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EXHIBIT 10.13
MANAGEMENT SERVICES AGREEMENT
This MANAGEMENT SERVICES AGREEMENT (the "Agreement"), dated as of April
18, 2000, is made by and between LIBERTY GROUP OPERATING, INC., a Delaware
corporation (the "Company"), on the one hand, and XXXXXXX XXXXX & PARTNERS, L.P.
("LGP"), on the other.
WHEREAS, the Company and LGP are parties to that certain Management
Services Agreement, dated as of January 27, 1998 (the "Original Management
Services Agreement"), pursuant to which LGP provides to the Company certain
management, consulting and financial planing services on an ongoing basis and
certain financial advisory and investment banking services in connection with
major financial transactions that may be undertaken from time to time in the
future; and
WHEREAS, the Company and LGP desire to amend and restate the Original
Management Services Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto hereby agree as follows:
1. Retention:
1.1 General Services. Subject to the terms and conditions hereof, LGP
will provide management, consulting and financial planning services to the
Company on an ongoing basis in connection with the operation and growth of the
Company and its subsidiaries during the term of this Agreement (the "General
Services").
1.2 Major Transaction Services. Subject to the terms and conditions
hereof, LGP will provide financial advisory and investment banking services to
the Company in connection with major financial transactions that may be
undertaken from time to time in the future. ("Major Transaction Services" and,
together with the General Services, the "Services").
2. Compensation.
2.1 General Services Fee. In consideration of the General Services, the
Company shall pay LGP an aggregate annual fee of $1,480,000. Such fee shall be
payable in equal monthly installments, in advance, on the first day of each
month commencing on May 1, 2000.
2.2 Major Transaction Services Fee. In consideration of Major
Transaction Services provided by LGP from time to time, the Company shall pay
LGP reasonable and customary fees for services of like kind, taking into
consideration all relevant factors, including but not limited to, the complexity
of the subject transaction, the time devoted to providing such services and the
value of LGP's investment banking expertise and relationships within the
business and financial community. The amount of such fees shall be (a) approved
in accordance with the procedures set forth in the Company's charter documents
or financing agreements, or, if no such procedures are
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set forth therein, (b) either (i) approved by a majority of the Board of
Directors of the Company or (ii) fair to the Company from a financial point of
view in the opinion of an independent nationally recognized investment banking
firm.
2.3 Expenses. In addition to the fees to be paid to LGP under Section
2.1 and 2.2 hereof, the Company shall pay to, or on behalf of, LGP, monthly as
billed, all reasonable out-of- pocket expenses incurred by LGP in connection
with the Services rendered hereunder. Such expenses shall include, among other
things, fees and disbursements of counsel, travel expenses, word processing
charges, messenger and duplicating services, facsimile and other customary
expenditures.
3. Term.
3.1 Termination. This Agreement shall terminate on January 27, 2010.
Notwithstanding the foregoing, this Agreement may be terminated at any time by
LGP by written notice to the Company.
3.2 Survival of Certain Obligations. Notwithstanding any other
provision hereof, the Company's obligation to pay amounts due with respect to
periods prior to the termination hereof pursuant to Section 2 and the provisions
of Sections 5 and 6 shall survive any termination of this Agreement.
4. Decisions/Authority of Management Advisor.
4.1 Decisions by Company. The Company reserves the right to make all
decisions with regard to any matter upon which LGP has rendered its advice and
consultation.
4.2 Independent Contractor. LGP shall act solely as an independent
contractor and shall have complete charge of its personnel engaged in the
performance of the Services. As an independent contractor, LGP shall have
authority only to act as an advisor to the Company and shall have no authority
to enter into any agreement or to make any representation, commitment or
warranty binding upon the Company or to obtain or incur any right, obligation or
liability on behalf of the Company.
