Exhibit
10.1
RESTRUCTURING SUPPORT AGREEMENT
This RESTRUCTURING SUPPORT AGREEMENT (this “ Agreement
”), dated as of September 11, 2009, is made by and among
(i) Triple Crown Media, Inc. (the “ Parent
”) on behalf of itself and each of its subsidiaries
(collectively, the “ Debtors ”): (a) Triple
Crown Media, LLC (“ TCM ”), (b) BR
Acquisition Corp., (c) BR Holding, Inc., (d) Datasouth
Computer Corporation, (e) Gray Publishing, LLC, and
(f) Capital Sports Properties, Inc; and (ii) the
undersigned Supporting Second Lien Lenders (as defined below)
(collectively with the Debtors, the “ Parties ”
and each, a “ Party ”).
RECITALS
WHEREAS , the Debtors are indebted to certain lenders (the
“ Second Lien Lenders ”) on account of loan and
advances (collectively, the “ Second Lien Loans
”) made under the Second Lien Senior Secured Credit
Agreement, dated as of December 30, 2005 (as amended,
supplemented, amended and restated, or otherwise modified from time
to time, the “ Second Lien Credit Agreement ”),
by and among TCM, as Borrower; the Parent and each of the
subsidiary guarantors party thereto, as Guarantors; the Second Lien
Lenders; and the Agent, as successor administrative and collateral
agent;
WHEREAS , the Parties have engaged in good faith
negotiations with the objective of reaching an agreement with
respect to the restructuring and recapitalization of the Debtors
(the “ Restructuring ”);
WHEREAS , it is anticipated that the Restructuring will be
implemented through a plan of reorganization of the Debtors
pursuant to chapter 11 of title 11 of the United States Code, 11
U.S.C. §§ 101, et seq. (the “ Bankruptcy
Code ”), which plan shall contain, in all material
respects, the same terms and conditions set forth in the proposed
plan, attached as Exhibit A hereto and incorporated herein
by reference (the “ Proposed Plan ”);
WHEREAS , pursuant to the Restructuring and Proposed Plan,
the Debtors shall issue Second Lien Senior Secured Notes to the
Second Lien Lenders on the terms and conditions set forth in the
note term sheet, attached as Exhibit B hereto and
incorporated herein by reference (the “ Note Term
Sheet ”); and
WHEREAS , this Agreement, the Proposed Plan, and the Note
Term Sheet set forth the agreement among the Parties concerning
their commitment, subject to the terms and conditions of this
Agreement, the Proposed Plan, and the Note Term Sheet, to implement
the Restructuring.
NOW, THEREFORE , for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and subject to the
fulfillment of the terms and conditions set forth below, the
Parties agree as follows:
1.
Definitions . The following terms shall have the following
definitions:
“ Affiliate ” means, with respect to any Person,
any other Person which directly or indirectly controls, is under
common control with, or is controlled by, such Person. As used
in
this definition,
“ control ” (including, with its correlative
meanings, “ controlled by ” and “ under
common control with ”) shall mean, with respect to any
Person, the possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership
interests, by contract or otherwise) of such Person.
“ Agreement ” has the meaning given to such term
in the preamble.
“ Automatic Termination Event ” has the meaning
given to such term in Section 5 .
“ Ballot ” means any ballot (including any
beneficial ballot) distributed with the Disclosure Statement for
purposes of voting on the Plan.
“ Bankruptcy Code ” has the meaning given to
such term in the recitals.
“ Business Day ” means any day other than a
Saturday, Sunday and any day that is a legal holiday or a day on
which banking institutions in New York, New York are authorized by
law or other governmental action to close.
“ Bankruptcy Court ” means the United States
Bankruptcy Court for the District of Delaware.
“ Cash Collateral Order ” means an interim or
final order entered by the Bankruptcy Court, authorizing the
Debtors to use cash collateral (as such term is defined in section
363 of the Bankruptcy Code) and granting adequate protection to the
Agent, in form and substance acceptable to the Agent and the
Required Supporting Second Lien Lenders in the sole discretion of
each.
“ Chapter 11 Cases ” means the voluntary cases
to be commenced by each of the Debtors under chapter 11 of the
Bankruptcy Code with the Bankruptcy Court.
“ Corporate Governance Documents ” means the
following corporate governance documents, as applicable: the
(i) articles of incorporation or certificate of formation,
(ii) bylaws, (iii) shareholder agreement or limited
liability company operating agreements, and (iv) registration
rights agreement.
