THIRD SUPPLEMENTAL INDENTURE Dated as of August 15, 2014 Between AMERICAN MEDIA, INC. and WILMINGTON TRUST, NATIONAL ASSOCIATION (as successor by merger to WILMINGTONTRUST FSB), as Trustee and Collateral Agent to the INDENTURE Dated as of December 22, 2010 Among AMERICAN MEDIA, INC., THE GUARANTORS NAMED THEREIN and WILMINGTON TRUST, NATIONAL ASSOCIATION (as successor by merger to WILMINGTONTRUST FSB), as Trustee and Collateral Agent 13½% SECOND LIEN SENIOR SECUREDNOTES DUE 2018

Contract Categories: Mergers & Acquisitions - Merger Agreements
EX-4.2 4 v386401_ex4-2.htm EXHIBIT 4.2

 

Exhibit 4.2

 

EXECUTION VERSION

 

 

 

THIRD SUPPLEMENTAL INDENTURE

 

Dated as of August 15, 2014

 

Between

 

AMERICAN MEDIA, INC.

 

and

 

WILMINGTON TRUST, NATIONAL ASSOCIATION

 

(as successor by merger to WILMINGTON TRUST FSB),

 

as Trustee and Collateral Agent

 

to the

 

INDENTURE

 

Dated as of December 22, 2010

 

Among

 

AMERICAN MEDIA, INC.,

 

THE GUARANTORS NAMED THEREIN

 

and

 

WILMINGTON TRUST, NATIONAL ASSOCIATION

 

(as successor by merger to WILMINGTON TRUST FSB),

 

as Trustee and Collateral Agent

 

13½% SECOND LIEN SENIOR SECURED NOTES DUE 2018

 

 

 

 
 

 

THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of August 15, 2014, between AMERICAN MEDIA, INC., a Delaware corporation (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION (as successor by merger to WILMINGTON TRUST FSB), as trustee and collateral agent under the indenture referred to below (collectively in such capacities, the “Trustee”).

 

W I T N E S S E T H:

 

WHEREAS, the Issuer and the subsidiary guarantors named therein (the “Guarantors”), have heretofore executed and delivered to the Trustee an indenture, dated as of December 22, 2010, providing for the initial issuance of $104,889,262 aggregate principal amount of 13½% Second Lien Senior Secured Notes due 2018 (the “Notes”) as amended by the First Supplemental Indenture and Second Supplemental Indenture (the “Indenture”);

 

WHEREAS, the Issuer has entered into a non-binding letter of intent (the “Letter of Intent”) with certain investors of the Issuer (collectively, the “Investors”) with terms as set forth in the Current Report on Form 8-K filed with the SEC on July 9, 2014, pursuant to which (i) the Investors will acquire 100% of the issued and outstanding common stock of the Issuer through a merger (the “Merger”) and (ii) the Issuer and its Subsidiaries and the Investors or their affiliates will enter into other transactions contemplated by the Letter of Intent (together with the Merger, the “Merger Transactions”);

 

WHEREAS, pursuant to Section 9.02 of the Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture with the written consent (the “Consent”) of the Holders of at least a majority in the aggregate principal amount of the Notes then outstanding voting as a single class and calculated in accordance with the Indenture (the “Required Consents”);

 

WHEREAS, in connection with the Merger Transactions, certain Holders have instructed their brokers that they wish to consent to the amendments contained herein, such Holders’ brokers have directed Cede & Co., the nominee of The Depository Trust Company, as a holder of record of the Notes, to consent to the amendments contained herein, and Cede & Co. has furnished its consent to the amendments contained herein on behalf of such Holders; and

 

WHEREAS, the Issuer has received Consent to the amendments to the Indenture contained herein and the execution of this Supplemental Indenture from Holders of approximately 73% of the principal amount of the Notes then outstanding voting as a single class and calculated in accordance with the Indenture, and accordingly the Issuer has received the Required Consents.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties, strictly on the basis of Holder consent, authorization and direction, as evidenced by the Required Consents, mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

 

(1)            Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

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(2)           Amendments to Indenture.

