paragraph 6D
(Restrictions Upon Modification of Limited Liability Company
Agreement) . Paragraph 6D of the Note Agreement is hereby
deleted in its entirety and replaced with “6D.
[Reserved]”.
11. Amendment to Paragraph 6E
(Limitations on Certain Restrictive Agreements) . Paragraph
6E of the Note Agreement is hereby amended to delete “Except
as set forth in the Limited Liability Company Agreement (as in
effect on the date hereof), the” and replace it with
“The”.
12. Amendments to Paragraph 7A
(Acceleration) . Paragraph 7A of the Note Agreement is
hereby amended by amending and restating clause (xiv), and adding
clauses (xv), (xvi), (xvii), (xviii) and (xix), all as set
forth below:
“(xiv) a Guaranty Event
of Default shall have occurred and be continuing (it being
understood that no Guaranty Event of Default shall exist or arise
as a result of non-compliance with Section 5.1(i) or
Section 5.1(iii) of the Guaranty Agreement prior to the
occurrence of the earlier of (a) an election of the Guarantor
pursuant to the first sentence after clause (iii) of
Section 5.1 and (b) the expiration of the 45 day period
referred to in such sentence, so long as an election as to the
maximum amount permissible under such first sentence would be
sufficient to cure such non-compliance);
(xv) Debt under the Credit
Agreement is declared to be, or becomes, due and payable prior to
the scheduled final maturity thereof or all such Debt shall not be
paid on the final maturity date therefor; or
(xvi) the Credit Agreement
shall be replaced, or shall be amended (other than pursuant to the
Third Amendment, Consent and Waiver to Credit Agreement, dated as
of February 18, 2009) to change (a) the amount to be
advanced, or the interest or fees payable, thereunder,
(b) provisions relating to amortization or maturity of the
Debt to be outstanding thereunder, or the time during which any
facility will be available or (c) the types of facilities to
be provided and at or about the time of any such replacement or the
time any such amendment becomes effective, a majority in principal
amount (or in the case of a change only to either or both interest
or fees payable under the Credit Agreement, two-thirds in principal
amount) of the Debt outstanding under the Credit Agreement shall be
replaced or refinanced with the effect that a majority (or in the
case of a change only to either or both interest or fees payable
under the Credit Agreement, two-thirds in principal amount) of the
sum of (x) any remaining Debt outstanding under the Credit
Agreement plus (y) any new Debt incurred by Lee or any of its
Subsidiaries in connection with such replacement or refinancing
shall be held by lenders other than the lenders under the Credit
Agreement as in effect immediately prior to such refinancing or
replacement; or
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(xvii) Lee or any Material Lee
Subsidiary shall commence a voluntary case concerning itself under
any Bankruptcy Law; or an involuntary case is commenced against Lee
or any Material Lee Subsidiary, and the petition is not
controverted within 15 days, or is not dismissed within 60 days
after the filing thereof; or a custodian (as defined under Title 11
of the United States Code) is appointed for, or takes charge of,
all or substantially all of the property of Lee or any Material Lee
Subsidiary, to operate all or any substantial portion of the
business of Lee or any Material Lee Subsidiary; or Lee or any
Material Lee Subsidiary commences any other proceeding under any
Bankruptcy Law relating to Lee or any Material Lee Subsidiary, or
there is commenced against Lee or any Material Lee Subsidiary any
such proceeding which remains undismissed for a period of 60 days
after the filing thereof; or Lee or any Material Lee Subsidiary is
adjudicated insolvent or bankrupt; or any order for relief or other
order approving any such case or proceeding is entered; or Lee or
any Material Lee Subsidiary makes a general assignment for the
benefit of creditors; or any action is taken by Lee or any Material
Lee Subsidiary for the purpose of effecting any of the foregoing;
or
(xviii) any Credit Party shall
fail to perform or observe any other agreement, term or condition
contained in any Transaction Document to which it is a party (other
than this Agreement, the Notes or the Guaranty) and such failure
shall not be remedied within thirty (30) days after any
Responsible Officer obtains knowledge thereof; or
(xix) Lee or Lee Procurement
Solutions Co. shall be a party to any agreement that restricts the
Guarantor or any of its Subsidiaries from compliance in full with
all provisions of all Transaction Documents;”
13. Amendments to Paragraph 10A
(Yield-Maintenance Terms) . Paragraph 10A of the Note
Agreement is amended by amending and restating the following
defined terms in their entirety:
“ Called Principal
” shall mean, with respect to any Note, the principal of such
Note that has become or is declared to be immediately due and
payable pursuant to paragraph 7A.
