RESTRUCTURING SUPPORT AGREEMENT
This RESTRUCTURING SUPPORT AGREEMENT (together with any
amendments, exhibits and schedules hereto, this “Agreement”), dated as of October 30, 2009, is entered into by
and among Xxxxxx Publishing Group, LLC (“MPG”), Xxxxxx Publishing Finance Co. (“MPF”, and together with MPG, the “Issuers”), the subsidiaries of MPG signatory hereto
(the “Guarantors”, and together with the Issuers, the “Company”), and the holders of (or authorized investment
advisors or managers of discretionary accounts that hold) the 7% Senior
Subordinated Notes due 2013 (the “Notes”) signatory hereto (together with their respective
successors and permitted assigns, the “Consenting Holders” and each, a “Consenting Holder”). The Company, each Consenting
Holder and any subsequent person or entity that becomes a party hereto in
accordance with the terms hereof are referred herein as the “Parties” and individually as a “Party”.
PRELIMINARY STATEMENTS
WHEREAS, as of the date hereof, the Consenting Holders hold,
in the aggregate, approximately 72% of the aggregate principal amount of the
Notes outstanding issued by the Issuers pursuant to that certain Indenture (as
amended, modified or supplemented prior to the date hereof, and together with
all exhibits thereto, the “Existing Indenture”), dated as of August 7, 2003, by and
among the Issuers, the Guarantors and Wachovia Bank, N.A., as Trustee (including
successor trustees, the “Indenture
Trustee”);
WHEREAS, the Company and the Consenting Holders have agreed
to implement a restructuring and reorganization of the Company as set forth in
that certain Restructuring Term Sheet, dated as of September 23, 2009, as
amended by that certain Amendment to Restructuring Term Sheet, dated as of
October 15, 2009, each as attached hereto as Exhibit A (as may be further amended, modified or
supplemented, the “Restructuring Term Sheet”). This Agreement and the
Restructuring Term Sheet are the product of arm’s length good faith discussions
between the Company and members of an ad hoc committee of certain holders of the
Notes (the “Ad Hoc Committee”), each of whose members are among the
initial Consenting Holders;
WHEREAS, the Company has agreed to implement the
restructuring transactions contemplated by the Restructuring Term Sheet (the
“Restructuring Transactions”) through either (i) an
out-of-court exchange offer (the “Exchange Offer”) of $278,478,000 in principal amount of Notes
for $100,000,000 in principal amount of new senior secured notes (the “New Notes”) or (ii) a pre-packaged plan of reorganization
(the “Conforming Plan”) under chapter 11 of title 11 of the United
States Code, 11 U.S.C. §§ 101-1532 (as amended, the “Bankruptcy Code”), which in either case shall be consistent
in all material respects with the terms of the Restructuring Term
Sheet;
WHEREAS, the Company has agreed to commence the Exchange
Offer and concurrently solicit from the holders of the Notes: (i) consents for
certain amendments to the Existing Indenture and (ii) votes (on behalf of their
claims against the Company) to accept the Conforming Plan (collectively, the
“Solicitation”) on or before the Commencement Date (as defined
below), or such later date as agreed to by the Ad Hoc Committee and the Company,
and if the Company does not receive the Requisite Tender (as defined below) in
response to the
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Exchange Offer on or prior to the expiration of the Solicitation
(which shall be open for twenty (20) Business Days or longer, as agreed to by
the Parties), the Company shall file the Conforming Plan, within seven (7) days
of the conclusion of the Solicitation, as part of voluntary reorganization cases
under chapter 11 of the Bankruptcy Code (the “Chapter 11 Cases”) in the United States Bankruptcy Court for
the Southern District of Georgia (the “Bankruptcy Court”) to be jointly administered;
and
WHEREAS, the Parties acknowledge that, as part of the
Restructuring Transactions, the Company has consummated the Senior Refinancing
Transaction according to the terms of the Restructuring Term Sheet and pursuant
to the Ad Hoc Committee’s consent, and MCC and MPG Revolver Holdings, LLC
(“MPG Revolver”) have deposited the Remaining Senior Debt
Balance of the Company into third-party escrow accounts, pursuant to the Escrow
Agreement dated as of October 15, 2009 among MPG, MCC, the Ad Hoc Committee, MPG
Newspaper Holding, LLC, MPG Revolver and Computershare Trust Company, N.A., as
escrow agent (the “Escrow
Agreement”).
NOW, THEREFORE, in consideration of the promises and the
mutual covenants set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, the Parties,
intending to be legally bound, agree as
follows:
Section 1. Restructuring. The Restructuring Term Sheet is expressly
incorporated herein and made part of this Agreement. The
Restructuring Term Sheet sets forth the material terms and conditions of the
Restructuring Transactions and is supplemented by the terms and conditions of
this Agreement. In the event of any inconsistency between the
Restructuring Term Sheet and this Agreement, this Agreement shall
control. In the event of any inconsistency between the Conforming
Plan and this Agreement, the Conforming Plan, as confirmed, shall
control.
Section 2. Certain Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) “Ad Hoc Committee” shall have the meaning given to such term
in the preliminary statements above.
(b) “Ad Hoc Committee Advisors” shall have the meaning given to
such term in Section 4(f)(vii) hereof.
(c) “Affiliate” means, with respect to any Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified
Person. The term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise, and the terms “controlling” and “controlled” have
meanings correlative of the foregoing.
(d) “Agreement” shall have the meaning given to such term in the
preliminary statements above.
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(e) “Business Day” means any day other than a Saturday, a Sunday
or a day on which banking institutions in New York City, New York or Atlanta,
Georgia are authorized by law, regulation or executive order to remain
closed.
(f) “Commencement Date” means the date of commencement of the
Exchange Offer.
(g) “Company” shall have the meaning given to such term in the
preliminary statements above.
(h) “Confirmation Date” shall have the meaning given to such term
in Section 4(f)(ii)(B) hereof.
(i) “Conforming Plan” shall have the meaning given to such term in
the preliminary statements above.
(j) “Consenting Holder” shall have the meaning given to such term
in the preliminary statements above.
(k) “Consenting Holders’ Termination Event” shall have the meaning
given to such term in Section 5(a) hereof.
(l) “Credit Agreement” means that certain Amended and Restated
Credit Agreement, dated as of October 15, 2009 (together with any amendments,
exhibits and schedules thereto, and as may be amended, modified and supplemented
from time to time), by and among the Company, MCC, the lenders party thereto and
Tranche Manager, LLC, as administrative agent.
(m) “Definitive Documents” means the agreements, instruments or
filings implementing, effecting or relating to (i) the Exchange Offer and (ii)
the Conforming Plan, including any “first day” pleadings, an offering
memorandum/disclosure statement in connection with the Conforming Plan (the
“Disclosure Statement”), the order of the Bankruptcy Court
confirming the Conforming Plan, and definitive documentation relating to the
Company’s debtor-in-possession financing (if applicable), use of cash
collateral, any exit financing, charter, bylaws and other corporate or
organizational documents (including as contemplated by Section 4(h) and Section 4(j) hereof), shareholder related agreements, or
other related documents, which shall contain terms and conditions consistent in
all material respects with the Restructuring Term Sheet and otherwise shall be
reasonably satisfactory in all respects to the Company and the Requisite
Noteholders, in accordance with Section 7 hereof.
(n) “Downstream Affiliate” means, with respect to any Party, any
Affiliate of such Party 10% or more of whose outstanding voting securities are
directly or indirectly owned or held with power to vote, by such
Party.
(o) “Effective Date” shall have the meaning given to such term in
Section 11 hereof.
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(p) “Exchange Offer” shall have the meaning given to such term in
the preliminary statements above.
(q) “Existing Indenture” shall have the meaning given to such term
in the preliminary statements above.
(r) “Existing Senior Indebtedness” means the existing first lien
senior indebtedness of the Company governed by the Credit
Agreement.
(s) “Filing Date” shall have the meaning given to such term in Section 4(f)(ii)(A) hereof.
(t) “Forbearance Agreement” means the Forbearance Agreement dated
as of February 26, 2009 (as amended), by and among the Company and the holders
of the Notes party thereto.
(u) “Indenture” means the indenture pursuant to which the New
Notes will be issued that will be based in part upon the Existing
Indenture.
(v) “Indenture Trustee” shall have the meaning given to such term
in the preliminary statements above.
(w) “Material Adverse Effect” means a material adverse effect on
(i) the consolidated financial condition, property, operations, business or
prospects of the Company taken as a whole, (ii) the ability of the Company to
perform its obligations under any of the Definitive Documents, (iii) the
validity or enforceability of any of the Definitive Documents, or (iv) the
rights and remedies of the Consenting Holders under any of the Definitive
Documents.
(x) “MCC” shall have the meaning given to such term in Section 4(i) hereof.
(y) “New Note Maturity Date” means the date that is four (4) years
and six (6) months from the date of issuance of the New Notes.
(z) “New Notes” shall have the meaning given to such term in the
preliminary statements above.
(aa) “Notes” shall have the meaning given to such term in the
preliminary statements above.
(bb) “Party” shall have the meaning given to such term in the
preliminary statements above.
(cc) “Person” means an individual, partnership, limited liability
company, corporation, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
(dd) “Refinanced Debt” shall have the meaning given to such term in
Section 4(c) hereof.
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(ee) “Remaining Senior Debt Balance” means the full amount of
Existing Senior Indebtedness that is outstanding after consummation of the
Senior Refinancing Transaction other than the Tranche A Term Loan and the
Tranche B Term Loan.
(ff) “Requisite Tender” means tender of Notes from holders
representing 99% in aggregate principal amount outstanding of the
Notes.
(gg) “Requisite Noteholders” means Consenting Holders holding at
least 50% in aggregate principal amount outstanding of the Notes held by the
Consenting Holders in the aggregate.
(hh) “Restructuring Effective Date” means either: (i) the effective
date of the Exchange Offer if the Requisite Tender is obtained, or (ii) the
effective date of the Conforming Plan.
(ii) “Restructuring Support Period” means the period commencing on
the Effective Date and ending on the date on which this Agreement is terminated
in accordance with Section 5 hereof.
(jj) “Restructuring Term Sheet” shall have the meaning given to
such term in the preliminary statements above.
(kk) “Restructuring Transactions” shall have the meaning given to
such term in the preliminary statements above.
(ll) “Senior Debt Refinancing Documentation” shall have the meaning
given to such term in the Restructuring Term Sheet.
(mm) “Senior Indebtedness Cap Amount” means, as of any date of
determination, (i) the aggregate principal amount of the Tranche A Term Loan on
October 15, 2009, less (ii) all payments of principal on the Tranche A Term
Loan made prior to such date of determination, plus (iii) the aggregate principal amount of the Tranche B
Term Loan on October 15, 2009, plus (iv) all paid-in-kind interest on the Tranche B Loan,
which paid-in-kind interest has accrued or been added to the principal thereof,
as applicable, prior to such date of determination; provided, however, this term Senior Indebtedness Cap Amount shall not
include amounts described under clauses (iii) and (iv) above, unless and only to
the extent that the Tranche B Term Loan is refinanced in connection with and as
a part of the refinancing of the Tranche A Term Loan.
(nn) “Senior Refinancing Transaction” shall have the meaning given
to such term in the Restructuring Term Sheet.
(oo) “Solicitation” shall have the meaning given to such term in
the preliminary statements above.
(pp) “Stroock” means Stroock & Stroock & Xxxxx LLP in its
capacity as counsel to the Ad Hoc Committee.
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(qq) “Tranche A Term Loan” shall have the meaning given to such
term in the Credit Agreement as in effect on the date hereof.
(rr) “Tranche B Term Loan” shall have the meaning given to such
term in the Credit Agreement as in effect on the date hereof.
(ss) “Working Capital Balance” means a balance of cash and cash
equivalents at any financial institution for which a valid control agreement
with respect to the Existing Senior Indebtedness is in place or at a financial
institution acceptable to both the Company and the Requisite Noteholders or
Stroock.
(tt) “Working Capital Facility” means a first lien, senior secured
working capital revolving credit facility with an aggregate maximum principal
amount not to exceed $10,000,000.
Section 3. Agreements of the Consenting Holders.
(a) Affirmative Covenants. Subject to the conditions
contained in Section 3(b) and Section 3(d) hereof, each Consenting Holder agrees that, for
the duration of the Restructuring Support Period, such Consenting Holder shall
and shall cause such Consenting Holders’ Downstream Affiliates to:
(i) timely and validly tender or cause to be tendered in the Exchange
Offer all Notes (A) held by such Consenting Holder on the Commencement Date, and
(B) acquired by such Consenting Holder after the Commencement Date promptly, in
each case free and clear of any encumbrances or restrictions, and including any
Notes held by an entity for which such Consenting Holder acts as the investment
advisor or manager, and such Consenting Holder shall not withdraw or revoke any
such tender unless and until this Agreement is terminated in accordance with Section 5;
(ii) provide its consent in favor of the amendment to the Existing
Indenture in the form of Exhibit B as attached hereto;
(iii) with respect to any Solicitation of votes to accept the Conforming
Plan, support and timely vote or cause to be voted its claims against the
Company arising under the Notes to accept the Conforming Plan, including by
delivering its duly executed and completed ballot accepting such Conforming Plan
on a timely basis during the Solicitation, subject to the receipt by such
Consenting Holder of the Disclosure Statement and other solicitation materials
in respect of the Conforming Plan that are subsequently approved by the
Bankruptcy Court as complying with section 1126(b) of the Bankruptcy Code; provided, however, that such vote may, upon written notice to the
Company and the other Parties, be revoked, subject to the terms of any order of
the Bankruptcy Court, (and, upon such revocation, deemed void ab initio) by any Consenting Holder at any time following the
expiration of the Restructuring Support Period;
(iv) timely vote against or cause to be voted against and not consent to,
or otherwise directly or indirectly support, solicit, assist, encourage or
participate in the
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(v) formulation of, any restructuring or reorganization of the Company
(or any plan or proposal in respect of the same) other than the Restructuring
Transactions;
(vi) if the Chapter 11 Cases are filed, not directly or indirectly seek,
solicit, support or encourage the termination or modification of the exclusive
period for the filing of any plan, proposal or offer of dissolution, winding up,
liquidation, reorganization, merger or restructuring of the Company, or take any
other action, including but not limited to initiating any legal proceedings or
enforcing rights as a holder of the Notes, that could prevent, interfere with,
delay or impede the implementation or consummation of the Restructuring
Transactions as contemplated by the Restructuring Term Sheet and the Conforming
Plan; and
(vii) not take any action that is inconsistent with, or that would delay
consummation or confirmation of, the Exchange Offer or the Conforming
Plan.
(b) Certain Conditions. The obligations of each
Consenting Holder set forth in Section 3(a) hereof are subject to the following
conditions:
(i) this Agreement shall have become effective in accordance with the
provisions of Section 11;
(ii) this Agreement shall not have terminated in accordance with the
provisions of Section 5 hereof; and
(iii) prior to filing, the Conforming Plan and all Definitive Documents
shall be consistent in all material respects with the Restructuring Term Sheet
and otherwise shall be reasonably satisfactory in all respects to the Requisite
Noteholders.
(c) Rights of Consenting Holders Unaffected. Nothing
contained herein shall limit (i) (A) the ability of a Consenting Holder to
consult with other Consenting Holders or the Company or (B) the rights of a
Consenting Holder under any applicable bankruptcy, insolvency, foreclosure or
similar proceeding, including, without limitation, appearing as a party in
interest in any matter to be adjudicated in order to be heard concerning any
matter arising in the Chapter 11 Cases, in each case, so long as such
consultation or appearance is not inconsistent with the Consenting Holder’s
obligations hereunder or under the terms of the Restructuring Term Sheet and is
not for the purpose of hindering, delaying or preventing the consummation of the
Restructuring Transactions; (ii) the ability of a Consenting Holder to sell or
enter into any transactions in connection with the Notes or any other claims
against or interests in the Company, subject to Section 3(d) and Section 3(e) hereof; or (iii) the rights of any Consenting Holder
under the Existing Indenture or constitute a waiver or amendment of any
provision of the Existing Indenture, subject to Section 3(a) and Section 25 hereof.
(d) Transfers. Each Consenting Holder agrees that, for
the duration of the Restructuring Support Period, such Consenting Holder shall
not sell, transfer, loan, hypothecate, assign or otherwise dispose of (including
by participation), in whole or in part, any of the Notes or any option thereon
or any right or interest therein (including the grant of any proxies or the
deposit of any Notes into a voting trust or entry into a voting agreement with
respect to any such Notes), unless the transferee thereof either (i) is a
Consenting Holder or (ii) prior to such transfer, agrees in writing for the
benefit of the Parties to become a Consenting Holder and to be bound
by
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(e) all of the terms of this Agreement applicable to Consenting Holders
by executing the Joinder attached hereto as Exhibit C (the “Joinder Agreement”), and delivering an executed copy thereof,
within three (3) Business Days of such execution, to the Company and its
advisors as set forth in Section 20 below, and to Stroock, as counsel to the Ad Hoc
Committee, in which event (A) the transferee shall be deemed to be a Consenting
Holder hereunder to the extent of such transferred rights and obligations and
(B) the transferor shall be deemed to relinquish its rights (and be released
from its obligations) under this Agreement to the extent of such transferred
rights and obligations. Each Consenting Holder agrees that any sale,
transfer or assignment of any Notes that does not comply with the terms and
procedures set forth herein shall be deemed void ab initio, and the Company and each other Consenting Holder
shall have the right to enforce the voiding of such sale, transfer or
assignment. Notwithstanding anything contained herein to the
contrary, during the Restructuring Support Period, a Consenting Holder may
offer, sell or otherwise transfer any or all of its Notes to any entity that, as
of the Effective Date was, and as of the date of transfer continues to be, an
Affiliate of the Consenting Holder and is (or executes a Joinder Agreement under
which such entity agrees to become) a Party to this
Agreement. Notwithstanding anything contained herein to the contrary,
during the Restructuring Support Period, a Party may offer, sell or otherwise
transfer any or all of its holdings of Notes to an entity that, as of the date
of transfer, is an Affiliate of a Consenting Holder that is a Party to this
Agreement; provided, however, that such entity automatically shall be subject to
the terms of this Agreement and deemed a Party hereto and shall execute a
Joinder Agreement hereto.
