WRC MEDIA INC. REDEMPTION AND REPURCHASE AGREEMENT dated as of June 22, 2005
EXHIBIT
10.2
dated
as
of
June
22,
2005
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TABLE
OF CONTENTS
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Page |
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ARTICLE
I
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Definitions
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Section
1.01. Definitions
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2
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ARTICLE
II
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Redemption
and Repurchase
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Section
2.01. Redemption and ▇▇▇▇▇▇▇▇▇▇
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▇
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Section
2.02. Closing
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5
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Section
2.03. Call Savings
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6
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ARTICLE
III
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Representations
and Warranties of WRC
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Section
3.01. Corporate Existence and Power
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6
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Section
3.02. Corporate Authorization
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7
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Section
3.03. Governmental Authorization
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7
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Section
3.04. Noncontravention
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7
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Section
3.05. Capitalization and Voting Rights of WRC
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7
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Section
3.06. Valid Issuance of Exchange Shares
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8
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Section
3.07. Litigation
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8
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Section
3.08. Shareholder Arrangements
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9
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ARTICLE
IV
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Representations
and Warranties of the Exchangers
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Section
4.01. Existence and Power
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9
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Section
4.02. Authorization
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9
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Section
4.03. Governmental Authorization
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9
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Section
4.04. Acquisition For Investment
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10
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Section
4.05. Private Placement
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10
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Section
4.06. Litigation
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10
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Section
4.07. Brokers’ or Finders’ Fees
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10
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i
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ARTICLE
V
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Covenants
of WRC
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Section
5.01. Covenants of ▇▇▇
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▇▇
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ARTICLE
VI
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Conditions
to Closing
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Section
6.01. Conditions to Obligations of the Exchangers
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12
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Section
6.02. Conditions to Obligation of ▇▇▇
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▇▇
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Section
6.03. Conditions to Obligations of Each Party
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13
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ARTICLE
VII
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Survival;
Indemnification
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Section
7.01. Survival
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14
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Section
7.02. Indemnification
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14
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Section
7.03. Exclusivity
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14
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ARTICLE
VIII
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Termination
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Section
8.01. Grounds For Termination
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15
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Section
8.02. Effect of Termination
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15
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ARTICLE
IX
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Standstill
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Section
9.01. Standstill
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16
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ARTICLE
X
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Miscellaneous
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Section
10.01. Notices
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16
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Section
10.02. Amendments and Waivers
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17
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Section
10.03. Expenses; Other Payments
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17
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Section
10.04. Consent and Waiver
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17
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Section
10.05. Successors and Assigns
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18
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ii
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Section
10.06. Governing Law
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18
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Section
10.07. Jurisdiction
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18
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Section
10.08. WAIVER OF JURY TRIAL
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18
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Section
10.09. Counterparts; Third Party Beneficiaries
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18
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Section
10.10. Entire Agreement
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19
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Section
10.11. Captions
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19
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Section
10.12. Severability
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19
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iii
| Schedules | |
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Schedule
A
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Schedule
of Exchangers
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Schedule
2.01
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Second
Lien Term Loans
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Schedule
3.04
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Noncontravention
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Schedule
3.05(d)
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Existing
Outstanding Shares and Repurchase Obligations
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Schedule
3.07
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Litigation
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Schedule
3.08
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Shareholder
Agreements
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| Exhibits | |
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Exhibit
A
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Form
of New Stockholders Agreement
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Exhibit
B
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Form
of Legal Opinion of Cravath, Swaine & ▇▇▇▇▇ LLP
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Exhibit
C
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Form
of Transferee Undertaking
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Exhibit
D
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Copy
of Agreement for New Equity Investment
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Exhibit
E
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Form
of Amendment to WRC Certificate of
Incorporation
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iv
REDEMPTION
AND REPURCHASE AGREEMENT (as the same may hereafter be amended, supplemented
or
modified, this “Agreement”),
dated
as of June 22, 2005, among WRC MEDIA INC., a Delaware corporation (together
with
its successors and permitted assigns, “WRC”),
THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation (together
with its successors and permitted assigns, “NML”);
ARES
LEVERAGED INVESTMENT FUND, L.P., a Delaware limited partnership, ARES LEVERAGED
INVESTMENT FUND II, L.P., a Delaware limited partnership (collectively,
with their respective successors and permitted assigns, the “Ares
Funds”);
TCW/CRESCENT MEZZANINE PARTNERS II, L.P., a Delaware limited partnership,
TCW/CRESCENT MEZZANINE TRUST II, a Delaware business trust, SHARED
OPPORTUNITY FUND IIB, L.L.C., a Delaware limited liability company, TCW SHARED
OPPORTUNITY FUND III, L.P., a Delaware limited liability company, TCW LEVERAGED
INCOME TRUST II, L.P., a Delaware limited partnership, TCW LEVERAGED INCOME
TRUST, L.P., a Delaware limited partnership (collectively, with their respective
successors and permitted assigns, the “TCW
Funds”);
DLJ
INVESTMENT PARTNERS II, L.P., a Delaware limited partnership, DLJ INVESTMENT
PARTNERS, L.P., a Delaware limited partnership, and DLJIP II HOLDINGS, L.P.,
a
Delaware limited partnership (collectively, with their respective successors
and
permitted assigns, the “DLJ
IP Funds”
and
collectively, with NML, the Ares Funds and the TCW Funds, the “Other
Exchangers”);
and
DLJ MERCHANT BANKING PARTNERS II, L.P., a Delaware limited partnership, DLJ
MERCHANT BANKING PARTNERS II-A, L.P., a Delaware limited
partnership,
DLJ
MERCHANT BANKING II, INC., a
Delaware corporation, as Advisory General Partner on behalf of DLJ
OFFSHORE PARTNERS II, C.V.,
a
Netherlands Antilles limited partnership, DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware limited partnership, DLJ DIVERSIFIED PARTNERS-A, L.P., a Delaware
limited partnership, DLJMB FUNDING II, INC., a Delaware corporation, DLJ
MILLENNIUM PARTNERS, L.P., a Delaware limited partnership, DLJ MILLENNIUM
PARTNERS-A, L.P., a Delaware limited partnership, DLJ EAB PARTNERS, L.P., a
Delaware limited partnership, DLJ ESC II, L.P., a Delaware limited partnership,
and DLJ FIRST ESC, L.P., a Delaware limited partnership (each, together with
its
successors and permitted assigns, a “DLJMB
Entity”,
collectively, the “DLJMB
Entities”
and
collectively, with the Other Exchangers, the “Exchangers”).
