EXECUTION COPY
AMENDMENT AND WAIVER NO. 5 TO THE LOAN DOCUMENTS
AMENDMENT AND WAIVER dated as of October 26, 1999 to (a) the Second Amended
and Restated Credit Agreement dated as of October 28, 1997 (as amended by Letter
Amendment No. 1 dated as of November 18, 1997, Letter Amendment No. 2 dated as
of April 16, 1998, Amendment and Waiver No. 3 to the Loan Documents dated as of
June 29, 1998 and Amendment and Waiver No. 4 to the Loan Documents dated as of
May 26, 1999, the "CREDIT Agreement") among FCN Holding, Inc., a Delaware
corporation ("FCN HOLDING"), International Family Entertainment, Inc., a
Delaware corporation ("IFE"), Saban Entertainment, Inc., a Delaware corporation
("SABAN"), Fox Family Properties, Inc., a Delaware corporation ("FOX
PROPERTIES"), Fox Family Management, LLC, a Delaware limited liability company
("FOX MANAGEMENT" and, together with FCN Holding, IFE, Saban and Fox Properties,
the "Borrowers"), Fox Kids Holdings, LLC, a Delaware limited liability company
("HOLDINGS"), as Guarantor, the banks, financial institutions and other
institutional lenders (collectively, the "LENDERS") party to the Credit
Agreement, Citicorp USA, Inc., as administrative agent (the "ADMINISTRATIVE
AGENT") for such Lenders and the other Secured Parties referred to therein, and
Xxxxxxx Xxxxx Xxxxxx Inc. (formerly known as Citicorp Securities, Inc.), Chase
Securities, Inc. and BankBoston, N.A., as Co-Arrangers for the Facilities
referred to therein, (b) the Fox Kids Guarantee dated October 28, 1997 (as
amended by Letter Amendment No. 2 dated as of April 16, 1998, Amendment and
Waiver No. 3 to the Loan Documents dated as of June 29, 1998 and Amendment and
Waiver No. 4 to the Loan Documents dated as of May 26, 1999, the "FOX KIDS
GUARANTEE") made by Fox Kids in favor of the Secured Parties referred to
therein, (c) the Pledge and Assignment Agreement dated as of October 28, 1997
(as amended by Amendment and Waiver No. 3 to the Loan Documents dated as of June
29, 1998 and Amendment and Waiver No. 4 to the Loan Documents dated as of May
26, 1999 and as further amended, supplemented or otherwise modified through the
date hereof, the "PLEDGE AND ASSIGNMENT AGREEMENT") made by Fox Kids, Holdings
and each of the Subsidiaries of Holdings listed on the signature pages thereof,
as pledgors, to and in favor of the Administrative Agent, and (d) the other Loan
Documents referred to in the Credit Agreement. Capitalized terms not otherwise
defined in this Amendment and Waiver shall have the same meanings as specified
therefor in the Credit Agreement.
PRELIMINARY STATEMENTS
(1) The Borrowers have requested that the Lenders agree to amend and
otherwise modify the Credit Agreement and the other Loan Documents in order to
permit:
(a) all of the Equity Interests in Fox Kids Europe Limited, Fox Kids
France SARL, TV 10 Holdings, Saban Merchandising and Licensing GmbH, Saban
Entertainment Italy Srl and Saban Entertainment (UK) Ltd. (collectively,
the "RESTRUCTURED EUROPEAN SUBSIDIARIES"), certain properties, assets and
businesses of Saban International, N.V. and Saban International Paris SARL,
and the Intercompany Note dated June 28, 1999 of IFE owing to FKE Holdings
(the "EXISTING IFE INTERCOMPANY NOTE") to be sold, contributed or otherwise
transferred from Saban and certain of its Subsidiaries to Fox Kids Europe,
N.V., a newly created Dutch company that prior to the consummation of the
FKE Equity Offering (as hereinafter defined) will be a wholly owned
Subsidiary of Saban ("FOX KIDS EUROPE"), so that, upon the consummation of
all such sales, contributions and transfers, Fox Kids Europe (i) will own
substantially all of the existing television, merchandising, home video and
Internet rights, and all amounts receivable under existing distribution or
exploitation agreements due on or after the Restructuring Effective Date
(as hereinafter defined), in and to the children's television series and
specials owned or controlled
by Saban and certain of its Subsidiaries, subject to third party
participation claims, and the future rights to Internet technologies and
applications relating to children's programming and properties of Saban and
certain of its Subsidiaries, for distribution in the territories set forth
in Part III of Annex A hereto and (ii) will have the right to acquire the
same rights in such territories in all children's programming and
properties produced or acquired by Saban and certain of its Subsidiaries in
the future, all as more fully described in Part I of Annex A hereto
(together with the contributions by FKE Holdings and, in turn, by Fox Kids
SPC2 of the Existing IFE Intercompany Note described in clause (c)(i)
below, collectively, the "EUROPEAN SUBSIDIARIES RESTRUCTURING");
(b) the sale by Fox Kids Europe of a portion of its Voting Interests
to the public (the "FKE EQUITY OFFERING") pursuant to an effective
registration statement under the Securities Act of 1933, as amended, or an
exemption from the registration requirements thereof, and otherwise on the
terms and conditions of the Final Offering Memorandum to be dated November
1999 (the "FINAL OFFERING MEMORANDUM");
(c) (i) the contribution by FKE Holdings to Fox Kids SPC2, Inc., a
California corporation and a newly created, wholly owned subsidiary of FKE
Holdings ("FOX KIDS SPC2"), and, in turn, the contribution by Fox Kids SPC2
to Fox Kids Europe of the Existing IFE Intercompany Note as part of the
European Subsidiaries Restructuring and (ii) upon the consummation of the
FKE Equity Offering, the restatement of the Existing IFE Intercompany Note
on the terms and conditions of the IFE/FKE Senior Notes (as hereinafter
defined); and
(d) the issuance by IFE of a senior unsecured note due May 2020 in
favor of Fox Kids Europe (together with the restated IFE Intercompany Note
referred to in clause (c)(ii) above, the "IFE/FKE SENIOR NOTES") in a
principal amount equal to the loan made by Fox Kids Europe to IFE on the
Offering Effective Date (as hereinafter defined) with the aggregate amount
of cash proceeds received by Fox Kids Europe in the FKE Equity Offering in
excess of $160,000,000.