(f) Additional Claims or Equity Interests. To the
extent any Party who is a Consenting Holder (i) acquires additional Notes, (ii)
holds or acquires any other claims against the Company or (iii) holds or
acquires any equity interests in the Company, each such Consenting Holder agrees
that such Notes or other claims or equity interests shall be subject to this
Agreement and that, for the duration of the Restructuring Support Period, it
shall vote (or cause to be voted) any such additional Notes or other claims or
equity interests entitled to vote on the Conforming Plan (in each case, to the
extent still held by it or on its behalf at the time of such vote) in a manner
consistent with Section 3(a) hereof.
Section 4. Agreements of the Company.
(a) Cash on Hand. On the Restructuring Effective Date,
the Company shall have at least (x) $15,700,000 of cash on hand less the following amounts paid or accrued after September
23, 2009: (i) professional fees, (ii) non-recurring restructuring
charges, including those fees, expenses and charges incurred directly as a
result of the Senior Refinancing Transaction, the Restructuring Transactions or
this Agreement or related to the indebtedness or capital structure of the
Company, and all negotiations and transactions directly related thereto, and
(iii) any prepayments or prepayment premiums on the Existing Senior
Indebtedness or Refinanced Debt (the “Initial Cash On Hand”) in excess of (y)
$5,000,000.
(b) Remaining Debt. The aggregate outstanding balance
of the Tranche A Term Loan shall not exceed $19,700,000 at any
time. The aggregate outstanding balance of the Tranche B Term Loan
shall not exceed $6,800,000 (plus accrued paid-in-kind interest) at any
time. The Tranche A Term Loan shall not be held by an Affiliate of
the Company at any time. The Credit Agreement may not be amended to
the extent such amendment would: (i) increase
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(c) the aggregate principal amount of the loans then outstanding under
the Credit Agreement (other than any amendment which has effect of capitalizing
interest or fees accruing under the Credit Agreement by adding such amounts to
the principal amount thereunder), (ii) increase the “Tranche A Fixed Rate” or
the “Tranche B Fixed Rate” (in each case, as defined in the Credit Agreement as
in effect on the date hereof) or any other applicable rate of interest, in each
case, as in effect on the date hereof, (iii) amend or modify the requirement
that interest on the Tranche B Term Loans be PIK Interest (as defined in the
Credit Agreement as in effect on the date hereof), (iv) amend or modify Section
2.10(c) of the Credit Agreement in a manner that increases the default interest
rate with respect to the Tranche B Term Loan, (v) amend or modify the definition
of Tranche B/C Event of Default (as such term is defined in the Credit Agreement
as in effect on the date hereof), (vi) amend or modify the Loan Documents (as
defined in the Credit Agreement as in effect on the date hereof) in a manner
that confers additional material rights or remedies in favor of the Tranche B
Lenders (as defined in the Credit Agreement as in effect on the date hereof);
provided, however, that the following amendments and modifications
shall not violate this clause (vi): (A) amendments and modifications to
representations and warranties or covenants (including related definitions),
that (x) are not more restrictive or burdensome to the Company, or (y) if more
restrictive or burdensome to the Company, do not relate to a provision that, if
breached, would constitute a “Tranche B/C Event of Default”, (B) amendments and
modifications to events of default under the Credit Agreement that do not change
the definition of “Tranche B/C Event of Default”, (C) amendments and
modifications that are incorporated pursuant to the requirements of Section 6.15
of the Credit Agreement as in effect on the date hereof, and (D) amendments and
modifications to cure any ambiguity, defect or inconsistency of a technical
nature (in each case, whether or not favorable to the Tranche B Lenders) in the
Loan Documents, or (vii) amend or modify Section 2.09(a) of the Credit Agreement
as in effect on the date hereof to increase the obligations of the Company
thereunder, or amend or modify the definition of “Borrower Fee Cap” (as defined
in the Credit Agreement as in effect on the date hereof).
(d) Refinancing of Tranche A Term Loan and Tranche B Term
Loan. On or prior to one hundred fifty (150) days after the
Restructuring Effective Date, the Company shall refinance the Tranche A Term
Loan and may, at the Company’s option, refinance the Tranche B Term Loan, in
either case with a term loan and/or revolver provided solely by an unaffiliated
commercial bank and not by an Affiliate of the Company (collectively, the “Refinanced Debt”). Notwithstanding anything to the
contrary contained herein or in the Credit Agreement, the Refinanced Debt shall
have no prepayment penalties and shall permit (in either case other than when an
event of default under the Refinanced Debt or Working Capital Facility shall
have occurred and be continuing): (i) cash interest payments on
the New Notes at all times and (ii) amortization payments when there is no
outstanding balance on the Refinanced Debt or Working Capital
Facility. To the extent that the Tranche B Term Loan is not
refinanced on or prior to one hundred fifty (150) days of the Restructuring
Effective Date, the Tranche B Term Loan shall mature on the New Note Maturity
Date and shall only be capable of amortization or repayment on a pro rata basis with the New Notes. Upon the
amortization or refinancing of all or any portion of the Tranche B Term Loan,
including any accrued interest, such amortized or refinanced balance shall no
longer be available for borrowing under the Tranche B Term
Loan. There shall be no amortization of the Tranche B Term Loan
during the Restructuring Support Period, except with respect to a
refinancing. Any agreement relating to the Refinanced Debt, including
the Credit Agreement if the Credit Agreement is amended, restated, supplemented
or
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(e) otherwise modified in connection with the Refinanced Debt, shall not
contain any provision to the extent such provision, either individually or when
taken together with other provision(s) in such agreement, would have the effect
of, as compared to the related provision(s) contained in the Credit Agreement as
in effect on the date hereof: (A) resulting in the aggregate principal amount of
Refinanced Debt exceeding the Senior Indebtedness Cap Amount (other than any
provision which would have the effect of capitalizing interest or fees accruing
by adding such amounts to the principal amount thereunder), (B) increasing the
“Tranche A Fixed Rate” or the “Tranche B Fixed Rate” or any other applicable
rate of interest, (C) amending or modifying the requirement that interest on the
Tranche B Term Loans be PIK Interest, (D) amending or modifying Section 2.10(c)
of the Credit Agreement as in effect on the date hereof in a manner increases
the default interest rate with respect to the Tranche B Term Loan, or (E)
amending or modifying the definition of Tranche B/C Event of
Default. Such Refinanced Debt shall be subject to an Intercreditor
Agreement substantially in the form attached hereto as Exhibit D, with any changes to such Intercreditor Agreement
to be agreed upon between the Company and the Requisite
Noteholders.
(f) Working Capital Facility. The Company may enter
into a Working Capital Facility. The Working Capital Facility shall
permit: (i) the payment of interest on the New Notes at all times (other than
when an event of default under the Working Capital Facility shall have occurred
and be continuing), and (ii) the amortization of the New Notes when there is no
outstanding balance on the Working Capital Facility. As a condition
to obtaining the Working Capital Facility, the Company shall be required to
first use the entire amount available of the Working Capital Balance to amortize
the Tranche A Term Loan or Refinanced Debt, as applicable.
(g) Exchange Offer. The Company shall commence the
Solicitation on or prior to November 6, 2009, unless otherwise extended by the
Requisite Noteholders. If the Company receives the Requisite Tender
in response to the Exchange Offer at the conclusion of the Solicitation, the
Company shall consummate the Exchange Offer within three (3) Business Days
thereafter.
(h) Affirmative Covenants. The Company agrees that, as
of the date hereof through the Restructuring Effective Date so long as this
Agreement has not been terminated in accordance with its terms, unless
(x) otherwise expressly permitted or required by this Agreement, or
(y) otherwise consented to in writing by the Requisite Noteholders (which
consent shall not be unreasonably withheld or delayed), the Company shall, and
shall cause each of its direct and indirect subsidiaries to, directly or
indirectly, do the following:
(i) complete the preparation, as soon as practicable after the date
hereof, of each of the Exchange Offer, the Conforming Plan, the Disclosure
Statement and the other Definitive Documents, which documents shall contain
terms and conditions consistent in all material respects with the Restructuring
Term Sheet and otherwise shall be reasonably acceptable to the Requisite
Noteholders and the Company, and distribute such documents and afford reasonable
opportunity of comment and review to the respective legal and financial advisors
for the Consenting Holders in advance of any filing thereof;
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(ii) if the Company does not receive the Requisite Tender in response to
the Solicitation of the Exchange Offer (as extended for an additional five (5)
Business Day period at either the Company’s or the Requisite Noteholders’
written request), then the Company shall:
(A) commence the Chapter 11 Cases within seven (7) calendar days after
the conclusion of the Solicitation (such date, the “Filing Date”) and on such date, file the Conforming Plan, the
Disclosure Statement and other “first day” pleadings that are reasonably
satisfactory to the Requisite Noteholders;
(B) obtain approval of the Disclosure Statement and confirmation of the
Conforming Plan not later than 5:00 P.M. Eastern Time on the date
(the “Confirmation Date”) that is thirty (30) calendar days after
the Filing Date, subject to the schedule of the Bankruptcy Court;
and
(C) consummate the Conforming Plan not later than 5:00 P.M. Eastern Time
on the date that is eleven (11) calendar days after the Confirmation
Date;
(iii) whenever practicable, provide draft copies of all motions or
applications and other documents the Company intends to file with the Bankruptcy
Court in connection with the Chapter 11 Cases to counsel for the Ad Hoc
Committee at least four (4) Business Days prior to the date the Company intends
to file any such document and consult in advance in good faith with counsel to
the Ad Hoc Committee regarding the form and substance of any such proposed
filing with the Bankruptcy Court;
(iv) maintain their good standing under the laws of the state or other
jurisdiction in which they are incorporated or organized;
(v) timely file a formal objection to any motion filed with the
Bankruptcy Court by a third party seeking the entry of an order (A) directing
the appointment of an examiner with expanded powers or a trustee, (B) converting
the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (C)
dismissing the Chapter 11 Cases;
(vi) timely file a formal objection to any motion filed with the
Bankruptcy Court by a third party seeking the entry of an order modifying or
terminating the Company’s exclusive right to file and/or solicit acceptances of
a plan of reorganization;
(vii) subject to appropriate confidentiality agreements, provide to each
of Stroock, as counsel to the Ad Hoc Committee, and FTI Consulting, Inc. (such
advisors taken together, the “Ad Hoc Committee Advisors”), without any material disruption
to the conduct of the Company’s business (A) reasonable access during
normal business hours to the Company’s books, records and facilities, (B)
reasonable access to the respective management and advisors of the Company for
the purposes of evaluating the Company’s business plans and participating in the
planning process with respect to the Restructuring Transactions, (C) timely and
reasonable responses to all reasonable diligence requests, and (D) information
with respect to all executory contracts and unexpired leases of the Company for
the purposes of concluding, in consultation with the Company and its advisors,
which executory contracts and unexpired leases the Company intends to assume,
assume and assign, or reject, in the Chapter 11 Cases;
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(viii) to the extent permitted by the Bankruptcy Court, timely and fully
discharge all of its obligations then due and owing under any existing
agreements of the Company regarding the payment of the reasonable fees and
expenses of the Ad Hoc Committee Advisors in connection with the Restructuring
Transactions, and (A) on the date that is at least one (1) day prior to the
Commencement Date, the Company shall pay to each of the Ad Hoc Committee
Advisors all reasonable amounts then due and outstanding as provided in the
respective invoices supplied to the Company by the Ad Hoc Committee Advisors
containing a summary of hours and services provided, (B) on the date that is at
least one (1) day prior to the Filing Date, the Company shall pay to Stroock (i)
all reasonable amounts then due and outstanding as provided in an invoice
supplied to the Company containing a summary of hours and services provided and
(ii) a retainer in the amount of $300,000, any unused portion of which shall be
refunded to the Company within forty-five (45) days after the earlier to occur
of (x) the effective date of the Plan or (y) termination of this Agreement; (C)
on the date that is at least one (1) day prior to the Filing Date, the Company
shall pay to FTI (i) all reasonable amounts then due and outstanding as provided
in an invoice supplied to the Company containing a summary of hours and services
provided and (ii) a retainer in the amount of $50,000, any unused portion of
which shall be refunded to the Company within forty-five (45) days after the
earlier to occur of (x) the effective date of the Plan or (y) termination of
this Agreement; and (D) to the extent the reasonable fees and expenses of
Stroock and FTI exceed their respective retainers as of the date of confirmation
of the Conforming Plan, the terms of the Conforming Plan shall provide that the
Company will pay Stroock and FTI their outstanding fees and expenses pursuant to
section 1129(a)(4) of the Bankruptcy Code or otherwise;
(ix) notify the Ad Hoc Committee Advisors subject to appropriate
confidentiality agreements of any governmental or third party complaints,
litigations, investigations or hearings (or communications indicating that the
same may be contemplated or threatened), in any such case which could reasonably
be anticipated to have a Material Adverse Effect;
(x) prior to the filing of the Chapter 11 Cases, take all actions
contemplated to be taken prior to the filing of the Chapter 11 Cases by the
Restructuring Term Sheet; and
(xi) furnish to the Ad Hoc Committee Advisors subject to appropriate
confidentiality agreements prompt written notice upon the occurrence (and in no
event later than two (2) Business Days after such occurrence) of (A) an event,
change, effect, occurrence, development, circumstance or change of fact occurs
that has or would reasonably be expected to have a Material Adverse Effect or
that materially impairs the ability of the Company to perform its obligations
under this Agreement or have a material adverse effect on, or prevent or
materially delay the consummation of, the Restructuring Transactions, or (B) any
breach (or any event that with notice or passage of time, or both, would
constitute a breach) of any of the Definitive Documents.
(i) Negative Covenants. The Company agrees that, as of
the date hereof through the Restructuring Effective Date so long as this
Agreement has not been terminated in accordance with its terms, unless
(x) otherwise expressly permitted or required by this Agreement or the
Restructuring Term Sheet or (y) otherwise consented to in writing by
the
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(j) Requisite Noteholders or Stroock, as counsel for the Ad Hoc
Committee (which consent shall not be unreasonably withheld or delayed), the
Company shall not, and shall cause each of its direct and indirect subsidiaries
not to, directly or indirectly, do or permit to occur any of the
following:
(i) propose, support, assist, engage in negotiations in connection with
or participate in the formulation of, any restructuring or reorganization of the
Company (or any plan or proposal in respect of the same) other than the
Restructuring Transactions;
(ii) modify the Exchange Offer or the Conforming Plan, in whole or in
part, in a manner that is not consistent in any material respect with this
Agreement or the Restructuring Term Sheet;
(iii) withdraw or revoke either the Exchange Offer or the Conforming Plan
or publicly announce its intention not to pursue the Restructuring
Transactions;
(iv) file (A) any motion or pleading or other Definitive Document
with the Bankruptcy Court (including any modifications or amendments thereof),
or (B) any document in connection with the transactions contemplated in the
Definitive Documents with the Securities Exchange Commission, that in whole or
in part, is not consistent in any material respect with this Agreement, the
Restructuring Term Sheet or the Conforming Plan, and is not otherwise reasonably
satisfactory in all material respects to the Requisite Noteholders or counsel
for the Ad Hoc Committee;
(v) move for an order authorizing or directing the assumption or
rejection of an executory contract or unexpired lease other than in accordance
with the Restructuring Term Sheet or the Conforming Plan or as approved in
writing by the Requisite Noteholders;
(vi) commence an avoidance action or other legal proceeding that
challenges the validity, enforceability or priority of either the Notes or the
New Notes, or otherwise affects the rights of any Consenting Holder solely in
its capacity as a holder of either Notes or New Notes;
(vii) issue, offer, pledge, sell, contract to sell, grant any option or
contract to purchase, purchase any option or contract to sell, or otherwise
dispose of, directly or indirectly, any shares or options, warrants, conversion
privileges or rights of any kind to acquire any shares of, any of its equity
interests, including, without limitation, capital stock or partnership
interests;
(viii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of the equity
interests of the Company;
(ix) except as provided in Section 4(h), amend or propose to amend its respective certificate
or articles of incorporation, bylaws or comparable organizational
documents;
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(x) split, combine or reclassify any outstanding shares of its capital
stock or other equity interests, or declare, set aside or pay any dividend or
other distribution payable in cash, stock, property or otherwise with respect to
any of its equity interests;
(xi) redeem, purchase or acquire or offer to acquire any of its equity
interests, including, without limitation, capital stock or partnership
interests;
(xii) acquire or divest (by merger, exchange, consolidation, acquisition
of stock or assets or otherwise) (A) any corporation, partnership, limited
liability company, joint venture or other business organization or division or
(B) assets of the Company, other than in the ordinary course of
business;
(xiii) except for expenditures approved in writing in advance by the
Requisite Noteholders in their reasonable discretion, which shall not be
unreasonably withheld or delayed, incur capital expenditures in excess of the
$1,200,000 amount projected in the 13-week cash flow forecast as of October 19,
2009 provided to Stroock until the earliest to occur of the consummation of the
Exchange Offer, the confirmation of the Conforming Plan or January 19, 2010
(which date may be extended by the mutual written consent of the
Parties);
(xiv) incur or suffer to exist any indebtedness, except indebtedness
existing and outstanding immediately prior to the date hereof, trade payables
and liabilities arising and incurred in the ordinary course of business, any
refinancing permitted under the Definitive Documents, the Working Capital
Facility, and customary permitted indebtedness;
(xv) except in connection with the issuance of the New Notes, any
refinancing permitted under the Definitive Documents, the Working Capital
Facility or as otherwise specifically contemplated herein, incur any liens or
security interests, other than those existing on the date hereof and customary
permitted liens;
(xvi) incur any charges, encumbrances or lease obligations other than in
the ordinary course of business consistent with past practices;
(xvii) enter into any commitment or agreement with respect to
debtor-in-possession financing, cash collateral and/or exit financing other than
as necessary to effectuate the Restructuring Transactions set forth in the
Restructuring Term Sheet;
(xviii) enter into any collective bargaining agreements or materially
increase the benefits under any existing collective bargaining agreements or
benefit plans (except as required by law), without the approval of the
Bankruptcy Court;
(xix) (A) hire any executive or employee whose total compensation is
greater than $200,000, or (B) increase by greater than five percent (5%) the
compensation for any executive or employee whose total compensation is greater
than $200,000, in each case without the approval of the Bankruptcy Court, if the
total aggregate amount by which amounts paid pursuant to actions taken in
accordance with subsections (A) or (B) above exceeds $200,000 is equal to or
less than $300,000; provided, however, that the restriction set forth in subsection (A)
above shall not apply to the hiring of any executive or employee in order to
replace an
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(xx) existing executive or employee where the new executive or employee’s
aggregate compensation is equal to or less than that of the replaced executive
or employee;
(xxi) settle any claim or pending litigation where the Company’s liability
exceeds $150,000 per settlement individually, or $500,000 in the aggregate,
without the approval of the Bankruptcy Court; or
(xxii) redeem, purchase or acquire or offer to acquire any
Notes.
