RESTRUCTURING SUPPORT AGREEMENT
EXECUTION VERSION
This RESTRUCTURING SUPPORT AGREEMENT is
made and entered into as of August 17, 2009 (as amended, supplemented or
otherwise modified in accordance with the terms hereof, this “Support Agreement”,
which term shall include Exhibits A, B and C and Schedule 1, each annexed
hereto) by and among (i) RDA Holding Co. (“Holding”), The
Reader’s Digest Association, Inc. (the “Company”), and
certain of the Company’s subsidiaries set forth on Schedule 1 annexed hereto
(together with Holding and the Company, the “Debtors”), (ii)
the undersigned lenders under the Credit Agreement (as defined herein, and
together with their permitted successors and assigns, each a “Consenting Lender”),
and (iii) the undersigned shareholders of Holding (each,
a “Consenting
Shareholder,” together with the Consenting Lenders and the Debtors the
“Parties”):
WHEREAS, the Company and the
Consenting Lenders have negotiated a restructuring and recapitalization
transaction that will effectuate a financial restructuring of the Company’s
capital structure, including the Debtors’ obligations under that certain Credit
Agreement,1 dated as of March 2, 2007 (as amended,
supplemented or otherwise modified, the “Credit Agreement”),
by and among the Debtors, certain financial institutions party thereto (the
“Lenders”) and
XX Xxxxxx Xxxxx Bank, N.A., as administrative agent for the Lenders (in such
capacity, the “Administrative
Agent”) pursuant to the terms and conditions set forth in the
Restructuring Term Sheet attached hereto as Exhibit A (the “Term Sheet”) and
incorporated into this Support Agreement (the “Restructuring
Transactions”);
WHEREAS, the Debtors have
requested, and certain Consenting Lenders have agreed, to provide a
debtor-in-possession financing facility under that certain credit agreement (the
“DIP Credit
Agreement”) referred to in the Commitment Letter dated as of
August 14, 2009 (the “DIP Commitment
Letter”, which term shall include the Term Sheet attached thereto)
subject to the terms and conditions thereof; and
WHEREAS, the Debtors
contemplate filing voluntary petitions (the “Petitions”) under
chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in
the United States Bankruptcy Court for the Southern District of New York (the
“Bankruptcy
Court”) (the date of filing of such voluntary petitions, the “Petition Date”, and
such cases being the “Chapter 11
Cases”);
WHEREAS, concurrently with the
execution hereof, the Debtors have received duly executed letters of resignation
from those members of the current board of directors of the Debtors and their
subsidiaries who are affiliated with, or employed by, any of the Consenting
Shareholders or Ripplewood Holdings L.L.C.;
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Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them in the
Credit Agreement.
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NOW, THEREFORE, in
consideration of the foregoing and the promises, mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Party, intending to be
legally bound, agrees as follows:
Section
1. Conditions to Effectiveness
of Support Agreement.
This
Support Agreement shall become effective and binding upon each of the Parties at
12:01 a.m. prevailing Eastern Time on the date on which all of the following
conditions are satisfied (the “Effective
Date”):
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(a)
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The
Administrative Agent (or its counsel) and Cravath, Swaine & Xxxxx LLP
shall have received duly executed signature pages for this Support
Agreement signed by the Debtors;
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(b)
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The
Debtors shall have received duly executed signature pages for this Support
Agreement from (i) Consenting Lenders holding at least 51% in
principal amount of the prepetition Total Outstandings under the Credit
Agreement and (ii) each of the Consenting Shareholders; provided, however, that
the condition set forth in clause (b)(i) hereof may be waived with the
consent of the Administrative Agent and the
Debtors.
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(c)
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The
Administrative Agent shall have received resolutions from each Debtor
evidencing the corporate or similar authority of such Debtor to execute,
deliver and perform its obligations under this Support Agreement;
and
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(d)
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The
Administrative Agent shall have received duly executed signature pages for
the DIP Commitment Letter and the related fee letters, signed by the
Debtors and the Consenting Lenders party
thereto.
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Section
2. Plan of
Reorganization.
2.1 Support
of Acceptable Plan.
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(a)
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Subject
to Sections 1125 and 1126 of the Bankruptcy Code (if and to the extent
applicable), and so long as a Termination Event (as defined below) has not
occurred, or has occurred but has been duly waived or cured in accordance
with the terms hereof:
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(1) each
Debtor severally (and not jointly) agrees to:
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(i)
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use
its reasonable best efforts to (A) support and consummate all of the
Restructuring Transactions contemplated by the Term Sheet, this Support
Agreement and the Acceptable Plan (as defined in Section 2.1(a)(1)(ii)),
(B) take any and all necessary and appropriate actions in furtherance of
all of the Restructuring Transactions contemplated under this Support
Agreement, the Acceptable Plan and the Term Sheet, (C) complete all of the
Restructuring Transactions contemplated under this Support Agreement, the
Term Sheet and the Acceptable Plan in accordance with the terms hereof and
thereof and take all steps necessary and desirable to obtain the
Confirmation Order (as defined in Section 2.1.(b)), and (D) obtain any and
all required regulatory and/or third-party approvals for such
Restructuring Transactions; and
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(ii)
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not
(a) propose or support any plan of reorganization or liquidation in the
Chapter 11 Cases other than a chapter 11 plan of reorganization
incorporating the terms of the Term Sheet and which chapter 11 plan of
reorganization is otherwise in all material respects, in form and
substance reasonably satisfactory to the Administrative Agent and the
Required Consenting Lenders (as defined in Section 9.14) (as amended,
supplemented or otherwise modified subject to the terms hereof, the “Acceptable
Plan”) (b) take any action which is inconsistent with, or that
would unreasonably delay or impede approval or confirmation of the
Acceptable Plan or that is otherwise inconsistent with the express terms
of this Support Agreement or (c) directly or indirectly seek, solicit,
support or encourage any other plan, sale, proposal or offer of
dissolution, winding up, liquidation, reorganization, merger,
consolidation, liquidation or restructuring of any of the Debtors that
could reasonably be expected to prevent, delay or impede the confirmation
of the Acceptable Plan; and
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(iii)
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provide
written notice to the Administrative Agent, within one (1) Business Day of
making such determination, if any Debtor determines that its fiduciary
duties require it to consider any plan other than the Acceptable
Plan;
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provided, however, that nothing
contained in this Support Agreement shall be deemed to prevent any of the
Debtors from taking or failing to take any action that it is obligated to take
(or fail to take) in the performance of any fiduciary or similar duty which such
Debtor owes to any other person.
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(2) each
Consenting Lender, severally (and not jointly) agrees to:
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(i)
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use
its reasonable best efforts to (A) support and consummate all of the
Restructuring Transactions contemplated by the Term Sheet and this Support
Agreement and the Acceptable Plan, (B) take any and all necessary and
appropriate actions in furtherance of all of the Restructuring
Transactions contemplated under this Support Agreement and the Term Sheet
and the Acceptable Plan, (C) complete all of the Restructuring
Transactions contemplated under this Support Agreement and the Term Sheet
and the Acceptable Plan in accordance with the terms hereof and thereof;
and
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(ii)
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subject
to the receipt by such Consenting Lender of a disclosure statement and
other solicitation materials in respect of the Acceptable Plan, which
disclosure statement and solicitation materials reflect the agreement set
forth in this Support Agreement and the Term Sheet and have been approved
by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code
and are in all material respects reasonably satisfactory to the
Administrative Agent and the Required Consenting Lenders (collectively,
the “Solicitation
Materials”): (a) vote, to the extent such Consenting Lender is
entitled to vote under the terms of the Acceptable Plan and the Bankruptcy
Code, its claims against the Debtors to accept the Acceptable Plan by
delivering its duly executed and completed ballot accepting such
Acceptable Plan on a timely basis following the commencement of the
solicitation and its actual receipt of the Solicitation Materials and
ballot and (b) not change or withdraw (or cause to be changed or
withdrawn) such vote.
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For the
avoidance of doubt, each of the Parties also agrees, severally and not jointly,
that, unless this Support Agreement is terminated in accordance with the terms
hereof, it will not take any action that would in any material respect interfere
with, delay, or postpone the confirmation or consummation of the Acceptable Plan
and implementation of the Restructuring Transactions, including, without
limitation, objecting to the debtor-in-possession financing set forth in the DIP
Commitment Letter or propose any alternative financing; provided, that nothing herein
shall preclude any Consenting Shareholder from taking action that would
interfere with the confirmation or consummation of any chapter 11 plan of
reorganization or the Restructuring Transactions to the extent such chapter 11
plan does not contain all of the terms set forth in Section 2.2(b)
hereof.
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Nothing
contained in this Support Agreement shall be deemed to (1) prevent any Party
from taking, or failing to take, any action that it is obligated to take (or
fail to take) in the performance of any fiduciary or similar duty which such
Party owes to any other person.
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(b)
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Upon
confirmation of the Acceptable Plan pursuant to an order in all material
respects in form and substance reasonably satisfactory to the
Administrative Agent and the Required Consenting Lenders (the “Confirmation
Order”), and so long as it is not subject to a stay and the
conditions to effectiveness thereof have been satisfied or waived, the
Consenting Lenders and the Debtors shall use commercially reasonable
efforts to consummate the Acceptable
Plan.
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2.2 Confirmation
of Acceptable Plan.
(a) Without
limiting any other provision hereof, the Debtors shall each use their reasonable
best efforts to have the Acceptable Plan confirmed by the Bankruptcy Court as
expeditiously as possible under the Bankruptcy Code, the Federal Rules of
Bankruptcy Procedure, and the Local Rules of the Bankruptcy Court (the federal
and local rules being, the “Bankruptcy Rules”)
and within the timeframes contemplated by this Support Agreement.
(b) Further,
each of the Parties hereto agrees severally (and not jointly) that, in the event
the Acceptable Plan is not confirmed for any reason, and regardless of whether
this Support Agreement remains in effect or has terminated (in whole or in part
with respect to any individual Consenting Lender), it will support (provided,
however, that the Consenting Shareholders shall not be required to take any
affirmative action to provide support in any Chapter 11 Cases), and not oppose
or take any action that is inconsistent with, the inclusion in any alternative
plan proposed to be confirmed in the Chapter 11 Cases of: (i) the releases
set forth in Section 3 hereof and (ii) each of the terms set forth under the
Term Sheet headings “Releases,” “Indemnification,” “Exculpation,” “Claims of
Holders of Senior Subordinated Notes” and “Avoidance Actions and Other
Litigation;” provided, however, that the
releases set forth in Section 3 herein shall be null and void and of no further
force and effect as if the release was never granted with respect to any Party
that has breached the terms of the penultimate paragraph of Section 2.1(a)
hereof or any other terms herein in any material respect and there shall be no
obligation to support the inclusion in any alternative plan of such release or
of any of the terms identified in clause (ii) above with respect to such
breaching Party; provided further, that if the
Bankruptcy Court or any other court of competent jurisdiction deems any of the
foregoing Term Sheet provisions illegal, invalid or unenforceable, then the
obligation of the Parties to support any such provision shall no longer be
enforceable, but shall not otherwise affect the obligations of the Parties with
respect to the other provisions set forth herein. This Section 2.2(b)
shall survive termination of this Support Agreement for any reason or with
respect to any Party.
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Section
3. Releases.
3.1 Immediately
upon the Effective Date of this Support Agreement, except with respect to
obligations expressly contained in this Support Agreement, (i) each of the
Consenting Shareholders agrees, on behalf of itself (each, a “Shareholder Releasing
Party,” and collectively, the “Shareholder Releasing
Parties”), to unconditionally and forever release and discharge each
Consenting Lender and its directors, officers, shareholders, partners, members,
employees, agents, attorneys, representatives, affiliates, parents,
subsidiaries, predecessors, successors, heirs, executors and assigns, together
with their respective past and present directors, officers, shareholders,
partners, members, employees, agents, attorneys, representatives, affiliates,
parents, subsidiaries, predecessors, successors, heirs, executors and assigns
(collectively, the “Released Lender
Parties”) from any and all claims, actions, causes of action, suits,
losses, obligations, liabilities, damages, judgments, awards, costs, and
expenses (including attorneys’ fees) of every kind, type, and nature whatsoever,
whether known or unknown, absolute or contingent, asserted, threatened, or
alleged, that such Shareholder Releasing Party (1) has, may have, or may
claim to have, (2) heretofore had, may have had, or may claim to have had, or
(3) hereafter may have, or may claim to have, against any of the Released Lender
Parties, from the beginning of time up to and through the Effective Date of this
Support Agreement, based on, arising out of, under or in connection with (A) the
Credit Agreement and the other Loan Documents as defined therein, (B) the
Obligations and (C) the Transactions, except for gross negligence, willful
misconduct, criminal misconduct or actual fraud as determined by a final order
entered by a court of competent jurisdiction, (ii) each of the Shareholder
Releasing Parties agrees, neither individually nor collectively with any other
person or entity, to bring any claim, action, cause of action, or suit that is
based on, arising out of or under, or in connection with, any matters released
by the Shareholder Releasing Parties under clause (i) above, and
(iii) each of the Shareholder Releasing Parties severally (and not jointly)
warrants and represents that it has not transferred or assigned to any person or
entity any right based on, arising out of or under, or in connection with, any
matters released by the Shareholder Releasing Parties under clause (i)
above. Notwithstanding anything to the contrary herein, the
Shareholder Releasing Parties shall not be deemed to have released the Debtors
or any of their subsidiaries pursuant to this Section 3.1.