“ Confirmation Order ” means the order entered
by the Bankruptcy Court, confirming the Plan, including all
exhibits, supplements, appendices, and related documents thereto,
each in form and substance acceptable to the Agent and the Required
Supporting Second Lien Lenders in the sole discretion of each.
“ Debtor Termination Event ” has the meaning
given to such term in Section 6 .
“ Disclosure Statement ” means the disclosure
statement in respect of the Plan, which shall be in form and
substance acceptable to the Agent and the Required Supporting
Second Lien Lenders in the sole discretion of each.
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“ Disclosure Statement Order ” means the order
entered by the Bankruptcy Court, approving the Disclosure
Statement, including all exhibits, supplements, appendices, and
related documents thereto, for purposes of soliciting votes on the
Plan, each in form and substance acceptable to the Agent and the
Required Supporting Second Lien Lenders in the sole discretion of
each.
“ Effective Date ” means the date on which the
Plan becomes effective.
“ Note Term Sheet ” has the meaning given to
such term in the recitals.
“ Outside Date ” means January 4, 2010,
unless such date is extended by written agreement of the
Parties.
“ Party ” and “ Parties ”
have the meaning given to such terms in the preamble.
“ Person ” means an individual, a partnership, a
joint venture, a limited liability company, a corporation, a trust,
an unincorporated organization, a group, or any other legal entity
or association.
“ Petition Date ” means the date on which the
Chapter 11 Cases of the Debtors are commenced in the Bankruptcy
Court, which date shall be no later than September 14,
2009.
“ Plan ” means the (i) Proposed Plan or
(ii) a plan of reorganization in respect of the Chapter 11
Cases, which contains all of the material terms and conditions set
forth in the Proposed Plan and is in form and substance acceptable
to the Agent and the Required Supporting Second Lien Lenders in the
sole discretion of each.
“ Plan Documents ” means the Plan, the
Solicitation Materials, the Disclosure Statement Order, the
Confirmation Order, and any other documents filed with the
Bankruptcy Court by the Debtors (or at the Debtors’
direction) that are necessary to implement the Plan, including any
appendices, amendments, modifications, supplements, exhibits, or
schedules relating to any of the foregoing, including, without
limitation, any: (a) term sheet, commitment letter, or
operative document for any proposed exit financing facility;
(b) documents identifying the members of the board of
directors of any Reorganized Debtor and compensation to be provided
to any “insider” (as such term is defined in section
101 of the Bankruptcy Code) to be employed or retained by any
Reorganized Debtor; (c) list of material executory contracts
and unexpired leases to be assumed, assumed and assigned, or
rejected; (d) list of any material retained causes of action;
(e) Corporate Governance Document for any Reorganized Debtor;
and (f) liquidating or distribution trust agreement;
provided , however , that each of the foregoing
documents shall be in form and substance acceptable to the Agent
and the Required Supporting Second Lien Lenders in the sole
discretion of each.
“ Proposed Plan ” has the meaning given to such
term in the recitals.
“ Restructuring ” has the meaning given to such
term in the recitals.
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“ Restructuring Documents ” has the meaning
given to such term in Section 13 .
“ Required Supporting Second Lien Lenders ”
means the Supporting Second Lien Lenders holding more than 67% of
the aggregate principal amount of the Second Lien Loans held by all
of the Supporting Second Lien Lenders.
“ Reorganized Debtors ” means the Debtors, in
each case, or any successor thereto (by merger, consolidation or
otherwise), on or after the Effective Date.
“ Second Lien Claims ” means any claim (as such
term is defined in section 101 of the Bankruptcy Code) against any
Debtor arising under the Second Lien Credit Documents.
“ Second Lien Credit Agreement ” has the meaning
given to such term in the recitals.
“ Second Lien Credit Documents ” means the
Second Lien Credit Agreement and the other Loan Documents (as
defined in the Second Lien Credit Agreement).
“ Second Lien Lenders ” has the meaning given to
such term in the recitals.
“ Second Lien Loans ” has the meaning given to
such term in the recitals.
“ Solicitation Materials ” means the Ballots,
Disclosure Statement, and other solicitation materials distributed
in respect of the Plan, as approved by the Bankruptcy Court
pursuant to section 1125 and 1126(b) of the Bankruptcy Code.
“ Supporting Second Lien Lenders ” means the
undersigned Second Lien Lenders and any holder of the Second Lien
Loans who, after the date of this Agreement, executes a counterpart
to this Agreement or takes the actions required of a transferee in
accordance with Section 10 .