(k) Board Observer. On the Restructuring Effective
Date, the Company shall amend its organizational documents in a manner that is
in form and substance reasonably satisfactory to the Consenting Holders in order
to allow, so long as any New Notes remain outstanding, holders representing a
majority in aggregate principal amount outstanding of such New Notes the right
to appoint a non-voting observer (the “Observer”) to the board of directors of the Company (the
“Board”). Such Observer shall be permitted to
observe each meeting of each committee of each of the Board and the board of
directors (or comparable body) of each material subsidiary of the Company and
each committee of such board (or comparable body) of each such
subsidiary. Such Observer shall be elected by the holders of the New
Notes for successive one (1) year terms, removable only (A) by holders of the
New Notes representing a majority in aggregate principal amount outstanding of
the New Notes, or (B) by the Company for cause. Such Observer shall
receive notice of the times and locations of all meetings in accordance with the
procedures in place for delivering notices of such meetings to the members of
the Board. Such Observer shall be entitled to reimbursement for
reasonable fees and expenses incurred in connection with attending such
meetings.
(l) Tax Consolidation Agreement. On or before the date
that is fifteen (15) Business Days after the Commencement Date, the Company
shall amend the Tax Consolidation Agreement dated as of August 7, 2003 among
MPG, Xxxxxx Communications Company, LLC (“MCC”) and Xxxxxxx Trading & Operating Company (“Xxxxxxx”), as amended by Amendment No. 1 to Tax Consolidation
Agreement dated as of January 28, 2009 among MPG, MCC, Xxxxxxx, Questo, Inc. and
MPG Newspaper Holding, LLC, and such amendment shall (i) provide that any
indebtedness of MPG Newspaper Holding, LLC shall be treated for purposes of the
Tax Consolidation Agreement as if it were a direct obligation of the Company and
no other Affiliate of the Company, (ii) provide that the trustee under the
Indenture shall have an approval right as more fully specified in the Indenture
with respect to elections made or positions taken for tax return purposes, and,
in the case of subclause (D), actions taken, to the extent those elections,
positions or actions taken could reasonably be expected to have any adverse
consequence on the New Notes or the Company, related to (A) the
exchange of the New Notes for the Notes, (B) the Plan of Reorganization attached
as Schedule VIII to that certain Amendment No. 4 and Waiver No. 2 to the Credit
Agreement, dated as of January 28, 2009, among the Company, Morris, Shivers, MPG
Holding, the guarantors and lenders party there, and JPMorgan Chase Bank, N.A.,
as administrative agent, (C) the Senior Refinancing Transaction, or (D) the
indebtedness of MPG Newspaper Holding, LLC, and (iii) include the following
language:
“For the avoidance of doubt, and notwithstanding anything to the
contrary contained or implied in this Agreement, the parties
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acknowledge and agree that the Company shall not be required to make
any payments to MPG Holding, Questo or any other entity whose income is included
in a consolidated or combined income or franchise tax return of the Group, and
shall be indemnified against the making of any payments to the IRS or other
state or local taxing authority, with respect to any tax consequences or
liabilities arising from or attributable to either (i) the Plan of
Reorganization attached as Schedule VIII to that certain Amendment No. 4 and
Waiver No. 2 to the Credit Agreement, dated as of January 28, 2009, among the
Company, Morris, Shivers, MPG Holding, the guarantors and lenders party there,
and JPMorgan Chase Bank, N.A., as administrative agent, or (ii) the transactions
contemplated by that certain term sheet and related diagram attached as
Attachment A (and described therein as the ‘Senior Refinancing Transaction’, the
“Senior Refinancing Documentation”) to that certain
Restructuring Term Sheet dated as of September 23, 2009 (as amended) among the
Company and its subsidiaries and certain holders of the Company's 7% Senior
Subordinated Notes due 2013 party thereto; provided, however, that in calculating the obligations of the Company
under this Agreement, there shall be taken into account the tax consequences and
liabilities arising from or attributable to the refinancing or satisfaction of
the Company’s senior secured debt and the issuance of the new MPG Holding debt
as described in the Senior Refinancing Documentation, the issuance of the New
Notes in exchange for the Notes (as defined in the Restructuring Support
Agreement), and the payment of related fees and expenses, all as provided for in
connection with the Senior Refinancing Transaction (as defined in the
Restructuring Support Agreement).”
(m) Management and Services Agreement. On or before
the date that is fifteen (15) Business Days after the Commencement Date, the
Company shall amend the Management and Services Agreement dated as of August 7,
2003 (the “MSA”) among MCC, MSTAR Solutions, LLC (“MSTAR”) and MPG, as amended by (i) the First Amendment to
Management Services Agreement dated August 7, 2003 among MCC, MSTAR and MPG,
(ii) the Second Amendment to Management Services Agreement dated as of May 16,
2008 among MCC, MSTAR and MPG, and (iii) the Third Amendment to Management
Services Agreement dated as of October 1, 2008 among MCC, MSTAR and MPG, and
such amendment shall fix the combined annual payment of the Xxxxxx
Communications Fee (as defined in the MSA) and the MSTAR Solutions Fee (as
defined in the MSA) at actual costs, provided that the combined annual payment
of the Xxxxxx Communications Fee and the MSTAR Solutions Fee shall not, under
any circumstances, exceed $22,000,000 in the aggregate during any given calendar
year; provided, however, that the amendment referenced in this section (j)
shall not become effective until the Restructuring Effective Date.
(n) Control Agreements. On or before the Restructuring
Effective Date, the Company shall have entered into deposit account control
agreements among the Company, the
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(o) Indenture Trustee, the agent under the Credit Agreement and the
relevant financial institution for each deposit account of the Company for which
a deposit account control agreement currently is, or will be as contemplated by
the Senior Debt Refinancing Documentation, in place for the benefit of the
lenders under the Credit Agreement.
(p) Automatic Stay. The Company acknowledges and
agrees and shall not dispute that after the commencement of the Chapter 11 Cases
(if commenced), the giving of notice of termination by any Party pursuant to
this Agreement shall not be a violation of the automatic stay of section 362 of
the Bankruptcy Code (and the Company hereby waives, to the greatest extent
possible, the applicability of the automatic stay to the giving of such
notice).
(q) Representations and Warranties. The Company hereby
represents and warrants to the Consenting Holders that as of the date hereof,
there have been no changes since October 15, 2009 to any of the following
documents: (i) the Credit Agreement, (ii) the Security and Guarantee Agreement
(as defined in the Credit Agreement), (iii) the Transfer Documents (as defined
in the Credit Agreement), or (iv) the Pledge Agreement (as defined in the Credit
Agreement).
Section 5. Termination of Agreement.
(a) Consenting Holders’ Termination Events. This
Agreement may be terminated by written notice of termination by the Requisite
Noteholders, delivered in accordance with Section 20 hereof, upon the occurrence of, and during the
continuation of, any of the following events (each, a “Consenting Holders’ Termination Event”):
(i) a material breach by the Company of any of its obligations under any
of the Definitive Documents;
(ii) a material breach by the Company of any of the provisions of Sections 4(a)-(l) of this Agreement;
(iii) any representation made by the Company in this Agreement proves to
have been materially incorrect on the date hereof, the date when such
representation was made or on the Effective Date, which breach remains uncured
for a period of three (3) Business Days after delivery to the Consenting
Holders, or receipt by the Company from the Consenting Holders, in either case,
of written notice of such breach;
(iv) the issuance by any governmental authority, including any regulatory
authority or court of competent jurisdiction, of any ruling or order enjoining
the consummation of a material portion of the Restructuring Transactions, provided, however, that it shall not be deemed a material portion for
purposes of this subsection if the Exchange Offer is enjoined and the Conforming
Plan has not been enjoined;
(v) any event, change, effect, occurrence, development, circumstance or
change of fact occurs that has or would reasonably be expected to have a
Material Adverse Effect or that materially impairs the ability of the Company to
perform its obligations under this Agreement, which breach remains uncured for a
period of three (3) Business Days after delivery
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(vi) to the Consenting Holders, or receipt by the Company from the
Consenting Holders, in either case, of written notice of such
breach;
(vii) the Bankruptcy Court enters an order that grants relief that is
materially inconsistent with this Agreement, the Restructuring Term Sheet or the
Conforming Plan in any respect;
(viii) the Bankruptcy Court enters an order modifying or terminating the
Company’s exclusive right to file and/or solicit acceptances of a plan of
reorganization;
(ix) the Bankruptcy Court grants relief terminating, annulling or
modifying the automatic stay (as set forth in section 362 of the Bankruptcy
Code) permitting the taking of any assets of the Company having an aggregate
fair market value in excess of $500,000, except as covered by insurance; provided, however, that the aggregate liability to the Company after
giving effect to any insurance proceeds shall not exceed $500,000;
(x) the commencement of an avoidance action or other legal proceeding by
the Company or any other party with standing to bring such action (a “Proceeding”) that seeks to challenge the validity,
enforceability or priority of the Notes or the New Notes, or otherwise
materially affects the rights and remedies of any Consenting Holder solely in
such Consenting Holder’s capacity as a holder of Notes or New Notes, which
Proceeding is not stayed or dismissed within three (3) Business Days of the
receipt by the Company of written notice of such Proceeding;
(xi) the termination of, or occurrence of an event of default (as defined
in the applicable agreement) under any commitment or agreement to provide
post-petition debtor-in-possession financing or exit financing to the Company to
the extent permitted hereunder, which shall not have been cured within any
applicable grace periods or waived pursuant to the terms of the commitment or
agreement governing such facility;
(xii) the termination of, or occurrence of an event of default (as defined
in the applicable order or agreement) under, any order or agreement permitting
the use of cash collateral to the extent permitted hereunder which shall not
have been cured within any applicable grace periods or waived pursuant to the
terms of such order or agreement;
(xiii) the Bankruptcy Court having entered an order (A) directing the
appointment of an examiner with expanded powers or a trustee, (B) converting the
Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (C)
dismissing the Chapter 11 Cases;
(xiv) a material deviation in amount or type from the liabilities
previously disclosed in writing to the Ad Hoc Committee or to the Ad Hoc
Committee Advisors, including liabilities disclosed in the due diligence
materials provided to the Ad Hoc Committee Advisors prior to the commencement of
the Chapter 11 Cases; or
(xv) the failure to satisfy any of the conditions to effectiveness set
forth in the Conforming Plan after the Confirmation Date.
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(xvi) Company Termination Events. The Company may
terminate this Agreement as to all Parties upon three (3) Business Days prior
written notice, delivered in accordance with Section 20 hereof, upon the occurrence of any of the
following events:
(xvii) the breach by one or more Consenting Holders of any of the
representations, warranties or covenants of such Consenting Holder(s) set forth
in this Agreement, if such breach would have a material adverse impact on the
Company or the consummation of the Restructuring Transactions, which breach
remains uncured for a period of five (5) Business Days after the receipt by the
applicable Consenting Holder(s) from the Company of written notice of such
breach; or
(xviii) the issuance by any governmental authority, including any regulatory
authority or court of competent jurisdiction, of any ruling or order enjoining
the consummation of a material portion of the Restructuring Transactions; provided, however, it shall not be deemed a material portion for
purposes of this subsection if the Exchange Offer is enjoined and the Conforming
Plan has not been enjoined.
(b) Mutual Termination. This Agreement, and the
obligations of all Parties hereunder, may be terminated by mutual written
agreement among the Company and the Requisite Noteholders, and, in all events,
this Agreement will be terminated upon the earlier of the Restructuring
Effective Date and September 30, 2010.
(c) Effect of Termination. Upon the termination of
this Agreement in accordance with this Section 5, each Party, subject to Section 14 hereof, shall be immediately released from its
commitments, undertakings and agreements under or related to this Agreement and
shall have all the rights and remedies that it would have had and shall be
entitled to take all actions, whether with respect to the Restructuring
Transactions or otherwise, that it would have been entitled to take had it not
entered into this Agreement, including all rights and remedies available to it
under applicable law, the Notes, the New Notes (if applicable), the Existing
Indenture, the Indenture (if applicable) and any ancillary documents or
agreements thereto; provided, however, that the foregoing termination shall not affect any
agreements or consents in respect of the Senior Refinancing Transaction as
consummated prior to the date hereof. Upon any such termination of
this Agreement, each Consenting Holder may, upon written notice to the Company
and the other Parties, subject to the terms of any order of the Bankruptcy
Court, revoke its vote or any consents given by such Consenting Holder prior to
such termination, whereupon any such vote or consent shall be deemed, for all
purposes, to be null and void ab initio and shall not be considered or otherwise used in
any manner by the Parties in connection with the Restructuring Transactions and
this Agreement. If this Agreement has been terminated in accordance
with this Section 5 at a time when permission of the Bankruptcy Court
shall be required for a Consenting Holder to change or withdraw (or cause to
change or withdraw) its vote to accept the Conforming Plan, the Company shall
not oppose any attempt by such Consenting Holder to change or withdraw (or cause
to change or withdraw) such vote at such time.
Section 6. Good Faith Cooperation; Further Assurances;
Acknowledgment. The Parties shall cooperate with each other in
good faith and shall coordinate their activities (to the extent practicable and
subject to the terms hereof) in respect of (a) all matters relating to
their
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Section 7. rights hereunder in respect of the Company or otherwise in
connection with their relationship with the Company, (b) all matters concerning
the implementation of the Restructuring Term Sheet, the Exchange Offer and the
Conforming Plan, and (c) the consummation of the Restructuring
Transactions. Furthermore, subject to the terms hereof, each of the
Parties shall take such action as reasonably may be necessary to carry out the
purposes and intent of this Agreement, including making and filing any required
regulatory filings and voting any claims or securities of the Company in favor
of the Restructuring Transactions (provided that no Consenting Holder shall be
required to incur any expense (other than nominal expenses associated with the
performance of its obligations hereunder), liability or other obligation) in
connection therewith, and shall refrain from taking any action that would
frustrate the purposes and intent of this Agreement. This Agreement
is not, and shall not be deemed, a solicitation for consents to the Exchange
Offer or the Conforming Plan. This Agreement is not, and shall not be
deemed, an offer by the Company to sell any securities, nor a solicitation for
orders to buy such securities.
Section 8. Definitive Documents. Each Party hereby covenants and agrees to
negotiate in good faith and to execute (to the extent such Party is a party
thereto) the Definitive Documents. For the avoidance of doubt, the
Parties agree to (a) act in good faith and use commercially reasonable
efforts to implement and consummate (i) the Exchange Offer, and if applicable
because the Requisite Tender was not received in response to the Exchange Offer,
(ii) the Conforming Plan in accordance with the terms of this Agreement, and (b)
do all things reasonably necessary and appropriate in furtherance of
consummating the Restructuring Transactions in accordance with, and within the
time frames contemplated by, this Agreement.
Section 9. Representations and Warranties.
(a) Each Party, severally (and not jointly), represents and warrants to
the other Parties that the following statements are true, correct and complete
in all material respects as of the date hereof:
(i) such Party is validly existing and in good standing under the laws
of the jurisdiction of incorporation or organization, and has all requisite
corporate, partnership, limited liability company or similar authority to enter
into this Agreement and carry out the transactions contemplated hereby and
perform its obligations contemplated hereunder, and the execution and delivery
of this Agreement and the performance of such Party’s obligations hereunder have
been duly authorized by all necessary corporate, limited liability, partnership
or other similar action on its part;
(ii) the execution, delivery and performance by such Party of this
Agreement does not and will not (A) violate any provision of law, rule or
regulation applicable to it or any of its subsidiaries or its charter or bylaws
(or other similar governing documents) or those of any of its subsidiaries, or
(B) conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any material contractual obligation to which it
or any of its subsidiaries is a party;
(iii) the execution, delivery and performance by such Party of this
Agreement does not and will not require any registration or filing with, consent
or approval of, or
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(iv) notice to, or other action to, with or by, any federal, state or
governmental authority or regulatory body, except such filings as may be
necessary and/or required for disclosure to the Securities and Exchange
Commission and in connection with the Chapter 11 Cases and the Conforming
Plan; and
(v) this Agreement is the legally valid and binding obligation of such
Party, enforceable in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or limiting creditors’ rights generally or by equitable
principles relating to enforceability or a ruling of the Bankruptcy
Court.
(b) Each Consenting Holder severally (and not jointly), represents and
warrants that, as of the date hereof, such Consenting Holder:
(i) is the beneficial owner of, or the investment adviser or manager of
discretionary accounts for holders or beneficial owners of, the aggregate
principal amount of Notes set forth on the disclosure schedules attached hereto
as Schedule 1 (the “Relevant Securities”), with the power and authority to (A)
vote and dispose of all or substantially all of such Relevant Securities,
(B) consent to such matters concerning such Relevant Securities, and (C)
exchange, assign and transfer such Relevant Securities, in each case as or on
behalf of the holders or beneficial owners of such Relevant Securities, and is
entitled (for its own account or for the account of other persons claiming
through it) to all of the rights and economic benefits of such holdings;
and
(ii) has not made any prior assignment, sale, participation, grant,
conveyance or other transfer of, and has not entered into any other agreement
(other than the Restructuring Term Sheet) to assign, sell, participate, grant,
convey or otherwise transfer, in whole or in part, any portion of its right,
title or interests in any Notes (other than ordinary course pledges and/or
swaps) that are inconsistent with the representations and warranties of such
Consenting Holder herein or would render such Consenting Holder otherwise unable
to comply with this Agreement and perform its obligations
hereunder.
Section 10. Disclosure; Publicity.
(a) Not later than the earlier of four (4) Business Days after execution
of this Agreement and one (1) Business Day after commencement of the Exchange
Offer, subject to the provisions set forth in Section 9(b) hereof, the Company shall file with the
Securities and Exchange Commission a Current Report on Form 8-K and disseminate
a press release disclosing the existence of this Agreement and the terms hereof,
with such redactions as may be requested by any Consenting Holder’s counsel to
maintain the confidentiality of the items identified in Section 9(b) hereof, except as otherwise required by
law. In the event that the Company fails, in the reasonable judgment
of a Consenting Holder, to make the foregoing disclosures in compliance with the
terms specified herein, any such Consenting Holder may publicly disclose the
foregoing, including, without limitation, this Agreement and all of its exhibits
and schedules (subject to the redactions called for by this Section 9(a) or Section 11 hereof), and the Company hereby waives any claims
against the Consenting Holders arising as a result of such disclosure by a
Consenting Holder in compliance with this Agreement.