3.2 Immediately
upon the Effective Date of this Support Agreement, except with respect to
obligations expressly contained in this Support Agreement, (i) each of the
Consenting Lenders agrees, on behalf of itself (each, a “Lender Releasing
Party,” and collectively, the “Lender Releasing
Parties”), to unconditionally and forever release and discharge each
Consenting Shareholder and its directors, officers, shareholders, partners,
members, employees, agents, attorneys, representatives, affiliates, parents,
subsidiaries, predecessors, successors, heirs, executors and assigns, together
with their respective past and present directors, officers, shareholders,
partners, members, employees, agents, attorneys, representatives, affiliates,
parents, subsidiaries, predecessors, successors, heirs, executors and assigns
and each current or former officer or director of any of the Debtors or any of
their subsidiaries (collectively, the “Released Shareholder
Parties”) from any and all claims, actions, causes of action, suits,
losses, obligations, liabilities, damages, judgments, awards, costs, and
expenses (including attorneys’ fees) of every kind, type, and nature whatsoever,
whether known or unknown, absolute or contingent, asserted, threatened, or
alleged, that such Lender Releasing Party (1) has, may have, or may claim to
have, (2) heretofore had, may have had, or may claim to have had, or (3)
hereafter may have, or may claim to have, against any of the Released
Shareholder Parties, from the beginning of time up to and through the
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Effective
Date of this Support Agreement, based on, arising out of, under or in connection
with (A) the Credit Agreement and the other Loan Documents as defined therein,
(B) the Obligations (C) the Transactions, (D) their services as
directors or officers of the Debtors or any action, decision, or failure to act
in their capacity as such with respect to the Debtors and (E) the Management
Services Agreement dated as of January 23, 2007 by and among Ripplewood Holdings
L.L.C., Holding, the Company and the other parties thereto, except for gross
negligence, willful misconduct, criminal misconduct or actual fraud as
determined by a final order entered by a court of competent jurisdiction,
(ii) each of the Lender Releasing Parties agrees, neither individually nor
collectively with any other person or entity, to bring any claim, action, cause
of action, or suit that is based on, arising out of or under, or in connection
with, any matters released by the Lender Releasing Parties under
clause (i) above, and (iii) each of the Lender Releasing Parties
severally (and not jointly) warrants and represents that it has not transferred
or assigned to any person or entity any right based on, arising out of or under,
or in connection with, any matters released by the Lender Releasing Parties
under clause (i) above. Notwithstanding anything to the
contrary herein, the Lender Releasing Parties shall not be deemed to have
released the Debtors or any of their subsidiaries pursuant to this Section
3.2.
Section
4. Termination
Events.
4.1 Termination
Events.
The occurrence of any of the following
shall be a “Termination
Event”:
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(a)
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the
consummation of the Restructuring Transactions contemplated by this
Support Agreement and the effective date of the Acceptable Plan or a
written agreement among the Debtors and the Required Consenting Lenders
terminating this Support Agreement;
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(b)
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any
court of competent jurisdiction or other competent governmental or
regulatory authority issues an order making illegal or otherwise
restricting, preventing or prohibiting the consummation of the
Restructuring Transactions contemplated by the Acceptable Plan or this
Support Agreement;
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(c)
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the
occurrence of any breach of this Support Agreement by any of the Parties
(to the extent not otherwise cured or waived in accordance with the terms
hereof); provided, that if any Party shall breach its obligations pursuant
to this Support Agreement, the Termination Date arising as a result of
such act or omission shall apply only to such Party and this Support
Agreement shall otherwise remain in full force and effect with respect to
the Debtors and all such remaining Parties; it being understood that if
such breaches result in fewer than 51% of the Consenting Lenders remaining
Parties to this Agreement, the Debtors shall have the right to
terminate.
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(d)
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any
Debtor withdraws the Acceptable Plan, publicly announces its intention not
to support the Acceptable Plan or files any plan of reorganization or
liquidation and/or disclosure statement that is not consistent with the
Acceptable Plan, or publicly announces its support for any such
inconsistent plan and/or disclosure statement, gives the notice described
in Section 2.1(a)(1)(iii) hereof, or otherwise evinces an intention not to
proceed with the Acceptable Plan or to proceed with any alternative plan
or form of transaction;
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(e)
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the
entry of any order in the Chapter 11 Cases terminating the Debtors’
exclusive right to file a plan or plans of reorganization pursuant to
Section 1121 of the Bankruptcy Code; provided that such order is not the
result of a motion filed by any Consenting
Lender;
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(f)
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any
of the Chapter 11 Cases shall be dismissed or converted to a chapter 7
case, or a chapter 11 trustee with plenary powers, a responsible officer,
or an examiner with enlarged powers relating to the operation of the
businesses of the Debtors (powers beyond those set forth in Section
1106(a)(3) and (4) of the Bankruptcy Code) shall be appointed in any of
the Chapter 11 Cases or the Debtors shall file a motion or other request
for such relief;
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(g)
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either
(1) a filing by any Debtor of any motion, application or adversary
proceeding challenging the validity, enforceability, perfection or
priority of or seeking avoidance of the liens securing the obligations
referred to in the Collateral Documents (collectively, the “Secured
Obligations”) or any other cause of action against and/or with
respect to the Secured Obligations, the prepetition liens securing such
Secured Obligations, the Administrative Agent or any of the Secured
Parties (or if the Debtors support any such motion, application or
adversary proceeding commenced by any third party or consent to the
standing of any such third party) or (2) the entry of an order of the
Bankruptcy Court providing relief against the interests of any Consenting
Lender with respect to any of the foregoing causes of action or
proceedings;
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(h)
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any
material adverse change regarding the feasibility of the Acceptable Plan
arising on or after the Effective Date of this Support Agreement, as
determined by the Required Consenting Lenders (as defined in Section 9.14)
in their reasonable discretion;
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(i)
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the
amendment, modification of, or the filing of a pleading by any of the
Debtors that seeks to amend or modify the Acceptable Plan, the Disclosure
Statement or any documents related to the Acceptable Plan, notices,
exhibits or appendices, which amendment, modification or filing is
inconsistent with this Support Agreement and not otherwise consented to by
the Required Consenting Lenders;
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(j)
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failure
of the Debtors to commence the Chapter 11 Cases on or before 11:59 p.m.
(New York City time) on September 10,
2009;
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(k)
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11:59
p.m. (New York City time) on the fourth (4th)
Business Day after the Petition Date, unless prior thereto the Bankruptcy
Court enters an interim order in the Chapter 11 Cases of the Debtors
under, inter
alia Sections 105, 361, 362, 363 and 364 of the Bankruptcy Code in
form and substance satisfactory to the Administrative Agent and the
Required Consenting Lenders, authorizing the Debtors to incur postpetition
financing and use cash collateral, granting adequate protection to the
prepetition Secured Parties, and scheduling a final hearing pursuant to
Bankruptcy Rule 4001(B) (the “Interim DIP
Order”);
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(l)
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11:59
p.m. (New York City time) on the forty-fifth (45th)
day after the date of entry of the Interim DIP Order, unless prior thereto
the Bankruptcy Court enters a final order in the Chapter 11 Cases of the
Debtors under, inter alia
Sections 105, 361, 362, 363 and 364 of the Bankruptcy Code in form and
substance satisfactory to the Administrative Agent and the Required
Consenting Lenders, authorizing the Debtors to incur postpetition
financing and use cash collateral and granting adequate protection to the
prepetition Secured Parties (the “Final DIP
Order” and together with the Interim DIP Order, the “DIP
Orders”);
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(m)
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the
occurrence of an “Event of Default” under, and as such term is defined in,
the DIP Credit Agreement and the acceleration of the obligations
thereunder;
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(n)
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11:59
p.m. (New York City time) on the date that is 75 days after the Petition
Date, if the Debtors shall not have filed the Acceptable Plan and the
Disclosure Statement with the Bankruptcy Court on or before such
time;
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(o)
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11:59
p.m. (New York City time), on the date that is 115 days after the Petition
Date, unless the Bankruptcy Court has entered an order, in form and
substance satisfactory to the Administrative Agent and the Required
Consenting Lenders, approving the Disclosure Statement pursuant to Section
1125 of the Bankruptcy Code on or before such
time;
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(p)
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11:59
p.m. (New York City time), on the date that is 20 days following entry of
the order approving the Disclosure Statement pursuant to Section 1125 of
the Bankruptcy Code, unless prior thereto the Company commences the
solicitation of acceptances of the Acceptable
Plan;
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(q)
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11:59
p.m. (New York City time), on the date that is 80 days following entry of
an order approving the Disclosure Statement pursuant to Section 1125 of
the Bankruptcy Code unless the Bankruptcy Court has entered the
Confirmation Order on or before such time; provided that, if the Debtors
have satisfied the conditions required for the Twelve Month Facility
Extension Option (as defined in the DIP Commitment Letter), this deadline
shall be extended to 11:59 p.m. (New York City time) on the date that is
120 days following entry of an order approving the Disclosure Statement
pursuant to Section 1125 of the Bankruptcy Code unless the Bankruptcy
Court has entered the Confirmation Order on or before such time;
or
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(r)
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11:59
p.m. (New York City time) on the thirtieth (30th)
day after the date of entry of the Confirmation Order, unless the
“effective date” of the Acceptable Plan has occurred prior
thereto.
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4.2 Additional
Debtor Termination Events.
The
Debtors may terminate this Support Agreement upon five (5) Business Days prior
written notice to the Administrative Agent upon the occurrence of either of the
following events: (i) the breach by any Consenting Lender of the
representations, warranties, or covenants of such Consenting Lender set forth in
this Support Agreement that would be reasonably likely to have a material
adverse impact on the Debtors, or the consummation of the Restructuring
Transactions, that remains uncured for a period of five (5) Business Days after
receipt by such Consenting Lender of notice of such breach; or (ii) the
board of directors of the Company reasonably determines based upon the advice of
counsel that proceeding with the Restructuring Transactions would be
inconsistent with the exercise of its fiduciary duties.
Notwithstanding
anything to the contrary herein, the releases provided for in Section 3 hereof
shall survive the termination of this Support Agreement under either Section 4.1
or 4.2 hereof; provided, that the
releases set forth in Section 3 herein shall automatically be null and void and
of no further force and effect as if the release had never been granted with
respect to any Party that has breached the terms of the penultimate paragraph of
Section 2.1(a) hereof or any other terms herein in any material
respect.
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4.3 Termination
Event Procedures.
Upon the
occurrence of a Termination Event under (i) Section 4.1 (a), (b), (d), (e), (f),
(g), (i) or (m) of this Support Agreement, this Support Agreement shall
automatically terminate without further action, and (ii) Section 4.1 (c),
(h), (j), (k), (l), (n), (o), (p), (q) or (r) of this Support Agreement, five
(5) Business Days after the Administrative Agent (on behalf of the Consenting
Lenders) or, with respect to a Termination Event under Section 4.1(c) which has
occurred as a result of a breach of this Support Agreement by any Party, the
other non-breaching Parties, shall have given written notice of the occurrence
of such Termination Event to the other parties hereto and such Termination Event
shall not have been cured during such five (5) Business Days after receipt of
such notice (or otherwise waived in writing by the requisite Parties in
accordance with the terms hereof), this Support Agreement shall terminate (the
date of termination under clause (i) or (ii) hereof being the “Termination
Date”). For the avoidance of doubt, the automatic stay arising
pursuant to Section 362 of the Bankruptcy Code in the Chapter 11 Cases shall be
deemed waived or modified for purposes of providing notice hereunder or
terminating this Support Agreement.
Section
5. Remedies.
It is
understood and agreed by each of the Parties that any breach of this Support
Agreement would give rise to irreparable harm for which money damages would not
be an adequate remedy and, accordingly, the Parties agree that, in addition to
any other remedies, each Party shall be entitled, without the requirement of
posting a bond or other security, to specific performance and injunctive or
other equitable relief. The Debtors each agree that for so long as
any Party has not taken any action to prejudice the enforceability of this
Support Agreement (including, without limitation, alleging in any pleading that
this Support Agreement is unenforceable), and has taken such actions as are
reasonably required or desirable for the enforcement hereof, then such Party
shall have no liability for damages hereunder in the event a court determines
that this Support Agreement is not enforceable. Without limiting the
provisions hereof, the Parties hereby agree that if any Party breaches the terms
of the penultimate paragraph of Section 2.1(a) hereof or any other terms herein
in any material respect (to the extent not otherwise cured or waived in
accordance with the terms hereof), the release granted to such Party in Section
3 hereof shall be automatically null and void and of no further force and effect
as if the release had never been granted to such breaching Party.
Section
6. Mutual Representations,
Warranties and Covenants.
6.1 Power
and Authority.
Each
Party severally, and not jointly, represents to each other Party that, as of the
date of this Support Agreement, (i) such Party has all requisite corporate,
partnership, or limited liability company power and authority to enter into this
Support Agreement and to carry out the Restructuring Transactions contemplated
by, and perform its respective obligations under, this Support Agreement, and
(ii) the execution and delivery of this Support Agreement and the performance of
its obligations hereunder have been duly authorized by all necessary action on
its part.
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6.2 Enforceability.
Each
Party severally, and not jointly, represents to each other Party that this
Support Agreement is the legally valid and binding obligation of it, enforceable
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws limiting creditors’
rights generally or by equitable principles relating to enforceability or ruling
of the Bankruptcy Court.
6.3 Representation.
Each of
the Parties to this Support Agreement acknowledges that it has been represented
by counsel (or had the opportunity to and waived its right to do so) in
connection with this Support Agreement and the Restructuring Transactions
contemplated by this Support Agreement. Accordingly, any rule of law
or any legal decision that would provide any Party hereto with a defense to the
enforcement of the terms of this Support Agreement against such Party based upon
lack of legal counsel shall have no application and is expressly
waived. The provisions of this Support Agreement shall be interpreted
in a reasonable manner to effect the intent of the Parties
hereto. None of the Parties hereto shall have any term or provision
construed against such Party solely by reason of such Party having drafted the
same.
6.4 Governmental
Consents.
Each Party severally, and not jointly,
represents to each other Party that, as of the date of this Support Agreement,
the execution, delivery, and performance by it of this Support Agreement do not
and shall not require any registration or filing with, consent or approval of,
or notice to, or other action to, with, or by, any Federal, state, or other
governmental authority or regulatory body, except (i) such filings as may be
necessary and/or required for disclosure by the Securities and Exchange
Commission and applicable state securities or “blue sky” laws, (ii) any filings
in connection with the Chapter 11 Cases, including the approval of the
Disclosure Statement and confirmation of the Acceptable Plan, and (iii) in the
case of the Debtors, (A) filings of amended articles of incorporation or
formation or other organizational documents with applicable state authorities,
and (B) other registrations, filings, consents, approvals, notices, or other
actions that are reasonably necessary to maintain permits, licenses,
qualifications, and governmental approvals to carry on the business of the
Debtors.