2
RECITALS
WHEREAS
WRC desires to redeem and repurchase all of the Exchangers’ shares of 15% Senior
Preferred Stock due 2011, par value $0.01 per share (the “Senior
Preferred Stock”),
of
WRC, and warrants (the “Warrants”)
to
purchase common stock of WRC’s Subsidiaries Weekly Reader Corporation, a
Delaware corporation (“Weekly
Reader”),
and
CompassLearning, Inc., a Delaware corporation (“CompassLearning”),
from
each of the Exchangers, and each of the Exchangers desires to have redeemed
and
to sell all of its shares of Senior Preferred Stock and Warrants (collectively,
the “Securities”)
to
WRC, upon the terms and subject to the conditions hereinafter set forth (such
transactions, collectively, the “Redemption
and Repurchase”).
NOW
THEREFORE, in consideration of the foregoing and the mutual promises herein
contained, WRC, the DLJMB Entities and the Other Exchangers mutually agree
as
follows:
ARTICLE
I
Definitions
SECTION
1.01. Definitions.
The
following terms, as used herein, have the following meanings:
“Affiliate”
means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by, or under common control with such Person.
“Agreement”
has the
meaning set forth in the introductory paragraph.
“AGS”
means
American Guidance Service, Inc., a Minnesota corporation.
“Board
of Directors”
means
the board of directors of WRC or any committee thereof that, in the instance,
shall have the lawful power to exercise the power and authority of such board
of
directors.
“Call
Savings”
means
the amount by which (1) the aggregate amount (principal, accrued but unpaid
interest and the applicable repurchase or redemption premium) actually paid
by
WRC, the Purchaser or any of their respective Affiliates to purchase or redeem
all outstanding Senior Subordinated Notes in the Note Redemption is less than
(2) the aggregate amount (principal, accrued but unpaid interest and a 6.375%
redemption premium) that would have been required to be paid to redeem all
outstanding Senior Subordinated Notes at a 106.375% redemption price, assuming
the Senior Subordinated Notes are redeemed on the date or dates when the actual
purchases and/or redemptions occur.
3
“Closing”
has the
meaning set forth in Section 2.01.
“Closing
Date”
means
the date of the Closing.
“Common
Stock”
has the
meaning set forth in Section 2.01.
“CompassLearning”
has the
meaning set forth in the recitals hereto.
“Consideration”
has the
meaning set forth in Section 2.01.
“Credit
Agreement”
means
the Credit Agreement, dated as of March 29, 2004, among Weekly Reader,
CompassLearning, WRC, Credit Suisse First Boston, Bank of America, N.A. and
General Electric Capital Corporation.
“Damages”
has the
meaning set forth in Section 7.02.
“DLJMB”
means
DLJ Merchant Banking II, L.P., together with its successors and permitted
assigns.
“DLJMB
Designee”
has the
meaning set forth in Section 8.01.
“DLJMB
Entity”
has the
meaning set forth in the introductory paragraph.
“Exchange
Shares”
has the
meaning set forth in Section 2.01.
“Exchangers”
has the
meaning set forth in the introductory paragraph.
“Existing
Management Options”
means
the options to purchase shares of Common Stock held by management of WRC and
its
Subsidiaries as of May 31,
2005.
“Lien”
means,
with respect to any property or asset, any mortgage, lien, pledge, charge,
security interest or encumbrance in respect of such property or
asset.
“New
Equity Investment”
has the
meaning set forth in Section 5.01(a).
“New
Management Options”
has the
meaning set forth in Section 3.05(d).
“New
Stockholders Agreement”
means
the Stockholders Agreement dated the date hereof among WRC, EAC III L.L.C.,
SGC
Partners I L.L.C. and the Exchangers, in the form of Exhibit A
hereto.
“Note
Agreement”
means
the agreement relating to the Second Lien Term Loans reflecting the terms set
forth on Schedule 2.01.
“Note
Redemption”
has the
meaning set forth in Section 6.01(e).
“Notes”
has the
meaning set forth in Section 2.02(b).
4
“1934
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“1933
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Other
Exchangers”
has the
meaning set forth in the introductory paragraph.
“Person”
means
an individual, corporation, partnership, limited liability company, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“Preferred
Stock”
has the
meaning set forth in Section 3.05(a).
“Pro
Rata Share”
means,
for each Exchanger, such Exchanger’s Pro Rata Share as set forth opposite such
Exchanger’s name on Schedule A.
“Purchaser”
means
▇▇▇▇▇▇▇ Education, Inc.
“Redemption
and Repurchase”
has the
meaning set forth in the recitals hereto.
“Refinancing”
means
the refinancing of (i) the Credit Agreement, dated as of March 29, 2004,
among Weekly Reader, CompassLearning, WRC, Credit Suisse First Boston, Bank
of
America, N.A. and General Electric Capital Corporation and (ii) the Second
Lien
Credit Agreement, dated as of March 29, 2004, among Weekly Reader,
CompassLearning, WRC, Credit Suisse First Boston, Banc of America Securities
LLC, General Electric Capital Corporation and Bank of America, N.A.
“Ripplewood”
has the
meaning set forth in Section 9.02.
“Sale”
means
the sale of all or substantially all of the capital stock of AGS.
“Sale
Agreement”
means
the Stock Purchase Agreement dated as of June 22, 2005 between Weekly
Reader and the Purchaser, providing for the Sale, to be entered into
contemporaneously with the execution of this Agreement.
“Sale
Transaction”
has the
meaning set forth in Section 8.01.
“Second
Lien Term Loans”
has the
meaning set forth in Section
2.01.
“Securities”
has the
meaning set forth in the recitals hereto.
“Senior
Preferred Stock”
has the
meaning set forth in the recitals hereto.
5
“Senior
Subordinated Notes”
means
the 12 3/4% Senior Subordinated Notes due 2009 issued pursuant to the Indenture
dated as of November 17, 1999 among WRC, Weekly Reader, CompassLearning and
the
Note Guarantors signatories thereto.