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(b) The Company shall submit drafts to Stroock of any press releases and
public documents that constitute disclosure of the existence or terms of this
Agreement or any amendment to the terms of this Agreement at least one (1)
Business Day prior to making any such disclosure, and shall afford them a
reasonable opportunity to comment on such documents and disclosures and shall
consider incorporating any such comments in good faith. Except as
required by law or otherwise permitted under the terms of any other agreement
between the Company and any Consenting Holder, no Party or its advisors shall
(i) use the name of any Consenting Holder in any public manner or (ii) disclose
to any person (including, for the avoidance of doubt, any other Consenting
Holder), other than advisors to the Company, the principal amount or percentage
of any Notes, New Notes (if applicable) or any other securities of the Company
held by any Consenting Holder, in each case, without such Consenting Holder’s
prior written consent; provided, however, that (i) if such disclosure is required by law,
valid subpoena or regulation, the disclosing Party shall afford the relevant
Consenting Holder a reasonable opportunity to review and comment in advance of
such disclosure and shall take all reasonable measures to limit such disclosure
and (ii) the foregoing shall not prohibit the disclosure of the aggregate
percentage or aggregate principal amount of Notes and New Notes (if applicable)
held by all the Consenting Holders collectively.
Section 11. Amendments and Waivers. This Agreement, including any exhibits or
schedules hereto, may not be modified, amended or supplemented except in a
writing signed by the Company and the Requisite Noteholders; provided, however, that any modification of, or amendment or supplement
to, this Section 10 shall require the written consent of all of
the Parties. A Consenting Holders’ Termination Event may not be
waived except in a writing signed by the Requisite Noteholders.
Section 12. Effectiveness. This Agreement shall become effective and
binding on the Parties when counterpart signature pages to this Agreement shall
have been executed and delivered by the Company and Consenting Holders,
including each of the parties to the Restructuring Term Sheet, holding at least
66% in aggregate principal amount of the Notes (such date, the “Effective Date”); provided, however, that signature pages executed by Consenting Holders
shall be delivered to (a) other Consenting Holders in a redacted form that
removes such Consenting Holders’ holdings of the Notes and (b) the Company
and advisors to the Consenting Holders in an unredacted form.
Section 13. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ANY CONFLICTS OF LAW PROVISIONS WHICH WOULD REQUIRE THE APPLICATION OF
THE LAW OF ANY OTHER JURISDICTION. BY ITS EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING AGAINST IT WITH RESPECT TO ANY
MATTER UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RENDERED IN ANY SUCH ACTION, SUIT OR
PROCEEDING, MAY BE BROUGHT IN ANY FEDERAL OR STATE COURT IN THE BOROUGH OF
MANHATTAN, THE CITY OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE PARTIES
-22-
Section 14. HEREBY IRREVOCABLY ACCEPTS AND SUBMITS ITSELF TO THE NONEXCLUSIVE
JURISDICTION OF EACH SUCH COURT, GENERALLY AND UNCONDITIONALLY, WITH RESPECT TO
ANY SUCH ACTION, SUIT OR PROCEEDING. EACH PARTY HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. NOTWITHSTANDING THE FOREGOING CONSENT TO JURISDICTION,
FOLLOWING THE COMMENCEMENT OF THE CHAPTER 11 CASES, EACH OF THE PARTIES AGREES
THAT THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
SHALL HAVE EXCLUSIVE JURISDICTION WITH RESPECT TO ANY MATTER UNDER OR ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
Section 15. Specific Performance. It is understood and agreed by the Parties that
any breach of this Agreement by any Party would give rise to irreparable damage
for which monetary damages would not be an adequate remedy and to the extent
permitted by applicable law, each non-breaching Party shall be entitled to
specific performance and injunctive or other equitable relief as a remedy of any
such breach, without the necessity of proving the inadequacy of money damages as
a remedy, including an order of the Bankruptcy Court requiring any Party to
comply promptly with any of its obligations hereunder.
Section 16. Survival. Notwithstanding the termination of this
Agreement pursuant to Section 5 hereof, the agreements and obligations of the
Parties in this Section 14 and in Sections 5(d), 9, 12, 13, 16, 17, 18, 21, 22, 23, 24 and 25 hereof shall survive such termination and shall continue
in full force and effect for the benefit of the applicable Party in accordance
with the terms hereof.
Section 17. Headings. The headings of the sections, paragraphs and
subsections of this Agreement are inserted for convenience only and shall not
affect the interpretation hereof.
Section 18. Successors and Assigns; Severability; Several
Obligations. This Agreement is intended to bind and inure to
the benefit of the Parties and their respective successors, assigns, heirs,
executors, administrators and representatives; provided, however, that nothing contained in this Section 16 shall be deemed to permit sales, assignments or
transfers of the Notes or New Notes (if applicable), or claims arising under the
Notes or New Notes (if applicable), other than in accordance with Section 3(d) of this Agreement. If any
provision of this Agreement, or the application of any such provision to any
person or circumstance, shall be held invalid or unenforceable in whole or in
part, such invalidity or unenforceability shall attach only to such provision or
part thereof and the remaining part of such provision hereof or the Agreement
shall continue in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon any such determination of
invalidity, the Parties shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the Parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent
possible.
-23-
Section 19. No Third-Party Beneficiaries. Unless expressly stated herein or as otherwise
provided in the Credit Agreement as of the date hereof, this Agreement shall be
solely for the benefit of the Parties and no other Person shall be a third-party
beneficiary hereof.
Section 20. Prior Negotiations; Entire Agreement. This Agreement, including the exhibits and
schedules hereto, including without limitation, the Restructuring Term Sheet,
constitutes the entire agreement of the Parties, and supersedes any other prior
agreements, arrangements or understandings (whether written or oral), with
respect to the subject matter hereof, except that the Parties acknowledge that
any confidentiality agreements (if any) heretofore executed between the Company
and each Consenting Holder shall continue in full force and effect.
Section 21. Counterparts. This Agreement may be executed and delivered in
any number of counterparts (including by facsimile or portable document format
(PDF) signatures), each of which shall be deemed to be an original as against
any party whose signature page appears thereon, and all of which shall together
constitute one and the same agreement.
Section 22. Notices. All notices hereunder shall be deemed given if
in writing and delivered, if sent by email (and acknowledged in electronic or
other writing by the recipient), facsimile, courier or by registered or
certified mail (return receipt requested) to the following addresses and
facsimile numbers (or at such other addresses or facsimile numbers as shall be
specified by like notice):
(1) If
to the Company, to:
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Xxxxxx Publishing Group, LLC
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
email: xxxxx.xxxxxxxx@xxxxxx.xxx
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With copies to:
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Hull, Xxxxxx, Xxxxxx, Xxxxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
email: xxxxxxxxxx@xxxxxxxx.xxx
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-24-
Xxxx Xxxxxx Xxxxxxxxx, LLP
Xxx Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Xxxxxxxx
X. Xxxxxx
email: xxxxxxxx@xxxxxx.xxx
email: xxxxxxx@xxxxxx.xxx
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(2) If
to a Consenting Holder or a transferee thereof, to the address or
facsimile number set forth below on such Consenting Holder’s signature
page (or as directed by any transferee thereof), as the case may be, with
copies to:
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Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxxxx X. Xxxxxx
Xxxxx
Xxxxxxxx
email: xxxxxxx@xxxxxxx.xxx
email:
xxxxxxxxx@xxxxxxx.xxx
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All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery. Any notice given by email or
facsimile shall be effective upon written or machine confirmation of
transmission.
Section 23. Reservation of Rights. Except as expressly provided otherwise in this
Agreement, nothing herein is intended to, or does, in any manner waive, limit,
impair or restrict the ability of each Consenting Holder to protect and preserve
its rights, remedies and interests, including without limitation, its claims
against the Company. Nothing herein shall be deemed an admission of
any kind. If the transactions contemplated herein are not
consummated, or if this Agreement is terminated for any reason, the Parties
fully reserve any and all of their rights. Pursuant to Rule 408 of
the Federal Rules of Evidence, any applicable state rules of evidence and any
other applicable law, foreign or domestic, this Agreement and all negotiations
relating thereto shall not be admissible into evidence in any proceeding other
than a proceeding to enforce its terms.
Section 24. Prevailing Party. If any Party brings an action or proceeding
against any other Party based upon a breach by such Party of its obligations
hereunder, the prevailing Party shall be entitled to all reasonable expenses
incurred, including reasonable attorneys’, accountants’ and financial advisors
fees in connection with such action or proceeding.
Section 25. Relationship Among Parties. It is understood and agreed that no Consenting
Holder has any duty of trust or confidence in any kind or form with any other
Consenting Holder, and, except as expressly provided in this Agreement, there
are no commitments among or between them. In this regard, it is
understood and agreed that any Consenting Holder may trade in the Notes, New
Notes (if applicable) or other debt or equity securities of the Company without
the consent of the Company or any other Consenting Holder, subject to applicable
securities laws and the terms of this Agreement; provided, however, that no Consenting Holder shall have any
responsibility for any such trading to any other entity by
virtue
-25-
Section 26. of this Agreement. No prior history, pattern or practice
of sharing confidences among or between the Consenting Holders shall in any way
affect or negate this understanding and agreement.
Section 27. Fiduciary Duties. Notwithstanding anything to the contrary herein,
nothing in this Agreement shall require (a) the Company or any directors or
officers of the Company (in such person’s capacity as a director or officer of
the Company) to take any action, or to refrain from taking any action, to the
extent required, that would, in the opinion of counsel, conflict with its or
their fiduciary obligations under applicable law, or (b) any Consenting Holder
or representative of a Consenting Holder that becomes a member of a statutory
committee that may be established in the Chapter 11 Cases to take any action, or
to refrain from taking any action, in such person’s capacity as a statutory
committee member to the extent required, that would conflict with fiduciary
obligations applicable to such person under the Bankruptcy Code; provided however, that nothing in this Agreement shall be construed as
requiring any Consenting Holder to serve on any statutory committee in the
Chapter 11 Cases. Nothing herein will limit or affect, or give rise
to any liability, to the extent required for the discharge of the fiduciary
obligations described in this Section 24.
Section 28. Indenture Waiver. Notwithstanding anything to the contrary herein,
each Consenting Holder hereby waives, solely with respect to the Notes held by
it, any requirement of Sections 4.11 or 4.20 of the Existing Indenture that
would restrict the consummation of the transaction involving the acquisition and
amendment of the senior secured debt of the Company on the terms set forth in
the Term Sheet attached as Attachment A to the Restructuring Term Sheet and described
therein as the “Senior Refinancing Transaction”.
[Signature
Pages Follow]
-26-
IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed as of the date first written
above.
XXXXXX PUBLISHING GROUP, LLC
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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XXXXXX PUBLISHING FINANCE CO.
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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YANKTON PRINTING COMPANY
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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BROADCASTER PRESS, INC.
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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THE SUN TIMES, LLC
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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XXXXX NEWS, LLC
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of
Finance
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-27-
LOG CABIN DEMOCRAT, LLC
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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ATHENS NEWSPAPERS, LLC
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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SOUTHEASTERN NEWSPAPERS COMPANY, LLC
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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XXXXXXXX COMMUNICATIONS, INC.
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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FLORIDA PUBLISHING COMPANY
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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MPG HOLLAND PROPERTY, LLC
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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-28-
SOUTHWESTERN NEWSPAPERS COMPANY, L.P.
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By: Xxxxxx Publishing Group, LLC, its
general partner
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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THE OAK RIDGER, LLC
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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MPG ALLEGAN PROPERTY, LLC
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By:
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/s/
Xxxxx X.
Xxxxxxxx __________________________
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President of Finance
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-29-
SIGNATURE BLOCK OF CONSENTING HOLDER
Name: Xxxxxxx Management Corporation, on
behalf of affiliated investment
entities
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Signature: /s/
Xxxx X. Xxxxxxx
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Name of Signing Person: Xxxx X.
Xxxxxxx
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Title of Signing Person: Managing
Director
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Notice Address:
Xxxxxxx Management Corporation
0 Xxxxxxxx Xxxxx – Suite 1501
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
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Attention:
Xxxx X. Xxxxxxx
Xxxxxx Xxxxx
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Fax: 000-000-0000
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-30-
SIGNATURE BLOCK OF CONSENTING HOLDER
Name: MACKAY XXXXXXX LLC, as investment
adviser or sub-advisor to certain
holders
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Signature: /s/
J. Xxxxxxx Xxxxx
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Name of Signing Person: J. Xxxxxxx
Xxxxx
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Title of Signing Person: Senior Managing
Director
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Notice Address:
MacKay Xxxxxxx LLC
0 Xxxx 00xx
Xxxxxx
Xxx Xxxx, XX 00000
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Attention:
J. Xxxxxxx Xxxxx
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Fax: 000-000-0000
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-31-
SIGNATURE BLOCK OF CONSENTING HOLDER
Name: Metropolitan Life Insurance
Company
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Signature: /s/
Xxxxx X. Pally
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Name of Signing Person: Xxxxx X.
Pally
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Title of Signing
Person: Director
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Notice Address:
00 Xxxx Xxxxxx, XXX 0000
Xxxxxxxxxx, XX 00000
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Attention:
Xxxxx X. Pally
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Fax: 000-000-0000
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-32-
SIGNATURE BLOCK OF CONSENTING HOLDER
Name: RCG PB,
LTD
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Signature: /s/
Xxxxxxx X. Xxxxxxx
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Name of Signing Person: Xxxxxxx X.
Xxxxxxx
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Title of Signing Person: Authorized
Signatory
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Notice Address:
000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
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Attention:
Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
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Fax: 000-000-0000
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-33-
EXHIBIT
A
XXXXXX PUBLISHING GROUP, LLC
Restructuring Term Sheet
September 23, 2009
Set forth below is a binding summary of terms (this “Term Sheet”) offered in settlement between the parties
hereto. Until publicly disclosed, this term sheet and the information
contained herein shall remain strictly confidential and may not be shared with
any person other than Xxxxxx Publishing Group, LLC (along with its subsidiaries,
“MPG” or the “Company”), the ad hoc committee of holders of the 7% Senior
Subordinated Notes due 2013 (the “Ad Hoc Committee”), the other parties (who are subject to
non-disclosure obligations) involved in the proposed Senior Refinancing
Transaction (as defined below), and their respective professional
advisors. Capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Existing Indenture (as defined
below).
This Term Sheet shall be binding upon execution by each of the
parties hereto with respect to the subject matter contained in this Term Sheet
but otherwise does not purport to summarize all additional conditions,
covenants, representations and warranties and other provisions that may be
contained in definitive legal documentation for the transactions contemplated
hereby, and the agreement regarding material terms set forth herein is subject
to the final negotiation and execution of the definitive legal documentation for
such transactions.
The Transaction
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The Company’s exchange of $278,478,000 7% Senior Subordinated
Notes due 2013 (plus any accrued and unpaid interest) (the “Existing Notes”) for $100,000,000 principal amount of
new notes (the “New Notes”) to the holders of the Existing Notes,
immediately upon the effective date (the “Effective Date”) of either (i) an out-of-court exchange
offer, or (ii) a confirmed plan of reorganization (the “Plan”).
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Exhibit
A-1
Summary Terms of the New Notes
Issuer
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Xxxxxx Publishing Group, LLC
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Issue
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The New Notes shall be issued under an indenture (the “Indenture”) that will be based in part upon the
indenture governing the Existing Notes (the “Existing Indenture”).
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Guarantors
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All existing and future subsidiaries that guarantee the
Existing Notes (collectively, the “Guarantors”) shall unconditionally guarantee the
indebtedness, obligations and liabilities of the Company arising under, or
in connection with, the Indenture.
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Maturity
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The New Notes shall mature on a date four (4) years and six
(6) months (the “Maturity Date”) from the issuance of the New
Notes.
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Remaining Debt
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On the Effective Date, the Company must have at least $15.7
million less (i) professional fees, (ii) restructuring charges,
(iii) bank fees in an amount not to exceed $2.8 million, and (iv)
amortization payments on existing first lien senior indebtedness in an
amount not to exceed $2.25 million (the “Initial Cash on Hand”) in excess of the Working Capital
Balance (as defined below) reflected as a current asset on the Company’s
balance sheet. Until the earliest to occur of the consummation
of the Exchange Offer (as defined below), the confirmation of the Plan, or
December 22, 2009 (which date may be extended by the Ad Hoc Committee and
the Company), the Company shall not make aggregate capital expenditures in
excess of the $650,000 amount projected in the 13-week cash flow forecast
as of September 22, 2009 provided to the Ad Hoc Advisors (as defined
below), except for expenditures approved in writing in advance by the Ad
Hoc Committee in their reasonable discretion, which shall not be
unreasonably withheld or delayed.
The aggregate outstanding balance of the Company’s existing
term loan shall not exceed $26.5 million less the Initial Cash on Hand following the
consummation of a senior debt refinancing transaction involving the
Company’s affiliates (the “Senior Refinancing Transaction”) in accordance with the
Senior Debt Refinancing Documentation (as defined below), of which no more
than $19.7 million less the Initial Cash on Hand will be held by an
affiliate of ACON Investments, L.L.C. (the “Term Loan”) and approximately $6.8 million in the
aggregate will be held by a Xxxxxx affiliate (the “Revolver”). The Revolver shall consist
solely of existing first lien indebtedness of the Company that is
converted into a second lien Revolver balance on a dollar-for-dollar basis
contemporaneously upon consummation of the Senior Refinancing
Transaction. The Term Loan shall not be held by any Affiliate
of the Company at any time.
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Exhibit
A-2
Refinancing of Term Loan and Revolver
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On or prior to one hundred fifty (150) days from the Effective
Date, the Company shall be obligated to refinance (the “Refinancing”) the Revolver and the Term Loan with a
term loan and/or revolver provided solely by an unaffiliated commercial
bank and not by a Xxxxxx affiliate (collectively, the “Refinanced Debt”). The Refinanced Debt shall
have no prepayment penalties and shall permit cash coupon and amortization
payments on the New Notes.
To the extent that the Revolver is not refinanced within one
hundred fifty (150) days of the Effective Date, the Revolver shall mature
on the Maturity Date and shall only be capable of repayment from excess
cash payable to the New Notes on a pro rata basis. Upon the amortization or
refinancing of all or any portion of the Revolver, including any accrued
interest, such amortized or refinanced balance shall no longer be
available for borrowing under the Revolver.
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Interest
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Until the repayment in full of the Term Loan through cash flow
sweeps, the New Notes shall accrue (i) cash interest at the rate of 5% per
annum, payable quarterly in arrears, and (ii) paid-in-kind (“PIK”) interest at the rate of 10% per annum, compounded
quarterly in arrears, which PIK interest shall increase the outstanding
balance of the New Notes. Thereafter, the New Notes shall pay
cash interest at the rate of 10% per annum.