12
6.5 Ownership.
(a) Each
Consenting Lender severally, and not jointly, represents and warrants that, as
of the date hereof, (i) such Consenting Lender either (A) is the sole legal and
beneficial owner of its share of the prepetition Total Outstandings and loans
(if any) under the DIP Credit Agreement referred to in the DIP Commitment Letter
(the “DIP
Loans”) or (B) is the legal owner of its share of the prepetition Total
Outstandings and DIP Loans (if any), and has the power and authority to bind the
legal and beneficial owner(s) of such prepetition Total Outstandings and DIP
Loans (if any) to the terms of this Support Agreement, (ii) such
Consenting Lender (a) has full power and authority to vote on and consent to or
(b) has received direction from the party having full power and authority to
vote on and consent to such matters concerning its share of the prepetition
Total Outstandings and DIP Loans (if any) and to exchange, convert, assign and
transfer such prepetition Total Outstandings and DIP Loans (if any), and (iii)
other than pursuant to this Support Agreement, such prepetition Total
Outstandings are free and clear of any pledge, lien, security interest, charge,
claim, equity, option, proxy, voting restriction, right of first refusal or
other limitation on disposition, or encumbrances of any kind, that would
adversely affect in any way such Consenting Lender’s performance of its
obligations contained in this Support Agreement at the time such obligations are
required to be performed.
(b) Each
of the Consenting Shareholders severally, and not jointly, represents and
warrants that, as of the date hereof (i) it is the beneficial owner of equity
interests, or is the nominee, investment manager, or advisor for beneficial
holders of the equity interests in Holding, and (ii) other than pursuant to
this Support Agreement, such equity interests are free and clear of any pledge,
lien, security interest, charge, claim, equity, option, proxy, voting
restriction, right of first refusal or other limitation on disposition, or
encumbrances of any kind, that would adversely affect in any way such Consenting
Shareholder’s performance of its obligations contained in this Support Agreement
at the time such obligations are required to be performed.
6.6 Board
Appointments.
The Parties acknowledge and do not
object that immediately prior to execution of this Support Agreement and his
resignation, the sole director of Holding caused the appointment to the board of
directors of Holding all of the then remaining directors of the Company’s board
of directors. The Consenting Shareholders hereby agree that,
notwithstanding anything to the contrary in any shareholders agreement, from and
after the Effective Date of this Support Agreement, they shall not appoint or
elect, or cause the appointment or election of, any members to the board of
directors (or any committees thereof) of the Debtors or their
subsidiaries.
Section
7. No Material Misstatement or
Omission.
The Debtors represent that none of the
material and information provided by or on behalf of the Debtors to the
Administrative Agent, the Consenting Lenders and the Consenting Shareholders in
connection with the Restructuring Transactions contemplated in this Support
Agreement, when read or considered together, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to prevent
the statements made therein from being materially misleading.
13
Section
8. Acknowledgement.
This
Support Agreement and the Restructuring Transactions contemplated herein are the
product of negotiations among the Debtors and the Consenting Lenders, together
with their respective representatives. This Support Agreement is not,
and shall not be deemed to be, a solicitation of votes for the acceptance of the
Acceptable Plan or any plan of reorganization for the purposes of Sections 1125
and 1126 of the Bankruptcy Code or otherwise. The Debtors will not
solicit acceptances of the Acceptable Plan from any Consenting Lender until such
Consenting Lender has been provided with copies of a Disclosure Statement
approved by the Bankruptcy Court.
Section
9. Miscellaneous
Terms.
9.1 Assignment;
Transfer Restrictions.
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(a)
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Each
Consenting Lender hereby agrees, for so long as this Support Agreement
shall remain in effect as to it, not to sell, assign, transfer,
hypothecate or otherwise dispose of any of its pro rata share of the
prepetition Total Outstandings or DIP Loans (if any) unless prior thereto
the transferee thereof executes and delivers a Lender Joinder (as defined
in section 9.3(a)) to the Administrative Agent at least two (2) Business
Days prior to the relevant transfer. Thereafter, such
transferee shall be deemed to be a Consenting Lender for purposes of this
Support Agreement.
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(b)
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Any
sale, transfer, assignment, hypothecation or other disposition by any
Consenting Lender of any or all of its pro rata share of the prepetition
Total Outstandings or DIP Loans (if any) that does not comply with the
procedures set forth in Section 9.1(a) shall be deemed void ab
initio.
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(c)
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Nothing
herein shall be construed to restrict any Consenting Lender’s right to
acquire additional prepetition Loans, participation interests in
prepetition Letters of Credit or DIP Loans. To the extent any
Consenting Lender acquires as legal owner additional prepetition Loans,
participation interests in prepetition Letters of Credit or DIP Loans, the
Parties agree that such prepetition Loans, participation interests in
prepetition Letters of Credit and DIP Loans shall be deemed to be subject
to the terms of this Support Agreement upon the Consenting Lender’s
acquisition of such additional prepetition Loans, participation interests
in prepetition Letters of Credit or DIP Loans. Notwithstanding
the foregoing provisions of this Section 9.1, any Consenting Lender may,
at any time and without notice to or consent from any other party, pledge
or grant a security interest in all or any portion of its rights
(including, without limitation, rights to payment of interest and
repayment of principal) under the prepetition Credit Agreement or the DIP
Credit Agreement in order to secure obligations of such Consenting Lender
to a Federal Reserve Bank; provided that no such
pledge or grant of a security interest shall release such Consenting
Lender from any of its obligations hereunder or substitute any such
pledgee or grantee for such Consenting Lender as a party
hereto.
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14
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(d)
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Each
Consenting Shareholder hereby agrees, for so long as this Support
Agreement shall remain in effect as to it, not to sell, assign, transfer,
hypothecate or otherwise dispose of any of its equity interests in Holding
unless prior thereto the transferee thereof executes and delivers a
Shareholder Joinder (as defined in Section 9.3(c)) to the Administrative
Agent at least two (2) Business Days prior to the relevant
transfer. Thereafter, such transferee shall be deemed to be a
Consenting Shareholder for purposes of this Support
Agreement.
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(e)
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Any
sale, transfer, assignment, hypothecation or other disposition by any
Consenting Shareholder of any or all of its equity interests that does not
comply with the procedures set forth in Section 9.1(d) shall be
deemed void ab
initio.
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9.2 No
Third Party Beneficiaries.
Except
for the Released Lender Parties and the Released Shareholder Parties, unless
expressly stated herein, this Support Agreement shall be solely for the benefit
of the Administrative Agent and the Parties and no other person or entity shall
be a third party beneficiary.
9.3 Joinder.
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(a)
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Any
person that receives or acquires a portion of the prepetition Total
Outstandings or DIP Loans pursuant to a sale, assignment, transfer,
hypothecation or other disposition of such prepetition Total Outstandings
or DIP Loans by a Consenting Lender hereby agrees to be bound by all of
the terms of the Term Sheet and this Support Agreement (as the same may be
hereafter amended, restated or otherwise modified from time to time) (a
“Joining Lender
Party”) by executing and delivering a joinder in the form of Exhibit B
hereto (the “Lender
Joinder”) to the Administrative Agent. The Joining
Lender Party shall thereafter be deemed to be a “Consenting Lender” and a
Party for all purposes under this Support
Agreement.
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(b)
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With
respect to the aggregate principal amount of prepetition Total
Outstandings or DIP Loans held by the Joining Lender Party upon
consummation of the sale, assignment, transfer, hypothecation or other
disposition of such prepetition Total Outstandings or DIP Loans, the
Joining Lender Party hereby makes the representations and warranties of
the Consenting Lenders set forth in Section 6 of this Support Agreement to
each of the other Parties to this Support
Agreement.
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15
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(c)
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Any
person that receives or acquires any portion of the equity interests
pursuant to a sale, assignment, transfer, hypothecation or other
disposition of such equity interests by a Consenting Shareholder hereby
agrees to be bound by all of the terms of the Term Sheet and this Support
Agreement (as the same may be hereafter amended, restated or otherwise
modified from time to time) (a “Joining Shareholder
Party”) by executing and delivering a joinder in the form of Exhibit C
hereto (the “Shareholder
Joinder”) to the Administrative Agent. The Joining
Shareholder Party shall thereafter be deemed to be a “Consenting
Shareholder” and a party for all purposes under this Support
Agreement.
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(d)
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With
respect to the equity interests held by the Joining Shareholder Party upon
consummation of the sale, assignment, transfer, hypothecation or other
disposition of such equity interests, the Joining Shareholder Party hereby
makes the representations and warranties of the Consenting Shareholders
set forth in Section 6 of this Support Agreement to each of the other
Parties to this Support Agreement.
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9.4 Entire
Agreement.
This
Support Agreement, including Exhibit A and Schedule 1 annexed hereto,
constitutes the entire agreement of the Parties with respect to the subject
matter of this Support Agreement, and supersedes all other prior negotiations,
agreements, and understandings, whether written or oral, among the Parties with
respect to the subject matter of this Support Agreement.
9.5 Counterparts.
This
Support Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
agreement. Delivery of an executed signature page of this Support
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
9.6 Settlement
Discussions.
This
Support Agreement and the Term Sheet annexed hereto as Exhibit A is part of a
proposed settlement of disputes among the Parties hereto. Nothing
herein shall be deemed to be an admission of any kind. Pursuant to
Federal Rule of Evidence 408 and any applicable state rules of evidence, this
Support Agreement and the Term Sheet annexed hereto as Exhibit A, documents and
negotiations relating thereto shall not be admissible into evidence in any
proceeding other than a proceeding to enforce the terms of this Support
Agreement.
16
9.7 Continued
Banking Practices.
Notwithstanding anything herein to the
contrary, each Consenting Lender and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, investment banking,
trust or other business with, or provide debt financing, equity capital or other
services (including financial advisory services) to any Debtor or any affiliate
of any Debtor or any other Person, including, but not limited to, any Person
proposing or entering into a transaction related to or involving any Debtor or
any affiliate thereof.
9.8 Reservation
of Rights.
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(a)
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Except
as expressly provided in this Support Agreement, nothing herein is
intended to, does or shall be deemed in any manner to waive, limit, impair
or restrict the ability of each of the Consenting Lenders to protect and
preserve all of its rights and remedies under the DIP Credit Agreement,
the DIP Orders or any other order of the Bankruptcy Court or other court
of competent jurisdiction, or its full participation in the Chapter 11
Cases.
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(b)
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Without
limiting Section 9.8(a) in any way, if the Restructuring Transactions
contemplated by this Support Agreement or otherwise set forth in the
Acceptable Plan are not consummated as provided herein, if a Termination
Date occurs, or if this Support Agreement is otherwise terminated for any
reason, the Consenting Lenders each fully reserve any and all of their
respective rights, remedies and interests under the Loan Documents, the
DIP Credit Agreement and related post petition loan documents, applicable
law and in equity; provided, that the releases set forth in Section 3
hereof shall continue to remain in full force and effect except with
respect to any breaching Party that has breached the terms of the
penultimate paragraph of Section 2.1(a) hereof or any other terms herein
in any material respect.
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(c)
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Notwithstanding
anything herein to the contrary, the Parties acknowledge that the support
of each Consenting Lender contained in this Support Agreement relates
solely to such Consenting Lender’s rights and obligations as a lender
under the prepetition Credit Agreement and the DIP Credit Agreement (if
applicable) with respect to the principal amounts identified on such
Consenting Lender’s signature page and as provided in Section 9.1 and does
not bind such Consenting Lender or its affiliates with respect to any
other indebtedness, obligations or liabilities owed by the Company or any
of its subsidiaries and affiliates to such Consenting Lender or any
affiliate of such Consenting Lender (for the avoidance of doubt, if the
Consenting Lender is specified on the relevant signature page as a
particular group or business within an entity, “Consenting Lender” shall
mean such group or business and shall not mean the entity or its
affiliates, or any other desk or business thereof, or any third party
funds advised thereby). For purposes of this Support Agreement,
“Consenting Lender” shall not include a holder of Loans under the
prepetition Credit Agreement or DIP Loans signatory hereto in its capacity
or to the extent of its holdings as a public-side broker, dealer or market
maker of Loans under the prepetition Credit Agreement or DIP Loans or any
other claim against or security in the
Debtors.
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17
9.9 Successors.
This Support Agreement is intended to
bind the Parties 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 9.9 shall be deemed to permit any transfer, tender,
vote or consent, of any claims other than in accordance with the terms of this
Support Agreement.
9.10 Publicity.
The Parties agree that all public
announcements of the entry into or the terms and conditions of this Support
Agreement shall be mutually, reasonably acceptable to each of the
Parties.
9.11 Nondisparagement.
Each Consenting Lender and each
Consenting Shareholder, respectively, agrees severally (and not jointly), that
it shall not make any malicious, disparaging or defamatory statements to any
third party regarding any Consenting Lender or Consenting Shareholder or any of
their respective affiliates, subsidiaries, directors, shareholders, members,
officers or employees or any of their businesses or products or any aspect of
any ownership thereof related to the Restructuring Transactions, the Credit
Agreement, the Obligations, the Transactions, or the ownership or management of
the Debtors; provided, that this
provision shall not be deemed to limit any rights of any Party to make
statements of fact in good faith in litigation that is not prohibited
by an applicable release in Section 3 or that is related to a breach of this
Support Agreement.
9.12 Governing
Law; Waiver of Jury Trial; Indemnity.
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(a)
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The
Parties waive all rights to trial by jury in any jurisdiction in any
action, suit, or proceeding brought to resolve any dispute between the
Parties under this Support Agreement, whether sounding in contract, tort
or otherwise.
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(b)
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This
Support Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to any conflicts of law
provision which would require the application of the law of any other
jurisdiction. By its execution and delivery of this Support
Agreement, each Party hereby irrevocably and unconditionally agrees for
itself that, subject to the following sentence, any action, suit or
proceeding against it with respect to any matter under or arising out of
or in connection with this Support Agreement or for recognition or
enforcement of any judgment rendered in any such action, suit or
proceeding, may be brought in any state or federal court of competent
jurisdiction in New York County, State of New York, and by execution and
delivery of this Support Agreement, each of the Parties hereby irrevocably
accepts and submits itself to the nonexclusive jurisdiction of such court,
generally and unconditionally, with respect to any such action, suit or
proceedings.
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18
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(c)
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Notwithstanding
the foregoing, if the Chapter 11 Cases are commenced, nothing in Section
9.12(a) or (b) shall limit the authority of the Bankruptcy Court to hear
any matter related to or arising out of this Support
Agreement.