“Subsidiary”
means
any entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions are directly or indirectly owned by
WRC.
“Transactions”
means,
collectively, the Sale, the Refinancing, the New Equity Investment and the
Redemption and Repurchase.
“Warrants”
has the
meaning set forth in the recitals hereto.
“Weekly
Reader”
has the
meaning set forth in the recitals hereto.
“WRC”
has the
meaning set forth in the introductory paragraph.
ARTICLE
II
Redemption
and Repurchase
SECTION
2.01. Redemption
and Repurchase.
Upon the
terms and subject to the conditions of this Agreement, WRC agrees to redeem
and
repurchase from each Exchanger, and each Exchanger severally agrees to surrender
for redemption and sell to WRC, all of the Securities set forth opposite such
Exchanger’s name on Schedule A hereto at the closing of the Redemption and
Repurchase (the “Closing”).
The
aggregate consideration for the Securities to be paid or delivered to the
Exchangers (the “Consideration”)
is
(a) at the Closing: (i) cash in an aggregate amount equal to $55,000,000,
plus
50%
of
the Call Savings realized at or prior to the Closing, if any,
(ii) $30,000,000 in principal amount of second lien term indebtedness
having the terms set forth in Schedule 2.01 (“Second
Lien Term Loans”)
and
(iii) a number of shares (the “Exchange
Shares”)
of
common stock, par value $0.01 per share, of WRC (the “Common
Stock”)
to be
determined such that upon the closing of the Sale, after giving effect to the
Transactions and all related transactions (including the Note Redemption),
the
Exchange Shares would constitute an aggregate of 30% of the outstanding Common
Stock, calculated on a fully diluted basis prior to the issuance of New
Management Options and (b) thereafter, promptly following any purchase
or
redemption of any Senior Subordinated Notes by WRC, the Purchaser or any of
their respective Affiliates, 50% of the Call Savings attributable, to such
purchase or redemption. The Consideration shall be allocated to the Securities
and each Exchanger as set forth on Schedule A hereto. The Consideration shall
be
paid or delivered, as applicable, as provided in Section 2.02 and Section
2.03.
SECTION
2.02. Closing.
The
Closing shall take place at the offices of Cravath, Swaine & ▇▇▇▇▇ LLP,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇
New York,
concurrently with the consummation of the Sale, or at such other time or place
as WRC and the Exchangers may agree. At the Closing:
(a)
WRC
shall
deliver, or cause to be delivered, to each Exchanger, in immediately available
funds, the cash portion of the Consideration set forth opposite such Exchanger’s
name on Schedule A hereto (plus such Exchanger’s Pro Rata Share of 50% of
the Call Savings realized at or prior to the Closing), by wire transfer (or
other means acceptable to each Exchanger) to an account of such Exchanger
with a
bank in New York City designated by such Exchanger by notice to WRC prior
to the
Closing;
(b)
WRC
shall
deliver, or cause to be delivered, to each Exchanger, a definitive note
evidencing the Second Lien Term Loans (the “Notes”)
executed by WRC and in the principal amount set forth opposite such Exchanger’s
name on Schedule A hereto, registered in the name of such Exchanger and bearing
appropriate legends;
(c)
WRC
shall
issue and deliver, or cause to be delivered, to each Exchanger, certificates
or
other appropriate documentation for the number of Exchange Shares set forth
opposite such Exchanger’s name on Schedule A hereto, registered in the name of
such Exchanger and bearing appropriate legends; and
(d)
Each
Exchanger shall deliver, or cause to be delivered, to WRC, certificates or
other
appropriate documentation for the Securities set forth opposite such Exchanger’s
name on Schedule A hereto, duly endorsed in blank or accompanied by instruments
of transfer executed in blank.
SECTION
2.03. Call
Savings.
If WRC,
the Purchaser or any of their respective Affiliates purchases or redeems any
Senior Subordinated Notes, WRC shall deliver, or cause to be delivered, to
each
Exchanger, in immediately available funds, such Exchanger’s Pro Rata Share of
50% of the portion of any Call Savings attributable to such purchase or
redemption, by wire transfer (or other means acceptable to each Exchanger)
to
the account of such Exchanger with a bank in New York City designated by such
Exchanger by notice to WRC prior to the Closing, it being understood that none
of WRC, the Purchaser or any of their respective Affiliates shall have any
obligation to take any action to realize any Call Savings in connection with
such purchase or redemption.
ARTICLE
III
Representations
and Warranties of WRC
WRC
represents and warrants to each Exchanger as of the date hereof and as of the
time of Closing that:
SECTION
3.01. Corporate
Existence and Power.
WRC is a
corporation duly incorporated, validly existing and in good standing under
the
laws of Delaware and has all corporate powers and all material governmental
licenses, authorizations, permits,
7
consents
and approvals required to carry on its business as now conducted and as proposed
to be conducted.
SECTION
3.02. Corporate
Authorization.
The
execution, delivery and performance by WRC of each of this Agreement, the Notes,
the Note Agreement and the New Stockholders Agreement and the consummation
by
WRC of the transactions contemplated hereby and thereby (including the issuance
of the Exchange Shares and the Note Redemption) are within the corporate powers
of WRC and have been duly authorized by all necessary corporate action on the
part of WRC. This Agreement and the New Stockholder Agreement each constitutes,
and each Note and the Note Agreement when executed will constitute, a valid
and
binding agreement of WRC, each enforceable against WRC in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other laws of general
application affecting enforcement or creditors’ rights generally; (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies; or (iii) as limited by general principles
of
equity, including without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered in a proceeding
in
equity or at law.
SECTION
3.03. Governmental Authorization. The execution, delivery and
performance by WRC of each of this Agreement, the Notes, the Note Agreement
and
the New Stockholders Agreement and the consummation of the transactions
contemplated hereby and thereby require no order, license, consent,
authorization or approval of, or exemption by, or action by or in respect of,
or
notice to, or filing or registration with, any governmental body, agency or
official to be obtained or made by, or with respect to, WRC, except (i) as
have
been obtained or made (or are not required to be obtained or made until after
the Closing), (ii) as required pursuant to the Securities Exchange Act
of
1934 and (iii) filings of termination statements, mortgage releases,
financing statements, mortgages and other notices in connection with the
Refinancing and the Second Lien Term Loans.
