FOURTH AMENDMENT TO MANAGEMENT AND SERVICES AGREEMENT
Exhibit
10.05
FOURTH
AMENDMENT TO
This
FOURTH AMENDMENT TO MANAGEMENT AND SERVICES AGREEMENT (this “Fourth
Amendment”), dated as of January 6, 2010, is entered into by and among
XXXXXX COMMUNICATIONS COMPANY, LLC, a Georgia limited liability company (“Xxxxxx
Communications”), MSTAR SOLUTIONS, LLC, a Georgia limited liability
company (“MSTAR
Solutions”) and XXXXXX PUBLISHING GROUP, LLC, a Georgia limited liability
company (“Xxxxxx
Publishing”), and amends that certain Management and Services Agreement
dated as of August 7, 2003 (the “Agreement”),
as amended by that certain First Amendment to Management and Services Agreement
dated as of February 24, 2005 (the “First
Amendment”), that certain Second Amendment to Management and Services
Agreement dated as of May 16, 2008 (the “Second
Amendment”) and that certain Third Amendment to Management and Services
Agreement dated as of October 1, 2008 (the “Third
Amendment”). Capitalized terms used and not defined herein shall have the
meaning attributed to such term in the Agreement.
W
I T N E S S E T H:
WHEREAS,
Xxxxxx Communications, MSTAR Solutions and Xxxxxx Publishing each desire to
amend the Agreement, as amended by the First Amendment, the Second Amendment and
the Third Amendment, in order to fix the combined annual payment of the Xxxxxx
Communications Fee and the MSTAR Solutions Fee at actual costs, provided that
the combined annual payment of the Xxxxxx Communications Fee and the MSTAR
Solutions Fee shall not, under any circumstances, exceed $22,000,000 in the
aggregate during any given calendar year;
WHEREAS,
Xxxxxx Publishing has agreed to implement the restructuring transactions
contemplated by that certain Restructuring Support Agreement dated as of October
30, 2009 (the “Restructuring
Support Agreement”), by and among Xxxxxx Publishing, Xxxxxx Publishing
Finance Co. (“Xxxxxx
Finance”), the subsidiaries of Xxxxxx Publishing signatory thereto and
certain holders of the 7% Senior Subordinated Notes due 2013 of Xxxxxx
Publishing and Xxxxxx Finance signatory thereto, through either (i) an
out-of-court exchange offer or (ii) a pre-packaged plan of reorganization under
chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532;
and
WHEREAS,
the Restructuring Support Agreement requires the parties hereto to enter into
this Fourth Amendment.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION
1. Amendments
to Management and Services Agreement. From and after the Restructuring
Effective Date (as defined in the Restructuring Support Agreement), the
Agreement is hereby amended as follows:
(a) Section
2.1 is hereby amended and restated in its entirety as
follows:
“2.1 Fee.
(a) The
fee payable by Xxxxxx Publishing to Xxxxxx Communications (“Xxxxxx
Communications’ Fee”) shall be the amount of actual annual expenses
allocated by Xxxxxx Communications for the Services provided by Xxxxxx
Communications in the management of Xxxxxx Publishing’s business, including any
Third Party Costs (such allocation to be based upon the time and resources spent
by Xxxxxx Communications on the management of Xxxxxx Publishing’s
business).
(b) The
fee payable by Xxxxxx Publishing to MSTAR Solutions (“MSTAR
Solutions’ Fee”) shall be Xxxxxx Publishing’s allocable share (based upon
usage) of the actual annual costs of operations of MSTAR Solutions, including
Third Party Costs, as allocated by Xxxxxx Communications.
(c)
Collectively, the Xxxxxx Communications’ Fee and the MSTAR Solutions’ Fee are
referred to as the Fee.
(d)
Xxxxxx Publishing shall share its home office facilities in Augusta, Georgia
with Xxxxxx Communications.
(e)
Notwithstanding anything to the contrary contained herein, the Fee shall not,
under any circumstances, exceed $22,000,000 in the aggregate during any given
calendar year.”
SECTION
2. Reference
to and Effect Upon the Management and Services Agreement. Except as
specifically amended hereby, each of the parties hereto hereby acknowledges and
agrees that all terms and conditions contained in the Agreement, as amended
hereby, shall remain in full force and effect. Each of the parties hereto hereby
confirm that the Agreement, as amended hereby, is in full force and effect;
provided, however, that the parties understand and agree that the amendment to
Section 2.1 in this Fourth Amendment shall be effective only upon, from and
after the Restructuring Effective Date, and that Section 2.1 as in existence
immediately prior to this Fourth Amendment shall remain in effect until, and
with respect to all periods prior to, the Restructuring Effective
Date.
SECTION
3. Execution
in Counterparts. This Fourth Amendment may be executed and delivered in
any number of counterparts (including delivery by facsimile or portable document
format (PDF)), each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
SECTION
4. Integration.
The Agreement, as amended by this Fourth Amendment, constitutes the
sole and entire agreement of the parties to this Fourth Amendment with respect
to the subject matter contained herein and therein, and supersedes all prior and
contemporaneous understandings and agreements, both written and oral, with
respect to such subject matter.
SECTION
5. Severability.
Wherever possible, each provision of this Fourth Amendment shall be interpreted
in such a manner as to be effective and valid under applicable law, but if any
provision of this Fourth Amendment shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Fourth Amendment or the
Agreement.
SECTION
6. Governing
Law. The construction, validity and enforceability of this Fourth
Amendment shall be governed by the laws of the State of Georgia, without regard
to its conflicts of laws principles.
SECTION
7. Headings.
Section headings in this Fourth Amendment are included herein for convenience of
reference only and shall not constitute a part of this Fourth Amendment for any
other purposes.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
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XXXXXX
COMMUNICATIONS COMPANY, LLC
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By:
1/6/2010
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/s/ Xxxxx X. Xxxxx |
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Name:
Xxxxx X. Xxxxx
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Title:
Senior Vice President/CFO
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MSTAR
SOLUTIONS, LLC
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By:
1/6/2010
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/s/ Xxxxx X. Xxxxx |
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Name:
Xxxxx X. Xxxxx
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Title:
Chief Financial Officer/CFO
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XXXXXX
PUBLISHING GROUP, LLC
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By:
1/6/2010
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/s/ Xxxxx X. Xxxxx |
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Name:
Xxxxx. X. Xxxxx
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Title:
Chief Financial Office/CFO
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