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9.13 Pending
Transfers.
Notwithstanding anything to the
contrary provided herein, if a Consenting Lender has assigned all or a portion
of the Obligations under the Credit Agreement that it beneficially owns as of
the date hereof but such assignment has not settled as of the date hereof (such
Obligations, “Pending
Transfer Credit Agreement Obligations”), then such Consenting Lender
shall be permitted to exclude from the amount of the Obligations listed on its
signature page an amount of Pending Transfer Credit Agreement Obligations equal
to the Pending Transfer Credit Agreement Obligations assigned to any transferee
that has instructed such Consenting Lender not to execute this Agreement (such
excluded Obligations, the “Excluded Credit Agreement
Obligations”). Such Consenting Lender shall not be bound by
the terms hereof with respect to any Excluded Credit Agreement
Obligations.
9.14 Amendments,
Modifications, Waivers.
This Support Agreement and the
Acceptable Plan may only be modified, amended or supplemented, and any of the
terms thereof may only be waived, by an agreement in writing signed by each of
the Debtors and the Consenting Lenders holding at such time at least
66 2/3% of the prepetition Total Outstandings and the DIP Loans that are subject
to the terms hereof and held by all Consenting Lenders (the “Required Consenting
Lenders”); provided that any
modifications, amendments or supplements to Annex 1 to the Term Sheet shall
require the consent of each Consenting Lender; provided, further that if the
modification, amendment or waiver at issue adversely impacts the treatment or
rights of any Consenting Lender differently than other Consenting Lenders, the
agreement in writing of such Consenting Lender whose treatment or rights are
directly adversely impacted in a different manner than other Consenting Lenders
shall also be required for such modification, amendment or waiver to be
effective; provided
further, that if the modification, amendment, supplement or waiver at
issue relates to Sections 2.2(b), 3, 4.2, 5, 6 (only to the extent affecting
Consenting Shareholders), 9.1 (only to the extent affecting Consenting
Shareholders), 9.3 (only to the extent affecting Consenting Shareholders), 9.11
and 9.12 or otherwise directly adversely impacts the treatment or rights of any
Consenting Shareholder, the agreement in writing of such Consenting Shareholder
whose treatment or rights are directly adversely impacted shall also be required
for such modification, amendment, supplement or waiver to be effective (this
proviso shall not be modified, amended or supplemented, or any of its terms
waived, without the prior written consent of each Consenting
Shareholder).
19
9.15 Consideration.
It is
hereby acknowledged by each of the Parties that no consideration shall be due or
paid to the Parties for their agreement to support or not interfere with the
Acceptable Plan in accordance with the terms and conditions of this Support
Agreement, other than the obligations of the other Parties under this Support
Agreement. The Company represents that, as of the Effective Date, no
payments have been made to any of the Parties hereto that were not permitted to
be made under the terms of the Credit Agreement.
9.16 Severability
of Provisions.
If any provision of this Support
Agreement for any reason is held to be invalid, illegal or unenforceable in any
respect, that provision shall not affect the validity, legality or
enforceability of any other provision of this Support Agreement.
9.17 Notices.
All
notices and other communications required or permitted hereunder shall be in
writing and shall be deemed given when: (a) delivered personally or by overnight
courier to the following address of the other Party hereto; or (b) sent by fax
to the following fax number of the other Party hereto with the confirmatory copy
delivered by overnight courier to the address of such Party listed
below.
If to any
Debtor, to counsel at the following address:
Xxxxxxxx
& Xxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Attention: Xxxx
X. Xxxxx, Esq.
If to any
Consenting Lender or Consenting Shareholder, the address set forth on its
signature page.
If to the
Administrative Agent, to:
JPMorgan Chase Bank, N.A
000 Xxxx Xxxxxx
Xxx Xxxx Xxx Xxxx
00000-0000
Attn: Xx. Xxxxxxxxx
Xxxxxx
[SIGNATURE
PAGES FOLLOW]
20
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
Very
truly yours,
RDA
HOLDING CO.
By: _/s/ Xxx
Williams_______________
Name: Xxx
Xxxxxxxx
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Title: Senior
Vice President & Chief Financial
Officer
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THE
READER’S DIGEST ASSOCIATION, INC.
By: _/s/ Xxx
Williams_______________
Name: Xxx
Xxxxxxxx
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Title: Senior
Vice President & Chief Financial
Officer
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Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
Very
truly yours,
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Alex,
Inc.
Xxxxxxxxxx.xxx,
Inc.
Ardee
Music Publishing, Inc.
Christmas
Angels Productions, Inc.
Compass
Learning, Inc.
Direct
Entertainment Media Group, Inc.
Direct
Holdings Americas, Inc.
Direct
Holdings Custom Publishing Inc.
Direct
Holdings Customer Service, Inc.
Direct
Holdings Education Inc.
Direct
Holdings Libraries Inc.
Direct
Holdings U.S. Corp.
Funk
& Wagnalls Yearbook Corp.
Xxxxxx
Xxxxxxx, Inc.
Home
Service Publications, Inc.
Pegasus
Asia Investments, Inc.
Pegasus
Investment, Inc.
Pegasus
Sales, Inc.
Pleasantville
Music Publishing, Inc.
R.D.
Manufacturing Corporation
RD
Large Edition, Inc.
RD
Publications, Inc.
RD
Walking, Inc.
RDA
Sub Co.
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Reader’s
Digest Children’s Publishing, Inc.
Reader’s
Digest Consumer Services, Inc.
Reader’s
Digest Entertainment, Inc.
Reader’s
Digest Financial Services, Inc.
Reader’s
Digest Latinoamerica, S.A.
Reader’s
Digest Sales and Services, Inc.
Reader’s
Digest Sub Nine, Inc.
Readers
Digest Young Families, Inc.
Xxxxxx
Manufacturing, LLC
Xxxxxx
Media Group, Inc.
Retirement
Living Publishing Company, Inc.
Saguaro
Road Records, Inc.
Taste
of Home Media Group, Inc.
Taste
of Home Productions, Inc.
Travel
Publications, Inc.
W.A.
Publications, LLC
WAPLA,
LLC
Weekly
Reader Corporation
Weekly
Reader Custom Publishing, Inc.
World
Almanac Education Group, Inc.
World
Wide Country Tours, Inc.
WRC
Media, Inc.
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By: /s/ Xxxxxx X.
Xxxxxxxx
Name: Xxxxxx X.
Xxxxxxxx
Title: Vice
President
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By: /s/ Xxxxxx X.
Xxxxxxxx
Name: Xxxxxx X.
Xxxxxxxx
Title:
Vice President
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RDA
INVESTORS I, LLC
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By: /s/ Xxxxxxxxxxx
Xxxxxxxxx
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Name:
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Title:
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RDA
INVESTORS II, LLC
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By: /s/ Xxxxxxxxxxx
Xxxxxxxxx
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Name:
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Title:
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RDA
INVESTORS III, LLC
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By: /s/ Xxxxxxxxxxx
Xxxxxxxxx
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Name:
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Title:
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LVC
ACQUISITION, L.L.C.
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By: /s/ Xxxxxxxxxxx
Xxxxxxxxx
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Name:
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Title:
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LVC
ACQUISITION II, L.L.C.
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By: /s/ Xxxxxxxxxxx
Xxxxxxxxx
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Name:
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Title:
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EAC
III, L.L.C.
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By: /s/ Xxxxxxxxxxx
Xxxxxxxxx
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Name:
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Title:
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X.
XXXXXXXXXX GROUP (GUERNSEY) LTD.
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By:
/s/ Xxxx Xx Xxx
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Name: Xxxx
Xx Xxx
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Title: Director
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X.
XXXXXXXXXX GROUP (GUERNSEY) LTD.
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By:
/s/ Xxxxxxx X Xxxxx
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Name: Xxxxxxx
X Xxxxx
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Title: Director
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JPMORGAN
CHASE BANK, N.A., as Administrative Agent and as a
Lender
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By: /s/
Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X.
Xxxxxx
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Title: Managing
Director
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Malibu
CFPI Loan Funding LLC, as a Lender
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By: /s/
Xxxx Xxxxxx
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Name: Xxxx
Xxxxxx
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Title: Attorney-in-Fact
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Pinehurst
Trading, Inc., as a Lender
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By: /s/
Xxxxx Xxx
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Name: Xxxxx
Xxx
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Title: Assistant
Vice President
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AG
Northwoods Capital VI Limited, as a Lender
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By:
/s/
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Name:
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Title:
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AG
Northwoods Capital VII Limited, as a Lender
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By:
/s/
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Name:
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Title:
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Northwoods
Capital IV Limited, as a Lender
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By:
/s/
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Name:
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Title:
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Northwoods
Capital V Limited, as a Lender
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By:
/s/
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Name:
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Title:
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American
International Group, Inc.
By:
AIG Global Investment Corp., Its Investment Adviser
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By: /s/
Xxxxxx X. Oh
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Name: Xxxxxx
X. Oh
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Title: Managing
Director
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[Restructuring
Support Agreement - Consenting Lender]
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Ares
X CLO Ltd.
By: Ares
CLO Management X, L.P., Investment Manager
By: Ares
CLO GP X, LLC, Its General Partner
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ARES
XI CLO Ltd.
By: ARES
CLO MANAGEMENT XI, L.P.
By: ARES
CLO GP XI, LLC, Its General Partner
By: ARES
MANAGEMENT LLC, Its Manager
|
|
By: /s/
Xxxxxxx Xxxxxxxx
|
By: /s/
Xxxxxxx Xxxxxxxx
|
|
Name: Xxxxxxx
Xxxxxxxx
|
Name: Xxxxxxx
Xxxxxxxx
|
|
Title: Authorized
Signatory
|
Title: Authorized
Signatory
|
|
ARES
XII CLO LTD.
By: ARES
CLO MANAGEMENT XII, L.P.
By: ARES
CLO GP XII, LLC, ITS GENERAL PARTNER
By: ARES
MANAGEMENT LLC, ITS MANAGER
|
ARES
ENHANCED LOAN INVESTMENT STRATEGY III, LTD.
By: ARES
ENHANCED LOAN MANAGEMENT III, L.P.
By: ARES
ENHANCED LOAN III GP, LLC, ITS GENERAL PARTNER
By: ARES
MANAGEMENT LLC, ITS MANAGER
|
|
By: /s/
Xxxxxxx Xxxxxxxx
|
By: /s/
Xxxxxxx Xxxxxxxx
|
|
Name: Xxxxxxx
Xxxxxxxx
|
Name: Xxxxxxx
Xxxxxxxx
|
|
Title: Authorized
Signatory
|
Title: Authorized
Signatory
|
|
ARES
ENHANCED LOAN INVESTMENT STRATEGY II, LTD.
By: Ares
Enhanced Loan Management II, L.P., Investment Manager
By: Ares
Enhanced Loan XX XX, LLC, Its General Partner
|
Ares
VIII CLO Ltd.
By: Ares
CLO Management VIII, L.P., Investment Manager
By: Ares
CLO GP VIII, LLC Its General Partner
|
|
By: /s/
Xxxxxxx Xxxxxxxx
|
By: /s/
Xxxxxxx Xxxxxxxx
|
|
Name: Xxxxxxx
Xxxxxxxx
|
Name: Xxxxxxx
Xxxxxxxx
|
|
Title: Authorized
Signatory
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Ares
IIR CLO Ltd.
By: Ares
CLO Management IIR, L.P., Investment Manager
By: Ares
CLO GP IIR, LLC, Its General Partner
|
ARES
IIIR/IVR CLO LTD.
By: ARES
CLO MANAGEMENT IIIR/IVR, L.P.
By: ARES
CLO GP IIIR/IVR, LLC, ITS GENERAL PARTNER
By: ARES
MANAGEMENT LLC, ITS MANAGER
|
|
By: /s/
Xxxxxxx Xxxxxxxx
|
By: /s/
Xxxxxxx Xxxxxxxx
|
|
Name: Xxxxxxx
Xxxxxxxx
|
Name: Xxxxxxx
Xxxxxxxx
|
|
Title: Authorized
Signatory
|
Title: Authorized
Signatory
|
|
Ares
VR CLO Ltd.
By: Ares
CLO Management VR, L.P., Investment Manager
By: Ares
CLO GP VR, LLC, Its General Partner
|
Ares
VIR CLO Ltd.
By: Ares
CLO Management VIR, L.P., Investment Manager
By: Ares
CLO GP VIR, LLC, Its General Partner
|
|
By: /s/
Xxxxxxx Xxxxxxxx
|
By: /s/
Xxxxxxx Xxxxxxxx
|
|
Name: Xxxxxxx
Xxxxxxxx
|
Name: Xxxxxxx
Xxxxxxxx
|
|
Title: Authorized
Signatory
|
Title: Authorized
Signatory
|
|
Ares
VII CLO Ltd.
By: Ares
CLO Management VII, L.P., Investment Manager
By: Ares
CLO GP VII, LLC, Its General Partner
|
Ares
IX CLO Ltd.