SECTION
3.04. Noncontravention.
Except
as set forth on Schedule 3.04 hereto, the execution, delivery and
performance by WRC of each of this Agreement, the Notes, the Note Agreement
and
the New Stockholders Agreement and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) violate WRC’s
certificate of incorporation or bylaws, (ii) violate any applicable law, rule,
regulation, judgment, injunction, order or decree, (iii) require any
consent or other action by any Person under, constitute a default under (with
due notice or lapse of time or both), or give rise to any right of termination,
cancellation or acceleration of any right or obligation of WRC or to a loss
of
any benefit to which WRC is entitled under any provision of any material
agreement or other instrument binding upon WRC or any of WRC’s assets or
properties or (iv) result in the creation or imposition of any material
Lien on any of WRC’s properties or assets.
SECTION
3.05. Capitalization
and Voting Rights of WRC. (a)
The
authorized capital stock of WRC as of May 31, 2005 consists of 20,000,000
shares of Common Stock and 20,000,000 shares of preferred stock, par value
$0.01
per share (the
8
“Preferred
Stock”),
and
the outstanding capital stock of WRC as of May
31,
2005 consists of 7,008,406 shares of Common Stock and 3,547,980 shares of
Preferred Stock.
(b)
Immediately
following the Closing and after giving effect to the transactions contemplated
by this Agreement, the Exchange Shares will in the aggregate constitute 30%
of
the outstanding Common Stock, calculated on a fully diluted basis prior to
the
issuance of New Management Options, and WRC will have no outstanding shares
of
Preferred Stock.
(c)
As
of May
31, 2005, EAC III L.L.C. owned 4,870,494 shares of Common Stock representing
69.5% of the outstanding Common Stock and SGC Partners II L.L.C. owned 1,694,039
shares of Common Stock representing 24.2% of the outstanding Common
Stock.
(d)
All
of
the outstanding shares of capital stock of WRC have been duly authorized
and
validly issued and are fully paid and non-assessable. Except for (1) the
Existing Management Options and options to be issued to management of WRC
and
its Subsidiaries representing the right to purchase up to 15% of the outstanding
shares of Common Stock after giving effect to the transactions contemplated
hereby at an exercise price that is no less than the fair market value of
one
share of Common Stock at the time of issuance of such options as determined
in
good faith by the Board of Directors (the “New
Management Options”),
(2) the 7,008,406 shares of Common Stock outstanding on the date hereof,
(3) the shares of Common Stock to be issued in connection with the
Redemption and Repurchase, (4) the shares of Common
Stock to be issued pursuant to the Redemption and Repurchase Agreement, dated
the date hereof, among WRC, SGC
Capital Partners I L.L.C. and EAC III L.L.C., (5) the shares of Common
Stock to be issued in connection with the New Equity Investment and (6) as
set forth in Schedule 3.05(d) hereto, there are, and immediately after
the
Closing and after giving effect to the transactions contemplated hereby there
will be, no (i) outstanding shares of capital stock or voting securities
of WRC,
(ii) securities of WRC convertible into or exchangeable for shares of capital
stock or voting securities of WRC, (iii) options or other rights to acquire
from
WRC, or other obligation of WRC to issue, any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of WRC or (iv) other than as expressly permitted in this
Agreement or the New Stockholders Agreement, obligations of WRC to repurchase
or
otherwise acquire or retire any shares of capital stock or voting securities
or
any convertible or exchangeable securities, options or other rights of the
type
described in (i), (ii), or (iii).
SECTION
3.06. Valid
Issuance of Exchange Shares.
The
Exchange Shares have been duly and validly authorized and, when issued, sold
and
delivered in accordance with the terms hereof for the consideration expressed
herein, will be fully paid and non-assessable.
SECTION
3.07. Litigation. Except as set forth in Schedule 3.07, as of
the date of this Agreement, there is no action, suit, investigation or
proceeding pending against or, to the knowledge of WRC, threatened against
or
affecting WRC or any of its properties before any court or arbitrator or any
governmental body, agency or official
9
which
in
any manner challenges or seeks to prevent, enjoin, alter or materially delay
the
transactions contemplated by this Agreement or the New Stockholders Agreement
or
which could
reasonably be expected to have a material adverse effect on the business,
financial condition, properties or operations of WRC.
SECTION
3.08. Shareholder
Arrangements.
Other
than the New Stockholders Agreement, the Amended and Restated Stockholders
Agreement dated as of November 17, 1999 among WRC, SGC Partners II LLC and
EAC
III, L.L.C., the agreements listed on Schedule 3.08 and this Agreement,
WRC
is not party to or bound by any agreement with any of its stockholders or any
of
their respective Affiliates.
ARTICLE
IV
Representations
and Warranties of the Exchangers
Each
Exchanger represents and warrants to WRC, severally as to itself only and not
jointly or as to any other Exchanger, as of the date hereof and as of the time
of Closing that:
SECTION
4.01. Existence
and Power.
Such
Exchanger is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has all powers (corporate,
partnership or otherwise) and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted.
SECTION
4.02. Authorization.
The
execution, delivery and performance by such Exchanger of each of this Agreement
and, when executed, the New Stockholders Agreement and the consummation of
the
transactions contemplated hereby and thereby are within the powers (corporate,
partnership or otherwise) of such Exchanger and have been duly authorized by
all
necessary action (corporate, partnership or otherwise) on the part of such
Exchanger. This Agreement constitutes, and the New Stockholders Agreement when
executed will constitute, a valid and binding agreement of such Exchanger,
each
enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other laws of general application affecting enforcement or
creditors’ rights generally; (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies; or (iii) as limited by general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at
law.
SECTION
4.03. Governmental Authorization. The execution, delivery and
performance by such Exchanger of each of this Agreement and the New Stockholders
Agreement, and the consummation of the transactions contemplated hereby and
thereby, require no order, license, consent, authorization or approval of,
or
exemption by, or action by or in respect of, or notice to, or filing or
registration with, any
10
governmental
body, agency or official to be obtained or made by, or with respect to, such
Exchanger other than routine regulatory filings in the ordinary course.