The Term Loan shall accrue and pay interest at the rate of 15%
per annum.
The Revolver shall accrue interest solely at a PIK rate equal
to the aggregate interest rate payable on the New Notes.
The interest rate payable on the Refinanced Debt shall not
exceed LIBOR plus 970 basis points, as calculated on a per annum
basis.
In the event of a refinancing of the Term Loan and Revolver,
the New Notes shall accrue interest at five percent 5% plus the rate payable on the Refinanced Debt, with a
minimum aggregate interest rate of 10% per annum. While any
Refinanced Debt remains outstanding, interest on the New Notes shall be
payable 50% in cash and 50% PIK. For example, if the Refinanced
Debt has a per annum interest rate of 7%, the per annum interest rate of
the New Notes shall be 12% (6% PIK and 6% cash) until the repayment in
full (other than the Working Capital Facility) of the Refinanced Debt, at
which time the New Notes shall accrue cash interest at a per annum rate of
10%.
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Default Interest
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If an Event of Default (as defined in the Indenture) occurs,
and for so long as an Event of Default continues, cash interest on the New
Notes shall accrue at the applicable rate plus (i) 2% per annum, and (ii) if any portion of the
Term Loan remains outstanding, plus an additional 2% per
annum.
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Exhibit
X-0
Xxxxxxxxx Xxxxxxxxxx/
Xxxxxxxxxx
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Subject to certain qualifications or exceptions, upon the
occurrence of a Change of Control (as defined in the Indenture), certain
asset dispositions, certain issuances of debt or equity by the Company, or
the Company’s receipt of insurance or condemnation proceeds, the Company
shall be obligated to repurchase the New Notes, at 101% of their principal
amount, plus accrued and unpaid interest to the date of
repurchase. This repurchase obligation will be subordinate to
repayment of the Term Loan.
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Optional Redemption/
Repurchase
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The New Notes shall be redeemable by the Company at its
option, in whole or in part, in cash, at any time at a redemption price
equal to 103% of the aggregate principal amount of the New Notes redeemed,
declining to 102% in the second year, 101% in the third year and 100%
thereafter (plus accrued and unpaid interest, if any, to the date of
redemption), provided that any required amortization payments will be
applied to reduce principal at 100% of the outstanding principal
amount.
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Working Capital Revolving Credit Facility
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The Company may enter into a secured working capital revolving
credit facility with a maximum available amount of up to $10,000,000 (the
“Working Capital Facility”). The Working
Capital Facility shall permit: (i) the payment of interest on the New
Notes at all times (other than when an event of default under the Working
Capital Facility shall have occurred and be continuing), and (ii) the
amortization of the New Notes when there is no outstanding balance on the
Working Capital Facility.
As a condition to obtaining the Working Capital Facility, the
Company shall be required to first use the entire remaining amount of the
Working Capital Balance to amortize the Term Loan or Refinanced Debt, as
applicable.
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Exhibit
A-4
Security/Priority
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The New Notes and related guarantees shall be secured by a
second lien on all the assets of the Company and the Guarantors that
currently secure the existing first lien indebtedness of the
Company.
The New Notes shall rank:
1) junior to the Term Loan (or the Refinanced Debt, if
applicable) and the Working Capital Facility;
2)pari passu with the Revolver for all purposes,
including a subsequent insolvency proceeding under the Bankruptcy Code,
and with respect to principal payments upon mandatory and optional
redemptions/repurchases and required amortization payments;
and
3) senior to (a) any senior unsecured obligations of the
Company and the Guarantors; and (b) any future subordinated indebtedness
of the Company and the Guarantors.
A customary mutually acceptable intercreditor agreement will
be entered into between the trustee under the Indenture (the “Trustee”) and the agent for the Term Loan, the terms of
which shall be agreed upon by the Ad Hoc Committee and the agent for the
Term Loan prior to the consummation of the Senior Refinancing
Transaction.
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Amortization; Excess Free Cash Flow Sweep;
Minimum Cash Balance
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Excess Free Cash Flow1 (as defined in the Indenture) greater
than the Working Capital Balance shall be used to amortize the Term Loan
(or the Refinanced Debt, if applicable) first, then the Working Capital
Facility, and then the New Notes and the Revolver (if no Refinanced Debt)
on a pro rata basis, on a monthly basis at 100% of their
respective principal amount, plus any accrued and unpaid interest to the
date of amortization.
In addition, the Company may maintain a minimum balance of
cash and cash equivalents at an agreed upon financial institution in an
aggregate amount of $5,000,000 (average weekly balance in any calendar
month) (the “Working Capital Balance”); provided, however, that the sum of (i) the Working Capital
Balance, plus (ii) the average availability during any calendar
month under the Working Capital Facility, if applicable, shall at all
times be no less than $2,000,000 in the
aggregate.
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Exhibit
A-5
Covenants
|
Except as specifically contemplated by this Term Sheet, the
Indenture shall contain customary covenants (and others reasonably
determined by the holders of the New Notes to be appropriate)
substantially similar to those contained in the Existing Indenture,
including, without limitation the following:
Affirmative
Covenants:
1) Maintenance of (i) all necessary licenses, permits, trade
names, trademarks and patents, (ii) properties and
(iii) books and records;
2) Compliance with (i) material contracts and
(ii) environmental laws;
3) Amendment to the Management and Services Agreement, dated as
of August 7, 2003 (the “MSA”), between MCC, MSTAR Solutions, LLC (“MSTAR”) and the Company to fix the combined annual
payment of the Xxxxxx Communications Fee (as defined in the MSA) and the
MSTAR Solutions Fee (as defined in the MSA) at actual costs; provided, however, that the combined annual payment of the Xxxxxx
Communications Fee and the MSTAR Solutions Fee shall not, under any
circumstances, exceed $22,000,000 in the aggregate during any given
calendar year. The Company shall deliver a certificate every
quarter to the Trustee providing in sufficient detail information about
the costs incurred for such quarter and being charged for under the
MSA. The Trustee shall make available such information to any
holder of New Notes who requests such information under conditions
provided for in the Indenture;
4) The Company shall deliver a certificate every month to the
Trustee providing in sufficient detail information about the Company’s
monthly EBITDA, existing cash, the outstanding balance of each of the Term
Loan, the Revolver, the Working Capital Facility and the Refinanced Debt,
as applicable, together with any amortization payments made during such
month on the Term Loan, the Revolver, the Working Capital Facility and the
Refinanced Debt, as applicable. The Trustee shall make
available such information to any holder of New Notes who requests such
information under conditions provided for in the Indenture;
and
5) The Company shall deliver a certificate signed by two officers
of the Company every quarter to the Trustee certifying that no default or
event of default under the Indenture exists, or if any default or event of
default under the Indenture exists, specifying the nature and extent
thereof, which certificate shall set forth the calculations required to
establish the Total Leverage Ratio (as defined below) and the Cash
Interest Coverage Ratio (as defined below) as of the last day of such
quarter. The Trustee shall make available such information to
any holder of New Notes who requests such information under conditions
provided for in the Indenture.
Negative
Covenants:
1) Except as otherwise provided for in this Term Sheet, none of
the Company or the Guarantors shall engage in the following:
a)incurrence of (i) liens (other than customary permitted
liens, including but not limited to, liens securing the Company’s
obligations for workers compensation liabilities), charges, encumbrances
or lease obligations, or (ii) any other indebtedness (other than customary
permitted indebtedness);
b)material modifications or amendments to affiliate
agreements;
c)affiliate transactions outside of the ordinary course and in
excess of $100,000 for any single transaction or $250,000 for a series of
transactions;
d)certain specified investments;
e)mergers and other fundamental changes;
f)equity pledges;
g)capital expenditures in excess
of $10,000,000 in the aggregate during any calendar
year; or
h)repayment and/or modifications of other indebtedness in
excess of $100,000, other than trade debt or in the ordinary course of
business.
2) Neither the Company nor the Guarantors shall incur any new
indebtedness senior to the New Notes.
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Exhibit
A-6
Total Leverage
Covenant2
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“Total Leverage Ratio” shall mean, at any date of
determination, the ratio of all outstanding indebtedness for borrowed
money (exclusive of trade payables), net of cash, of the Company on such
date to EBITDA during the preceding four fiscal quarters.
The Indenture shall contain a maximum Total Leverage Ratio as
follows:
YEAR RATIO
2010 5.5x
2011 –
Q1 5.5x
2011 –
Q2 5.5x
2011 –
Q3 5.25x
2011 –
Q4 5.25x
2012 5.0x
2013 4.75x
2014 4.5x
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Cash Interest
Coverage Covenant3
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“Cash Interest Coverage Ratio” shall mean, at any date
of determination, the ratio of EBITDA during the preceding four fiscal
quarters to cash interest expense during the preceding four fiscal
quarters.
The Indenture shall contain a minimum Cash Interest Coverage
Ratio as follows:
YEAR RATIO
2010 1.8x
2011 1.8x
2012 1.8x
2013 1.9x
2014 2.1x
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Intercompany Obligations
|
Existing inter-company obligations from Xxxxxx Communications
Company, LLC to the Company shall be satisfied as contemplated by the
Senior Debt Refinancing Documentation.
There shall be no intercompany loans from the Company to any
Affiliate while the New Notes are outstanding.
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Events of Default
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Usual and customary Events of Default substantially similar to
those contained in the Existing Indenture, and also including, without
limitation:
(i) inability to pay debts; (ii) actual or asserted invalidity
or impairment of any Indenture-related documentation;
and (iii)
Change of Control.
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Exhibit
A-7
The Transaction
Means of Transaction Execution
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The transaction will be implemented through either (i) an
out-of-court exchange offer (the “Exchange Offer”) consummated as soon as practicable
after the consummation of the Senior Refinancing Transaction, which shall
be consummated on terms substantially similar to those contained in the
term sheet and related acquisition of MPG senior debt diagram (the “Senior Debt Refinancing Documentation”), each prepared
by counsel to the Company and attached hereto as Attachment A, whereby MCC Outdoor Holding, LLC (“Outdoor”) and MPG Revolver LLC (“MPG Revolver”) shall immediately deposit the full
amount of approximately $110 million of the existing first lien debt (such
amount, the “Remaining Senior Debt Balance”) of the Company into
third-party escrow accounts, pursuant to an escrow agreement acceptable to
Outdoor and MPG Revolver, on the one hand, and the Ad Hoc Committee, on
the other hand, and the Exchange Offer shall be conditioned on the prior
consummation of the Senior Refinancing Transaction, or (ii) a confirmed
plan of reorganization pursuant to a chapter 11 filing. During
the solicitation process, if holders owning Existing Notes in an amount
equal to or greater than 99% of the outstanding Existing Notes consent,
the parties will effectuate the transaction through an out-of-court
exchange offer, rather than pursuant to a chapter 11 filing.
The members of the Ad Hoc Committee shall (i) tender their
Existing Notes in the Exchange Offer, and (ii) vote in support of the
Plan, in each case in accordance with the Plan Support Agreement (as
defined below).
The escrow agreement referenced in the preceding paragraph
shall provide that such escrowed debt shall be (i) cancelled in payment of
intercompany indebtedness of Xxxxxx Communications Company and its
subsidiaries to the Company, and/or sold to the Company’s parent and
contributed to capital substantially as contemplated in the Senior Debt
Refinancing Documentation, upon consummation of the Exchange Offer or the
Plan, (ii) released to each of Outdoor and MPG Revolver upon the material
breach by the members of the Ad Hoc Committee of their obligations under
this Term Sheet, as determined by the final, non-appealable order of a
court of competent jurisdiction, or (iii) cancelled in payment of
intercompany indebtedness of Xxxxxx Communications Company and its
subsidiaries to the Company, and/or sold to the Company’s parent and
contributed to capital substantially as contemplated in the Senior Debt
Refinancing Documentation, upon the material breach by either the Company,
the Guarantors, Outdoor or MPG Revolver of any of their respective
obligations hereunder, as determined by the final, non-appealable order of
a court of competent jurisdiction. If the Exchange Offer or the
Plan fails or is not consummated or approved as contemplated in this Term
Sheet for any reason, including the failure of any conditions to
solicitation, confirmation or effectiveness or the lack of support from
other holders of the Existing Notes, but without material breach hereof by
the Company, the Guarantors, Outdoor, MPG Revolver or the Members of the
Ad Hoc Committee, then (x) the escrow agreement shall contain terms to be
agreed upon by the Ad Hoc Committee and Outdoor and MPG Revolver designed
to use the escrowed debt to restore the parties to the same legal position
(i) as existed on the day prior to the execution of this Term Sheet, or at
the option of the Ad Hoc Committee, (ii) as if the members of the Ad Hoc
Committee had consummated the Exchange Offer with a percentage of the
Existing Notes equal to the percentage of Existing Notes that had tendered
their Existing Notes in the Exchange Offer (such percentage, the “Exchange Offer Percentage”), but without participation
by any non-tendering holders of the Existing Notes, and with a capital
contribution as contemplated in the Senior Debt Refinancing Documentation
in an amount equal to the Exchange Offer Percentage multiplied by the
Remaining Senior Debt Balance (the “Subordinated Senior Debt”) whereby the Subordinated
Senior Debt shall rank junior to the New Notes in all material respects,
including in right of payment and recovery, and (y) each of the Company,
the Guarantors, Outdoor, MPG Revolver shall, and shall direct their
Affiliates to, cooperate in good faith with the members of the Ad Hoc
Committee in order to effectuate the transactions and ensure the treatment
of the New Notes contemplated by this paragraph, including without
limitation by executing any agreements, making any filings and granting
any approvals or consents as may be reasonably required in connection with
effecting such transactions or ensuring such treatment in a chapter 11
case.
The Ad Hoc Committee shall give all necessary approvals or
consents as may be reasonably required under the Indenture or the
Forbearance Agreement (as amended) to consummate the Senior Refinancing
Transaction; provided, that the Ad Hoc Committee shall have the right to
review all documentation in connection with the Senior Refinancing
Transaction that relates to MPG and the Guarantors, including without
limitation, the Term Loan and the Revolver, and shall have a consent right
over any material terms not previously disclosed to it in writing as part
of the Senior Debt Refinancing
Documentation.
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Exhibit
A-8
Solicitation and Filing
|
The Company shall commence the solicitation process in
accordance with applicable securities laws on or before October 16, 2009,
or such later date as shall be agreed to by the Ad Hoc
Committee. If the Company does not receive consent to an
out-of-court exchange during the twenty (20) business day solicitation
period (such twenty (20) business day solicitation period to be extended
for an additional five (5) business day period at either the Company’s or
the Ad Hoc Committee’s written request) from holders owning Existing Notes
in an amount equal to or greater than 99% of the outstanding Existing
Notes, the Company shall file a chapter 11 case within seven (7) days
after the later of the conclusion of the solicitation process or the
approval by the Ad Hoc Committee of the disclosure statement to be filed
in the Plan. If the Company receives the requisite consent for
the exchange offer, the Company shall consummate the exchange offer within
five (5) days of the conclusion of the solicitation
process. All legal documentation necessary to effectuate the
solicitation, the bankruptcy filing, the Exchange Offer and the Plan shall
be in form and substance reasonably satisfactory to the Company and the Ad
Hoc Committee.
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Conditions to Solicitation
|
Customary for notes of this type, including, without
limitation, that no Material Adverse Effect (as defined in the Credit
Agreement), Event of Default or Default, other than the Existing Default
or the Payment Default (each as defined in the Forbearance Agreement,
dated as of February 26, 2009 (as amended), by and among the Issuers, the
Guarantors and the holders of the Existing Notes party thereto (the “Forbearance Agreement”)) shall have
occurred.
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Plan Support Agreement
|
The Company and the Ad Hoc Committee shall execute a plan
support agreement (the “Plan Support Agreement”) on reasonable and customary
terms by October 2, 2009, or such later date as shall be agreed to by the
Ad Hoc Committee.
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Conditions to Confirmation
|
The Plan shall contain such conditions to confirmation
customary in plans of reorganization of this type, to be agreed upon by
the Company and the Ad Hoc Committee, including, without
limitation:
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1. No Termination
Event (as defined in the Plan Support Agreement) shall have
occurred.
3. The Plan (and all
documents related thereto), the disclosure statement (and all solicitation
materials related thereto), and the confirmation order shall be in form
and substance acceptable to the Ad Hoc Committee and approved by the
Bankruptcy Court.
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Conditions to Effectiveness
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The Plan shall contain such conditions to effectiveness
customary in plans of reorganization of this type, to be agreed upon by
the Company and the Ad Hoc Committee.
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Exhibit
A-9
Treatment/Distributions
|
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Holders of the Existing Notes
|
Holders of the Existing Notes shall receive (i) their pro rata
share of the New Notes and (ii) payment of all reasonable fees, expenses
and disbursements of (a) Stroock & Stroock & Xxxxx LLP, as counsel
to the Ad Hoc Committee (“Stroock”) and (b) FTI, as financial advisor to the Ad
Hoc Committee (“FTI” and together with Stroock, the “Ad Hoc Advisors”).
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Existing Shareholders
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Unimpaired
|
Allowed Trade Claims
|
Unimpaired
|
Other Allowed General Unsecured Claims
|
Unimpaired
|
Remaining Term Loan
|
Unimpaired and reinstated
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Executory Contracts and Unexpired Leases
|
Unless otherwise agreed to by the Company and the Ad Hoc
Committee, all executory contracts and unexpired leases as to which the
Company is a party shall be deemed automatically assumed in accordance
with the provisions and requirements of sections 365 and 1123 of the
Bankruptcy Code as of the Effective Date of the Plan.
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Professional Claims
|
On the Effective Date, the Company shall pay all amounts owing
to professionals (including the Ad Hoc Advisors) for all outstanding
amounts payable relating to prior periods through the Effective Date in
accordance with section 1129(a)(4) of the Bankruptcy
Code.
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Section 503(b) Claims
|
The Ad Hoc Advisors will be compensated as provided above,
however, the Company will support any application of the Ad Hoc Advisors
for allowance and payment of reasonable fees and expenses incurred
pursuant to section 503(b) of the Bankruptcy Code. The Ad Hoc
Committee will support any application of the Company’s advisors for
allowance and payment of reasonable fees and expenses incurred pursuant to
section 503(b) of the Bankruptcy Code, if applicable.