 

(a)          The following definitions are hereby added to Section 1.01 of the Indenture in proper alphabetical order:

 

““Letter of Intent” means that certain non-binding letter of intent, dated July 8, 2014, among the Issuer and certain investors of the Issuer with terms as set forth in the Form 8-K filed with the SEC on July 9, 2014.”

 

““Merger” means the merger contemplated by the Letter of Intent.”

 

““Merger Transactions” means all transactions relating to the Merger and the other transactions relating to or contemplated by the Letter of Intent and any and all definitive documentation relating thereto, including, without limitation, the payment of the merger consideration, the payment of fees and expenses pursuant to the definitive documentation relating to the Merger, the receipt of all amendments and consents under the Issuer’s existing debt and equity documents and the issuance of Second Lien PIK Notes.”

 

““Related Person” with respect to any Permitted Holder means: (1) any controlling stockholder or a majority (or more) owned Subsidiary of such Permitted Holder or, in the case of an individual, any spouse or immediate family member of such Permitted Holder, any trust created for the benefit of such individual or such individual’s estate, executor, administrator, committee or beneficiaries; (2) any fund managed by or under common management with, such Permitted Holder and any management company of such Permitted Holder; or (3) any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons beneficially holding a majority (or more) controlling interest of which consist of such Permitted Holder and/or such other Persons referred to in the immediately preceding clauses (1) and (2).”

 

““Second Lien PIK Indenture” means the indenture in respect of the Second Lien PIK Notes dated as of October 2, 2013, among the Issuer and the Second Lien PIK Trustee, as amended or supplemented from time to time.”

 

““Second Lien PIK Notes” means the Issuer’s Second Lien Senior Secured PIK Notes due 2018 issued pursuant to the Second Lien PIK Indenture.”

 

““Second Lien PIK Trustee” means Wilmington Trust, National Association, as trustee for the holders of Second Lien PIK Notes.”

 

““Third Supplemental Indenture” means the Third Supplemental Indenture to the Indenture, dated as of August 15, 2014, between the Issuer and Wilmington Trust, National Association, as Trustee and Collateral Agent.”

 

(b)          The definition of “Change of Control” in Section 1.01 of the Indenture is hereby amended by adding the following text at the end of such definition:

 

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“Notwithstanding the foregoing: (A) any holding company whose only significant asset is Equity Interests of the Issuer or any direct or indirect parent of the Issuer shall not itself be considered a “person” or “group” for purposes of this definition; (B) the transfer of assets between or among the Restricted Subsidiaries or Issuer shall not itself constitute a Change of Control; (C) the term “Change of Control” shall not include a merger or consolidation of the Issuer (or any direct or indirect parent thereof) with, or the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer (or direct or indirect parent thereof) to, an Affiliate incorporated or organized solely for the purpose or reincorporating or reorganizing the Issuer in another jurisdiction and/or for the sole purpose of forming or collapsing a holding company structure; and (D) a “person” or “group” shall not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar agreement (or voting or option agreement related thereto) until the consummation of the transactions contemplated by such agreement.”

 

(c)          The definition of “Permitted Holder” in Section 1.01 of the Indenture is hereby deleted in its entirety and replaced with the following:

 

Permitted Holders” means (i) (x) prior to the consummation of the Merger Transactions, (A) Angelo, Gordon & Co., L.P., (B) Avenue Capital Management II, L.P., (C) Capital Research and Management Company, Capital Guardian Trust Company and Capital International, Inc., (D) Credit Suisse Securities (USA) LLC, and (E) Regiment Capital Management, LLC and (y) upon the consummation of the Merger Transactions, (A) Chatham Asset Management, LLC, (B) Leon Cooperman and (C) David J. Pecker, (ii) any group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act or any successor provision) of which any of the Permitted Holders specified in clause (i) above are members, and (iii) the respective Affiliates and Related Persons of each of the foregoing; provided that in the case of any group specified in clause (ii) above, without giving effect to such group, Permitted Holders specified in clause (i) above and their respective Affiliates and Related Persons must collectively beneficially own an equal or greater amount of the total voting power of the Voting Stock of the Issuer than the amount of the total voting power of the Voting Stock of the Issuer beneficially owned by any other member of such group. Any Person or group whose acquisition of beneficial ownership or assets constitutes a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of the Indenture will thereafter, together with its Affiliates, constitute an additional Permitted Holder pursuant to clause (i)(y)(A) above.”