SECTION
4.04. Acquisition For Investment. Such Exchanger is acquiring
the Exchange Shares and the Notes it is receiving pursuant to this Agreement
for
investment for its own account and not with a view to, or for sale in connection
with, any distribution thereof.
SECTION
4.05. Private Placement. (a) Such Exchanger understands
that (i) the offering and sale of the Exchange Shares and the Notes
hereby
is intended to be exempt from registration under the 1933 Act and
(ii) there is no market for the Exchange Shares or the Notes, and
there can
be no assurance that any Exchanger will be able to sell or dispose of the
Exchange Shares or the Notes to be acquired by such Exchanger.
(b)
Such Exchanger’s financial situation is such that such Exchanger can
afford to bear the economic risk of holding the Exchange Shares and the Notes
acquired hereunder for an indefinite period of time, and such Exchanger can
afford to suffer the complete loss of the investment in the Exchange Shares
and
the Notes.
SECTION
4.06. Litigation. There is no action, suit, investigation or
proceeding pending against or, to the knowledge of such Exchanger, threatened
against or affecting such Exchanger before any court or arbitrator or any
governmental body, agency or official which in any manner challenges or seeks
to
prevent, enjoin, alter or materially delay the transactions contemplated
by this
Agreement or the New Stockholders Agreement.
SECTION
4.07. Brokers’ or Finders’ Fees. There is no investment
banker, broker, finder or other intermediary which has been retained by,
will be
retained by or is authorized to act on behalf of such Exchanger who might
be
entitled to any fee or commission from WRC or such Exchanger upon consummation
of the transactions contemplated by this Agreement.
ARTICLE
V
Covenants
of WRC
SECTION
5.01. Covenants
of WRC.
In
further consideration of the agreements of the Exchangers contained in this
Agreement, WRC covenants with each of the Exchangers as follows:
(a)
(i) WRC
shall not, and shall not permit any of its Subsidiaries to, amend or waive
any
of the provisions of the letter agreement relating to the purchase of Common
Stock (the “New
Equity Investment”)
by
EAC III L.L.C., a copy of which is attached hereto as Exhibit D, without
the prior written consent of the DLJMB Designee on behalf of the Exchangers
and
(ii) WRC shall not, and shall not permit any of its Subsidiaries to,
amend
or waive any material term of the Sale Agreement that would have
11
an
adverse effect on the interests of the Exchangers (it being understood that
any
reduction in the purchase price payable under the Sale Agreement would be
a
change of a material term that would have an adverse effect on the interests
of
the Exchangers) without the prior written consent of the DLJMB Designee on
behalf of the Exchangers;
(b)
WRC
shall
comply with its obligations under the Sale Agreement, if any, to cause the
consummation of the Sale to occur;
(c)
WRC
agrees to use its reasonable commercial efforts (x) to obtain all
consents
and to take all other actions necessary to ensure that the consummation of
the
Transactions does not violate or result in a default under any of the agreements
or instruments listed on Schedule 3.04 and (y) to take all other actions
necessary or desirable under applicable laws and regulations to consummate
the
transactions contemplated by this Agreement;
(d)
WRC
shall
comply with its obligation under the Sale Agreement, if any, to obtain, and
cooperate in obtaining, consents from third parties in connection with
consummating the Sale;
(e)
During
the period commencing on the date hereof and ending upon the earlier of the
Closing or the termination of this Agreement, WRC shall not permit the exercise
price of the Existing Management Options or New Management Options to be
reduced
and shall not permit the exercise price of any New Management Options issued
after the date hereof to be less than the fair market value of one share
of
Common Stock at the time of issuance of such New Management Options as
determined in good faith by the Board of Directors;
(f)
Promptly following the Closing, WRC shall deliver to the
Exchangers
a good faith estimate of the portion of the Consideration consisting of
cash
that (assuming such cash has the effect of the distribution of a dividend
under
section 356(a)(2) of the Internal Revenue Code) should be treated for U.S.
Federal income tax purposes as a distribution out of WRC’s undistributed
earnings and
(g)
If,
at
any time after the Closing, any Exchanger determines to sell any Notes in a
private placement not subject to the registration requirements of the Securities
Act of 1933, WRC shall (i) provide all information reasonably requested by
such
Exchanger, (ii) provide reasonable assistance to such Exchanger in the
preparation of offering materials relating to such sale, (iii) participate
at
reasonable times upon reasonable notice in due diligence sessions and bank
and
rating agency presentations relating to such sale and (iv) otherwise reasonably
cooperate with such Exchanger to effect such sale.
12
ARTICLE
VI
Conditions
to Closing
SECTION
6.01. Conditions
to Obligations of the Exchangers.
The
obligations of each Exchanger to consummate the Closing are subject to the
satisfaction of the following conditions:
(a)
WRC
shall
have received at least $26,000,000 in aggregate gross cash proceeds from the
New
Equity Investment;
(b)
WRC’s
18%
Junior Participating Cumulative Convertible Preferred Stock shall have been
converted into Common Stock;
(c)
WRC
shall
own 100% of the outstanding common stock of Weekly Reader (other than the
5.1% of outstanding common stock of Weekly Reader held by PRIMEDIA Inc.)