The European Subsidiaries Restructuring, the FKE Equity Offering, the
contributions by FKE Holdings to Fox Kids SPC2 and, in turn, by Fox Kids SPC2 to
Fox Kids Europe of the Existing IFE Intercompany Note, the subsequent
restatement of the Existing IFE Intercompany Note on the terms and conditions of
the IFE/FKE Senior Notes and, if applicable, the issuance of the additional
IFE/FKE Senior Note are hereinafter collectively referred to as the "AMENDMENT
NO. 5 TRANSACTIONS".
(2) The Lenders have indicated their willingness to agree to amend the
Credit Agreement and the other Loan Documents in order, among other things, to
permit the amendments and modifications thereto described in the foregoing
Preliminary Statements on the terms and subject to the satisfaction of
conditions set forth herein.
SECTION 1. AMENDMENTS TO CERTAIN PROVISIONS OF THE CREDIT AGREEMENT
EFFECTIVE ON THE RESTRUCTURING EFFECTIVE DATE. The Credit Agreement is, upon the
occurrence of the Restructuring Effective Date, hereby amended to read as
follows:
(a) Section 1.01 of the Credit Agreement is hereby amended to add the
following new definitions in their appropriate alphabetical order:
EX-10.1 - 2
"AMENDMENT AND WAIVER NO. 5" means Amendment and Waiver No. 5 to
the Loan Documents dated as of October 26, 1999.
"AMENDMENT NO. 5 TRANSACTIONS" means, collectively, (a) the
consummation of the European Subsidiaries Restructuring and the FKE
Equity Offering, (b) the execution and delivery, and the satisfaction
of the conditions precedent to effectiveness, of Amendment and Waiver
No. 5 to the Loan Documents, (c) the contributions by FKE Holdings to
Fox Kids SPC2 and, in turn, by Fox Kids SPC2 to FKE of the
Intercompany Note dated June 28, 1999 of IFE and the subsequent
restatement of such Intercompany Note of IFE on the terms and
conditions of the IFE/FKE Senior Notes, (d) the issuance of the
additional IFE/FKE Senior Note, if applicable, and (e) the payment of
the fees and expenses incurred in connection with the consummation of
the foregoing.
"EUROPEAN SUBSIDIARIES RESTRUCTURING" means the restructuring of
the ownership of the Equity Interests in Fox Kids Europe Limited, Fox
Kids France SARL, TV 10 Holdings, Saban Merchandising and Licensing
GmbH, Saban Entertainment Italy Srl and Saban Entertainment (UK) Ltd.,
certain properties, assets and businesses of SINV and Saban
International Paris SARL and the Intercompany Note dated June 28, 1999
of IFE by and from Saban and certain of its Subsidiaries to FKE so
that, upon the consummation of such restructuring, FKE will own all of
the FKE Intangibles and will have a right of first negotiation to
acquire the same types of rights as comprise the FKE Intangibles in
the same territories as are included in the FKE Intangibles in all
children's programming produced or acquired by SINV in the future,
together with the absolute right to acquire from SINV such rights in
such territories in such future children's programming, all as more
fully described in Part I of Annex A to Amendment and Waiver No. 5.
"EUROPEAN SUBSIDIARIES RESTRUCTURING EFFECTIVE DATE" means the
first date on which all of the conditions precedent to the
effectiveness of the European Subsidiaries Restructuring set forth in
Amendment and Waiver No. 5 were satisfied.
"FKE"means Fox Kids Europe, B.V. and, after the conversion of
such Person from a besloten vennootschap organized under the laws of
The Netherlands to a naamloze vennootschap organized under the laws of
The Netherlands as part of the European Subsidiaries Restructuring,
Fox Kids Europe, N.V., in either case a Subsidiary of Saban.
"FKE EQUITY OFFERING" means the sale of Voting Interests in FKE
made to the public by FKE pursuant to an effective registration
statement under the Securities Act, or an exemption from the
registration requirements thereof, and otherwise on the terms and
conditions described in the Final Offering Memorandum dated (or to be
dated) November 1999, copies of which have been furnished to all of
the Lenders.
"FKE EQUITY OFFERING EFFECTIVE DATE" means the first date on
which all of the conditions precedent to the effectiveness of the FKE
Equity Offering set forth in Amendment and Waiver No. 5 were
satisfied.
EX-10.1 - 3
"FKE INTANGIBLES" means the existing terrestrial, cable and
satellite television, merchandising, home video and Internet rights,
and all amounts receivable under existing distribution or exploitation
agreements due on or after the European Subsidiaries Restructuring
Effective Date, in and to children's television series and specials
owned or controlled by SINV, subject to third party participation
claims, and the future rights to Internet technologies and
applications relating to children's programming and properties of
SINV, for distribution in the territories set forth in Part III of
Annex A to Amendment and Waiver No. 5.
"FOX KIDS SPC2" means Fox Kids SPC2, Inc., a California
corporation and a direct wholly owned subsidiary of FKE Holdings.