By: Ares
CLO Management IX, L.P., Investment Manager
By: Ares
CLO GP IX, LLC, Its General Partner
By: Ares
Management LLC, Its Managing Member
|
|
By: /s/
Xxxxxxx Xxxxxxxx
|
By: /s/
Xxxxxxx Xxxxxxxx
|
|
Name: Xxxxxxx
Xxxxxxxx
|
Name: Xxxxxxx
Xxxxxxxx
|
|
Title: Authorized
Signatory
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
CANPARTNERS
INVESTMENTS IV, LLC, a California limited liability company
By: CANYON
CAPITAL ADVISORS LLC, a Delaware limited liability company, its
Manager
|
|
|
By: /s/
Xxxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxxx X. Xxxxx
|
|
|
Title: Co-Chairman
and Co-CEO
|
[Restructuring
Support Agreement - Consenting Lender]
|
Canyon
Capital CLO 2004-1, LTD., as a Lender
BY: Canyon
Capital Advisors LLC, a Delaware Limited Liability Company, its Collateral
Manager
|
|
|
By: /s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Canyon
Capital CLO 2006-1, LTD., as a Lender
BY: Canyon
Capital Advisors LLC, a Delaware Limited Liability Company, its Collateral
Manager
|
|
|
By: /s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Canyon
Capital CLO 2007-1, LTD., as a Lender
BY: Canyon
Capital Advisors LLC, a Delaware Limited Liability Company, its Collateral
Manager
|
|
|
By: /s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
CANYON
SPECIAL OPPORTUNITIES MASTER FUND (CAYMAN), LTD.,
an Exempted Company incorporated
in the
Cayman Islands with limited
liability
By: CANYON
CAPITAL ADVISORS LLC, its investment Advisor
A Delaware limited liability
company, its
Investment
Advisor
|
|
|
By: /s/
Xxxxxxxx X. Xxxxx
|
|
|
Name: Xxxxxxxx
X. Xxxxx
|
|
|
Title: Co-Chairman
and Co-CEO
|
|
[Restructuring
Support Agreement - Consenting Lender]
|
Chatham
Asset High Yield Master Fund, LTD
By: Chatham
Asset Management, LLC Investment Advisor
|
|
|
By: /s/
Xxxxx X’Xxxxxx
|
|
|
Name:
Xxxxx X’Xxxxxx
|
|
|
Title: Member
|
[Restructuring
Support Agreement - Consenting Lender]
|
Chatham
Asset Leveraged Loan Offshore Fund, LTD
By: Chatham
Asset Management, LLC Investment Advisor
|
|
|
By: /s/
Xxxxx X’Xxxxxx
|
|
|
Name:
Xxxxx X’Xxxxxx
|
|
|
Title: Member
|
[Restructuring
Support Agreement - Consenting Lender]
|
Contrarian
Funds LLC
By
Contrarian Capital Management L.L.C. as manager, as a
Lender
|
|
|
By: /s/
Xxxxxx X. Xxxxxxx
|
|
|
Name: Xxxxxx
X. Xxxxxxx
|
|
|
Title: Member
|
[Restructuring
Support Agreement - Consenting Lender]
|
Atrium
V, as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Atrium
VI, as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Cadogan
Square CLO II B.V. as a Lender
|
|
|
By: /s/
Xxxxxxx Xxxxxx
|
|
|
Name: Xxxxxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
By: /s/
Xxxxxx Xxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
[Restructuring
Support Agreement - Consenting Lender]
|
Cadogan
Square CLO III B.V. as a Lender
|
|
|
By: /s/
Xxxxxxx Xxxxxx
|
|
|
Name: Xxxxxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
By: /s/
Xxxxxx Xxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
[Restructuring
Support Agreement - Consenting Lender]
|
Cadogan
Square CLO IV B.V. as a Lender
|
|
|
By: /s/
Xxxxxxx Xxxxxx
|
|
|
Name: Xxxxxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
By: /s/
Xxxxxx Xxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
[Restructuring
Support Agreement - Consenting Lender]
|
Castle
Garden Funding, as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Credit
Suisse Syndicated Loan Fund, as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
CSAM
Funding III, as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
CSAM
Funding IV, as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Madison
Park Funding I, Ltd., as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Madison
Park Funding II, Ltd., as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Madison
Park Funding III, Ltd., as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Madison
Park Funding IV, Ltd., as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Madison
Park Funding V, Ltd., as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Madison
Park Funding VI, Ltd., as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Credit
Suisse Loan Funding LLC, as a Lender
|
|
|
By: /s/
Xxxxxx Xxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx
|
|
|
Title: Director
|
|
By: /s/
Xxxxxx Xxxx
|
|
|
Name: Xxxxxx
Xxxx
|
|
|
Title: Authorized
Signatory
|
|
[Restructuring
Support Agreement - Consenting Lender]
|
DK
Acquisition Partners, L.P., as a Lender
By: X.X.
Xxxxxxxx & Co., Its General Partner
|
|
|
By: /s/
Xxx Xxxxxxxx
|
|
|
Name: Xxx
Xxxxxxxx
|
|
|
Title: General
Partner
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx CDO IX Ltd., as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx CDO VIII, Ltd., as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx CDO X PLC, as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx Floating-Rate Income Trust, as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxxxx
& Co., as a Lender
By: Boston
Management and Research as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx Institutional Senior Loan Fund, as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx Limited Duration Income Fund, as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx Loss Opportunities Fund, LTD., as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx Medallion Floating-Rate Income Portfolio, as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Senior
Debt Portfolio, as a Lender
By: Boston
Management and Research as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx Short Duration Diversified Income Fund, as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx VT Floating-Rate Income Fund, as a Lender
By: Xxxxx
Xxxxx Management as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
THE
NORINCHUKIN BANK, NEW YORK BRANCH, through State Street Bank and Trust
Company N.A. as Fiduciary Custodian, as a Lender
By: Xxxxx
Xxxxx Management, Attorney-in-Fact
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxx
Xxxxx Senior Income Trust, as a Lender
By: Xxxxx
Xxxxx Management As Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
General
Electric Capital Corporation, as a Lender
Consenting
Lender: Media, Communications and Entertainment, a division of
Sponsor Finance, a business segment of General Electric Capital
Corporation
|
|
|
By: /s/
Xxxxx Xxxx
|
|
|
Name: Xxxxx
Xxxx
|
|
|
Title: Duly
Authorized Signatory
|
[Restructuring
Support Agreement - Consenting Xxxxxx]
|
XX0
SIP Limited
By: GoldenTree
Asset Management, LP, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
GoldenTree
2004 Trust
By: GoldenTree
Asset Management, LP, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
GoldenTree
Credit Opportunities Financing I, Limited
By: GoldenTree
Asset Management, LP, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
GoldenTree
Credit Opportunities Master Fund, Ltd.
By: GoldenTree
Asset Management, LP, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
– Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
GoldenTree
Credit Opportunities Second Financing, Limited
By: GoldenTree
Asset Management, LP, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
GoldenTree
European Financing B.V.
By: GoldenTree
Asset Management UK LLP, as a shareholder of RDA Holding
Co.
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
GoldenTree
Leverage Loan Financing I, Limited
By: GoldenTree
Leverage Loan Manager, LLC, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
GoldenTree
Loan Opportunities III, Limited
By: GoldenTree
Asset Management, LP, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
GoldenTree
Loan Opportunities IV, Limited
By: GoldenTree
Asset Management, LP, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
GoldenTree
Loan Opportunities V, Limited
By: GoldenTree
Asset Management, LP, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
Laurelin
II B. V
By: GoldenTree
Asset Management, LP, as a Lender
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title: Director
- Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
|
NCM
GT 2008-2 LLC, as a Lender
|
|
|
By: /s/
Xxxxx X. Xxxxx
|
|
|
Name: Xxxxx
X. Xxxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
ING
International (II) Senior Bank Loans USD, as a Lender
|
|
|
By: /s/Xxxxxxx
Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
ING
Investment Management CLO I, Ltd., as a Lender
|
|
|
By: /s/Xxxxxxx
Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
ING
International II Senior Bank Loans Euro, as a Lender
|
|
|
By: /s/Xxxxxxx
Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
ING
Investment Management CLO II, Ltd., as a Lender
|
|
|
By: /s/Xxxxxxx
Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
ING
Investment Management CLO III, Ltd., as a Lender
|
|
|
By: /s/Xxxxxxx
Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
ING
Investment Management CLO IV, Ltd., as a Lender
|
|
|
By: /s/Xxxxxxx
Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
ING
Investment Management CLO V, Ltd., as a Lender
|
|
|
By: /s/Xxxxxxx
Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
ING
Prime Rate Trust, as a Lender
|
|
|
By: /s/Xxxxxxx
Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
ING
Senior Income Fund, as a Lender
|
|
|
By: /s/Xxxxxxx
Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
JPMorgan
Chase Bank, N.A., as a Lender
|
|
|
By: /s/
Xxxxxxxxx Xxxxxx
|
|
|
Name: Xxxxxxxxx
Xxxxxx
|
|
|
Title: Managing
Director
|
[Restructuring
Support Agreement - Consenting Lender]
|
Xxxxxxx
Xxxxx Capital Corporation, as a Lender
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name: Xxxxxxx
X. Xxxxx
|
|
|
Title: Vice
President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Clydesdale
CLO 2006, Ltd., as a Lender
By: Nomura
Corporate Research and Asset Management Inc. as Investment
Manager
|
|
|
By: /s/
Xxxxxx Xxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxxx
|
|
|
Title: Executive
Director
|
[Restructuring
Support Agreement - Consenting Lender]
|
Clydesdale
CLO 2007, Ltd., as a Lender
By: Nomura
Corporate Research and Asset Management Inc. as Investment
Manager
|
|
|
By: /s/
Xxxxxx Xxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxxx
|
|
|
Title: Executive
Director
|
[Restructuring
Support Agreement - Consenting Lender]
|
Nomura
Bond & Loan Fund, as a Lender
By: Mitsubishi
UFJ Trust & Banking Corporation as Trustee
By: Nomura
Corporate Research and Asset Management Inc. Attorney in
Fact
|
|
|
By: /s/
Xxxxxx Xxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxxx
|
|
|
Title: Executive
Director
|
[Restructuring
Support Agreement - Consenting Lender]
|
NCRAM
Senior Loan Trust 2005, as a Lender
By: Nomura
Corporate Research and Asset Management Inc. as Investment
Manager
|
|
|
By: /s/
Xxxxxx Xxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxxx
|
|
|
Title: Executive
Director
|
[Restructuring
Support Agreement - Consenting Lender]
|
Primus
CLO I, Ltd., as a Lender
By:
Primus Asset Management Its Collateral Manager
|
|
|
By: /s/N.
J. Xxxxxxxx, Jr.
|
|
|
Name: N.
J. Xxxxxxxx, Jr.
|
|
|
Title: Portfolio
Manager
|
[Restructuring
Support Agreement - Consenting Lender]
|
Cavalry
CLO I, LTD., as a Lender
By: Regiment
Capital Management LLC as its Investment Advisor
|
|
|
By: /s/
Xxxx Xxxxxxxxxx
|
|
|
Name: Xxxx
Xxxxxxxxxx
|
|
|
Title: Partner
|
[Restructuring
Support Agreement - Consenting Lender]
|
Grand
Central Asset Trust REG Series, as a Lender
|
|
|
By: /s/
Xxxx Xxxxxx
|
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Attorney-in-Fact
|
[Restructuring
Support Agreement - Consenting Lender]
|
PRESIDENT
& FELLOWS OF HARVARD COLLEGE, as a Lender
By: Regiment
Capital Management, LLC as its Investment Advisor
|
|
|
By: /s/
Xxxx Xxxxxxxxxx
|
|
|
Name: Xxxx
Xxxxxxxxxx
|
|
|
Title: Partner
|
[Restructuring
Support Agreement - Consenting Lender]
|
REGIMENT
CAPITAL LTD., as a Lender
By: Regiment
Capital Management, LLC as its Investment Advisor
|
|
|
By: /s/
Xxxx Xxxxxxxxxx
|
|
|
Name: Xxxx
Xxxxxxxxxx
|
|
|
Title: Partner
|
[Restructuring
Support Agreement - Consenting Lender]
|
XL
Investment Management Ltd., as a Lender
By: Regiment
Capital Management, LLC as its Investment Advisor
|
|
|
By: /s/
Xxxx Xxxxxxxxxx
|
|
|
Name: Xxxx
Xxxxxxxxxx
|
|
|
Title: Partner
|
[Restructuring
Support Agreement - Consenting Lender]
|
Cornerstone
CLO Ltd., as a Lender
By: Stone
Tower Debt Advisors LLC as its Collateral Manager
|
|
|
By:
|
|
|
Name:
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Rampart
CLO 2007 Ltd., as a Lender
By: Stone
Tower Debt Advisors LLC as its Collateral Manager
|
|
|
By:
|
|
|
Name:
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Stone
Tower CLO VII Ltd., as a Lender
By: Stone
Tower Debt Advisors LLC as its Collateral Manager
|
|
|
By:
|
|
|
Name:
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Stone
Tower CLO VIII Ltd., as a Lender
By: Stone
Tower Debt Advisors LLC as its Collateral Manager
|
|
|
By:
|
|
|
Name:
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
|
Trimaran
CLO VII Ltd.
By: Trimaran
Advisors, L.L.C., as a Lender
|
|
|
By: /s/
Xxxxxxxx X. Xxxxxxxxxx
|
|
|
Name: Xxxxxxxx
X. Xxxxxxxxxx
|
|
|
Title: Managing
Director
|
[Restructuring
Support Agreement - Consenting Lender]
|
Foothill
CLO I, Ltd.