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Exculpation and Indemnification
|
The Plan and confirmation order shall provide that all rights
to exculpation, indemnification and advancement of expenses for acts or
omissions occurring at or prior to the consummation of the Plan, whether
asserted or claimed prior to, at or after the consummation of the Plan
(including any matters arising in connection with the transactions
contemplated by this Term Sheet and the Plan Support Agreement), existing
in favor of each of the directors and officers (statutory or otherwise)
of the Company or their affiliates
(collectively, “Indemnitees”) in the certificate of incorporation or
by-laws (or comparable organization documents) of the Company or any of
their affiliates, as applicable, or in any agreement shall survive the
Effective Date and shall continue in full force and effect (and not be
modified, amended or terminated in any manner adverse to any Indemnitee
without the written consent of the affected Indemnitee) for a period of
not less than six (6) years following the consummation of the
Plan.
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Exhibit
A-10
Corporate Governance
|
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Board Observer
|
The holders of the New Notes shall have the right to appoint
an observer (the “Observer”) to the Board of Directors of the Company
(the “Board”), and upon such appointment the Board shall
accept the Observer to the Board. Such Observer shall be named
to each committee of the Board and the board of directors (or comparable
body) of each material subsidiary of the Company and each committee of
such board (or comparable body) of each such
subsidiary.
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Public Reporting
|
The New Notes will be subject to SEC public reporting
requirements.
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Miscellaneous
|
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Enforceability
|
This Term Sheet is a valid and binding agreement, enforceable
in accordance with its terms (subject, as to the enforcement of remedies,
to any applicable bankruptcy, insolvency or other laws affecting the
enforcement of creditors’ rights).
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Fees and Expenses
|
The Company agrees to pay on demand all reasonable costs and
expenses of the Ad Hoc Committee in connection with the preparation,
execution and delivery of this Term Sheet, including the reasonable fees,
costs and expenses of Stroock with respect thereto.
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Reservation of Rights
|
Prior to the execution of the agreements contemplated hereby
by each of the parties thereto, each party hereto reserves all rights and
remedies regarding these agreements under applicable law or at
equity. Any forbearance by any such party in exercising its
rights or remedies prior to or after the date hereof shall not in any way
impair, limit or restrict in any respect the right of such party to
exercise at any time and in any manner deemed appropriate by it all or any
of such rights or remedies. The Exchange Offer, or the Plan and
confirmation order, as applicable, shall include derivative releases,
mutual third-party releases and exculpation provisions effective upon
consummation. Such releases and exculpations shall be for the
benefit of and binding upon the trustee under the Existing Indenture, the
Trustee, the holders of the Existing Notes, the holders of the New Notes,
the parties to the Senior Refinancing Transaction, the Company and the
Company’s directors, officers, employees, and professional advisors, to
the fullest extent permitted by law. Until the later of the
consummation of the Exchange Offer or the confirmation of the Plan (if
applicable), each of the parties hereto reserves all rights and remedies
in existence immediately prior to the date hereof.
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Exhibit
A-11
Governing Law
|
This Term Sheet is, and the documents contemplated hereby
shall be, governed by the laws of the State of New
York.
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Jurisdiction & Waiver of Jury Trial
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Each of the parties irrevocably submits to the jurisdiction of
the courts of the State of New York located in New York County or of the
United States for the Southern District of New York for the purposes of
any suit, action or other proceeding arising out of this Term Sheet;
provided, however that any bankruptcy proceeding may be filed in the
Southern District of Georgia and shall be subject to any applicable laws
of the State of Georgia.
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Counterparts
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This Term Sheet may be executed in any number of counterparts
(including by facsimile or portable document format (PDF) signatures),
each of which shall be deemed to be an original as against any party whose
signature page appears thereon, and all of which shall together constitute
one and the same agreement.
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Entire Agreement; Modification
|
This Term Sheet supersedes all prior agreements or
understandings, whether written or oral, between the parties with respect
to its subject matter and constitutes a complete and exclusive statement
of the terms of the agreement between the parties with respect
to such subject matter. In case of any discrepancy between the
terms of this Term Sheet and the Senior Debt Refinancing Documentation,
the terms of this Term Sheet shall govern.
This Term Sheet may not be amended, supplemented or otherwise
modified except by a written agreement executed by the parties signatory
hereto.
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Forbearance
|
The Ad Hoc Committee shall continue to extend forbearance
under the Forbearance Agreement until the earlier to occur of (i) the
senior lenders ceasing to extend their waivers under the Company’s
existing senior secured credit agreement, or (ii) October 16,
2009.
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Exhibit
A-12
AMENDMENT TO RESTRUCTURING TERM SHEET
This Amendment to Restructuring Term Sheet (this “Amendment”), dated as of October 15, 2009 (the “Amendment Date”), is entered into by and among Xxxxxx
Publishing Group, LLC (along with its subsidiaries, “MPG” or the “Company”) and the ad hoc committee of holders of, or as the
case may be investment managers of discretionary accounts holding, the 7% Senior
Subordinated Notes due 2013 (the “Ad Hoc Committee”). Capitalized terms used and not
defined herein shall have the meaning attributed to such term in the Existing
Restructuring Term Sheet (as defined below).
W I T N E S S E T H:
WHEREAS, on September 23, 2009, the Company and the Ad Hoc
Committee entered into that certain Restructuring Term Sheet, dated as of
September 23, 2009 (the “Existing Restructuring Term
Sheet”).
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Amendments to Existing Restructuring Term
Sheet. From and after the date hereof, the Existing
Restructuring Term Sheet is hereby amended as follows:
(a) The “Plan Support Agreement” section is hereby amended and restated
in its entirety as follows:
“The Company and the Ad Hoc Committee shall execute a plan
supportagreement (the “Plan Support Agreement”) on reasonable and customary terms by October 23, 2009, or such later date as shall
be agreed to by the Ad Hoc Committee.”
(b) The first sentence of the “Solicitation and Filing” section is
hereby amended and restated as follows:
“The Company shall commence the solicitation process in
accordancewith applicable securities laws on or before October 30,
2009.”
(c) The first sentence of the second paragraph of the “Remaining Debt”
section is hereby amended and restated as follows:
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“The aggregate
outstanding balance of the Company’s existing term loan shall not exceed
$26.5 million less the Initial Cash on Hand on the Effective Date and
after giving effect to the consummation of a senior debt refinancing
transaction involving the Company’s affiliates (the “Senior Refinancing Transaction”) in accordance with the
Senior Debt Refinancing Documentation (as defined below), of which no more
than $19.7 million less the Initial Cash on Hand on the Effective Date
will be held by an affiliate of ACON Investments, L.L.C. (the “Term Loan”) and approximately $6.8 million in the aggregate will be held by a
Xxxxxx affiliate (the “Revolver”).”
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Exhibit
A-13
(d) Attachment A to the Existing Restructuring Term Sheet shall be
replaced in its entirety by the term sheet and related acquisition of MPG senior
debt diagram attached hereto as Exhibit A.
Section 2. Reference to and Effect Upon the Existing Restructuring Term
Sheet.
(a) Except as specifically amended hereby, the Company and the Ad Hoc
Committee hereby acknowledges and agrees that all terms, conditions and
covenants contained in the Existing Restructuring Term Sheet, as amended hereby,
and all rights and obligations of the Company and the Ad Hoc Committee therein,
shall remain in full force and effect. The Company and the Ad Hoc
Committee hereby confirms that the Existing Restructuring Term Sheet, as amended
hereby, is in full force and effect.
Section 3. Execution in Counterparts. This Amendment may be
executed and delivered in any number of counterparts (including delivery by
facsimile or portable document format (PDF)), each of which will be deemed an
original, but all of which together will constitute one and the same
instrument.
Section 4. Integration. The Existing Restructuring Term
Sheet as amended by this Amendment, together with the documents referenced
therein and related exhibits, attachments, annexes and schedules, constitutes
the sole and entire agreement of the parties to this Amendment with respect to
the subject matter contained herein and therein, and supersedes all prior and
contemporaneous understandings and agreements, both written and oral, with
respect to such subject matter.
Section 5. Severability. Wherever possible, each provision of
this Amendment shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this Amendment shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment or the Existing Restructuring Term Sheet.
Section 6. Applicable Law. This Amendment shall be governed
by and be construed and enforced in accordance with, the laws of the State of
New York (including without limitation Sections 5-1401 and 5-1402 of the New
York General Obligations Law).
Section 7. Jurisdiction and Waiver of Jury Trial. EACH OF THE
PARTIES IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK LOCATED IN NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF THIS TERM SHEET; PROVIDED, HOWEVER THAT ANY BANKRUPTCY PROCEEDING
MAY BE FILED IN THE SOUTHERN DISTRICT OF GEORGIA AND SHALL BE SUBJECT TO ANY
APPLICABLE LAWS OF THE STATE OF GEORGIA.
Exhibit
A-14
Section 8. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purposes.
Section 9. Confidentiality. The Company and each Holder (and
their respective successors and assigns) shall not publicly disclose any
information provided to them in connection with this Amendment or the Existing
Restructuring Term Sheet, nor shall they publicly disclose Annex A to this Amendment, except: (1) in any legal
proceeding relating to this Amendment, provided that the Company and/or Holder,
as applicable, shall use its best efforts to maintain the confidentiality of
Annex A in the context of any such proceeding; (2) to the
extent required by applicable law, rules, regulations promulgated thereunder, or
obligations, including, without limitation, U.S. federal securities laws, as
determined after consultation with legal counsel; (3) in response to an oral
question, interrogatory, request for information or documents, subpoena, civil
investigative demand or other process, or a request from a government agency,
regulatory authority or securities exchange; (4) that the Company may summarize
this Amendment in connection with a Form 8-K filing (in lieu of filing this
Amendment as an exhibit thereto); and (5) that the Company may include this
Amendment as an exhibit to the Company’s Form 10-K for the year ending December
31, 2009; provided, however, that the Company shall not include Annex A in any such filing and shall only disclose Annex A if specifically required to do so by the Securities
and Exchange Commission (“SEC”) after taking all reasonable steps to resist disclosure,
including requesting that Annex A be accorded confidential treatment by the SEC; provided that in the case of clauses (2), (3) or (5) above
the disclosing party provides notice to the applicable Holder (promptly upon
receipt of the subpoena or request so that the Holder may seek an appropriate
protective order or waive the Company’s requirement for compliance with this
Section 9), unless such notice would be prohibited by
law. The Company will not oppose any reasonable action by the
applicable Holder to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded to the information
contained therein. If the applicable Holder chooses to oppose the
production of such information, it does so at its own
expense. Responding to any such subpoena or other request, after
providing notice as set forth herein, shall not be deemed to be a breach of any
provision of this Amendment. Notwithstanding anything to the contrary
in this Section 9, the Company may: (i) disclose the aggregate
principal amount of Notes held by the Holders executing this Amendment, taken as
a whole and without reference to the names of the Holders constituting such
amount; and (ii) provide the Trustee with the executed copy of this Amendment
that includes the individual signature pages of each of the Holders, but only in
the event that the Company first obtain the Trustee’s written consent not to
publicly disclose any information relating to the individual holdings of each
Holder.
Exhibit
A-15
EXHIBIT TO AMENDMENT 1 TO
TERM SHEET
Acquisition
of and Amendment to Xxxxxx Publishing Group, LLC Credit Facility
October
15, 2009
Master
Assignment and Agency Transfer Agreement:
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Tranche
Holdings, LLC (“Newco”)
will, pursuant to a Master Assignment and Assumption (the “Master
Assignment”), purchase at par value, for a cash purchase price not
exceeding $136,500,000, the entire amount of the senior secured debt of
Xxxxxx Publishing Group, LLC, a Georgia limited liability company (“Borrower”)
outstanding under that certain Credit Agreement, dated as of December 14,
2005 (as amended through the date hereof, the “Existing
Credit Agreement”), among Xxxxxx Publishing Group, LLC as Borrower
(“MPG”),
Xxxxxx Communications Company, LLC (“MCC”),
the lenders party thereto, X.X. Xxxxxx Securities, Inc. as Sole Lead
Arranger and Sole Bookrunner, certain financial institutions party thereto
as Co-Documentation Agents, and JPMorgan Chase Bank, N.A., as
Administrative Agent (the “Existing
Agent”).
Pursuant
to an Amendment, Resignation, Waiver, Consent and Appointment Agreement
(collectively, the “Agency
Transfer Agreement” and together with the Master Assignment, the
“Transfer
Documents”), the Existing Agent shall resign and be replaced by
Tranche Manager, LLC (the “New
Agent”), and all necessary or appropriate collateral actions will
be taken to ensure that the New Agent has a first priority perfected
security interest in all collateral under the Loan Documents (as defined
in the Existing Credit Agreement), including, without limitation, the
delivery of all possessory collateral to the New Agent and the assignment
of all mortgages, control agreements and access
agreements.
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Exhibit
A-16
Amended
Credit Agreement:
|
Contemporaneously
with the closing under the Transfer Documents, the Existing Credit
Agreement will be amended and restated (the “Amended
Credit Agreement”) to, among other things, (i) convert all existing
loans under the Existing Credit Agreement into term loans, (ii) allocate
such term loans among three tranches in the following aggregate principal
amounts:
Aggregate
Designation Principal
Amount
Tranche A Term
Loans $19,700,000
Tranche B Term
Loans 6,800,000
Tranche C Term
Loans 110,000,000
(iii)
provide that all payments (other than payments on account of PIK Interest
(as defined below) that are added to the principal balance of such loan)
under the Amended Credit Agreement shall be applied first, to the Tranche
A Term Loans until paid in full, second, to the Tranche B Term Loans until
paid in full and third, to the Tranche C Term Loans, (iv) as a material
inducement for Newco’s acquisition of the loans and the subsequent
transfers of the Tranche B Term Loans and Tranche C Term Loans to
affiliates of the Borrower as described in the structure chart attached
hereto as Exhibit
A (the “Structure
Chart”), allow for the disposition of MCC Outdoor, LLC, a Georgia
limited liability company (“Fairway”)
to FMO Holdings, LLC ("FMO",
in which MCC Outdoor Holdings, LLC ("Outdoor
Holdings"), an affiliate of MCC, will own a minority
interest) and Magic Media, Inc. will own the majority interest
pursuant to the Contribution Agreement (as defined below), including the
release of Fairway from its obligations as a guarantor and grantor under
the Loan Documents, the release of liens on all collateral owned by
Fairway and the release of Outdoor Holding's pledge as collateral of its
equity interest in Fairway (collectively, the “Fairway
Release”), (v) provide for, upon the contribution of Fairway by
Outdoor Holding (a current guarantor and grantor under the Loan Documents)
to FMO in accordance with the terms of that certain Contribution
Agreement, dated as of August 7, 2009, by and among Magic Media, Inc.,
Outdoor Holding and FMO (the “Contribution
Agreement”), a pledge of all of the membership interest in FMO that
will be held by Outdoor Holding (the “FMO
Pledge”), (vi) provide for the deposit of the notes evidencing the
Tranche C Term Loans obtained by MCC and its affiliates in connection with
the Contribution Agreement into a third-party escrow account as requested
by the ad hoc committee of holders (the “Ad
Hoc Committee”) of more than 75% of the principal amount
outstanding of the Existing Notes (as defined below) in accordance with
the terms of that certain Escrow Agreement (the “Escrow
Agreement”) described in that certain Restructuring Term Sheet,
dated as of September 23, 2009, by and among MPG, its subsidiaries and the
Ad Hoc Committee (the “Restructuring
Term Sheet”), and (vii) provide for the other terms and conditions
set forth herein.
|
Exhibit
A-17
Lenders
Under Amended Credit Agreement (the “Lenders”):
|
Tranche
A Term Loans: Newco shall hold $19.7M (100%)
Tranche
B Term Loans: Newco shall initially hold $6.8M, which shall be transferred
in accordance with the terms of the Structure Chart to MPG Revolver
Holdings, LLC (“Revolver
Holdings”), an affiliate of MPG (100%)
Tranche
C Term Loans: Newco shall initially hold $110M, which shall be transferred
in accordance with the terms of the Structure Chart, and ultimately, the
following entities affiliated with MPG shall hold the Tranche C Term
Loans:
(1)
Xxxxxx Communications Company, LLC shall hold $85.8M (78%)
(2)
Revolver Holdings shall hold $24.2M (22%)
Except
in the case of the Tranche C Term Loans as provided pursuant to the Escrow
Agreement, none of the holders of the Tranche C Term Loans or the Tranche
B Term Loans will be permitted to transfer their interest without the
prior written consent of the New Agent, which consent may be withheld in
its sole discretion.
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|
Payment
Priorities Under Amended Credit Agreement
|
Notwithstanding
anything to the contrary contained herein, all payments (other than
payments on account of paid-in-kind interest (“PIK
Interest”) that are added to the principal balance of such loans),
and any other proceeds, of the Tranche B Term Loans and Tranche C Term
Loans, however received (including as a result of the bankruptcy of the
Borrower, MCC or any of their respective affiliates), shall be paid to the
holders of the Tranche A Term Loans until paid in full.
On
and after the Notes Refinancing Effective Date (as defined below), all
payments with respect to the Tranche B Term Loans and the Tranche C Term
Loans shall be subject to any requirements applicable thereto pursuant to
any agreement entered into with respect to the Senior Subordinated Notes
Refinancing (as defined below) that is binding on the Tranche B Term Loan
Lenders or the Tranche C Term Loan Lenders that establishes agreements
with respect to the relative priority of payment and collateral sharing
with respect to the Tranche B Term Loans, the Tranche C Terms Loans, and
the New Notes, as applicable.
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|
Agent
|
At
any time the Tranche A Term Loans are repaid in full, the New Agent,
unless otherwise specified by such New Agent in writing, shall cease to
act as agent under the Amended Credit Agreement, and shall be succeeded by
Revolver Holdings (or its designee).
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Exhibit
A-18
Borrower:
|
Xxxxxx
Publishing Group, LLC
|
|
Guarantors:
|
MCC
and all wholly-owned, domestic Subsidiaries (as defined in the Existing
Credit Agreement) of MCC (other than Fairway) and the
Borrower (together with MCC, collectively, the “Guarantors”).
|
|
Collateral:
|
Except
for the assets subject to the Fairway Release, the Amended Credit
Agreement shall be secured by a perfected first priority security interest
in the assets currently securing the Existing Credit Agreement, including,
(a) substantially all personal property of the Borrower and the
Guarantors, (b) certain material real estate interests of the Borrower and
the Guarantors, (c) the equity interests in the Borrower and MCC, and (d)
the FMO Pledge, provided,
however,
that the FMO Pledge shall only secure the obligations under the Tranche A
Term Loans (collectively, the “Collateral”).