and CompassLearning;
(d)
Immediately
following the Closing, WRC shall have no outstanding equity securities other
than its Common Stock, the Existing Management Options and the New Management
Options;
(e)
Either
(i) WRC shall have issued a notice of redemption or offered to purchase all
outstanding Senior Subordinated Notes pursuant to the terms on the indenture
therefor, and deposited with the trustee therefor a sum sufficient to pay all
accrued but unpaid interest and the applicable redemption or purchase price
for
such notes on the redemption or purchase date or (ii) the Purchaser
shall
have become the “Issuer” of the outstanding Senior Subordinated Notes pursuant
to Section 5.02 of the indenture therefor (the “Note
Redemption”);
(f)
Upon
the
closing of the Transactions (and after giving effect to the Note Redemption),
the total indebtedness of WRC (excluding the Second Lien Term Loans) shall
not
exceed $82,500,000 of term debt plus
a
revolving credit facility with loan commitments not to exceed $25,000,000 in
the
aggregate;
(g)
The
terms
contained in the definitive agreements for the Refinancing shall be
substantially the terms reflected in the term sheets therefor, except for
additions or deviations that do not materially and adversely affect the
interests of the Exchangers;
(h)
WRC
shall
have performed in all material respects all of its obligations hereunder
required to be performed by it on or prior to the Closing Date, the
representations and warranties of WRC contained in this Agreement not qualified
as to materiality shall be true in all material respects when made and at and
as
of the time of Closing, as if made at and as of such time, and the
representations and warranties of WRC contained in this Agreement containing
a
materiality exception shall be true when made and at and as of the time of
Closing, as if made at and as of such time;
13
(i)
The
Exchangers shall have received an opinion from Cravath, Swaine & ▇▇▇▇▇ LLP,
counsel for WRC, in form and substance substantially as set forth in Exhibit
B;
(j)
WRC
shall
have paid in full all costs and expenses, including any out-of-pocket expenses,
of the DLJMB Entities then due and required to be paid by WRC pursuant to
Section 10.03 hereof;
(k)
The
Exchangers shall have received all documents they may reasonably request
relating to the existence of WRC and the authority of WRC to enter into this
Agreement, the Note Agreement and the New Stockholders Agreement, all in form
and substance reasonable satisfactory to the Exchangers;
(l)
All
material actions by or in respect of, or filings with, any governmental body,
agency, official or authority required to permit the consummation of the Closing
shall have been taken, made or obtained;
(m)
The
Sale
shall have been consummated (or shall be consummated concurrently with the
Closing); and
(n)
There
is
no action, suit, investigation or proceeding pending against or affecting WRC
or
any of its properties before any court or arbitrator or any governmental body,
agency or official which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated by this Agreement or
the
New Stockholders Agreement.
SECTION
6.02. Conditions
to Obligation of WRC.
The
obligation of WRC to consummate the Closing is subject to the satisfaction
of
the following conditions:
(a)
The
Sale
shall have been consummated (or shall be consummated concurrently with the
Closing);
(b)
Each
Exchanger shall have performed in all material respects all of its obligations
hereunder required to be performed by it at or prior to the Closing Date, the
representations and warranties of each Exchanger contained in this Agreement
not
qualified as to materiality shall be true in all material respects when made
and
at and as of the time of Closing, as if made at and as of such time, and the
representations and warranties of each Exchanger contained
in this Agreement containing a materiality exception shall be true when made
and
at
and as of the time of Closing, as if made at and as of such time; and
(c)
Each
Exchanger shall have executed and delivered a transferee letter in form and
substance substantially as set forth in Exhibit C.
SECTION
6.03. Conditions
to Obligations of Each Party.
The
obligation of each party to consummate the Closing is subject to the
satisfaction of the following conditions:
14
(a)
The
first
lien term loan as contemplated by the term sheet dated June 22, 2005
shall
have been funded and the revolving credit facility contemplated therein shall
be
available for drawdown;
(b)
WRC
and
each Exchanger shall have executed and delivered the Note Agreement, and the
conditions to closing set forth in such documentation shall have been satisfied
(or waived by the party entitled to the benefit thereof); and
(c)
A
duly
authorized and adopted amendment in the form of Exhibit E attached hereto to
the
Certificate of Incorporation of WRC shall have been filed with the Secretary
of
State of the State of Delaware and be effective.
ARTICLE
VII
Survival;
Indemnification
SECTION
7.01. Survival.
The
representations and warranties of the parties hereto contained in this Agreement
or in any certificate delivered pursuant hereto or in connection herewith shall
survive the Closing (for the purpose of Section 7.02 only). A breach of any
representation or warranty made in this Agreement shall not affect in any manner
whatsoever the relative rights and obligations of the parties to and under
the
New Stockholders Agreement.
SECTION
7.02. Indemnification. (a)
WRC
hereby indemnifies each Exchanger and its Affiliates, limited partners, general
partners, members, directors, officers and employees against, and agrees to
hold
each of them harmless from, any and all damage, loss, liability and expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys’ fees and expenses in connection with any action, suit or
proceeding) (“Damages”)
incurred or suffered by any such party arising out of any misrepresentation
or
breach of warranty, covenant or agreement made or to be performed by WRC
pursuant to this Agreement.
(b)
Each
Exchanger hereby indemnifies, severally and not jointly, WRC and its Affiliates,
limited partners, general partners, members, directors, officers and employees
against, and agrees to hold each of them harmless from, any and all Damages
incurred or suffered by any such party arising out of any misrepresentation
or
breach of warranty, covenant or agreement made or to be performed by such
Exchanger pursuant to this Agreement.
SECTION
7.03. Exclusivity.
After
the Closing, Section 7.02 will provide the exclusive remedy for any
misrepresentation or breach of warranty or other claim arising out of this
Agreement or the transactions contemplated hereby.
15
ARTICLE
VIII
Termination
SECTION
8.01. Grounds
For Termination.
This
Agreement may be terminated at any time prior to the Closing:
(a)
by
mutual
written agreement of WRC and the DLJMB Designee on behalf of the Exchangers;
(b)
by
the
DLJMB Designee on behalf of the Exchangers if WRC shall be in material breach
of
any of its representations, warranties or covenants contained in this
Agreement;
(c)
by
WRC if
the Sale Agreement is terminated in accordance with its terms;
(d)
by
WRC or
the DLJMB Designee on behalf of the Exchangers if consummation of the
transactions contemplated hereby would violate any non-appealable final order,
decree or judgment of any court or governmental body having competent
jurisdiction; or
(e)
by
any
party hereto, if the Closing does not occur on or prior to August 15,
2005.
Each
Exchanger hereby appoints DLJMB as its designee (in such capacity, the
“DLJMB
Designee”)
for
purposes of determining whether to waive or exercise the rights of the
Exchangers to terminate this Agreement pursuant to clause (a), (b) or (d) of
this Section 8.01. This Agreement shall terminate (i) in the case of
termination pursuant to clause (a) above, upon the execution and delivery of
the
written agreement referred to in such clause or (ii) in the case of
termination pursuant to clause (b), (c), (d) or (e) above, upon notice by the
party desiring to terminate this Agreement to the other parties
hereto.