“ Termination Event ” has the meaning given to
such terms in Section 5 .
“ Transfer ” has the meaning given to such term
in Section 10 .
2. Supporting
Second Lien Lenders’ Consent . Unless otherwise specified
herein, where this Agreement provides for the action, consent, or
approval of the Supporting Second Lien Lenders, such action,
consent, or approval shall be upon the agreement of the Required
Supporting Second Lien Lenders.
3. Commitment of
Supporting Second Lien Lenders . Subject to the terms and
conditions of this Agreement, the Proposed Plan, and the Note Term
Sheet, each Supporting Second Lien Lender (severally and not
jointly) agrees:
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(a)
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so long as its vote has been properly solicited pursuant to
sections 1125 and 1126 of the Bankruptcy Code, to (i) timely
vote (or cause to be voted) all Second Lien Claims beneficially
owned by such Supporting Second Lien Lender, or for which it serves
as the nominee, investment manager, or advisor for the beneficial
holders
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thereof, in favor of the Plan, in accordance with the applicable
procedures set forth in the Solicitation Materials, and
(ii) to the extent such election is available, not elect on
its Ballot to preserve any Second Lien Claims that may be affected
by any releases provided for under the Plan;
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(b)
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not to withdraw or revoke its vote with
respect to the Plan; and
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(c)
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not to (i) object to the Plan, the
Disclosure Statement, the consummation of the Plan, or any efforts
to solicit acceptances for, confirm, and implement the Plan;
(ii) commence any legal proceedings (x) that would delay
or prevent the approval, confirmation, or consummation of the Plan,
Disclosure Statement, or transactions outlined therein or in the
Note Term Sheet, or (y) to oppose any action necessary to
effectuate the Plan or any other Plan Document, so long as the Plan
and all other Plan Documents contain terms and conditions that
conform in all material respects to the Proposed Plan and Note Term
Sheet, subject to the rights of the Supporting Second Lien Lenders
under this Section 3 ; (iii) vote for, consent to,
support, or participate in the formulation of any other
restructuring, plan of reorganization, proposal or offer of
dissolution, winding up, liquidation, reorganization, merger,
transaction, sale, or disposition in respect of the Debtors (or any
of their assets or stock), other than the Plan or as set forth in
the Plan or Note Term Sheet; or (iv) solicit, encourage, or
direct any person or entity, including, without limitation, the
Agent, to undertake any action set forth in clauses
(i) through (iii) of this subsection (c).
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Notwithstanding anything herein to the contrary, no Supporting
Second Lien Lender shall be obligated to vote in favor of the Plan,
and each may, acting individually and of its own accord, withdraw
or revoke its consent or vote with respect to the Plan upon the
(x) termination of this Agreement in accordance with its
terms; or (y) withdrawal, amendment, or modification of (or
the filing of any pleading by the Debtors seeking to withdraw,
amend, or modify) the Plan, Disclosure Statement, or other Plan
Document in a manner that is materially inconsistent with this
Agreement, the Proposed Plan, or the Note Term Sheet and adverse to
such Supporting Second Lien Lender without such Supporting Second
Lien Lender’s prior written consent.
4. Commitment of
the Debtors . Subject to their fiduciary duties as debtors in
possession, the Debtors agree to use commercially reasonable
efforts to (i) support and take any necessary and appropriate
actions (including obtaining any required regulatory and third
party approvals and orders of the Bankruptcy Court) to further the
Restructuring, the Plan, and all transactions contemplated under
the Plan and Note Term Sheet; (ii) complete the Restructuring,
the Plan, and all transactions contemplated under the Plan and Note
Term Sheet within the time-frame outlined in Section 5
; and (iii) take no actions inconsistent with this Agreement,
the Plan, the Note Term Sheet or the confirmation and consummation
of the Plan. Notwithstanding anything to the contrary herein, the
Debtors shall not solicit acceptances of the Plan from any
Supporting Second Lien Lender until such Supporting Second Lien
Lender has been provided with copies of a Disclosure Statement
approved by the Bankruptcy Court.