5. Indemnification.
5.1 Indemnification/Reimbursement of Expenses. The Company shall (i)
indemnify, defend and hold harmless LGP, its affiliates and the partners,
directors, officers, employees, agents and controlling persons to LGP and their
respective affiliates (collectively, the "Indemnified Parties"), to the fullest
extent permitted by law, form and against any and all losses, claims, damages
and liabilities, joint or several, to which any Indemnified Party may become
subject, caused by, related to or arising out of the Services or any other
advice or services contemplated by this Agreement or the engagement of LGP
pursuant to, and the performance by
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LGP of the services contemplated by this Agreement or the engagement of LGP
pursuant to, and the performance by LGP of the Services contemplated by, this
Agreement, and (ii) promptly reimburse each Indemnified Party for all costs and
expenses (including reasonable attorneys' fees and expenses), as incurred, in
connection with the investigation of, preparation for or defense of any pending
or threatened claim or any action or proceeding arising therefrom, whether or
not such Indemnified Party is a party and whether or not such claim, action or
proceeding is initiated or brought by or on behalf of the Company and whether or
not resulting in any liability.
5.2 Limited Liability. The Company shall not be liable under the
indemnifications contained in Section 5.1 to the extent that such loss, claim,
damage, liability, cost or expense is found in a final non-appealable judgment
by a court to have resulted from LGP's bad faith or gross negligence. The
Company further agrees that no Indemnified Party shall have any liability
(whether direct or indirect, in contract, tort or otherwise) to the Company,
holders of its securities or its creditors related to arising out of the
engagement of LGP pursuant to, or the performance by LGP of the Services
contemplated by, this Agreement, except to the extent that any loss, claim,
damage, liability, cost or expense is found in a final non-appealable judgment
by a court to have resulted from LGP's bad faith or gross negligence.
5.3 Contribution. In order to provide for just and equitable
contribution, if a claim for indemnification pursuant to this Agreement is made
but it is found in a final non-appealable judgment by a court that such
indemnification may not be enforced in such case, even though the express
provisions hereof provide for indemnification in such case, then the Company, on
the one hand, and LGP, on the other hand, shall contribute to the losses,
claims, damages, liabilities, costs and expenses to which the Indemnified
Persons may be subject in accordance with the relative benefits received by the
Company, on the one hand, and LGP, on the other hand, and also the relative
fault of the Company, on the one hand, and LGP, on the other hand, in connection
with the statements, acts or omissions which resulted in such losses, claims,
damages, liabilities, costs and expenses and the relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation shall be entitled to contribution from any person who is not
also found liable for such fraudulent misrepresentation. Notwithstanding the
foregoing, LGP shall not be obligated to contribute any amount hereunder that
exceeds the amount of fees previously received by it pursuant to this Agreement.
6. Subordination.
6.1 Agreement to Subordinate. LGP agrees that, to the extent set forth
in this Section 6, all payments and fees owed to LGP pursuant to this Agreement
shall be subordinated in right of payment, to the extent set forth in the Senior
Indebtedness Documents (as hereinafter defined), to the payment in full in cash
or cash equivalents of all Senior Indebtedness whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed, and that such
subordination is for the benefit of the holders of Senior Indebtedness. For
purposes of this Section 6, the term "Senior Indebtedness" means indebtedness of
the Company arising under (i) the 9 3/8% Senior Subordinated Notes due 2008 of
the Company, (ii) the 11 5/8% Senior Discount
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Debentures due 2009 of Liberty Group Publishing, Inc. and (iii) that certain
Amended and Restated Credit Agreement, dated as of April ___, 2000, among the
Company, Liberty Publishing, the Lenders party thereto, Citicorp USA, Inc., as
Administrative Agent and Swingline Lender, Citibank, N.A., as Issuing Bank,
Deutsche Banc Alex. Xxxxx Incorporated, as Syndication Agent, Xxxxx Fargo Bank,
N.A., as Documentation Agent, and Bank of America, N.A., as Co-Agent (the
agreements, documents and instruments described in the foregoing clauses (i),
(ii) and (iii) are collectively referred to herein as the "Senior Indebtedness
Documents").