SECTION
8.02. Effect
of Termination.
If this
Agreement is terminated as permitted by Section 8.01, such termination shall
be
without liability of any party (or any Affiliate, stockholder, general partner,
limited partner, member, director, officer, employee, agent, consultant or
representative of such party) to the other parties to this Agreement;
provided,
that if
such termination shall result from the willful (i) failure of any party
to
fulfill a condition to the performance of the obligations of another party,
(ii) failure to perform a covenant of this Agreement or (iii) breach
by any party hereto of any representation or warranty or agreement contained
herein, such party shall be fully liable for any and all Damages incurred or
suffered by each other party as a result of such failure or breach. The
provisions of Sections 10.03, 10.05, 10.06, 10.07 and 10.08 shall survive any
termination hereof pursuant to Section 8.01.
16
ARTICLE
IX
Standstill
SECTION
9.01. Standstill.
Each
Exchanger agrees that, unless this Agreement is terminated pursuant to
Section 8.01, it shall not, directly or indirectly, (1) transfer,
sell, convey, assign, gift, hypothecate, pledge or otherwise dispose of, whether
voluntarily or by operation of law, any shares of Senior Preferred Stock or
Warrants or enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of any shares
of Senior Preferred Stock or Warrants, whether any such transaction is to be
settled by delivery of shares of Senior Preferred Stock or Warrants, in cash
or
otherwise (any such transaction, a “Sale
Transaction”),
(2) solicit, initiate or encourage the submission of, any proposal for
a
Sale Transaction or (3) offer or agree to enter into any agreement with
respect to a Sale Transaction. Any transfer, sale, conveyance, assignment,
gift,
hypothecation, pledge or other disposition, whether voluntary or by operation
of
law, or transfer of economic consequences of ownership, of any share,
partnership interest, membership interest or any other ownership interest in
any
entity that is a direct or indirect beneficial or record owner of any share
of
Senior Preferred Stock or any Warrant (including any disposition by means of
a
merger, consolidation or similar transaction) or any other transaction that
has
the economic effect of any of the foregoing (including the designation of any
beneficiary of any trust that is a direct or indirect beneficial or record
owner
of any share of Senior Preferred Stock or any Warrant) shall be deemed to be
a
Sale Transaction subject to this Section 9.01.
ARTICLE
X
Miscellaneous
SECTION
10.01. Notices.
All
notices, requests and other communications to any party hereunder shall be
in
writing (including facsimile transmission) and shall be given, if to any
Exchanger, to such Exchanger at the address specified by such Exchanger on
the
signature pages of this Agreement or in a notice given by such Exchanger to
WRC
for such purpose, with a copy to:
▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
17
if
to WRC, to:
c/o
Ripplewood Holdings L.L.C.
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
with
a copy to:
Cravath,
Swaine & ▇▇▇▇▇ LLP
Worldwide
Plaza
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
or
to
such other address or telecopy number and with such other copies as such party
may hereafter specify for the purpose of notice.
All
such
notices, requests and other communications shall be deemed received on the
date
of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to
have
been received until the next succeeding business day in the place of
receipt.
SECTION
10.02. Amendments
and Waivers. (a)
Except
as
expressly provided in Section 8.01, any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and
is
signed, in the case of an amendment, by each party to this Agreement, or in
the
case of a waiver, by the party against whom the waiver is to be
effective.
(b)
No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
SECTION
10.03. Expenses;
Other Payments.
All
costs and expenses incurred in connection with this Agreement shall be paid
by
the party incurring such cost or expense; provided
that WRC
shall pay, on a timely basis as billed, the fees and expenses of DLJMB’s counsel
in connection with the Transactions, whether or not consummated.
SECTION
10.04. Consent
and Waiver.
Subject
to the satisfaction of the conditions set forth in Section 6.01, pursuant to
Section 7(d) of the certificate of designations for the Senior Preferred Stock,
each Exchanger hereby (a) consents to the
18
Sale,
(b) agrees to waive the application of Section 5(b) of the certificate of
designations for the Senior Preferred Stock to the Sale so that no change of
control redemption with respect to the Senior Preferred Stock will be required
as a result of the Sale and (c) agrees to provide any other approvals required
for consummation of the Sale and the Redemption and Repurchase. The consent
and
waiver contained in clauses (a) and (b) of the foregoing sentence shall
constitute the written consent of holders of Senior Preferred Stock contemplated
by Section 7(d) of the certificate of designations for the Senior Preferred
Stock.
SECTION
10.05. Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns; provided,
that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other party
hereto.
SECTION
10.06. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the law of
the
State of New York, without regard to the conflict of law rules of such
state.
SECTION
10.07. Jurisdiction.
The
parties hereto agree that any suit, action or proceeding seeking to enforce
any
provision of, or based on any matter arising out of or in connection with,
this
Agreement or the transactions contemplated hereby may only be brought in the
United States District Court for the Southern District of New York or any New
York State court sitting in New York City, and each of the parties hereby
consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
in any such court or that any such suit, action or proceeding which is brought
in any such court has been brought in an inconvenient forum. Process in any
such
suit, action or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without limiting
the foregoing, each party agrees that service of process on such party as
provided in Section
10.01. shall
be
deemed effective service of process on such party.
SECTION
10.08. WAIVER
OF JURY TRIAL.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION
10.09. Counterparts;
Third Party Beneficiaries.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the other party
hereto. No provision of this Agreement shall confer upon any Person other than
the parties hereto any rights or remedies hereunder.
19
SECTION
10.10. Entire
Agreement.
This
Agreement along with the New Stockholders Agreement, the Note Agreement and
the
Notes (including the documents, schedules and exhibits referred to herein
and
therein) constitutes the entire agreement between the parties with respect
to
the subject matter of this Agreement and supersede all prior agreements
and understandings, both oral and written, between the parties with respect
to
the subject matter of this Agreement.
SECTION
10.11. Captions.
The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof.