"IFE/FKE SENIOR NOTES" means one or more senior unsecured notes
of IFE due May 2020 comprised of the restated Intercompany Note dated
June 28, 1999 of IFE in an aggregate principal amount of $104,114,000
(of which $4,114,000 represents capitalized interest on such
Intercompany Note to the European Subsidiaries Restructuring Effective
Date) and the principal amount of the loan, if any, made by FKE to IFE
on the FKE Equity Offering Effective Date with the cash proceeds
received by FKE in the FKE Equity Offering in excess of $160,000,000;
PROVIDED, HOWEVER, that (a) such senior unsecured notes of IFE shall
not accrue interest payable in cash at a rate per annum of more than
10.5%, (b) no payment of the principal amounts outstanding under such
senior unsecured notes shall be required to be made prior to October
31, 2005, (c) any prepayment or payment of amounts outstanding from
time to time under such senior unsecured notes shall be expressly
permitted under Section 5.02(p), (d) the Obligations under the IFE/FKE
Senior Notes shall be owing at all times to FKE or one or more of its
wholly owned Subsidiaries or to one or more of the Borrowers and their
wholly owned Subsidiaries and (e) all of the other terms and
conditions of such senior unsecured notes shall be reasonably
satisfactory to the Lenders.
"1999 FBC SUBSCRIPTION AGREEMENT" means the Subscription
Agreement dated as of June 28, 1999 between FKE Holdings and FBC, as
amended by Amendment No. 1 to be dated on or about the European
Subsidiaries Restructuring Effective Date.
"SINV" means Saban International, N.V., a corporation organized
under the laws of the Netherlands Antilles and a wholly owned
Subsidiary of Saban."
(b) The definition of "FOREIGN SUBSIDIARY PLEDGE AGREEMENTS" set forth
in Section 1.01 of the Credit Agreement is hereby restated in its entirety
to read as follows:
"FOREIGN SUBSIDIARY PLEDGE AGREEMENTS" means, collectively, (a)
the Amended and Restated Pledge Agreement of Shares dated the Phase II
Closing Date among Saban, SINV and the Administrative Agent, (b) the
Pledge Agreement dated the Phase II Closing Date between Saban and the
Administrative Agent, (c) the Deed of Pledge of Shares dated the Phase
II Closing Date among Saban, Saban International Paris SARL and the
Administrative Agent, (d) the Pledge Agreement of Shares dated on or
prior to the European Subsidiaries Restructuring Effective Date among
Saban, certain of its Subsidiaries and the Administrative Agent and
(e) each of the other pledge agreements, assignment agreements (or
other similar documents) governed by the laws of a jurisdiction
outside of the United States of America that is delivered pursuant to
Section
EX-10.1 - 4
5.02(j), in each of the foregoing cases as amended, supplemented or
otherwise modified hereafter from time to time in accordance with the
terms hereof and Section 9.01."
(c) The definition of "RESTRICTED SUBSIDIARY" set forth in Section
1.01 of the Credit Agreement is hereby amended to add the following new
parenthetical at the end of clause (a) thereof:
"(other than the special purpose companies organized in a jurisdiction
of the United States as part of the European Subsidiaries
Restructuring and referred to as "SPC3" and "SPC5" in Annex A to
Amendment and Waiver No. 5, which will be (or will have been)
liquidated on or immediately following the FKE Equity Offering
Effective Date)".
(d) Section 5.01(j) of the Credit Agreement is hereby amended (i) to
delete the word "and" at the end of clause (vi) thereof, (ii) to delete the
punctuation "." at the end of clause (vii) thereof and to substitute
therefor the new language "; and", (iii) to delete the language "(iv), (vi)
or (vii) of Section 5.02(f)" at the end of clause (vii) thereof and to
substitute therefor the new language "(iv), (vi), (vii) or (x) of Section
5.02(f)" and (iv) to add the following new clause (viii) thereto:
"(viii) the making and holding of the loans to IFE as evidenced by the
IFE/FKE Senior Notes and the making and holding of loans by, and
capital contributions from, Saban to Fox Kids Europe Limited and Fox
Kids France SARL in accordance with Section 5.02(e)(v)(D)."
(e) Section 5.01 of the Credit Agreement is hereby further amended to
add to the end of such Section 5.01 the following new subsection (l):
"(l) COVENANT TO REESTABLISH SECURITY INTEREST, ETC. If the FKE
Equity Offering Effective Date shall not have occurred on or prior to
December 15, 1999, each of the Borrowers and the Restricted
Subsidiaries (including, without limitation, the special purpose
companies that are wholly owned Domestic Subsidiaries and are referred
to as "SPC3" and "SPC5" in Annex A to Amendment and Waiver No. 5),
shall, no later than December 15, 1999, (i) cause the Intercompany
Note dated June 28, 1999 of IFE otherwise transferred as part of the
European Subsidiaries Restructuring to be acquired (or reacquired) by
a Borrower other than IFE or a Restricted Subsidiary and pledged and
assigned (or repledged and reassigned) thereby to the Administrative
Agent for the benefit of the Secured Parties as Collateral, (ii)
pledge and assign and repledge and reassign, as applicable, to the
Administrative Agent for the benefit of the Secured Parties all of the
Equity Interests in, and all of the Intercompany Notes issued by, the
Restructured European Subsidiaries (as defined in Amendment and Waiver
No. 5) intended to comprise part of the Collateral, and any other
items of Collateral that were released by the Lenders and the Agents
on the European Subsidiaries Restructuring Effective Date and (iii)
take all actions necessary to comply with the requirements of Section
5.02(j), all as though Sections 1(g)(iv), 4(b)(ii), 4(c) and 4(d) of
Amendment and Waiver No. 5 had not become effective."