By: The
Foothill Group, Inc., as attorney-in-fact, as a Lender
|
|
|
By: /s/
Xxxx Xxxxxxxx
|
|
|
Name: Xxxx
Xxxxxxxx
|
|
|
Title: Managing
Member
|
[Restructuring
Support Agreement - Consenting Lender]
|
The
Foothill Group, Inc., as a Lender
|
|
|
By: /s/
Xxxx Xxxxxxxx
|
|
|
Name: Xxxx
Xxxxxxxx
|
|
|
Title: V.P.
|
|
Genesis
CLO 2007-2 LTD, as a Lender
|
|
|
By: LLCP
Advisors LLC as Collateral Manager
|
|
|
By: /s/
Xxxx Xxxxxxx
|
|
|
Name: Xxxx
Xxxxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
|
Trimaran
CLO VII Ltd
|
|
|
By: Trimaran
Advisors, L.L.C., as a Lender
|
|
|
By: /s/
Xxxxxxxx X. Xxxxxxxxxx
|
|
|
Name:
Xxxxxxxx X. Xxxxxxxxxx
|
|
|
Title:
Managing Director
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GOLDENTREE
MULTISTRAGETY FINANCING, LTD.
|
|
|
By: GoldenTree
Asset Management, LP, as a shareholder of RDA Holding Co
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Director – Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GOLDENTREE
CREDIT OPPORTUNITIES FINANCING I, LTD.
|
|
|
By: GoldenTree
Asset Management, LP, as a shareholder of RDA Holding Co
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Director – Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GOLDENTREE
HIGH YIELD VALUE MASTER FUND, LP
|
|
|
By: GoldenTree
Asset Management, LP, as a shareholder of RDA Holding Co
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Director – Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GOLDENTREE
PARTNERS, LP
|
|
|
By: GoldenTree
Asset Management, LP, as a shareholder of RDA Holding Co
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Director – Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GOLDENTREE
PARTNERS (100), LP
|
|
|
By: GoldenTree
Asset Management, LP, as a shareholder of RDA Holding Co
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Director – Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GOLDENTREE
OFFSHORE FUND, LTD.
|
|
|
By: GoldenTree
Asset Management, LP, as a shareholder of RDA Holding Co
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Director – Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GOLDENTREE
EUROPEAN FINANCING B.V.
|
|
|
By: GoldenTree
Asset Management UK LLP, as a shareholder of RDA Holding Co
|
|
|
By: /s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Director – Bank Debt
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GSO
SPECIAL SITUATIONS OVERSEAS FUND LTD.
|
|
|
By: GSO
Capital Partners LP, its investment advisor
|
|
|
By: /s/
Xxxxxxxxxxx X. Xxxxxxxx
|
|
|
Name:
Xxxxxxxxxxx X. Xxxxxxxx
|
|
|
Title:
Authorized Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GSO
CREDIT OPPORTINITIES FUND (HELIOS), L.P.
|
|
|
By: GSO
Capital Partners LP, its investment advisor
|
|
|
By: /s/
Xxxxxxxxxxx X. Xxxxxxxx
|
|
|
Name:
Xxxxxxxxxxx X. Xxxxxxxx
|
|
|
Title:
Authorized Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
GSO
SPECIAL SITUATIONS FUND L.P.
|
|
|
By: GSO
Capital Partners LP, its investment advisor
|
|
|
By: /s/
Xxxxxxxxxxx X. Xxxxxxxx
|
|
|
Name:
Xxxxxxxxxxx X. Xxxxxxxx
|
|
|
Title:
Authorized Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
XXXXXXX
XXXXX CAPITAL CORPORATION
|
|
|
By: /s/
Xxxx Xxxxxxx
|
|
|
Name:
Xxxx Xxxxxxx
|
|
|
Title: Vice
President & Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
SOLAR
CAPITAL LLC
|
|
|
By: /s/
Xxxxxxx Xxxxx
|
|
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title: Authorized
Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
INVESTMENT PARTNERS, L.P.
|
|
|
By: DLJ
Investment Partners II, Inc., its General Partner
|
|
|
By: /s/
Xxxx X. Xxxxxx
|
|
|
Name:
Xxxx X. Xxxxxx
|
|
|
Title:
Principal
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
INVESTMENT PARTNERS II, L.P.
|
|
|
By: DLJ
Investment Partners II, Inc., its Managing General Partner
|
|
|
By: /s/
Xxxx X. Xxxxxx
|
|
|
Name:
Xxxx X. Xxxxxx
|
|
|
Title:
Principal
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJIP
HOLDINGS, L.P.
|
|
|
By: DLJ
Investment Partners II, Inc., its General Partner
|
|
|
By: /s/
Xxxx X. Xxxxxx
|
|
|
Name:
Xxxx X. Xxxxxx
|
|
|
Title:
Principal
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
MERCHANT BANKING PARTNERS II, L.P.
|
|
|
By: DLJ
Merchant Banking II, Inc., its Managing General Partner
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
MERCHANT BANKING PARTNERS II-A, L.P.
|
|
|
By: DLJ
Merchant Banking II, Inc., its Managing General Partner
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
OFFSHORE PARTNERS II, C.V.
|
|
|
By: DLJ
Merchant Banking II, Inc., its Advisory General Partner
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
DIVERSIFIED PARTNERS, L.P.
|
|
|
By: DLJ
Diversified Partners, Inc., its Managing General Partner
|
|
|
By: /s/
Xxxx X. Xxxxxx
|
|
|
Name:
Xxxx X. Xxxxxx
|
|
|
Title:
Principal
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
DIVERSIFIED PARTNERS-A, L.P.
|
|
|
By: DLJ
Diversified Partners, Inc., its Managing General Partner
|
|
|
By: /s/
Xxxx X. Xxxxxx
|
|
|
Name:
Xxxx X. Xxxxxx
|
|
|
Title:
Principal
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
MB FUNDING II, INC.
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
MILLENIUM PARTNERS, L.P.
|
|
|
By: DLJ
Merchant Banking II, Inc., its Managing General Partner
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
MILLENIUM PARTNERS-A, L.P.
|
|
|
By: DLJ
Merchant Banking II, Inc., its Managing General Partner
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
EAB PARTNERS, L.P.
|
|
|
By: DLJ
LBO Plans Management Corporation, Inc., its General Partner
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
ESC II, L.P.
|
|
|
By: DLJ
LBO Plans Management Corporation, Inc., its General Partner
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DLJ
FIRST ESC, L.P.
|
|
|
By: DLJ
LBO Plans Management Corporation, Inc., its Managing General
Partner
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
AND
|
By: DLJ
LBO Plans Management Corporation II, Inc., its Special General
Partner
|
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
|
|
|
By: /s/
Xxxxxx Xxxxx
|
|
|
Name:
Xxxxxx Xxxxx
|
|
|
Title:
Authorized Representative
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
ARES
LEVERAGED INVESTMENT FUND II, L.P.
|
|
|
By: /s/
Xxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxx
|
|
|
Title:
Authorized Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
ARES
LEVERAGED INVESTMENT FUND, L.P.
|
|
|
By: /s/
Xxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxx
|
|
|
Title:
Authorized Signatory
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
W
CAPITAL PARTNERS, L.P.
|
|
|
By: /s/
Xxxxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxxxx
|
|
|
Title:
Managing Director
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
STARR
INTERNATIONAL USA INVESTMENTS LLC.
|
|
|
By: /s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
|
Title:
Associate Counsel
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
X.X.
XXXXX & CO., INC.
|
|
|
By: /s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
|
Title:
Associate Counsel
|
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
NORTHWOODS
CAPITAL VI, LIMITED
|
|
|
By:
Xxxxxx Xxxxxx & Co., L.P., as Collateral Manager
|
|
|
By: /s/
Xxxxx Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Managing Director
|
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
DEUTSCHE
BANK AG NEW YORK BRANCH, as a Lender
|
|
|
By:
DB Services New Jersey, Inc.
|
|
|
By: /s/
Xxxxxxxx Quiniana
|
|
|
Name:
Xxxxxxxx Quiniana
|
|
|
Title:
Assistant Vice President
|
|
|
By: /s/
Xxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxx
|
|
|
Title:
Assistant Vice President
|
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
CIFC
FUNDING 2007-III, LTD, as a Lender
|
|
|
By: /s/
X. Xxxxxxx
|
|
|
Name:
X. Xxxxxxx
|
|
|
Title:
Co-Chief Investment Officer
|
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
|
BIG
SKY III SENIOR LOAN TRUST
|
|
|
By:
Xxxxx Xxxxx Management, as Investment Advisor
|
|
|
By: /s/
Xxxxx X. Xxxx
|
|
|
Name:
Xxxxx X. Xxxx
|
|
|
Title:
Vice President
|
|
[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
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XXXXX
VANCESENIOR FLOATING-RATE TRUST
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By:
Xxxxx Xxxxx Management, as Investment Advisor
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By: /s/
Xxxxx X. Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Vice President
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[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
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CDO
VII PLC
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By:
Xxxxx Xxxxx Management, as Interim Investment Advisor
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By: /s/
Xxxxx X. Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Vice President
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[Restructuring
Support Agreement - Consenting Lender]
Please
sign in the space provided below to indicate your agreement and consent to the
terms hereof.
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AMERICAN
INTERNATIONAL GROUP, INC.
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By:
AIG Global Investment Corp., its Investment Advisor
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By: /s/
W. Xxxxxxx Xxxxxx
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Name:
W. Xxxxxxx Xxxxxx
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Title:
Managing Director
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SATURN
CLO, LTD.
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By:
AIG Global Investment Corp., its Collateral Manager
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By: /s/
W. Xxxxxxx Xxxxxx
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Name:
W. Xxxxxxx Xxxxxx
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Title:
Managing Director
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GALAXY
V CLO, LTD.
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By:
AIG Global Investment Corp., its Collateral Manager
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By: /s/
W. Xxxxxxx Xxxxxx
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Name:
W. Xxxxxxx Xxxxxx
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Title:
Managing Director
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GALAXY
VI CLO, LTD.
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By:
AIG Global Investment Corp., its Collateral Manager
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By: /s/
W. Xxxxxxx Xxxxxx
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Name:
W. Xxxxxxx Xxxxxx
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Title:
Managing Director
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GALAXY
VII CLO, LTD.
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By:
AIG Global Investment Corp., its Collateral Manager
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By: /s/
W. Xxxxxxx Xxxxxx
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Name:
W. Xxxxxxx Xxxxxx
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Title:
Managing Director
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GALAXY
VIII CLO, LTD.
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By:
AIG Global Investment Corp., its Collateral Manager
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By: /s/
W. Xxxxxxx Xxxxxx
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Name:
W. Xxxxxxx Xxxxxx
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Title:
Managing Director
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[Restructuring
Support Agreement - Consenting Lender]
SCHEDULE
I
Alex,
Inc.
Xxxxxxxxxx.xxx,
Inc.
Ardee
Music Publishing, Inc.
Christmas
Angels Productions, Inc.
Compass
Learning, Inc.
Direct
Entertainment Media Group, Inc.
Direct
Holdings Americas, Inc.
Direct
Holdings Custom Publishing Inc.
Direct
Holdings Customer Service, Inc.
Direct
Holdings Education Inc.
Direct
Holdings Libraries Inc.
Direct
Holdings U.S. Corp.
Funk
& Wagnalls Yearbook Corp.
Xxxxxx
Xxxxxxx, Inc.
Home
Service Publications, Inc.
Pegasus
Asia Investments, Inc.
Pegasus
Investment, Inc.
Pegasus
Sales, Inc.
Pleasantville
Music Publishing, Inc.
R.D.
Manufacturing Corporation
RD Large
Edition, Inc.
RD
Publications, Inc.
RD
Walking, Inc.
RDA Sub
Co.
Reader’s
Digest Children’s Publishing, Inc.
Reader’s
Digest Consumer Services, Inc.
Reader’s
Digest Entertainment, Inc.
Reader’s
Digest Financial Services, Inc.
Reader’s
Digest Latinoamerica, S.A.
Reader’s
Digest Sales and Services, Inc.
Reader’s
Digest Sub Nine, Inc.
Readers
Digest Young Families, Inc.
Xxxxxx
Manufacturing, LLC
Xxxxxx
Media Group, Inc.
Retirement
Living Publishing Company, Inc.
Saguaro
Road Records, Inc.
Taste of
Home Media Group, Inc.
Taste of
Home Productions, Inc.
Travel
Publications, Inc.
W.A.
Publications, LLC
WAPLA,
LLC
Weekly
Reader Corporation
Weekly
Reader Custom Publishing, Inc.
World
Almanac Education Group, Inc.
World
Wide Country Tours, Inc.
WRC
Media, Inc.
EXHIBIT
A
PROPOSED RESTRUCTURING TERM
SHEET
THIS
TERM SHEET IS NOT AN OFFER OR A SOLICITATION WITH RESPECT TO ANY SECURITIES OF
THE COMPANY. ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL
APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY
CODE. THIS TERM SHEET CONTAINS MATERIAL NON-PUBLIC INFORMATION ABOUT
A PUBLIC COMPANY AND, THEREFORE, IS SUBJECT TO FEDERAL SECURITIES
LAWS.
THIS
TERM SHEET IS PROVIDED IN CONFIDENCE AND MAY BE DISTRIBUTED ONLY WITH THE
EXPRESS WRITTEN CONSENT OF THE COMPANY AND THE ADMINISTRATIVE
AGENT. THE TERM SHEET IS PROVIDED IN THE NATURE OF A SETTLEMENT
PROPOSAL IN FURTHERANCE OF SETTLEMENT DISCUSSIONS. ACCORDINGLY, THE
TERM SHEET IS INTENDED TO BE ENTITLED TO THE PROTECTIONS OF RULE 408 OF THE
FEDERAL RULES OF EVIDENCE AND ANY OTHER APPLICABLE STATUTES OR DOCTRINES
PROTECTING THE USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION AND INFORMATION
EXCHANGED IN THE CONTEXT OF SETTLEMENT DISCUSSIONS. FURTHER, NOTHING
IN THE TERM SHEET SHALL BE AN ADMISSION OF FACT OR LIABILITY OR DEEMED BINDING
ON HOLDING, ITS SUBSIDIARIES, THE ADMINISTRATIVE AGENT OR THE
LENDERS.
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OVERVIEW
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Transaction
Summary
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This
term sheet (the “Term Sheet”)
describes a restructuring transaction (the “Restructuring”) pursuant to which RDA
Holding Co. (“Holding” and once
reorganized, “Reorganized Holding”)
and various of its domestic subsidiaries will restructure their capital
structure through a pre-negotiated joint plan of reorganization filed in
connection with cases commenced under chapter 11 of title 11 of
the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”) in the United States
Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”).
This
Term Sheet outlines the proposed capital structure and other material
terms and conditions of the Restructuring. The Term Sheet does
not include a description of all of the terms, conditions and other
provisions that are to be contained in the definitive documentation
governing the Restructuring, which remain subject to further discussion
and negotiation.
The
pro forma exit capital structure of material long term indebtedness is set
forth under the heading “Debt Facilities” on Annex 1 attached
hereto.
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A-1
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Secured
Debt to be
Restructured
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Indebtedness
to be treated under a plan of reorganization (the “Acceptable Plan”) will
include:
(i)
approximately $1.6 billion outstanding under that certain Credit Agreement
dated as of March 2, 2007 (the “Pre-Petition
Credit Agreement”) among The Reader’s Digest Association, Inc.,
(“RD”) and certain of its
subsidiaries, JPMorgan Chase Bank, N.A., as administrative agent (in such
capacity, the “Administrative
Agent”), and the lenders party thereto (the “Secured Lenders”); and
(ii)
termination claims under certain Swap Contracts (as defined in the
Pre-Petition Credit Agreement) (the “Swap
Claims” and the holders of such claims, together with the
prepetition Secured Lenders, the “Secured
Parties”).
Such
indebtedness will be restructured pursuant to the Acceptable Plan to be
filed jointly by Holding, RD and certain of RD’s domestic subsidiaries
(collectively, the “Debtors”) in
proceedings (the “Cases”) to be
commenced under chapter 11 of the Bankruptcy Code in the Bankruptcy
Court.
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DIP/Exit
Credit Facility
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See
term sheet annexed to the DIP Commitment Letter.