6.2 Relative Rights. Upon any distribution of assets of the Company,
winding up, total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, the holders of all Senior Indebtedness shall
be entitled to receive payment on such Senior Indebtedness in full in cash or
cash equivalents before LGP shall be entitled to receive any payment pursuant to
this Agreement. No payment (by set-off or otherwise) may be made by or on behalf
of the Company pursuant to this Agreement, for cash or property, (i) upon the
maturity of any Senior Indebtedness of the Company by lapse of time,
acceleration or otherwise, unless and until all principal of, premium, if any,
and the interest on and fees in respect of such Senior Indebtedness are paid in
full in cash or cash equivalents, (ii) when such payment is prohibited by the
agreements or instruments relating to the Senior Indebtedness and (iii) in the
event of default in the payment of any principal of, premium, if any, or
interest on and fees in respect of Senior Indebtedness of the Company when it
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration or otherwise (a "Payment Default"), unless and until such
Payment Default has been cured or waived or otherwise has ceased to exist.
6.3 When Amounts Must be Paid Over. In the event that, notwithstanding
the other provisions of this Agreement, LGP receives any payment or distribution
of any payments or fees pursuant to this Agreement at a time when LGP has actual
knowledge that such payment or distribution is prohibited by this Section 6 or
the agreements or instruments relating to the Senior Indebtedness, such payment
or distribution shall be held by LGP in trust for the benefit of, and shall be
paid forthwith over and delivered, upon written request, to, the holders of
Senior Indebtedness remaining unpaid or unprovided for, or to the trustee or
trustees under the agreements or instruments relating to the Senior
Indebtedness, ratably according to aggregate principal amounts remaining unpaid
on account of such Senior Indebtedness held or represented by such, for
application to the payment of all obligations with respect to Senior
Indebtedness remaining unpaid, to the extent necessary to pay or to provide for
the payment of all such obligations in full in cash or cash equivalents in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for holders of Senior Indebtedness.
7. Miscellaneous.
7.1 Assignment. Neither the Company nor LGP shall assign this Agreement
or the rights and obligations hereunder, in whole or in part, without the prior
written consent of the other; provided, however, that, without obtaining such
consent, LGP may assign this Agreement or its rights and obligations hereunder
to (i) any of its affiliates; (ii) any investment manager,
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investment advisor or partner of LGP, or any principal or beneficial owner of
any of the foregoing; or (iii) any investment fund, investment account or
investment entity whose investment manager, investment advisor or partner, or
any principal or beneficial owner of any of the foregoing, is either LGP or any
person identified in (i) or (ii) above. Subject to the foregoing, this Agreement
will be binding upon and inure solely for the benefit of the parties hereto and
their respective successors and assigns, and no other person shall acquire or
have any right hereunder or by virtue hereof.
7.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois as applied to contracts made
and performed within the State of Illinois without regard to principles of
conflict of laws.
7.3 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find any employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction.
7.4 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter of this Agreement and
memorializes and supersedes all written or verbal representations, warranties,
commitments and other understandings prior to the date of this Agreement.
7.5 Further Assurances. Each party hereto agrees to use all reasonable
efforts to obtain all consents and approvals and to do all other things
necessary to consummate the transactions contemplated by this Agreement. The
parties agree to take such further action and to deliver or cause to be
delivered any additional agreements or instruments as either of them may
reasonably request for the purpose of carrying out this Agreement and the
agreements and transactions contemplated hereby.
7.6 Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
7.7 Headings. The headings in this Agreement are for convenience and
reference only and shall not limit or otherwise affect the meaning hereof.
7.8 Amendment and Waiver. This Agreement may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, provided that the same are in writing and signed by each of the
parties hereto.
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7.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
7.10 Benefits of Agreement. Nothing in this Agreement, express or
implied, shall give to any person, other than the parties hereto and their
successors hereunder and the holders of Senior Indebtedness, any benefit or any
legal or equitable right, remedy or claim under this Agreement.
7.11 Amendment and Restatement of Original Management Services
Agreement. This Agreement amends, restates and replaces the Original Management
Services Agreement in its entirety, and the Original Management Services
Agreement is of no further force or effect as of and after the date hereof.
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IN WITNESS WHEREOF, the parties have executed this Management Services
Agreement on the date first appearing above.
LIBERTY GROUP OPERATING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXXXX XXXXX & PARTNERS, L.P.
BY: LGP MANAGEMENT, INC. ITS GENERAL
PARTNER
By: /s/ Xxxxx X. Xxxxx
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Name:
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Its:
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