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5. Termination
by Supporting Second Lien Lenders . Unless otherwise consented
to in writing by the Required Supporting Second Lien Lenders, this
Agreement may be terminated upon the occurrence of any of the
following events (each, a “ Termination Event
”):
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(a)
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the Debtors fail to commence the Chapter 11
Cases on or before 11:59 P.M. (prevailing Eastern time) on the
Petition Date;
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(b)
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an interim Cash Collateral Order has not been
entered by the Bankruptcy Court on or before 11:59 P.M. (prevailing
Eastern time) on the date that is fifteen (15) days after the
Petition Date;
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(c)
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a final Cash Collateral Order has not been
entered by the Bankruptcy Court on or before 11:59 P.M. (prevailing
Eastern time) on the date that is forty (40) days after the
Petition Date;
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(d)
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the termination of any Cash Collateral Order
in accordance with its terms;
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(e)
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the Debtors fail to file the Plan and
Disclosure Statement on or before 11:59 P.M. (prevailing Eastern
time) on the date that is fifteen (15) days after the Petition
Date;
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(f)
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the Disclosure Statement Order has not been
entered by the Bankruptcy Court on or before 11:59 P.M. (prevailing
Eastern time) on the date that is forty-five (45) days after
the Petition Date;
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(g)
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the Confirmation Order has not have been
entered by the Bankruptcy Court on or before 11:59 P.M. (prevailing
Eastern time) on the date that is ninety-one (91) days after
the Petition Date;
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(h)
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the Effective Date has not occurred on or
before 11:59 P.M. (prevailing Eastern time) on the date that is one
hundred and one (101) days after the Petition Date;
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(i)
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the occurrence of the Effective Date;
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(j)
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the occurrence of the Outside Date;
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(k)
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the filing of any plan of reorganization or
disclosure statement that is materially inconsistent with this
Agreement, the Proposed Plan, or the Note Term Sheet and not
acceptable to the Agent and the Required Supporting Second Lien
Lenders in the sole discretion of each;
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(l)
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the withdrawal, amendment, modification of (or
the filing of a pleading by the Debtors seeking to withdraw, amend,
or modify) the Plan, the Disclosure Statement, or other Plan
Document in a manner that is materially inconsistent with this
Agreement, Proposed Plan, or the Note Term Sheet and not acceptable
to the Agent and the Required Supporting Second Lien Lenders in the
sole discretion of each;
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(m)
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the filing of any pleading by the Debtors
seeking to (i) voluntarily dismiss any Chapter 11 Case,
(ii) convert any Chapter 11 Case to chapter 7 of the
Bankruptcy Code, or (iii) appoint a trustee, an examiner, or a
similar fiduciary with expanded powers pursuant to section 1104 of
the Bankruptcy Code in any Chapter 11 Case;
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(n)
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the entry of an order by the Bankruptcy Court
(i) dismissing any Chapter 11 Case, (ii) converting any
Chapter 11 Case to chapter 7 of the Bankruptcy Code, or
(iii) appointing a trustee, an examiner, or a similar
fiduciary with expanded powers pursuant to section 1104 of the
Bankruptcy Code in any Chapter 11 Case;
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(o)
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the issuance of an order by any court of
competent jurisdiction or other governmental or regulatory
authority that prohibits or restricts the Restructuring, the Plan,
or the transactions contemplated under the Plan and the Note Term
Sheet in a manner that cannot be reasonably remedied by the
Debtors;
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(p)
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the filing of any pleading or commencement of
any action by the Debtors (or the joinder of the Debtors in or
support by the Debtors of any such pleading or action) seeking to
prime or challenge the validity, enforceability, perfection, or
priority of any lien or security interest securing the Second Lien
Claims under the Second Lien Credit Documents;
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(q)
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the filing of any pleading or commencement of
any action by the Debtors (or the joinder of the Debtors in or
support by the Debtors of any such pleading or action) against the
Agent or any Supporting Second Lien Lender with respect to the
Second Lien Claims or Second Lien Credit Documents;
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(r)
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the public announcement by the Debtors of
their intention not to support the Plan; or
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(s)
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the occurrence of any material breach of this
Agreement by any Debtor.
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Upon the occurrence of a Termination Event under subsections (d),
(i), (n), and (o) (each, an “ Automatic Termination
Event ”), this Agreement shall automatically terminate
without further action.
Upon the occurrence and during the continuation of a Termination
Event that is not an Automatic Termination Event, this Agreement
shall terminate upon the expiration of five (5) Business Days
after the Agent provides written notice of such Termination Event
to the Debtors, unless the Debtors cure such Termination Event
prior to the expiration of such period.
6. Termination
by the Debtors . The Debtors may terminate this Agreement as to
any Supporting Second Lien Lender upon five (5) Business
Days’ prior written notice to the Agent upon any material
breach of this Agreement by such Supporting Second Lien Lender (a
“ Debtor Termination Event ”), unless such
Supporting Second Lien Lender cures such Debtor Termin