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Adequate
Protection for Pre-Petition Obligations
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See
term sheet annexed to the DIP Commitment Letter.
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Treatment of Claims and Equity
Interests
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DIP
Claims
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The
debtor in possession financing facility (the “DIP Facility”) shall, on the effective date
of the Acceptable Plan (the “Effective
Date”), convert to the Exit Financing facility in accordance with
the terms of the DIP Facility or be paid in full in
cash.
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Administrative
Claims
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Each
holder of an allowed administrative claim, including claims of the type
described in section 503(b)(9) of the Bankruptcy Code, will receive
payment in full (in cash) of the unpaid portion of its allowed
administrative claim on the Effective Date or as soon thereafter as
practicable (or, if payment is not then due, shall be paid in accordance
with its terms) or pursuant to such other terms as may be agreed to by the
holder of such claim and the Debtors.
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Priority
Tax Claims
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Priority
tax claims will be treated in accordance with section 1129(a)(9)(C) of the
Bankruptcy Code.
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Other
Priority Claims
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All
other priority claims will be paid in full (in cash) on the Effective
Date, or as soon thereafter as practicable, or treated in any other manner
so that such claim will otherwise be rendered
unimpaired.
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A-2
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Pre-Petition
Credit Agreement Claims
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(a)
On the Effective Date, the aggregate outstanding principal amount of Term
Loans, Revolving Loans, Euro Term Loans and Swap Claims (as each such term
is defined in the Pre-Petition Credit Agreement or herein, as applicable)
and the interest accrued and unpaid as of the Petition Date (collectively,
the “Pre-Petition Obligations”) will
be restructured into
(i) $300 million term loan (the
“Second Priority Restructured Term Loan
Facility”) on the terms set forth on Annex 1 hereto;
and
(ii)
The Euro Term Loan2 shall be reinstated and the prepetition
guaranties made by the Debtors (together with any collateral granted by
the Debtors) for the benefit of the holders of the Euro Term Loan shall be
reinstated; provided that the Euro Term Loan shall be amended
with the consent of Required Lenders to be consistent with Annex 1
hereto.
(b) The
prepetition Secured Parties shall convert that portion of the Pre-Petition
Obligations which is not restructured under the Second Priority
Restructured Term Loan Facility or part of the reinstated Euro Term Loan
into not less than 100% (subject to dilution by the Management Incentive
Plan, the Equity Buy-In Option and equity issued to such other creditor
classes as may be agreed to by the Required Consenting Lenders and the
Debtors) of the new common stock of Reorganized Holding (the “New Common Stock”) to be issued and
outstanding on the Effective Date of the Acceptable Plan, with such New
Common Stock to be distributed on a pro rata basis in accordance with the
prepetition Secured Parties’ holdings of such Pre-Petition
Obligations.
(c) Notwithstanding
anything herein to the contrary (i) the Euro Term Lenders shall only
be entitled to receive the treatment set forth in clause (a)(ii) on
account of their Euro Term Loan exposure and (ii) the Revolving Lenders
and U.S. Term Lenders shall only be entitled to receive the treatment set
forth in clauses (a)(i) and (b) on account of their Revolver Loan and U.S.
Loan exposures.
Impaired
- entitled to vote.
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Other
Secured Claims
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Each
holder thereof will receive the following treatment: (a)
payment in full (in cash) on the Effective Date or as soon thereafter as
practicable; (b) delivery of collateral securing any such claim and
payment of any interest required under section 506(b) of the Bankruptcy
Code; or (c) such other treatment as is necessary to satisfy section 1129
of the Bankruptcy Code.
Unimpaired;
not entitled to vote – deemed to accept.
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Unsecured
Claims Related to Operations
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Each
holder of unsecured claims related to operations will receive payment in
full in cash as and when such claims become due and payable in the
ordinary course of business, or otherwise receive such treatment as to
render such holder unimpaired. The Debtors may elect to
separate general unsecured claims into appropriate
subclasses.
Unimpaired;
not entitled to vote – deemed to accept.3
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3The
Debtors may elect to renegotiate and/or reject certain executory contracts and
to separately classify and impair any claims arising
therefrom.
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A-3
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Claims
of holders of Senior Subordinated Notes
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Holders
of Senior Subordinated Notes (as defined in that certain Indenture dated
March 2, 2007) shall not receive any distributions. Any
agreement to provide a distribution to holders of Senior Subordinated
Notes shall require the consent of the Debtors and the Required Consenting
Lenders and shall require holders of the Senior Subordinated Notes to vote
in favor of and otherwise support the Acceptable Plan and all of the
provisions thereof.4
Impaired;
not entitled to vote – deemed to reject.
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General
Unsecured Claims
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TBD
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Existing
Equity Interests
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All
existing common and preferred equity interests in Holding or other
existing securities consisting of (or convertible into) equity interests
in Holding, including any warrants or vested or unvested options to
purchase equity interests in Holding, shall be extinguished as of the
Effective Date. All equity interests of Holding’s subsidiaries
shall continue to be held by Holding and the subsidiaries of Holding
holding such equity interests prior to the commencement of the
Cases.
Impaired;
not entitled to vote – deemed to reject.
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Equity
Buy-In Option
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The
Prepetition Secured Parties agree that the Company may issue up to $50-100
million of the New Common Stock, which shall represent no more than
10%-20% of the New Common Stock, pursuant to a mechanism to be
agreed. The buy-in right would be available to holders of
Senior Subordinated Notes that are qualified institutional buyers (as
defined in Rule 144A under the Securities Act of 1933), with the proceeds
of such offering to be distributed to Reorganized
Holding. Participating holders shall be provided with
registration rights entitling them to participate in any registration
statement filed by Reorganized Holdings subject to customary
limitations.
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General Provisions
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Management
Incentive Programs
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The
Acceptable Plan will provide that promptly on or after the effective
date, equity awards (in the form of restricted stock, options
or warrants) for 7.5% of the New Common Stock (on a fully diluted basis)
of Reorganized Holding will be granted to continuing employees of the
Debtors and members of the new board of directors by the new board of
directors of Reorganized Holding, with pricing, vesting and exercise terms
to be determined by the new board upon consultation with the CEO; provided, that such equity grant shall not
include more than 2.5% in the form of restricted New Common
Stock. Such equity awards shall be on terms reflective of a
policy of rewarding the contribution of management to the long-term
financial performance of the reorganized Debtors.
The
Acceptable Plan will further provide for assumption of the compensation
plans presented by management to the Consenting Lenders referred to as the
“EV Max Plan” and the “Variable Compensation Plan” in the forms annexed
hereto as Annexes 2 and 3, respectively, for fiscal year
2010.
The
Consenting Lenders further agree to support a motion to support the
employee retention plan annexed hereto as Annex
4.
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A-4
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Employment
Agreements
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Consenting
Lenders agree that the employment agreements with the Company’s CEO and
CFO will be modified as agreed to in writing by the Commitment Parties (as
defined in the DIP Commitment Letter) to change, among other things, base
salaries during the chapter 11 case and the timing of payment or amount of
severance.
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Cancellation
of Instruments, Certificates and Other Documents
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On
the Effective Date, except to the extent otherwise provided in the
Acceptable Plan, all instruments, certificates and other documents
evidencing debt or equity interests in Holding or (as it relates to debt
only) RD will be cancelled, and the obligations of RD or Reorganized
Holding and its subsidiaries thereunder, or in any way related thereto,
will be discharged.
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Issuance
of New Securities; Execution of Acceptable Plan Documents
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On
the Effective Date, or as soon as reasonably practicable thereafter,
Reorganized Holding will issue all securities, instruments, certificates
and other documents required to be issued pursuant to the Acceptable
Plan.
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Executory
Contracts and Unexpired Leases
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The
Acceptable Plan will provide for the assumption or rejection, as the case
may be, of executory contracts and unexpired leases identified in a
supplement to the Acceptable Plan to the extent that any such executory
contracts and unexpired leases have not been otherwise assumed or
rejected.
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Intercompany
Claims
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On
the Effective Date, Holding will, at its discretion, reinstate or
compromise, as the case may be, intercompany claims between and among
Holding and its subsidiaries.
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Resolution
of Disputed Claims
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The
Acceptable Plan will provide for the resolution of disputed claims and any
reserves therefor.
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Avoidance
Actions and Other Litigation
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The
reorganized Debtors will retain all rights to commence and pursue any and
all claims and causes of action arising under the sections 544, 545, 547,
548 and 550 of the Bankruptcy Code (collectively, the “Avoidance Actions”) and other
litigation.
The
Acceptable Plan will not provide for any funding of a litigation trust
that can be used to fund litigation against the Released Shareholder
Parties.
The
Acceptable Plan will provide that any recovery payable to the Debtors or
the Lenders from proceeds of any cause of action of any kind or nature
(including under Chapter 5 of the Bankruptcy Code) against the Consenting
Shareholders (either directly or indirectly on account of the
subordination provisions in indenture related to the Senior Subordinated
Notes) shall be payable to such Consenting Shareholders, and if such party
shall receive any recovery in respect of such cause of action, it shall
hold the proceeds or payment thereof in trust for the Consenting
Shareholders and shall promptly transfer such proceeds or payment, as the
case may be, to the Consenting Shareholders.
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Exemption
from Section 1145
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The
issuance of the New Common Stock in Reorganized Holding will be exempted
from applicable securities laws and/or from SEC registration under section
1145 of the Bankruptcy Code.
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Tax
Issues
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The
parties agree to use their commercially reasonable best efforts to
complete the financial restructuring of the Debtors contemplated by this
Term Sheet in a manner that best preserves the tax attributes of the
Debtors and in a manner satisfactory to the Required Consenting
Lenders.
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A-5
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Retention
of Jurisdiction
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The
Acceptable Plan will provide for the retention of jurisdiction by the
Bankruptcy Court for usual and customary matters.
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Corporate Governance/Charter
Provisions/Registration Rights
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Board
of Directors of Reorganized Holding
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The
board of directors of Reorganized Holding shall be comprised of a number
of directors to be agreed. The prepetition Secured Parties shall identify
directors through use of a search firm acceptable to the Administrative
Agent and reimbursed by the Debtors and shall initially designate all such
directors upon consultation with the CEO; provided, that certain current
independent directors may be requested to continue to serve on the Board
of Directors of Reorganized Holding.
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Reorganized
Holding as a private company.
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Reorganized
Holding shall be a private company upon the Effective
Date.
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Description
of Capital Stock
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From
and after the Effective Date, subject to the right of the stockholders to
amend the Certificate of Incorporation of Reorganized Holding after the
Effective Date, Reorganized Holding shall have one class and one series of
New Common Stock.
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CHARTER;
BYLAWS
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The
charter and bylaws of each Debtor shall be restated consistent with
section 1123(a)(6) of the Bankruptcy Code and otherwise in form and
substance satisfactory to the Administrative Agent and the Required
Consenting Lenders.
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REGISTRATION
RIGHTS; STOCKHOLDERS AGREEMENT
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The
supplement to the Acceptable Plan shall provide for a registration rights
agreement and stockholders agreement with respect to the New Common Stock
in material form and substance reasonably satisfactory to the Required
Consenting Lenders.
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Release and Related
Provisions
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Releases
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The
Acceptable Plan will ratify the releases set forth in the Support
Agreement and provide for mutual releases among the Consenting
Shareholders, the prepetition lenders under the Credit Agreement, the DIP
Lenders, the Debtors and their respective current and former directors,
officers and professional advisors of any and all claims or causes of
action, known or unknown, relating to any prepetition date acts or
omissions..
The
Debtors release of third parties will be provided for in the Acceptable
Plan only to the extent, after investigation, the Board of Directors
determines it is appropriate.
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Exculpation
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The
Acceptable Plan will contain ordinary and customary exculpation provisions
among the Consenting Shareholders, the prepetition lenders under the
Credit Agreement, the DIP Lenders, the Debtors and their respective
directors, officers and professional advisors of any and all claims or
causes of action, known or unknown, relating to any prepetition date acts
or omissions.
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Indemnification
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The
Acceptable Plan (i) will contain ordinary and customary
indemnification provisions for indemnification of current and former
directors and officers of the Debtors to the extent of available D&O
coverage and payable from the proceeds of such D&O policies, including
the advancing of defense costs prior to final adjudication; provided, that, to the extent proceeds of
such policies are deemed property of the Debtors’ estates in the Chapter
11 Cases the Debtors will use reasonable best efforts to seek relief from
the Bankruptcy Court to have them advanced and (ii) shall provide that the
Debtors shall maintain their current D&O insurance coverage
in place as of the Effective Date of the Support Agreement for current and
former directors and officers of the Debtors.
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Discharge
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The
Acceptable Plan will contain ordinary and customary discharge
provisions.
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Injunction
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The
Acceptable Plan will contain ordinary and customary injunction
provisions.
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Compromise
and Settlement
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The
Acceptable Plan will contain ordinary and customary compromise and
settlement provisions.
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Acceptable Plan
Implementation
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Restructuring
Support Agreement
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Execution
of Restructuring Support Agreement.
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Conditions
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Certain
Conditions
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See
Restructuring Support Agreement and DIP Commitment
Letter.
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A-6
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ANNEX
1
Summary
of Reader’s Digest Association, Inc.
1. Capital
Structure at Exit
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Debt
Facilities:
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First
Priority Term Loan (the “First Priority Term
Loan”) converted from the Borrower’s (as defined below) Senior
Secured Priming Debtor-in-Possession Credit Facility (the “DIP Facility”)
in an amount equal to the aggregate amount, up to a maximum amount of
$150,000,000, of loans outstanding under the DIP Facility on the date of
conversion.
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Euro
Term Loan continued from the Existing Credit Agreement in an amount equal
to the aggregate amount, up to a maximum amount of the U.S. dollar
equivalent of €74,019,383.13, of the Euro Term Loan outstanding under the
Existing Credit Agreement on the date of continuation and having the
maturity date set forth in the Existing Credit Agreement.6
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$300,000,000
Second Priority Restructured Term Loan having a maturity not earlier than
the latest to occur of the maturity of the First Priority Term Loan and
the maturity of the Euro Term Loan (the “Second Priority Term
Loan”).7 The Second Priority Term Loan
will be paid as partial consideration in respect of the obligations of the
Debtors under the Existing Credit
Agreement.
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5
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Capitalized
terms used and not otherwise defined herein shall have the meanings given
such terms in the Term Sheet to which this summary is
attached.