No
other liens shall exist on the Collateral other than (i) customary
permitted liens as currently permitted under the Existing Credit
Agreement, and (ii) with respect to a portion of the Collateral owned by
the Borrower and its Subsidiaries that are Guarantors, a second priority
security interest that may be granted to secure (i) $100,000,000 principal
amount of New Notes proposed to be issued in exchange for the Existing
Notes and (ii) on and after the issuance of the New Notes, the Tranche B
Term Loans (which loans shall cease at such time to be secured by the
Collateral that secures the outstanding obligations under the Amended
Credit Agreement).
Upon
the occurrence of an Event of Default (as defined below), New Agent may
foreclose on the Collateral, except that New Agent shall not foreclose on
the Collateral of MCC and its subsidiary Guarantors until the earliest to
occur of (a) the Borrower failing to make any interest payment required
under the Amended Credit Agreement, (b) from and after the date that is
seven (7) months after the Closing Date (as defined below), any Event of
Default shall occur and/or be continuing, (c) MCC or any of its
subsidiaries shall commence a voluntary case under the Bankruptcy Code or
file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of debts, and
(d) a proceeding shall be commenced against MCC or any of its subsidiaries
with or without such entity’s consent, in any court of competent
jurisdiction, under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and
such proceeding shall continue undismissed for a period of 60 or more
days. Any event described in clauses (a) through (d) shall be
referred to as an “MCC
Foreclosure Event.”
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|
FMO
Pledge:
|
Outdoor
Holding shall pledge its entire equity interest in FMO (representing a 32%
interest) to New Agent for the exclusive benefit of the New
Agent and the Tranche A Term Loan Lenders.
Without
limiting the other remedies available upon the occurrence of an event of
default or an MCC Foreclosure Event, New Agent may foreclose on the FMO
Pledge upon the occurrence of an MCC Foreclosure Event.. The
debt shall be discharged to the extent of the fair market value realized
by the Tranche A Term Loan Lenders in respect of the assets securing the
FMO Pledge.
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Maturity
Date:
|
Two
years after closing, with two 6-month extension options (the “Maturity
Date”), provided,
however,
if the documentation in respect of the New Notes requires that the Tranche
A Term Loans be refinanced on or prior to a certain date (the “Required
Refinance Date”), the maturity date of the Tranche A Term Loans
shall be the earlier of (a) the Maturity Date and (b) the Required
Refinance Date.
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Exhibit
A-19
Interest
Rate:
|
Tranche
A Term Loans: 15% payable monthly in arrears (to be increased to 17.5% for
first extension option and 20% for second extension option)
Tranche
B Term Loans: 15%
Tranche
C Term Loans: 5%
Interest
on the Tranche B Term Loans and Tranche C Term Loans shall not be paid in
cash, but will be added to, and increase, the outstanding principal
balances of respective loans (i.e., PIK Interest).
Default
interest: 4% plus applicable rate. For Tranche B Term Loans and
Tranche C Term Loans, default interest shall be PIK
Interest.
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|
Commitment
Fees
|
No
commitment fees shall be payable under the Amended Credit
Agreement.
|
|
Fees:
|
$100,000
fee payable annually in advance to New Agent (the “Administrative
Fee”).
In
the event of any prepayment of the Tranche A Term Loan prior to the second
anniversary of the Closing Date, a prepayment fee shall become due in the
amounts set forth below (the “Prepayment
Fee”):
(1)
during the first year of the loan, a fee equal to 7.5% of such prepayment
amount less the aggregate amount of interest paid in cash on such amount
during the period between the Closing Date and the date of such payment,
and
(2)
during the second year of the loan, a fee equal to (a) the amount of
interest which would have accrued in respect of such prepayment amount as
if such amount had remained outstanding at all times during the second
year of the loan less
(b) the aggregate amount of interest paid in cash on such principal
prepayment amount during the period between the first anniversary of
the Closing Date and the date of such prepayment. With
respect to the Prepayment Fee, the obligation of the Borrower and its
Subsidiaries shall be limited to an aggregate amount of not more than
$300,000, with any excess Prepayment Fee obligations being liabilities of
MCC and its Subsidiaries.
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Exhibit
A-20
Amortization:
|
None.
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|
Mandatory
Prepayments:
|
On
a quarterly basis (or following the issuance of the New Notes, such more
frequent basis as shall be required by the New Notes), all excess cash
flow (to be defined) will be applied to reduce outstanding borrowings,
with funds applied to the different tranches in accordance with the
payment priorities for application of payments described
above.
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|
Other
mandatory prepayments as may be required as a condition to the
consummation of the Senior Subordinated Notes Refinancing pursuant to the
Restructuring Term Sheet or that certain Plan Support Agreement, described
in the Restructuring Term Sheet, between the Borrower and the Ad Hoc
Committee (the “Plan
Support Agreement”).
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||
Financial
Covenants
|
Senior
Cash Flow Ratio not to exceed 2.00 to 1.
Cash
Flow Ratio not to exceed 5.50 to 1.
Fixed
Charge Ratio not to be less than 1.05 to 1.
Interest
Coverage Ratio not to be less than (i) 2.25 to 1 for each four quarter
period ending in 2009 and (ii) 2.00 to 1 thereafter.
Other
financial covenants applicable pursuant to the New Notes, the
Restructuring Term Sheet, or the Plan Support Agreement.
The
definitions for the defined terms used above shall be similar to the
definitions in the Existing Credit Agreement, provided,
however,
that the definition of Interest Expense referred to in the definition of
Interest Coverage Ratio shall exclude PIK interest.
In
addition, until the earlier to occur of (a) the date that is seven (7)
months following the Closing Date, and (b) the consummation of Senior
Subordinated Notes Refinancing, the financial covenants shall be
calculated as if the Senior Subordinated Notes Refinancing has been
consummated pursuant to assumptions to be specified in the Amended Credit
Agreement.
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Exhibit
A-21
Affirmative
Covenants:
|
Similar
to existing affirmative covenants, with modifications relating to the
consummation of the Senior Subordinated Notes Refinancing and other
modifications to be agreed.
Annual
and quarterly financial statements shall be delivered to the New Agent,
the lenders, and RSA FMO Holdings, LLC (“RSA”).
No
later than seven (7) months following the Closing Date, the holders of at
least 99% of the currently outstanding 7% senior subordinated unsecured
notes of the Borrower due 2013 (the “Existing
Notes”) must have exchanged, amended, refinanced or restructured
their notes, including pursuant to a plan of reorganization pursuant to
the Senior Subordinated Notes Refinancing described below.
If
any covenants, events of default or mandatory prepayment events in the
documentation related to the Senior Subordinated Notes Refinancing,
including the Plan Support Agreement contemplated by the Restructuring
Term Sheet, are either not included in the Amended Credit Agreement
or are more restrictive or more favorable to the holders of the
New Notes than the comparable provisions in the Amended Credit Agreement,
the covenants in the Amended Credit Agreement shall automatically be
amended to incorporate such provisions. Borrower will execute
such documentation as the New Agent may reasonably request to evidence the
incorporation of such provisions.
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Exhibit
A-22
Negative
Covenants:
|
Similar
to existing negative covenants, with modifications relating to the
consummation of the Senior Subordinated Notes Refinancing and other
modifications to be agreed, including that MPG, MCC and their subsidiaries
that are Guarantors shall have no intercompany indebtedness other than
indebtedness that is subordinated to the Tranche A Term Loans on customary
terms such that no enforcement action will be permitted while any
obligations under the Tranche A Term Loans are outstanding.
MPG
shall be permitted to consummate an exchange, amendment, refinancing or
restructuring of the Existing Notes (the “Senior
Subordinated Notes Refinancing”) for new senior subordinated second
lien notes (“New
Notes”) secured by liens on the assets of MPG and its subsidiaries
that are Guarantors. The terms of the New Notes shall be approved by the
New Agent (which terms in any event shall not include a cross default to
the Amended Credit Agreement), with the result that:
(1)
No more than 1% of the Existing Notes may remain outstanding (with a
maximum cash interest rate of 7% per annum payable quarterly in
arrears);
(2)
The aggregate principal amount of the New Notes shall not exceed
$100,000,000 (if 100% of the Existing Notes are exchanged) with (prior to
the payment in full of all obligations under the Tranche A Term Loans) a
maximum cash interest rate of 5% payable quarterly in arrears and a
maximum PIK Interest rate of 10% per annum compounded quarterly in
arrears;
(3)
The Tranche C Term Loans shall cease to be outstanding in accordance with
the terms of the Escrow Agreement; and
(4)
The Tranche B Term Loans shall cease to be secured by the liens securing
the Amended Credit Agreement, and shall share in the second liens securing
the New Notes on a pari passu basis.
The
date on which the Senior Subordinated Notes Refinancing shall be
consummated is referred to herein as the “Notes
Refinancing Effective Date”. On the Notes Refinancing
Effective Date, the Trustee and the New Agent shall enter into an
Intercreditor Agreement in a form agreed by the Ad Hoc Committee and the
Tranche A Term Loan Lender prior to the Closing Date and attached to the
Amended Credit Agreement.
In
addition, that certain Forbearance Agreement, dated as of February 26,
2009, by and among MPG and Xxxxxx Publishing Finance Co. (“Xxxxxx
Finance”) as issuers, the guarantors party thereto and the Ad Hoc
Committee (as amended through the date hereof, the “Forbearance
Agreement”), shall not expire or terminate, and, except for
amendments required in connection with the closing of the Amended Credit
Agreement, shall not be amended without the consent of New Agent, except
that such Forbearance Agreement may be subsequently extended without the
consent of New Agent.
The
New Agent shall have approval rights with respect to the Plan Support
Agreement and the Amended Credit Agreement will require that the New Agent
be given the rights and benefits conferred to the noteholders
thereunder.
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Exhibit
A-23
Events
of Default:
|
In
addition to the other events of default discussed herein, the Events of
Default under the Amended Credit Agreement shall be similar to existing
Events of Default, with modifications to be agreed, including, it shall be
an immediate Event of Default if (1) the Borrower fails to make any
payment of principal of or interest on any Loan when due, (2) in Newco’s
sole determination, there has been a diminution of value in the
Collateral, including the assets subject to the FMO Pledge, (3) in Newco's
sole determination, the Borrower is not making adequate progress to
consummate the Senior Subordinated Notes Refinancing, (4) any term of the
Amended Credit Agreement or any right or remedy of the holders of the
Loans is avoided, nullified, set aside recharacterized, amended, modified,
limited or stayed in any way without the prior written consent of the New
Agent or such holder in connection with any bankruptcy proceeding in any
manner, (5) following the Closing Date, the Forbearance Agreement
terminates or the Forbearance Agreement is amended without the approval of
New Agent, except that the Forbearance Agreement may be extended in
accordance with the terms hereof and (6) a default occurs under the New
Notes, the Plan Support Agreement or the Restructuring Term Sheet
(collectively, the “Events
of Default”).
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Exhibit
A-24
Waiver
of Specified Defaults:
|
On
the Closing Date, the Specified Defaults (as defined in Waiver No. 18 to
the Credit Agreement, dated as of October 9, 2009) shall be waived,
provided that such waiver shall expire immediately upon the termination of
the Forbearance Agreement or the occurrence of certain related
actions.
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|
Amendments
and Waivers:
|
All
amendments, waivers and consents shall, unless otherwise delegated to the
New Agent, require the consent of Lenders holding a majority of the
Tranche A Term Loans.
|
|
Closing
Date:
Closing
Conditions:
|
It
is anticipated that the closing of the Transfer Documents and the Amended
Credit Agreement shall take place on October 15, 2009 (the “Closing
Date”).
It
shall be a condition precedent to the consummation of the Amended Credit
Agreement and the Transfer Documents, that (1) MCC as the sole member of
Outdoor Holding shall amend Outdoor Holding’s operating agreement and take
other actions necessary or appropriate to establish Outdoor Holding as a
special purpose entity and a bankruptcy remote entity to the satisfaction
of Newco in its sole and absolute discretion and (2) holders of the
Existing Notes shall enter into a consent agreement satisfactory to the
New Agent.
In
addition, the Amended Credit Agreement shall be subject to customary
closing conditions, including, without limitation, (1) delivery of an
opinion of counsel of Hull, Xxxxxx, Xxxxxx, Xxxxxxx & Xxxxxx, counsel
to MPG, in form and substance reasonably satisfactory to the New Agent and
RSA regarding the Amended Credit Agreement and the related loan documents
and, among other things, that the execution, delivery and performance of
the Amended Credit Agreement and the related loan documents, including the
Fairway Release, do not contravene the terms of that certain Indenture,
dated as of August 7, 2003 (as amended by that certain First Supplemental
Indenture, dated as of July 20, 2004, and as further amended or otherwise
modified from time to time, the “Indenture”),
by and among MPG, Xxxxxx Finance, the guarantors party thereto, and
Wilmington Trust, N.A. as successor Trustee, or any related agreements or
applicable law, or result in the imposition of liens upon the assets of
Fairway, (2) delivery of a certificate by a responsible officer of (a) MCC
and each of its subsidiary Guarantors certifying that after giving effect
to the Amended Credit Agreement and the related transactions discussed
herein such entities shall be solvent on a consolidated basis and (b)
Outdoor Holding certifying that after giving effect to the Amended Credit
Agreement and the related transactions discussed herein such entity shall
be solvent.
|
|
Payment
of Transaction Expenses:
|
All
costs and expenses of the holder of the Tranche A Term Loans and the New
Agent shall be paid by the Borrower.
|
|
Governing
Law:
|
New
York
|
Exhibit
A-25
AMENDMENT NO. 2 TO RESTRUCTURING TERM SHEET
This Amendment No. 2 to Restructuring Term Sheet (this “Amendment No. 2”), dated as of October 23, 2009, is entered
into by and among Xxxxxx Publishing Group, LLC (along with its subsidiaries,
“MPG” or the “Company”) and the ad hoc committee of holders of, or as the
case may be investment managers of discretionary accounts holding, the 7% Senior
Subordinated Notes due 2013 (the “Ad Hoc Committee”). Capitalized terms used and not
defined herein shall have the meaning attributed to such term in the Existing
Restructuring Term Sheet (as defined below).
W I T N E S S E T H:
WHEREAS, on September 23, 2009, the Company and the Ad Hoc
Committee entered into that certain Restructuring Term Sheet dated as of
September 23, 2009 (the “September 23 Term Sheet”), as amended by that certain
Amendment to Restructuring Term Sheet dated as of October 15, 2009 (the “October 15 Term Sheet Amendment”, and the September 23 Term
Sheet, as amended by the October 15 Term Sheet Amendment, the “Existing Restructuring Term
Sheet”).
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Amendments to Existing Restructuring Term
Sheet. From and after the date hereof, the Existing
Restructuring Term Sheet is hereby amended as follows:
(a) The “Plan Support Agreement” section is hereby amended and restated
in its entirety as follows:
“The Company and the Ad Hoc Committee shall execute a plan
supportagreement (the “Plan Support Agreement”) on reasonable and customary terms by October 27, 2009, or such later date as shall
be agreed to by the Ad Hoc Committee.”
Section 2. Reference to and Effect Upon the Existing Restructuring Term
Sheet.
(a) Except as specifically amended hereby, the Company and the Ad Hoc
Committee hereby acknowledges and agrees that all terms, conditions and
covenants contained in the Existing Restructuring Term Sheet, as amended hereby,
and all rights and obligations of the Company and the Ad Hoc Committee therein,
shall remain in full force and effect. The Company and the Ad Hoc
Committee hereby confirms that the Existing Restructuring Term Sheet, as amended
hereby, is in full force and effect.
Section 3. Execution in Counterparts. This Amendment No. 2
may be executed and delivered in any number of counterparts (including delivery
by facsimile or portable document format (PDF)), each of which will be deemed an
original, but all of which together will constitute one and the same
instrument.
Exhibit
A-26
Section 4. Integration. The Existing Restructuring Term
Sheet as amended by this Amendment No. 2, together with the documents referenced
therein and related exhibits, attachments, annexes and schedules, constitutes
the sole and entire agreement of the parties to this Amendment No. 2 with
respect to the subject matter contained herein and therein, and supersedes all
prior and contemporaneous understandings and agreements, both written and oral,
with respect to such subject matter.
Section 5. Severability. Wherever possible, each provision of
this Amendment No. 2 shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Amendment No. 2
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment No. 2 or the Existing Restructuring Term Sheet.
Section 6. Applicable Law. This Amendment No. 2 shall be
governed by and be construed and enforced in accordance with, the laws of the
State of New York (including without limitation Sections 5-1401 and 5-1402 of
the New York General Obligations Law).
Section 7. Jurisdiction and Waiver of Jury Trial. EACH OF THE
PARTIES IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK LOCATED IN NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF THIS TERM SHEET; PROVIDED, HOWEVER THAT ANY BANKRUPTCY PROCEEDING
MAY BE FILED IN THE SOUTHERN DISTRICT OF GEORGIA AND SHALL BE SUBJECT TO ANY
APPLICABLE LAWS OF THE STATE OF GEORGIA.
Section 8. Headings. Section headings in this Amendment No. 2
are included herein for convenience of reference only and shall not constitute a
part of this Amendment No. 2 for any other purposes.
Section 9. Confidentiality. The Company and each Holder (and
their respective successors and assigns) shall not publicly disclose any
information provided to them in connection with this Amendment No. 2 or the
Existing Restructuring Term Sheet, nor shall they publicly disclose Annex A to this Amendment No. 2, except: (1) in any legal
proceeding relating to this Amendment No. 2, provided that the Company and/or
Holder, as applicable, shall use its best efforts to maintain the
confidentiality of Annex A in the context of any such proceeding; (2) to the
extent required by applicable law, rules, regulations promulgated thereunder, or
obligations, including, without limitation, U.S. federal securities laws, as
determined after consultation with legal counsel; (3) in response to an oral
question, interrogatory, request for information or documents, subpoena, civil
investigative demand or other process, or a request from a government agency,
regulatory authority or securities exchange; (4) that the Company may summarize
this Amendment No. 2 in connection with a Form 8-K filing (in lieu of filing
this Amendment No. 2 as an exhibit thereto); and (5) that the Company may
include this Amendment No. 2 as an exhibit to the Company’s Form 10-K for the
year ending December 31, 2009; provided, however, that the Company shall not include Annex A in any such filing and shall only disclose Annex A if specifically required to do so by the Securities
and Exchange
Exhibit
A-27
Section 10. Commission (“SEC”) after taking all reasonable steps to resist disclosure,
including requesting that Annex A be accorded confidential treatment by the SEC; provided that in the case of clauses (2), (3) or (5) above
the disclosing party provides notice to the applicable Holder (promptly upon
receipt of the subpoena or request so that the Holder may seek an appropriate
protective order or waive the Company’s requirement for compliance with this
Section 9), unless such notice would be prohibited by
law. The Company will not oppose any reasonable action by the
applicable Holder to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded to the information
contained therein. If the applicable Holder chooses to oppose the
production of such information, it does so at its own
expense. Responding to any such subpoena or other request, after
providing notice as set forth herein, shall not be deemed to be a breach of any
provision of this Amendment No. 2. Notwithstanding anything to the
contrary in this Section 9, the Company may: (i) disclose the aggregate
principal amount of Notes held by the Holders executing this Amendment No. 2,
taken as a whole and without reference to the names of the Holders constituting
such amount; and (ii) provide the Trustee with the executed copy of this
Amendment No. 2 that includes the individual signature pages of each of the
Holders, but only in the event that the Company first obtain the Trustee’s
written consent not to publicly disclose any information relating to the
individual holdings of each Holder.
