Exhibit 99(a)(5)
Agreement of Confidentiality
Providence Capital, LLC ("Providence"), acknowledges and agrees as follows:
(i) Providence has requested a list of the names and addresses, and numbers
of units of limited partnership interest in ML Media Partners, L.P. (the
"Partnership") of record of, the limited partners of the Partnership
(the "Limited Partners") for the purpose of making a tender offer to the
Limited Partners in compliance with the Securities Laws (defined below)
and to be filed with the Securities and Exchange Commission.
(ii) Providence hereby represents, for the benefit of the Partnership and
Media Management Partners (the "General Partner"), and each of their
respective partners and affiliates of any of them, in connection with
the use of the aforementioned list and any tender offer made or proposed
to be made, that Providence and any person or entity controlled or
managed or advised by, or under common control with, or controlling
Providence (the "Providence Affiliates"), will comply with all federal
and state securities laws and the rules and regulations promulgated
thereunder, including, without limitation, Sections 13 and 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
rules and regulations thereunder (together with the Exchange Act, the
"Securities Laws"), and the provisions of the Partnership's Second
Amended and Restated Agreement of Limited Partnership, as the same may
be amended or supplemented from time to time (the "Partnership
Agreement").
(iii) Providence hereby agrees on behalf of itself and the Providence
Affiliates that any solicitation letter provided to Limited Partners in
connection with any tender offer shall indicate the maximum number of
limited partnership units that such person making the request shall
accept and the time period during which offers to sell limited
partnership interests shall be accepted by Providence or a Providence
Affiliate, as applicable.
(iv) Providence hereby acknowledges that: (i) the information being provided
by ML Leasing Management, Inc. ("ML Leasing") pursuant to this Agreement
constitutes confidential and proprietary information of the Partnership;
and (ii) the list of Limited Partners and security positions obtained by
it pursuant to this Agreement shall be used solely for the purpose of
making a tender offer by Providence or a Providence Affiliate to Limited
Partners of the Partnership in compliance with the Securities Laws and
for no other purpose. Providence hereby represents on behalf of itself
and the Providence Affiliates and their respective officers, directors,
partners, members, principals, agents and affiliates, that they will
make all reasonable efforts to safeguard such list from disclosure to
third parties, and will not furnish the list or the information
contained therein to any other person or entity (other than employees,
agents or advisors of Providence or the Providence Affiliates on a need
to know basis in connection with the making of the tender offer
contemplated by this Agreement and who agree to
abide by the terms of this Agreement). This Agreement, including this
paragraph relating to confidentiality and the uses to which the list may
be put, shall be binding upon Providence and the Providence Affiliates
and their respective officers, directors, partners, members, principals,
agents and affiliates.
(v) Providence, on behalf of itself and the Providence Affiliates, agrees
that any communication with any Limited Partner identified on the list
being provided pursuant to this Agreement shall expressly state that
"neither Xxxxxxx Xxxxx & Co., Inc., the General Partner, ML Leasing
Management, Inc. or the Partnership nor their respective affiliates or
subsidiaries are parties to this offer." Providence shall provide to ML
Leasing Management, Inc., 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, XX
00000, Attention: Xxxxxx Xxxxxxx (Facsimile (201-557-2195) a copy of any
correspondence in final form that Providence, or the Providence
Affiliates, sends to the Limited Partners on the date such
correspondence is sent.
(vi) Providence and the Providence Affiliates shall return the list of
Limited Partners and security position listings furnished to Providence
or any of the Providence Affiliates promptly after the termination of
the proposed tender offer, or if Providence or a Providence Affiliate
has not commenced a tender offer within 30 days of the date hereof,
promptly after such 30-day period. Neither Providence nor any Providence
Affiliate shall retain any list of Limited Partner or security positions
furnished pursuant to this Agreement, or any copy thereof, nor retain
any information derived from any such list or listing of a copy thereof
after the termination of any offer by Providence or any Providence
Affiliate or the failure to commence a tender offer within such 30-day
period.
(vii) Providence and the Providence Affiliates shall accept, handle and return
the list of Limited Partners furnished pursuant to this Agreement on a
confidential basis.
(viii) In the event the Partnership files a report or reports on Form 8-K
("8-K") with the Securities and Exchange Commission subsequent to the
Partnership's last quarterly report on Form 10-Q or annual report on
Form 10-K as the case may be, but prior to any solicitation by
Providence or any Providence Affiliate of the Partnership's limited
partners for the purchase of their units, Providence and the Providence
Affiliates hereby agree to include in any solicitation materials
provided by Providence and the Providence Affiliates to the Limited
Partners identified on the list being provided pursuant to this
Agreement, a either a summary of the information contained in any and
all such 8-Ks, or copies thereof. Providence, on its own behalf and on
behalf of and the Providence Affiliates, hereby acknowledges that (I) in
order to preserve the Partnership's tax status, the Partnership's
General Partner has determined not to process for transfer or recognize
transfers (other than certain transfers that may be designated as
excluded transfers) of more than 4.8% (or approximately 9,024 Units) of
all issued and outstanding Units during any Partnership tax year, and
(ii) as of November 7, 2003, the aggregate percentage of transfers of
Units of the Partnership during the Partnership's 2003 tax year is 4.8%.
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(ix) Providence and the Providence Affiliates have been advised that
transfers of limited partnership interests in the Partnership are
subject to the provisions of the Partnership Agreement, including any
numerical or other limitations on the transfer of units which the
Partnership may impose in 2003 and/or subsequent years, and any other
restriction set forth in the Partnership Agreement and the policies
implemented by the General Partner in furtherance thereof and that
documentation for the transfer of units of limited partnership interest
must comply with the provisions of the Partnership Agreement and such
policies.
Signed: Providence Capital, L.L.C.
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
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Print Name
President
Date: November 12, 2003
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