“ Settlement Date
” shall mean, with respect to the Called Principal of any
Note, the date on which such Called Principal has become or is
declared to be immediately due and payable pursuant to paragraph
7A.
14. Amendments to Paragraph 10B (Other
Terms) . Paragraph 10B of the Note Agreement is amended by
adding the following new definitions in the appropriate
alphabetical position therein:
“ Adjusted Consolidated Net
Income ” shall mean, for any fiscal quarter of the
Guarantor, Consolidated Net Income for such fiscal quarter
(A) plus the sum of (without
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duplication) (i) the amount of
all net non-cash charges (including, without limitation, indirect
intercompany charges from Lee, depreciation, amortization, tax
expense and non-cash interest expense) and net non-cash losses
which were included in arriving at Consolidated Net Income for such
fiscal quarter and (ii) any extraordinary cash gains to the
extent not already included in arriving at Consolidated Net Income
for such fiscal quarter (other than extraordinary cash gains, if
any, that constitute gains from sales or other dispositions of
assets) and (B) less the sum of (without duplication)
(i) the amount of all net non-cash gains and non-cash credits
which were included in arriving at Consolidated Net Income for such
fiscal quarter, (ii) cash expenditures for taxes and
(iii) any extraordinary cash losses to the extent not already
included in arriving at Consolidated Net Income for such fiscal
quarter.
“ Adjusted Consolidated
Working Capital ” shall mean, at any time, the result, if
positive of (a) the consolidated current assets of the
Guarantor and its Subsidiaries, determined in accordance with GAAP,
at such time (but excluding cash and Cash Equivalents) minus
(b) the consolidated current liabilities of the Guarantor and
its Subsidiaries, determined in accordance with GAAP, at such time
(but excluding the current portion of any Debt under this Agreement
and the current portion of any other long-term Debt which would
otherwise be included therein).
“ Amendment No. 5
” means the Limited Waiver and Amendment No. 5 to Note
Agreement, dated as of February 18, 2009, by and between the
Company and the then current holders of the Notes.
“ Asset Sale ”
shall have the meaning specified in the Guaranty
Agreement.
“ Asset Sale Prepayment
” shall have the meaning specified in paragraph
4D.
“ Asset Sale Proceeds
” shall have the meaning specified in the Guaranty
Agreement.
“ Asset Sale Proceeds
Reserve Account ” shall have the meaning set forth in the
Security Agreement.
“ Capital Expenditures
” shall mean, with respect to any Person, all expenditures by
such Person which should be capitalized in accordance with GAAP
and, without duplication, the amount of all Capitalized Lease
Obligations incurred by such Person.
“ Capitalized Lease
Obligations ” shall mean, with respect to any Person, all
rental obligations of such Person which, under GAAP, are or will be
required to be capitalized on the books of such Person, in each
case taken at the amount thereof accounted for as indebtedness in
accordance with such principles.
“ Cash Equivalents
” shall mean, as to any Person, (i) securities issued or
directly and fully guaranteed or insured by the United States or
any agency or instrumentality thereof ( provided that the
full faith and credit of the United States is pledged in support
thereof) having maturities of not more than twelve months from the
date of acquisition, (ii) marketable direct obligations issued
by any state of the United States or any political
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subdivision of any such state or any
public instrumentality thereof maturing within twelve months from
the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either
S&P or Moody’s, (iii) dollar denominated time
deposits, certificates of deposit and bankers acceptances of any
commercial bank having, or which is the principal banking
subsidiary of a bank holding company having, a long-term unsecured
debt rating of at least “A” or the equivalent thereof
from S&P or “A2” or the equivalent thereof from
Moody’s with maturities of not more than twelve months from
the date of acquisition by such Person, (iv) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered
into with any bank meeting the qualifications specified in clause
(iii) above, (v) commercial paper issued by any Person
incorporated in the United States rated at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody’s and in each case maturing not more than
twelve months after the date of acquisition by such Person, and
(vi) investments in money market funds substantially all of
whose assets are comprised of securities of the types described in
clauses (i) through (v) above.
“ Change of Control
” shall mean (i) any “person” or
“group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act as in effect on the Effective Date)
(A) is or shall become the “beneficial owner” (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act as in
effect on the Effective Date), directly or indirectly, of 30% or
more on a fully diluted basis of the Voting Equity Interests of Lee
or (B) shall have obtained the power (whether or not
exercised) to elect a majority of Lee’s directors,
(ii) the board of directors of Lee shall cease to consist of a
majority of Continuing Directors (as defined in the Credit
Agreement), (iii) the failure of Lee to directly or indirectly
hold 100% of the Equity Interests of the Company (it being
understo