Exhibit
A-28
AMENDMENT NO. 3 TO RESTRUCTURING TERM SHEET
This Amendment No. 3 to Restructuring Term Sheet (this “Amendment No. 3”), dated as of October 27, 2009, is entered
into by and among Xxxxxx Publishing Group, LLC (along with its subsidiaries,
“MPG” or the “Company”) and the ad hoc committee of holders of, or as the
case may be investment managers of discretionary accounts holding, the 7% Senior
Subordinated Notes due 2013 (the “Ad Hoc Committee”). Capitalized terms used and not
defined herein shall have the meaning attributed to such term in the Existing
Restructuring Term Sheet (as defined below).
W I T N E S S E T H:
WHEREAS, on September 23, 2009, the Company and the Ad Hoc
Committee entered into that certain Restructuring Term Sheet dated as of
September 23, 2009 (the “September 23 Term Sheet”), as amended by that certain
Amendment to Restructuring Term Sheet dated as of October 15, 2009 (the “October 15 Term Sheet Amendment”) and Amendment No. 2 to
Restructuring Term Sheet dated as of October 23, 2009 (the “October 23 Term Sheet Amendment”, and the September 23 Term
Sheet, as amended by the October 15 Term Sheet Amendment and the October 23 Term
Sheet Amendment, the “Existing Restructuring Term
Sheet”).
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Amendments to Existing Restructuring Term
Sheet. From and after the date hereof, the Existing
Restructuring Term Sheet is hereby amended as follows:
(a) The “Plan Support Agreement” section is hereby amended and restated
in its entirety as follows:
“The Company and the Ad Hoc Committee shall execute a plan
supportagreement (the “Plan Support Agreement”) on reasonable and customary terms by October 30, 2009, or such later date as shall
be agreed to by the Ad Hoc Committee.”
(b) The first sentence of the “Solicitation and Filing” section is
hereby amended and restated as follows:
“The Company shall commence the solicitation process in
accordancewith applicable securities laws on or before November 6,
2009.”
Section 2. Reference to and Effect Upon the Existing Restructuring Term
Sheet.
(a) Except as specifically amended hereby, the Company and the Ad Hoc
Committee hereby acknowledges and agrees that all terms, conditions and
covenants contained in the Existing Restructuring Term Sheet, as amended hereby,
and all rights and obligations of the Company and the Ad Hoc Committee therein,
shall remain in full force and effect. The
Exhibit
A-29
(b) Company and the Ad Hoc Committee hereby confirms that the Existing
Restructuring Term Sheet, as amended hereby, is in full force and
effect.
Section 3. Execution in Counterparts. This Amendment No. 3
may be executed and delivered in any number of counterparts (including delivery
by facsimile or portable document format (PDF)), each of which will be deemed an
original, but all of which together will constitute one and the same
instrument.
Section 4. Integration. The Existing Restructuring Term
Sheet as amended by this Amendment No. 3, together with the documents referenced
therein and related exhibits, attachments, annexes and schedules, constitutes
the sole and entire agreement of the parties to this Amendment No. 3 with
respect to the subject matter contained herein and therein, and supersedes all
prior and contemporaneous understandings and agreements, both written and oral,
with respect to such subject matter.
Section 5. Severability. Wherever possible, each provision of
this Amendment No. 3 shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Amendment No. 3
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment No. 3 or the Existing Restructuring Term Sheet.
Section 6. Applicable Law. This Amendment No. 3 shall be
governed by and be construed and enforced in accordance with, the laws of the
State of New York (including without limitation Sections 5-1401 and 5-1402 of
the New York General Obligations Law).
Section 7. Jurisdiction and Waiver of Jury Trial. EACH OF THE
PARTIES IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK LOCATED IN NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF THIS TERM SHEET; PROVIDED, HOWEVER THAT ANY BANKRUPTCY PROCEEDING
MAY BE FILED IN THE SOUTHERN DISTRICT OF GEORGIA AND SHALL BE SUBJECT TO ANY
APPLICABLE LAWS OF THE STATE OF GEORGIA.
Section 8. Headings. Section headings in this Amendment No. 3
are included herein for convenience of reference only and shall not constitute a
part of this Amendment No. 3 for any other purposes.
Section 9. Confidentiality. The Company and each Holder (and
their respective successors and assigns) shall not publicly disclose any
information provided to them in connection with this Amendment No. 3 or the
Existing Restructuring Term Sheet, nor shall they publicly disclose Annex A to this Amendment No. 3, except: (1) in any legal
proceeding relating to this Amendment No. 3, provided that the Company and/or
Holder, as applicable, shall use its best efforts to maintain the
confidentiality of Annex A in the context of any such proceeding; (2) to the
extent required by applicable law, rules, regulations promulgated thereunder, or
obligations, including, without limitation, U.S. federal securities laws, as
determined after
Exhibit
A-30
Section 10. consultation with legal counsel; (3) in response to an oral
question, interrogatory, request for information or documents, subpoena, civil
investigative demand or other process, or a request from a government agency,
regulatory authority or securities exchange; (4) that the Company may summarize
this Amendment No. 3 in connection with a Form 8-K filing (in lieu of filing
this Amendment No. 3 as an exhibit thereto); and (5) that the Company may
include this Amendment No. 3 as an exhibit to the Company’s Form 10-K for the
year ending December 31, 2009; provided, however, that the Company shall not include Annex A in any such filing and shall only disclose Annex A if specifically required to do so by the Securities
and Exchange Commission (“SEC”) after taking all reasonable steps to resist disclosure,
including requesting that Annex A be accorded confidential treatment by the SEC; provided that in the case of clauses (2), (3) or (5) above
the disclosing party provides notice to the applicable Holder (promptly upon
receipt of the subpoena or request so that the Holder may seek an appropriate
protective order or waive the Company’s requirement for compliance with this
Section 9), unless such notice would be prohibited by
law. The Company will not oppose any reasonable action by the
applicable Holder to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded to the information
contained therein. If the applicable Holder chooses to oppose the
production of such information, it does so at its own
expense. Responding to any such subpoena or other request, after
providing notice as set forth herein, shall not be deemed to be a breach of any
provision of this Amendment No. 3. Notwithstanding anything to the
contrary in this Section 9, the Company may: (i) disclose the aggregate
principal amount of Notes held by the Holders executing this Amendment No. 3,
taken as a whole and without reference to the names of the Holders constituting
such amount; and (ii) provide the Trustee with the executed copy of this
Amendment No. 3 that includes the individual signature pages of each of the
Holders, but only in the event that the Company first obtain the Trustee’s
written consent not to publicly disclose any information relating to the
individual holdings of each Holder.
Exhibit
A-31
EXHIBIT
B
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of [__________], 2009 (this
“Second Supplemental Indenture”), by and between Xxxxxx
Publishing Group, LLC, a Georgia limited liability company (the “Company” or “Xxxxxx Publishing”), Xxxxxx Publishing Finance Co., a Georgia
corporation, (“Xxxxxx Finance,” and together with Xxxxxx Publishing, each an
“Issuer” and together, the “Issuers”), the subsidiaries of Xxxxxx Publishing signatory
hereto (the “Guarantors”), and Wilmington Trust Company FSB, a Delaware
banking corporation, as successor trustee (the “Trustee”), under the Indenture (the “Original Indenture”), dated as of August 7, 2003 among the
Issuers, the Guarantors and Wachovia Bank, National Association, a national
banking association, as trustee (the “Original Trustee”), as amended by the First Supplemental
Indenture, dated as of July 20, 2004, between the Issuers, the Guarantors and
the Original Trustee (the Original Indenture together with such First
Supplemental Indenture, the “Indenture”). Each capitalized term used in this Second
Supplemental Indenture and not otherwise defined herein shall have the meaning
assigned to such term in the Indenture.
WITNESSETH:
WHEREAS, the Issuers have heretofore executed and delivered to the
Trustee the Original Indenture providing for the issuance of 7% Senior
Subordinated Notes due 2013 (the “Notes”);
WHEREAS, Section 9.2 of the Indenture provides that the Issuers and
the Trustee may amend or supplement the Indenture and the Notes, in each case,
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding (the “Requisite Consents”);
WHEREAS, the Company has initiated an exchange offer with respect to
the outstanding Notes (the “Exchange Offer”), upon the terms and subject to the
conditions set forth in the Exchange Offer Memorandum and Consent Solicitation
Statement, dated [__________], (as the same may be amended, supplemented or
modified, the “Offering Memorandum”);
WHEREAS, in connection with the Exchange Offer, the Issuers have
proposed the amendments set forth herein (the “Proposed Amendments”) to the Indenture and the
Notes;
WHEREAS, the Exchange Offer is conditioned upon, among other things,
the Proposed Amendments receiving the Requisite Consents, with the effectiveness
of such Proposed Amendments being subject to the acceptance by the Issuers for
exchange of the Notes tendered in the Exchange Offer and the payment of the
[Consideration for Tenders] (as defined in the Offering Memorandum) by the
Issuers, in each case, in accordance with the terms and subject to the
conditions contained in the Offering Memorandum (the “Acceptance”);
Exhibit
B-1
WHEREAS, the Company has received and delivered to the Trustee the
Requisite Consents to effect the Proposed Amendments;
WHEREAS, the Board of Directors of each Issuer has by resolution
authorized the execution of this Second Supplemental Indenture; and
WHEREAS, the Issuers have provided an Officers’ Certificate and an
Opinion of Counsel to the Trustee with respect to this Second Supplemental
Indenture, all in accordance with Section 9.2 of the Indenture.
NOW THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, and for other good and valuable consideration
the receipt of which hereby is acknowledged, and for the equal and proportionate
benefit of the Holders of the Notes, the Issuers, the Guarantors and the Trustee
hereby agree as follows:
Article
I.
AMENDMENTS TO THE INDENTURE AND THE NOTES
1.1 Amendment of Section 3.8 through 3.10. Section 3.8
through 3.10 of the Indenture, inclusive, are hereby deleted in their entirety
and each such Section is replaced with the following: “[Intentionally
Omitted]”.
1.2 Amendment of Sections 4.3 through 4.20. Sections
4.3 through 4.20 of the Indenture, inclusive, are hereby deleted in their
entirety and each such Section is replaced with the following: “[Intentionally
Omitted]”.
1.3 Amendment of Sections 5.1 and 5.2. Sections 5.1
and 5.2 of the Indenture are hereby deleted in their entirety and such Sections
are replaced with the following: “[Intentionally Omitted]”.
1.4 Amendment of Section 6.1. Sections 6.1(3)-(8) of
the Indenture are hereby deleted in their entirety and each such Section is
replaced with the following: “[Intentionally Omitted]”.
1.5 Amendment of Section 6.2. Section 6.2 of the Indenture is
hereby deleted in its entirety and Section 6.2 is replaced with the following:
“[Intentionally Omitted]”.
1.6 Amendment of Defined Terms. All terms defined in
Sections 1.1 and 1.2 of the Indenture and contained in the articles, sections
and clauses of the Indenture deleted by this Article I of this Second
Supplemental Indenture, but not otherwise used elsewhere in the Indenture, are
hereby deleted in their entirety, mutatis mutandis.
1.7 Amendment of Section References. All references in
the Indenture to the articles, sections and clauses of the Indenture deleted
pursuant to this Article I of this Second Supplemental Indenture are hereby
deleted in their entirety, mutatis mutandis.
Exhibit
B-2
1.8 Amendment to Notes. The Notes are hereby amended
to delete or revise all provisions inconsistent with the amendments to the
Indenture effected by this Article I of this Second Supplemental
Indenture.
Article II.
EFFECTIVENESS
2.1 Effectiveness of this Second Supplemental
Indenture. This Second Supplemental Indenture is entered into
pursuant to and consistent with Section 9.2 of the Indenture, and nothing herein
shall constitute a waiver, amendment, modification or deletion of any provision
of the Indenture or the Notes requiring the approval of each Holder affected
thereby pursuant to Section 9.2 of the Indenture. Upon the execution
of this Second Supplemental Indenture by the Issuers, the Guarantors and the
Trustee, the Indenture shall be amended and supplemented in accordance herewith,
and this Second Supplemental Indenture shall form a part of the Indenture for
all purposes and each Holder shall be bound thereby; provided, however, that the provisions of the Indenture and the Notes
referred to in Article I above (such provisions being referred to as the “Amended Provisions”) will remain in effect in the form they
existed prior to the execution of this Second Supplemental Indenture, and the
waivers, amendments, modifications and deletions to the Amended Provisions will
not become operative, and the terms of the Indenture and the Notes will not be
waived, amended, modified or deleted, in each case, unless and until the
occurrence of the Acceptance.
Article III.
MISCELLANEOUS
3.1 Continuing Effect on the Indenture. Except as expressly
provided herein, all of the terms, provisions and conditions of the Indenture
and the Notes outstanding thereunder shall remain in full force and
effect.
3.2 Reference and Effect on the Indenture. Following
the Acceptance, each reference in the Indenture to “the Indenture,” “this
Indenture,” “hereunder,” “hereof” or “herein” shall mean and be a reference to
the Indenture as supplemented by this Second Supplemental Indenture, unless the
context otherwise requires.
3.3 Governing Law. This Second Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State of
New York.
3.4 Trustee Acceptance. The Trustee accepts the Indenture, as
supplemented hereby, and agrees to perform the same upon the terms and
conditions set forth therein, as supplemented hereby. The recitals contained
herein shall be taken as the statements of the Issuers, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representation as
to the validity or sufficiency of this Second Supplemental
Indenture.
Exhibit
B-3
3.5 Counterparts. The parties may sign any number of
copies of this Second Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
3.6 Effect of Headings. The Section headings herein
are for convenience of reference only and shall not effect the construction
hereof.
3.7 Entire Agreement. This Second Supplemental Indenture,
together with the Indenture as amended hereby, contains the entire agreement of
the parties, and supersedes all other representations, warranties, agreements
and understandings between the parties, oral or otherwise, with respect to the
matters contained herein and therein.
3.8 Benefits of Second Supplemental Indenture. Nothing in this
Second Supplemental Indenture or the Indenture, express or implied, shall give
to any person, other than the parties hereto and thereto and their successors
hereunder and thereunder, and the Holders, any benefit of any legal or equitable
right, remedy or claim under the Indenture or the Second Supplemental
Indenture.
3.9 Trust Indenture Act Controls. If any provision of
this Second Supplemental Indenture limits, qualifies or conflicts with another
provision of this Second Supplemental Indenture or the Indenture that is
required to be included by the TIA as in force at the date this Second
Supplemental Indenture is effective, the provision required by the TIA shall
control.
3.10 Severability. In case any one or more of the
provisions of this Second Supplemental Indenture shall be held invalid, illegal
or unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
Exhibit
B-4
IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated:
[__________]
|
|
XXXXXX
PUBLISHING GROUP, LLC
|
|
By: __________________________
Name: Xxxxx
X. Xxxxxxxx
Title: Vice
President, Finance
|
|
XXXXXX
PUBLISHING FINANCE CO.
|
|
By: __________________________
Name: Xxxxx
X. Xxxxxxxx
Title: Vice
President, Finance
|
YANKTON
PRINTING COMPANY
BROADCASTER
PRESS, INC.
THE
SUN TIMES, LLC
XXXXX
NEWS, LLC
LOG
CABIN DEMOCRAT, LLC
ATHENS
NEWSPAPERS, LLC
SOUTHEASTERN
NEWSPAPERS COMPANY, LLC
XXXXXXXX
COMMUNICATIONS, INC.
FLORIDA
PUBLISHING COMPANY
THE
OAK RIDGER, LLC
MPG
ALLEGAN PROPERTY, LLC
MPG
HOLLAND PROPERTY, LLC
|
By: __________________________
Name: Xxxxx
X. Xxxxxxxx
Title: Vice
President, Finance
|
SOUTHWESTERN
NEWSPAPERS COMPANY, L.P.
|
By: Xxxxxx
Publishing Group, LLC
its General
Partner
|
By: __________________________
Name: Xxxxx
X. Xxxxxxxx
Title: Vice
President, Finance
|
Exhibit
B-5
EXHIBIT C
JOINDER
This JOINDER, dated as of [__________ __, 20__] (this “Joinder”), is entered into by [__________________] (the “Joining Party”).
1. Definitions. Capitalized terms used but not
defined herein shall have the meanings set forth in that certain Restructuring
Support Agreement dated as of October 30, 2009 (the “Restructuring Support Agreement”), by and among Xxxxxx
Publishing Group, LLC (“MPG”), Xxxxxx Publishing Finance Co. (“MPF”, and together with MPG, the “Issuers”), the subsidiaries of MPG signatory thereto (the
“Guarantors”, and together with the Issuers, the “Company”), and the holders of (or authorized investment
advisors or managers of discretionary accounts that hold) the 7% Senior
Subordinated Notes due 2013 (the “Notes”) signatory thereto (together with their respective
successors and permitted assigns, the “Consenting Holders” and each, a “Consenting Holder”).
2. Agreement to be Bound. The Joining Party hereby
agrees to be bound by all of the terms of the Restructuring Support Agreement, a
copy of which is attached to this Joinder as Annex I (as the same has been or hereafter may be amended,
restated or otherwise modified from time to time in accordance with the
provisions thereof). The Joining Party shall hereafter be deemed to
be a “Consenting Holder” and a “Party” for all purposes under the Restructuring
Support Agreement.
3. Representations and Warranties. With respect to
the aggregate principal amount of Notes set forth below its name on the
signature page hereof, the Joining Party hereby makes the representations and
warranties of the Consenting Holders as set forth in Section 8(b) of the Agreement to each other Party to the
Agreement.