(f) Section 5.02(b) of the Credit Agreement is hereby amended (i) to
delete the word "and" at the end of subclause (ii)(A) thereof, (ii) to
delete the language "; and" at the end of
EX-10.1 - 5
subclause (ii)(B) thereof and to substitute therefor the new language ",
and", (iii) to add the following new subclause (ii)(C):
"(C) Indebtedness evidenced by the Intercompany Note dated June
28, 1999 of IFE owing to FKE (as successor in interest to FKE Holdings
upon the contribution thereto as part of the European Subsidiaries
Restructuring);", and
(iv) to delete the phrase "otherwise expressly permitted under Section
5.02(e)(xii)" in the sixth and seventh lines of subclause (iii)(C) thereof
and to substitute therefor the new phrase "otherwise expressly permitted
under Section 5.02(e)(v)(D) or 5.02(e)(xii)".
(g) Section 5.02(d) of the Credit Agreement is hereby amended (i)
to delete the word "and" at the end of subclause (iii)(B) thereof and
to substitute therefor the new punctuation ",", (ii) to delete the
phrase "any of their respective Subsidiaries" at the end of subclause
(iii)(C) thereof immediately following the language "any of the
Borrowers or " and to substitute therefor the new phrase "any of the
Restricted Subsidiaries", (iii) to add immediately prior to the
PROVISO clause to clause (iii) thereof the following new subclause
(iii)(D) thereto:
"and (D) any of the Unrestricted Subsidiaries may sell, lease,
transfer or otherwise dispose of any of its property or assets
to any of the other Unrestricted Subsidiaries", and
(iv) to renumber the existing clause (xii) thereof as clause (xi) of
Section 5.02(d).
(h) Section 5.02(e) of the Credit Agreement is hereby amended (i) to
delete the word "or" at the end of subclause (v)(B) thereof and to
substitute therefor the new punctuation ",", (ii) to add the following new
subclause (v)(D) thereto:
"and (D) Saban in Fox Kids Europe Limited and Fox Kids France SARL
comprised solely of loans and cash capital contributions made
(directly or indirectly through FKE Holdings) in the ordinary course
of business prior to the European Subsidiaries Restructuring Effective
Date in an aggregate amount not to exceed $36,000,000",
(iii) to delete the phrase "in accordance with clause (vii), (viii), (ix)
or (xii) of Section 5.02(d)" in clause (viii) thereof and to substitute
therefor the phrase "in accordance with clause (vii), (viii), (ix) or (xi)
of Section 5.02(d)", (iv) to delete the word "and" at the end of clause
(xii) thereof, (v) to delete the punctuation "." at the end of clause
(xiii) thereof and to substitute therefor the new language "; and" and (vi)
to add the following new clause (xiv) thereto:
"(xiv) as part of the European Subsidiaries Restructuring,
Investments by Saban and one or more of the Restricted Subsidiaries in
FKE, either directly or indirectly, of all of the Equity Interests in
Fox Kids Europe Limited, Fox Kids France SARL, TV 10 Holdings, Saban
Merchandising and Licensing GmbH, Saban Entertainment Italy Srl and
Saban Entertainment (UK) Ltd., certain properties, assets and
businesses of SINV and Saban International Paris SARL and the
Intercompany Note dated June 28, 1999 of IFE in exchange for at least
51% of the outstanding Equity Interests in FKE (on a fully diluted
basis); PROVIDED that immediately before and after giving PRO FORMA
effect to each such Investment, no Default shall have occurred and be
continuing."
EX-10.1 - 6
(i) Section 5.02(g) of the Credit Agreement is hereby amended to
restate clause (ii) thereof in its entirety to read as follows:
"(ii) Amend, modify or change in any manner any of the terms or
conditions of any of the Surviving Indebtedness or any of the other
Intercompany Notes, except (A) that the terms and conditions of the
Intercompany Note dated June 28, 1999 of IFE may be amended to reflect
the capitalization of all accrued and unpaid interest thereon to the
European Subsidiaries Restructuring Effective Date and to conform to
the terms of the IFE/FKE Senior Notes upon the restatement thereof on
the FKE Equity Offering Effective Date , (B) as part of the European
Subsidiaries Restructuring, the terms of the Intercompany Notes of Fox
Kids Europe Limited and Fox Kids France SARL that evidence the loans
made by Saban and FKE Holdings in accordance with Section
5.02(e)(v)(D) may be amended to replace (1) the maturity thereof upon
demand with a maturity date that is no earlier than May 31, 2002 and
(2) the payment of interest on demand with scheduled periodic interest
payments to occur no more frequently than semiannually, and (C) as
otherwise expressly permitted under the terms of the Loan Documents
or, solely in the case of the Intercompany Notes, as, either
individually or in the aggregate, could not adversely affect Fox Kids
or any of its Subsidiaries or any of the rights or interests of the
Administrative Agent or the Lenders in any manner;".
(j) Section 5.02(l) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(l) AMENDMENTS TO CONSTITUTIVE DOCUMENTS. Amend, or permit any
of its Subsidiaries to amend, its Constitutive Documents, except that
(i) Holdings or any of its Subsidiaries may amend its certificate or
articles of association (or similar Constitutive Documents) to change
its legal name, (ii) FKE may amend its Articles of Association to
convert FKE from a besloten vennootschap organized under the laws of
The Netherlands to a naamloze vennootschap organized under the laws of
The Netherlands as part of the European Subsidiaries Restructuring and
(iii) Holdings or any of its Subsidiaries may amend its bylaws (or
similar Constitutive Documents) in such a manner as, either
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; PROVIDED that copies of any such
amendment to the Constitutive Documents of Holdings or any such
Subsidiary shall be delivered to the Administrative Agent at least ten
Business Days prior to the date on which such amendments are intended
to become effective; and PROVIDED FURTHER that Holdings or its
applicable Subsidiary shall have executed and filed such financing
statements, or amendments thereto, and such instruments and notices,
and shall have taken such other actions, as may be necessary or as the
Administrative Agent may reasonably deem desirable and may request in
order to perfect and preserve the pledges, assignments and security
interests granted or purported to be granted under the Pledge and
Assignment Agreement."