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6
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The
Euro Term Loan will be documented under the same credit agreement (the
“Exit Credit
Agreement”) as the First Priority Term Loan, will benefit from the
same covenants, events of default and guarantees as the First Priority
Term Loan and will be secured on a pari passu basis with the First
Priority Term Loan in respect of the collateral securing the First
Priority Term Loan. In addition, the Euro Term Loan will
continue to benefit from the Overseas Guarantees (as defined in the
Existing Credit Agreement) and the collateral pledged by the German
Borrower and the Overseas Guarantors (as each is defined in the Existing
Credit Agreement) to the same extent and with the same priority as is
mandated by the Existing Credit Agreement. The Exit Credit
Agreement will provide for a CAM substantially similar to that provided in
the Existing Credit Agreement. The continuation of the Euro
Term Loan under the Exit Credit Agreement will be subject to the vote of
the Required Lenders under (and as defined in) the Existing Credit
Agreement.
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7
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The
Second Priority Term Loan will benefit from the same guarantees as the
First Priority Term Loan and will be secured on a second priority basis to
the First Priority Term Loan in respect of the collateral securing the
First Priority Term Loan. Such second priority lien will be
subject to an intercreditor agreement on terms and conditions satisfactory
to the Required Lenders.
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Annex
1-1
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Interest
Rate:
|
The
interest rate applicable to the First Priority Term Loan is set forth
below under “Basic Terms of First Priority Term Loan – Interest
Rate”.
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The
Euro Term Loan and the Second Priority Term Loan will bear interest at a
rate per annum equal to (a) the ABR plus the Applicable Margin (any loan
bearing interest based upon the ABR, an “ABR Loan”) or
(b) the Eurodollar Rate plus the Applicable Margin (any loan bearing
interest based upon the Eurodollar Rate, a “Eurodollar
Loan), at the Borrower’s option. Interest shall be
payable in cash on each Interest Payment Date except as set forth below
under “PIK Election”.
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As used
herein:
“ABR” means the
highest of (i) the rate of interest publicly announced by JPMorgan Chase Bank,
N.A. as its prime rate in effect at its principal office in New York City, (ii)
the federal funds effective rate from time to time plus 0.5% and (iii)
the Eurodollar Rate for a one month Interest Period plus 1%.
“Applicable Margin”
means (a) in the case of the Euro Term Loan, (i) 9.0% per annum with respect to
ABR Loans and (ii) 10.0% per annum with respect to Eurodollar Loans and (b) in
the case of the Second Priority Term Loan, (i) 11.0% per annum with respect to
ABR Loans and (ii) 12.0% per annum with respect to Eurodollar
Loans.
“Eurodollar Rate”
means the greater of (i) the rate (adjusted for statutory reserve requirements
for eurocurrency liabilities) for deposits in dollars for a period equal to
three months appearing on the Reuters Screen LIBOR01 Page and (ii) 3.50% per
annum.
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Interest
Payment Dates:
|
Quarterly
in arrears.
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Default
Rate:
|
2.0%
per annum above the then applicable
rate.
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PIK
Election:
|
A
portion of the Applicable Margin equal to 4.5% per annum, in the case of
the Euro Term Loan, and 6.5% per annum, in the case of the Second Priority
Term Loan, will be paid, at the Borrower’s option, in cash (a “Cash Election”)
or by adding such interest to the principal amount of the outstanding Euro
Term Loan or Second Priority Term Loan, as the case may be (a “PIK Election”
and, together with a Cash Election, an “Election”), in
each case, in arrears on each Interest Payment Date. The
Borrower will be permitted to make a Cash Election and/or a PIK Election
with respect to all or any portion of the principal amount of the Euro
Term Loan and the Second Priority Term Loan, subject to minimum thresholds
to be agreed upon; provided, that
the Borrower shall not be permitted to make a
PIK
|
|
Annex
1-2
|
Election
if the consolidated EBITDA of the Borrower and its consolidated subsidiaries for
the period of twelve months most recently ended on or prior to the interest
period for which such Election is being made exceeds $160,000,000, in the case
of the Euro Term Loan, and $180,000,000, in the case of the Second Priority Term
Loan.
|
|
The
Borrower shall make an Election with respect to each interest period with
respect to the Euro Term Loan and the Second Priority Term Loan by
providing at least 10 days’ prior notice to the administrative agent for
the Euro Term Loan or the Second Priority Term Loan, as the case may be,
prior to the beginning of such interest
period.
|
2. Basic
Terms of First Priority Term Loan
|
Borrower:
|
The
Reader’s Digest Association, Inc. a Delaware corporation (the “Borrower”).
|
|
Guarantors:
|
RDA
Holding Co., a Delaware corporation (the “Parent”), and
each direct and indirect, existing and future domestic subsidiary of the
Borrower (collectively, the “Guarantors”).
|
|
Lenders:
|
The
Lenders under the DIP Facility.
|
|
Administrative
Agent:
|
JPMorgan
Chase Bank, N.A.
|
|
Amortization:
|
$15,000,000
per year, payable quarterly.
|
|
Term:
|
Three
years from the date of conversion.
|
|
Collateral:
|
First
priority lien on substantially all of the assets of the Borrower and the
Guarantors, subject to customary exceptions to be agreed by the Required
Lenders.
|
|
Mandatory
Prepayments:
|
Substantially
consistent with the Existing Credit Agreement with such changes as are
appropriate for a facility of this type or are otherwise required by the
Required Lenders and which shall include a requirement that the First
Priority Term Loan be prepaid with excess cash flow pursuant to a
mechanism to be agreed.
|
|
Interest
Rate:
|
The
ABR or Eurodollar Rate plus, in each case, the Applicable Margin in effect
under the DIP Facility on the date of
conversion.
|
|
Certain
Conditions:
|
The
conversion of the loans outstanding under the DIP Facility into the First
Priority Term Loan will be subject to customary closing conditions,
including, without limitation, the following conditions
precedent:
|
|
Annex
1-3
|
(a) A
Plan of Reorganization substantially consistent with the restructuring support
agreement (including the term sheet annexed thereto) entered into among the
Lenders and the Debtors prior to the Petition Date (the “Restructuring Support
Agreement”) shall have been confirmed pursuant to a confirmation order of
the Bankruptcy Court substantially consistent with the Restructuring Support
Agreement and such order shall not have been reversed, modified, amended, stayed
or vacated;
(b) The
Restructuring Support Agreement shall have been in full force and effect from
the execution thereof to the effective date of the Plan of
Reorganization;
(c) The
Administrative Agent and the Required Lenders shall be satisfied with the form
of the definitive loan documentation and related security and closing documents
(the “Definitive
Documentation”);
(d) No
Default or Event of Default under the Definitive Documentation or the DIP
Facility shall have occurred and be continuing; and
(e) Representations
and warranties shall be true and correct in all material respects.
|
Financial
Covenants:
|
Minimum
LTM EBITDA and minimum LTM fixed charge coverage ratio (in each case,
tested quarterly), maximum capital expenditures and minimum liquidity
(tested monthly) and such other financial covenants as may be required by
the Required Lenders.
|
|
|
Representations
and
|
|
|
Warranties;
Affirmative
|
|
|
and
Negative Covenants;
|
|
|
Events
of Default;
|
|
|
Other
Miscellaneous
|
|
Provisions:
|
Substantially
consistent with the Existing Credit Agreement with such changes as are
appropriate for a facility of this type or are otherwise required by the
Required Lenders.
|
|
Governing
Law and Forum:
|
New
York law.
|
Counsel
to the
Administrative
Agent
|
and
the Lead Arranger:
|
Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP
|
|
Annex
1-4
|
ANNEX
2
Reward
for Increasing Enterprise Value/
Enterprise
Value Maximization Plan (EVMax)
|
Summary
|
Incremental
executive plan designed to incent the delivery of longer-term financial
goals
Group
1 - To reward for the realization of maximum enterprise
value
Group
2 - To reward executives for time to
emergence
|
|
Participation
|
Participation
limited to executives that have broad enterprise wide responsibilities or
those that can impact time to emergence. Select group will
participate in both. All EVMax participants are also
participants in the Variable Comp Plan.
|
|
Performance
Measure
|
Group
1 - Enterprise wide Cash EBITDA as measured in accordance with approved
plan Cash EBITDA at end of each year in two-year performance period (June
2010 and June 2011)
Group
2 - Incremental savings not contemplated in plan (driven by time to
emergence)
|
|
Performance
Award
|
Group
1 – Cash payment based on pro-rata share of Cash EBITDA improvement over
approved plan Cash EBITDA
Group
2 – Cash payment based on a portion of saved professional fees due to
early exit
|
|
Performance
Measurement Period
|
Group
1 - One year at Fiscal Year End
Group
2 - Time to Emergence
|
|
Payout
Frequency
|
Group
1 - Paid at the end of 2010 Fiscal Year
Group
2 - Paid in full at emergence with a 6 month claw back
provision
|
|
Annex
2-1
|
|
Annex
2-2
|
|
Annex
2-3
|
ANNEX
3
Pay
for Performance/Variable Comp Plan
|
Summary
|
Broad-based
plan designed to incent delivery of short-term, financial goals
(incremental Cash EBITDA and Free Cash Flow)
|
|
Participants
|
Includes
specified level employees which provides a consistent pay for performance
philosophy among all executives
|
|
Target
Award Opportunities
|
Target
award opportunity (expressed as a % of base salary) established for each
participant relative to employee grade level and criticality of
role
|
|
Performance
Measure
|
Cash
flow and Cash EBITDA. Executives have 100% of their opportunity
based on financial results. Performance will be
measured at the corporate level with CEO discretion of +/- 10% at the
operating unit level, assuming no change in total pool
available.
|
|
Performance
Award
|
Cash
payment
|
|
Performance
Measurement Period
|
Annual
measure to recognize short-term goals and provide strong
retention and incentive value
|
|
Payout
Frequency
|
Paid
out annually based on audited results for
2010.
|
|
Annex
3-1
|
|
Annex
3-2
|
ANNEX
4
Retain
Talent/Talent Plan
|
Summary
|
Intended
to provide select lower level employees with protection and assurance
during restructuring period; payment subject only to continued employment
at Reader’s Digest.
|
|
Participation
|
Limited
number of low level critical employees are eligible to receive a retention
award (expressed as a percent of base salary). No more than 10%
of US population is eligible. Anyone in Retention Plan is not
eligible for Variance Comp Plan or any other plans.
|
|
Award
Opportunities
|
Range
from 3 - 6% of current base salary.
|
|
Payout
Frequency
|
First
installment of retention payment (25% of total target award) will be
payable at earlier of 90 days or at emergence. The balance
(75%) would be paid at time of emergence. Each participant must
be employed on last day of each service period to receive an
award.
|
|
Annex
4-1
|
EXHIBIT
B
LENDER
JOINDER
1. Agreement to be
Bound. The Joining Lender Party hereby agrees to be bound by
all of the terms of the Support Agreement, attached to this Lender Joinder as
Annex I (as the same may be hereafter amended, restated or otherwise modified
from time to time). The Joining Party shall hereafter be deemed to be
a “Consenting Lender” and a party for all purposes under the Support
Agreement.
2. Representations and
Warranties. With respect to the aggregate principal amount of
prepetition Total Outstandings and/or DIP Loans held by the Joining Lender Party
upon consummation of the sale, assignment, transfer, hypothecation or other
disposition of such prepetition Total Outstandings and/or DIP Loans, the Joining
Lender Party hereby makes the representations and warranties of the Consenting
Lenders set forth in Section 6 of the Support Agreement to each of the other
Parties in the Support Agreement.
3. Governing
Law. This Lender Joinder 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.
* * * *
*
[THE
REMAINDER OF THIS PAGE IS
INTENTIONALLY
LEFT BLANK]
|
B-1
|
IN WITNESS WHEREOF, the Joining Lender
Party has caused this Lender Joinder to be executed as of the date first written
above.
______________________________________
Entity
Name of Joining Lender Party
Authorized
Signatory:
By: ____________________
Name:
Title:
|
|
Principal
Amount of
|
|
|
prepetition
Loans $_____________
|
Principal
Amount of
DIP Loans
$_____________
|
|
Address:
_____________________
|
|
B-2
|
ANNEX I
Restructuring Support
Agreement
|
B-3
|
EXECUTION
VERSION
EXHIBIT
C
SHAREHOLDER
JOINDER
This Shareholder Joinder to the
Restructuring Support Agreement, dated as of August 17, 2009, by and among RDA
Holding Co., The Reader’s Digest Association, Inc. (the “Company”), and
certain of the Company’s subsidiaries and affiliates set forth on Schedule 1 of
the Support Agreement (as defined herein and annexed hereto on Annex I), the
Consenting Lenders signatory thereto and the Consenting Shareholders signatory
thereto (the “Support
Agreement), is executed and delivered by [ ]
(the “Joining
Shareholder Party”) as of [__________], 20[__]. Each
capitalized term used herein but not otherwise defined shall have the meaning
set forth in the Support Agreement.
1. Agreement to be
Bound. The Joining Shareholder Party hereby agrees to be bound
by all of the terms of the Support Agreement, attached to this Shareholder
Joinder as Annex I (as the same may be hereafter amended, restated or otherwise
modified from time to time). The Joining Shareholder Party shall
hereafter be deemed to be a “Consenting Shareholder” and a party for all
purposes under the Support Agreement.
2. Representations and
Warranties. With respect to the equity interests held by the
Joining Shareholder Party upon consummation of the sale, assignment, transfer,
hypothecation or other disposition of such equity interests, the Joining
Shareholder Party hereby makes the representations and warranties of the
Consenting Shareholders set forth in Section 6 of the Support Agreement to each
of the other Parties in the Support Agreement.
3. Governing
Law. This Lender Joinder 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.
* * * *
*
[THE
REMAINDER OF THIS PAGE IS
INTENTIONALLY
LEFT BLANK]
|
C-1
|
IN WITNESS WHEREOF, the Joining
Shareholder Party has caused this Shareholder Joinder to be executed as of the
date first written above.
______________________________________
Entity
Name of Joining Shareholder Party
Authorized
Signatory:
By: ____________________
Name:
Title:
|
|
Address:
_____________________
|
|
C-2
|
ANNEX I
Restructuring Support
Agreement
|
C-3
|