 

(d)          Clause (33) of the definition of “Permitted Liens” in Section 1.01 of the Indenture is hereby amended by deleting such clause in its entirety and replacing it with the following:

 

“(33)        Liens on the Collateral securing:

 

(a)            the Notes (other than Additional Notes), the Guarantees thereof and other Obligations under this Indenture and in respect thereof and any obligations owing to the Trustee or the Collateral Agent under this Indenture or the Security Documents;

 

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(b)           obligations under the First Lien Notes outstanding on the Issue Date and under clause (iii) or clause (iv) of the definition of “First Lien Obligations”; and

 

(c)           obligations under the Second Lien PIK Notes permitted under Section 4.09(b)(2)(c).”

 

(e)          The last sentence of the definition of “Permitted Liens” in Section 1.01 of the Indenture is hereby amended by deleting such sentence in its entirety and replacing it with the following:

 

“For purposes of this definition and Section 4.12, Liens securing Indebtedness shall be deemed to include Liens securing the accrual of interest, accretion of accreted value or original issue discount and the payment of interest or dividends in the form of additional Indebtedness or Disqualified Stock, as applicable, notwithstanding the fact that such accrual, accretion or payment is not deemed to be an incurrence of Indebtedness or Disqualified Stock for purposes of Section 4.09.”

 

(f)          Section 4.07(b)(11) of the Indenture is hereby deleted in its entirety and replaced with the following:

 

“(11)        any Restricted Payments in connection with the Emergence Transactions and the Merger Transactions; and”

 

(g)          Section 4.09(b)(2) of the Indenture is hereby deleted in its entirety and replaced with the following:

 

“(2)         the incurrence by the Issuer and any Guarantor of Indebtedness represented by (a) the First Lien Notes, (b) the Notes (excluding Additional Notes), (c) the Second Lien PIK Notes in an aggregate principal amount not to exceed $114.0 million outstanding at any one time (of which up to $12.5 million issued after the effective date of the Third Supplemental Indenture shall only be permitted to be incurred pursuant to this Section 4.09(b)(2) if incurred in connection with the Merger Transactions) and (d) any guarantee by a Guarantor of any of the foregoing in this clause (2);”

 

(h)          Section 4.11(b)(11) of the Indenture is hereby deleted in its entirety and replaced with the following:

 

“(11)        (a) the Emergence Transactions, including the payments of fees and expenses in connection therewith and (b) the Merger Transactions, including the payments of fees and expenses in connection therewith;”

 

(3)           Waiver. The Holders hereby expressly waive any non-compliance with Section 5.01 of the Indenture as a result of the consummation of the Merger Transactions or the entering into of the definitive documentation related to the Merger Transactions.

 

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(4)            Execution and Delivery. Except as expressly amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms , conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of both shall be read together as though they constitute a single instrument, except that in the case of conflict, the provisions of this Supplemental Indenture shall control.

 

(5)            Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

(6)            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

(7)            Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.

 

(8)            The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuer.

 

(9)            Severability. If and to the extent that any provision in this Supplemental Indenture shall be held invalid, illegal or unenforceable, or any proposed amendment to the Indenture shall be held not to have been properly approved by all necessary Holders as required under the Indenture, the validity, legality, enforceability and approval of the remaining provisions shall not in any way be affected or impaired thereby, to the extent permitted by applicable law.

 

[Signature Pages to Follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

 

  AMERICAN MEDIA, INC.
       
  By: /s/ Christopher V. Polimeni
    Name: Christopher V. Polimeni
    Title: Executive Vice President, Chief Financial Officer and Treasurer

 

Signature Page to Third Supplemental Indenture (Second Lien Indenture)

 

 
 

 

  WILMINGTON TRUST, NATIONAL ASSOCIATION (as successor by merger to WILMINGTON TRUST FSB), as Trustee and Collateral Agent
     
  By: /s/ Jane Schweiger
    Name: Jane Schweiger
    Title: Vice President
     

 

Signature Page to Third Supplemental Indenture (Second Lien Indenture)