(k) Section 5.03(c) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(c) ANNUAL FINANCIALS. As soon as available and in any event
within 120 days after the end of each Fiscal Year, an unaudited
Consolidated balance sheet of Holdings and its Subsidiaries as of the
end of such Fiscal Year and unaudited
EX-10.1 - 7
Consolidated statements of operations, stockholders' equity and cash
flows of Holdings and its Subsidiaries for such Fiscal Year, setting
forth in comparative form, in the case of each such Consolidated
balance sheet, the corresponding figures as of the last day of the
immediately preceding Fiscal Year from the Consolidated balance sheet
for such Persons for such immediately preceding Fiscal Year and, in
the case of each such Consolidated statement of operations,
stockholders' equity or cash flows, the corresponding figures for the
immediately preceding Fiscal Year, all in reasonable detail, together
with an "AGREED UPON PROCEDURES" report prepared in accordance with
the guidelines of the American Institute of Certified Public
Accountants then in effect from Ernst & Young LLP (or other
independent public accountants of recognized standing reasonably
acceptable to the Required Lenders) for the reconciliation of the
Consolidated financial statements of Holdings and its Subsidiaries for
such Fiscal Year with the audited Consolidated financial statements of
Fox Kids and its Subsidiaries for such Fiscal Year delivered to the
Lenders pursuant to Section 7(i)(ii) of the Fox Kids Guarantee."
(l) Section 5.03(d) of the Credit Agreement is hereby amended (i) to
delete the existing clause (ii) thereof, (ii) to renumber the existing
clauses (iii), (iv), (v) and (vi) thereof as clauses (ii), (iii), (iv) and
(v) of Section 5.03(d), respectively, and (iii) to delete the language "in
the case of any such financial statements delivered to the Lenders pursuant
to Section 5.03(b)," at the beginning of the renumbered clauses (iv) and
(v) of Section 5.03(d).
(m) Section 7.01(c) of the Credit Agreement is hereby amended to
delete the language "5.01(j) or 5.01(k)" in the third line of clause (i)
thereof and to substitute therefor the new language "5.01(j), 5.01(k) or
5.01(l)".
SECTION 2. AMENDMENTS TO CERTAIN PROVISIONS OF THE CREDIT AGREEMENT
EFFECTIVE ON THE OFFERING EFFECTIVE DATE. The Credit Agreement is, upon the
occurrence of the Offering Effective Date, hereby amended to read as follows:
(a) The definition of "CONSOLIDATED CASH INTEREST EXPENSE" set forth
in Section 1.01 of the Credit Agreement is hereby amended (i) to delete the
word "and" in the last line thereof immediately following the phrase "any
deferred payment obligation" and to substitute therefor the punctuation ","
and (ii) to add in the last line thereof after the phrase "not payable in
cash" the following new subclause (D):
"and (D) interest expense paid or payable by IFE in respect of
Indebtedness outstanding under the IFE/FKE Senior Notes".
(b) The definition of "CONSOLIDATED EBITDA" set forth in Section 1.01
of the Credit Agreement is hereby amended to add the following new PROVISO
clause at the end of such definition:
"; PROVIDED, HOWEVER, that in the case of Fox Kids and its
Subsidiaries or Holdings and its Subsidiaries, as the case may be, but
solely with respect to any Measurement Period ending after September
30, 1999, Consolidated EBITDA shall be increased to include, solely to
the extent any such amount is otherwise deducted in the determination
of the Consolidated Net Income of such Person and its Subsidiaries for
such period, (A) any nonrecurring, noncash restructuring charges taken
in accordance with GAAP in connection with the consummation of the
Amendment No. 5 Transactions, (B) the aggregate amount of all
transaction fees and expenses paid to any Person that is not an
EX-10.1 - 8
Affiliate of Fox Kids or any of its Subsidiaries in connection with
the consummation of the Amendment No. 5 Transactions and (C) any
noncash charges taken in accordance with GAAP for increases in the
value of the options to purchase common stock of Fox Kids, which
options were issued to the Fox Kids Optionholders on or prior to the
FKE Equity Effective Date, that result solely from increases in the
market value of the ordinary shares of FKE".
(c) The definition of "FIXED CHARGE COVERAGE RATIO" set forth in
Section 1.01 of the Credit Agreement is hereby amended to add the following
new parenthetical at the end of subclause (b)(v) thereof after the language
"Fox Kids and its Subsidiaries during such period":
"(other than the mandatory prepayment of outstanding Advances made on
the FKE Equity Offering Effective Date with the proceeds of the
IFE/FKE Senior Notes)".
(d) Section 2.04(b) of the Credit Agreement is hereby amended (i) to
add in the third line of subclause (iv)(B) thereof after the phrase "or
subclause (iii)(A), (iii)(C) or (iii)(G), of Section 5.02(b)" the new
language "and, except to the extent such reduction is expressly required
thereunder, subclause (ii)(C) of Section 5.02(b) hereof" and (ii) to add in
the third line of subclause (iv)(C) thereof after the phrase "pursuant to
subclause (v), (vi) or (vii) of Section 5.02(f) hereof" the new language
"and, except to the extent such reduction is expressly required thereunder,
subclause (ix) of Section 5.02(f) hereof".