SECTION
10.12. Severability.
If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the
balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforced in accordance with its terms to the maximum
extent permitted by law.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers, partners or representatives
as
of the day and year first above written.
| WRC MEDIA INC. | ||
| |
|
|
| By: | /s/ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: EVP, Operations | ||
|
THE
NORTHWESTERN MUTUAL LIFE
INSURANCE
COMPANY
|
||
| By: | /s/ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
|
Title:
Its Authorized Representative
Address:
The Northwestern Mutual Life
Insurance
Company
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇
|
||
|
ARES
LEVERAGED INVESTMENT
FUND,
L.P., a Delaware Limited
Partnership
|
||
| |
|
|
| By: |
ARES
Management, L.P., its
General
Partner
|
|
| By: |
/s/
|
|
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
|
Title:
Vice President
Address:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ares
Leveraged Investment Fund, L.P.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
||
|
ARES
LEVERAGED INVESTMENT
FUND
II, L.P., a Delaware Limited
Partnership
|
||
| |
|
|
| By: |
ARES
Agreement II, L.P., its
General
Partner
|
|
| By: |
/s/
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| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
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Title:
Vice President
Address:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ares
Leveraged Investment Fund, L.P.
▇▇▇▇
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TCW/CRESCENT
MEZZANINE PARTNERS II, L.P.,
a
Delaware Limited Partnership
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| By: |
/s/
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| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
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Title:
Managing Director
Address:
▇/▇ ▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.▇.
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SHARED
OPPORTUNITY FUND IIB, L.L.C., a
Delaware
Limited Partnership
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| By: |
TCW
Asset Management Company,
as
Investment Advisor
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| By: |
/s/
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title:
Managing Director
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| By: |
/s/
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
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Title:
Managing Director
Address:
▇/▇ ▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.▇.
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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TCW
SHARED OPPORTUNITY FUND III, L.L.C., a
Delaware
Limited Partnership
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| By: |
TCW
Asset Management Company,
as
Investment Advisor
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| By: |
/s/
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title:
Managing Director
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| By: |
/s/
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
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Title:
Managing Director
Address:
▇/▇ ▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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TCW
LEVERAGED INCOME TRUST II, L.P., a
Delaware
Limited Partnership
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| By: | TCW (LINCII), L.P., as General Partner | |
| By: |
TCW
Advisors (Bermuda), LTD., as General
Partner
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| By: |
/s/
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Managing Director
|
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| By: |
TCW
Investment Management Company,
as
Investment Advisor
|
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| By: |
/s/
|
|
|
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
|
Title:
Managing Director
Address:
▇/▇ ▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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|
TCW
LEVERAGED INCOME TRUST, L.P., a
Delaware
Limited Partnership
|
||
|
|
||
| By: |
TCW
Asset Management Company,
as
Investment Advisor
|
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| By: |
/s/
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title:
Managing Director
|
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| By: | TCW Advisors (Bermuda), LTD., as General Partner | |
| By: |
/s/
|
|
|
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
|
Title:
Managing Director
Address:
▇/▇ ▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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|
DLJ
INVESTMENT PARTNERS II, L.P., a
Delaware
Limited Partnership
|
||
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By:
DLJ Investment Partners II, Inc., as
Managing
General Partner
|
||
| By: |
/s/
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title:
Managing Director
Address:
DLJ Investment Partners II, L.P.
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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DLJ
INVESTMENT PARTNERS, L.P., a
Delaware
Limited Partnership
|
||
|
By:
DLJ Investment Partners, Inc., as
Managing
General Partner
|
||
| By: | /s/ | |
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title:
Managing Director
Address:
DLJ Investment Partners II, L.P.
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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|
DLJIP
II HOLDINGS, L.P., a Delaware
Limited
Partnership
|
||
|
By:
DLJ Investment Partners, Inc., as
General
Partner
|
||
| By: | /s/ | |
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title:
Managing Director
Address:
DLJ Investment Partners II, L.P.
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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||
|
DLJ
MERCHANT BANKING PARTNERS
II,
L.P., a Delaware Limited Partnership
|
||
|
By:
▇▇ ▇▇▇▇▇▇▇▇ Banking II, Inc., its
Managing
General Partner
|
||
|
DLJ
MERCHANT BANKING PARTNERS II-A, L.P., a
Delaware
Limited Partnership
|
||
| By:
▇▇ ▇▇▇▇▇▇▇▇ Banking II, Inc., its
Managing
General Partner
|
||
|
DLJ
MILLENNIUM PARTNERS, L.P., a
Delaware
Limited Partnership
|
||
|
By:
DLJ Merchant Banking II, Inc., as
Managing
General Partner
|
||
|
DLJ
MILLENNIUM PARTNERS-A, L.P., a
Delaware
Limited Partnership
|
||
|
By:
DLJ Merchant Banking II, Inc., as
Managing
General Partner
|
||
| DLJ
MERCHANT BANKING II, INC., as
Advisory
General Partner on behalf of DLJ
OFFSHORE
PARTNERS II, C.V.
|
||
|
Signed
By or on Behalf of the Foregoing
Entities:
|
||
| By: |
/s/
Name:
Title:
|
|
|
DLJ
DIVERSIFIED PARTNERS, L.P.,
a
Delaware Limited Partnership
|
||
|
By:
DLJ Diversified Partners, Inc., as
Managing
General Partner
|
||
|
DLJ
DIVERSIFIED PARTNERS-A, L.P., a
Delaware
Limited Partnership
|
||
|
By:
DLJ Diversified Partners, Inc., as
Managing
General Partner
Signed
By or on Behalf of the Foregoing
Entities:
|
||
| By: |
/s/
Name:
Title:
|
|
|
DLJMB
FUNDING II, INC., a Delaware
corporation
|
||
| By: | /s/ | |
|
Name: |
||
| Title: | ||
|
DLJ
EAB PARTNERS, L.P., a
Delaware Limited
Partnership
|
||
|
By:
DLJ LBO Plans Management
Corporation,
as General Partner
|
||
|
DLJ
ESC II, L.P., a Delaware Limited
Partnership
|
||
|
By:
DLJ LBO Plans Management
Corporation,
as General Partner
|
||
|
DLJ
FIRST ESC, L.P., a Delaware Limited
Partnership
|
||
|
By:
DLJ LBO Plans Management
corporation,
as General Partner
Signed
By or on Behalf of the Foregoing
Entities:
|
||
| By: |
/s/
Name:
Title:
|
|