(e) Section 4.01(ll) of the Credit Agreement is hereby amended (i) to
delete the word "or" in the second line thereof after the phrase "on the
Effective Date" and to substitute therefor the new punctuation "," and (ii)
to add in the second line thereof after the phrase "the TV 10 Transactions
Effective Date" the new language ", the Foreign Subsidiaries Restructuring
Effective Date or the FKE Equity Offering Effective Date".
(f) Section 5.02(b) of the Credit Agreement is hereby amended (i) to
restate subclause (ii)(C) thereof in its entirety to read as follows:
"(C) Indebtedness evidenced by the IFE/FKE Senior Notes, and the
restatement on the FKE Equity Offering Effective Date of the
Intercompany Note dated June 28, 1999 of IFE owing to FKE (as
successor in interest to FKE Holdings) on the terms and conditions of
the IFE/FKE Senior Notes; PROVIDED that all of the Net Cash Proceeds
received from the issuance of the IFE/FKE Senior Notes shall be (or
shall have been) applied on the date of receipt thereof to reduce the
Commitments in accordance with, and to the extent required under,
Section 2.04(b)(iv) and to prepay the Advances outstanding at such
time in accordance with, and to the extent required under, Section
2.05(b); and PROVIDED FURTHER that the payee of such Indebtedness
shall be at all times FKE or one or more of its wholly owned
Subsidiaries or one or more of the Borrowers and their wholly owned
Subsidiaries;", and
(ii) to delete the language "any of subclauses (iii)(B)" in the second and
third lines of subclause (iii)(N) thereof and to substitute therefor the
new language "any of subclauses (ii)(C), (iii)(B)".
(g) Section 5.02(d) of the Credit Agreement is hereby amended (i) to
add the following new PROVISO clause at the end of clause (iv) thereof:
EX-10.1 - 9
" PROVIDED, HOWEVER, that notwithstanding the foregoing provisions of
this clause (iv), the Borrowers and the applicable Unrestricted
Subsidiaries may wind up, liquidate or otherwise dissolve the special
purpose companies organized in a jurisdiction of the United States as
part of the European Subsidiaries Restructuring and referred to as
"SPC3" and "SPC5" in Annex A to Amendment and Waiver No. 5 within ten
Business Days of the FKE Equity Offering Effective Date so long as all
of the property and assets thereof are distributed to, and all of
their liabilities and other Obligations are assumed by, their
respective shareholders upon their winding-up, liquidation or
dissolution, as the case may be;",
(ii) to delete the word " and" at the end of clause (x) thereof, (iii) to
delete the punctuation "." at the end of clause (xi) thereof and to
substitute therefor the new language "; and" and (iv) to add the following
new clause (xii) thereto:
"(xii) at any time prior to the consummation of the FKE Equity
Offering, FKE Holdings may sell and otherwise transfer to FBC all of
the Equity Interests in FKE received thereby upon the organization of
FKE in satisfaction of its Obligations under the 1999 FBC Subscription
Agreement; PROVIDED that the Fair Market Value of all such Equity
Interests in FKE so issued to FBC shall not exceed the purchase price
paid therefor under the 1999 FBC Subscription Agreement."
(h) Section 5.02(f) of the Credit Agreement is hereby amended (i) to
delete the language ", (vii) or (viii) of this Section 5.02(f)" in the
tenth and eleventh lines thereof and to substitute therefor the new
language ", (vii), (viii) or (ix) of this Section 5.02(f)", (ii) to delete
the word "and" at the end of subclause (ii)(C) thereof after the language
"Section 8(c)(iv) of the Fox Kids Guarantee" and to substitute therefor the
new punctuation ",", (iii) to add at the end of clause (ii) thereof the
following new subclause (ii)(E):
"and (E) to pay additional compensation to one or more of its senior
executives during the calendar year ending December 31, 1999 in
connection with the FKE Equity Offering in an aggregate amount not to
exceed $6,500,000",
(iv) to delete the word "and" at the end of clause (vii) thereof, (v) to
delete the punctuation "." at the end of clause (viii) thereof and to
substitute therefor the new punctuation ";" and (vi) to add the following
new clauses (ix) and (x) thereto:
"(ix) FKE may issue and sell its ordinary shares in the FKE
Equity Offering; provided that upon consummation of the FKE Equity
Offering, the Borrowers and the Restricted Subsidiaries shall continue
to own and control legally and beneficially Voting Interests in FKE
representing at least 51% of the combined voting power of all of the
Voting Interests in FKE (on a fully diluted basis) and Equity
Interests in FKE representing at least 51% of the issued and
outstanding Equity Interests in FKE (on a fully diluted basis); and
PROVIDED FURTHER that FKE receives not less than $140,000,000 in gross
proceeds in cash from such issuance and sale and applies such proceeds
on the date of receipt thereof in the following manner:
(A) FIRST, at least $100,000,000 of the Net Cash Proceeds so
received by FKE shall be paid to SINV in full satisfaction of the
Intercompany Note of FKE owing to SINV (which Intercompany Note
was issued in partial
EX-10.1 - 10
consideration for the transfer of the FKE Intangibles, and
assumed by FKE, in the European Subsidiaries Restructuring) and,
immediately thereafter, paid to Saban in satisfaction of
co-production costs funded by Saban in the ordinary course of
business and, immediately thereafter, applied by Saban as
follows:
(1) not more than $25,000,000 of such payment so
received by Saban may be retained thereby for use in the
business and operations of the Borrowers and their
Subsidiaries in the ordinary course; and
(2) the remaining proceeds of such payment so received
by Saban shall be applied to reduce the Commitments in
accordance with, and to the extent required under, Section
2.04(b)(iv) and to prepay the Advances outstanding at such
time in accordance with, and to the extent required under,
Section 2.05(b);
(B) SECOND, not more than $60,000,000 of the Net Cash
Proceeds so received by FKE may be retained thereby for use in
the businesses and operations of FKE and its Subsidiaries in the
ordinary course; and
(C) THIRD, all remaining Net Cash Proceeds so received by
FKE shall be advanced (either directly or through the repayment
of amounts outstanding under existing Intercompany Notes among
IFE and its Affiliates) to IFE on the terms and conditions of the
IFE/FKE Senior Notes and immediately applied by IFE in accordance
with the terms of Section 5.02(b)(ii)(C); and
(x) FKE may issue and sell its ordinary shares, or options or
other rights to acquire its ordinary shares, to one or more employees
of FKE and its Subsidiaries pursuant to a stock option plan duly
adopted by the board of directors of FKE so long as (A) the aggregate
number of ordinary shares of FKE so issued and sold (or subject to all
options and other rights so issued and sold) shall not exceed 10% of
the outstanding ordinary shares of FKE on the date of the related
issuance and sale (on a fully diluted basis), (B) the purchase price
for any ordinary shares of FKE so issued and sold, or the exercise
price for any options or other rights so issued and sold, shall not be
less than the Fair Market Value of the date of such issuance and sale,
and such purchase price shall be paid in cash or with a loan or
advance from one of the Borrowers or their Subsidiaries otherwise
permitted under Section 5.02(e)(vi) and (C) immediately after giving
effect to each such issuance and sale, the Borrowers and the
Restricted Subsidiaries shall continue to own and control legally and
beneficially Voting Interests in FKE representing at least 51% of the
combined voting power of all of the Voting Interests in FKE (on a
fully diluted basis) and Equity Interests in FKE representing at least
51% of the issued and outstanding Equity Interests in FKE (on a fully
diluted basis)."
(i) Section 5.02(g) of the Credit Agreement is hereby amended (i) to
delete the word "and" at the end of subclause (i)(E) thereof, (ii) to
delete the punctuation ";" at the end of subclause (i)(F) thereof and to
substitute therefor the new language ", and" and (iii) to add the following
new subclause (i)(G) thereto:
"(G) the prepayment of amounts outstanding from time to time
under the IFE/FKE Senior Notes in accordance with Section 5.02(p);".
EX-10.1 - 11
(j) Section 5.02 of the Credit Agreement is hereby further amended to
add at the end of such Section 5.02 the following new subsection (p):
"(p) PAYMENTS UNDER THE IFE/FKE SENIOR NOTES. Pay, prepay,
redeem, purchase, defease or otherwise satisfy in cash all or any
portion of the IFE/FKE Senior Notes (whether principal, interest, fees
or other amounts) unless immediately before and after giving PRO forma
effect to such payment, prepayment, redemption, purchase, defeasance
or other satisfaction, no Default shall have occurred and be
continuing."
SECTION 3. AMENDMENTS TO CERTAIN PROVISIONS OF THE FOX KIDS GUARANTEE
EFFECTIVE ON THE RESTRUCTURING EFFECTIVE DATE. The Fox Kids Guarantee is, upon
the occurrence of the Restructuring Effective Date, hereby amended to read as
follows:
(a) Section 6(aa) of the Fox Kids Guarantee is hereby amended (i) to
delete the word "or" in the second line thereof after the phrase "on the
Effective Date" and to substitute therefor the new punctuation "," and (ii)
to add to the second line thereof after the phrase "on the TV 10
Transactions Effective Date" the new phrase ", the European Subsidiaries
Restructuring Effective Date or the FKE Equity Offering Effective Date".
(b) Section 7(g) of the Fox Kids Guarantee is hereby amended (i) to
delete the word "and" at the end of clause (vi) thereof, (ii) to delete the
punctuation "." at the end of clause (vii) thereof and to substitute
therefor the new language "; and" and (iii) to add the following new clause
(viii) thereto:
"(viii) the making and holding of the loans to IFE as evidenced
by the IFE/FKE Senior Notes and the making and holding of loans by,
and capital contributions from, Saban to Fox Kids Europe Limited and
Fox Kids France SARL in accordance with Section 5.02(e)(v)(D) of the
Credit Agreement."
(c) Section 8(d) of the Fox Kids Guarantee is hereby amended to add at
the end of clause (iii) thereof the following new language:
"except, solely in the case of the FBC Subordinated Notes Documents,
the NAHI Subordinated Notes Documents or the Permitted Affiliate
Subordinated Notes, as, either individually or in the aggregate, could
not adversely affect Fox Kids or any of its Subsidiaries or any of the
rights or interests of the Administrative Agent or the Lenders in any
manner."
SECTION 4. WAIVERS OF AND CONSENTS UNDER CERTAIN PROVISIONS OF THE LOAN
DOCUMENTS. (a) Any and all Defaults and Events of Default under Section
7.01(c)(i) of the Credit Agreement that have occurred and are continuing as a
result of the failure of Holdings and the Borrowers to deliver the financial
statements required to be delivered thereby under Sections 5.03(b) or 5.03(c) of
the Credit Agreement for any Fiscal Quarter or Fiscal Year occurring prior to
the date of this Amendment and Waiver are hereby waived by the Lenders.
(b) Each of the Lenders and the Agents hereby agree, on and as of the
Restructuring Effective Date, but solely in connection with the
consummation of the Amendment No. 5 Transactions, to waive:
EX-10.1 - 12
(i) the requirements of the second PROVISO to the definition of
"FAIR MARKET Value" set forth in Section 1.01 of the Credit Agreement
that a Responsible Officer certify to the Lenders the Fair Market
Value of the Equity Interests in any Unrestricted Subsidiary, or the
other property, assets or businesses of Saban or any of its
Subsidiaries, being sold, contributed or otherwise transferred as part
of the European Subsidiaries Restructuring and the Fair Market Value
of the Equity Interests in Fox Kids Europe being issued to FBC in
satisfaction of the Obligations of Fox Kids Europe under the 1999 FBC
Subscription Agreement, or obtain an independent determination thereof
from a qualified appraiser (although all of the other requirements of
such definition of "FAIR MARKET VALUE" shall remain in full force and
effect with respect to each such transaction); and
(ii) the requirements of Section 5.02(j) of the Credit Agreement
and Section 1(a)(ii) of the Pledge and Assignment Agreement (and the
similar provisions of certain of the Foreign Subsidiary Pledge
Agreements) that the Borrowers and the Restricted Subsidiaries pledge
to the Administrative Agent, on behalf of the Secured Parties, up to
66% of the Voting Interests and all of the other Equity Interests in
the Unrestricted Subsidiaries being organized thereby as part of the
European Subsidiaries Restructuring unless either (A) such Voting
Interests or other Equity Interests will continue to be owned or
otherwise held directly by one or more of the Borrowers and the
Restricted Subsidiaries upon consummation of the European Subsidiaries
Restructuring or (B) the European Subsidiaries Restructuring is not
consummated on or prior to December 15, 1999.
(c) Each of the Lenders and the Agents hereby consent, on and as of
the Restructuring Effective Date, to release all liens and security
interests of the Secured Parties in (i) the Equity Interests in the
Restructured European Subsidiaries comprising part of the Collateral and
(ii) Intercompany Notes owing to each of the Restructured European
Subsidiaries comprising part of the Collateral, in each case in accordance
with the terms of Section 23(a) of the Pledge and Assignment Agreement (and
any similar provisions of any of the other Collateral Documents).
(d) Each of the Lenders and the Agents hereby consent, on and as of
the Restructuring Effective Date, to release and discharge each of the
Restructured European Subsidiaries from its guarantee of the Guaranteed
Obligations (as defined in the Subsidiaries Guarantee) and all of its other
Obligations under and in respect of the Loan Documents to which such
Restructured European Subsidiary is a party.
SECTION 5. CONDITIONS OF EFFECTIVENESS TO THIS AMENDMENT AND WAIVER. (a)
Sections 1, 3 and 4 of this Amendment and Waiver shall become effective as of
the first date (the "RESTRUCTURING EFFECTIVE DATE") on which each of the
following conditions precedent shall have been satisfied:
(i) The Administrative Agent shall have received (i) counterparts of
this Amendment and Waiver executed by the Borrowers, Fox Kids, Holdings and
the Required Lenders or, as to any of the Lenders, advice satisfactory to
the Administrative Agent that such Lender has executed this Amendment and
Waiver and (ii) the Consent attached hereto executed by each of the Loan
Parties (other than Holdings, Fox Kids and the Borrowers).
EX-10.1 - 13
(ii) The Required Lenders shall be reasonably satisfied with any and
all additions and other modifications to the European Subsidiaries
Restructuring from the structure described in Part I of Annex A hereto. All
of the Lenders shall have received copies, certified by a Responsible
Officer of Fox Kids or the Borrowers, of the 1999 FBC Subscription
Agreement (as defined in Section 1) and all of the other material
agreements, instruments and other documents evidencing or otherwise setting
forth the terms and conditions of the European Subsidiaries Restructuring
(collectively, the "RESTRUCTURING TRANSACTION DOCUMENTS") at least three
Business Days prior to the Restructuring Effective Date, and shall be
satisfied with any and all additions and other changes to the terms and
conditions thereof from those disclosed to the Lenders prior to the date of
this Amendment and Waiver.
(iii) All of the Governmental Authorizations, and all of the consents,
approvals and authorizations of, notices and filings to or with, and other
actions by, any other Person necessary in connection with any aspect of the
European Subsidiaries Restructuring or any of the other transactions
contemplated thereby shall have been obtained (without the imposition of
any conditions that are not reasonably acceptable to the Required Lenders)
and shall remain in full force and effect; all applicable waiting periods
shall have expired without any action being taken by any competent
authority; and no Requirement of Law shall be applicable in the reasonable
judgment of the Required Lenders that restrains, prevents or imposes
materially adverse conditions upon any aspect of the European Subsidiaries
Restructuring or any of the other transactions contemplated thereby. Each
aspect of the European Subsidiaries Restructuring shall have been
consummated or shall be consummated on or prior to the Restructuring
Effective Date in compliance with all applicable Requirements of Law.
(iv) The Administrative Agent shall have received on or before the
Restructuring Effective Date the following, each dated such date (unless
otherwise specified), in form and substance to which (unless otherwise
specified) the Lenders shall not have reasonably objected and (unless
otherwise specified) in sufficient copies for each of the Lenders:
(A) A certificate of a Responsible Officer of Fox Kids or the
Borrowers, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that immediately before and after
giving PRO FORMA effect to each aspect of the European Subsidiaries
Restructuring and the other transactions contemplated thereby that are
to have been consummated at or prior to such time, no Default shall
have occurred and be continuing and, immediately after giving effect
to each aspect of the European Subsidiaries Restructuring and such
other transactions contemplated thereby, Fox Kids and its Subsidiaries
shall be in PRO FORMA compliance with all of the covenants set forth
in Section 5.04, such compliance to have been determined on the basis
of the Consolidated financial statements of Fox Kids and its
Subsidiaries or Holdings and its Subsidiaries, as applicable, most
recently delivered to the Lenders pursuant to Section 7(i)(i) or
7(i)(ii) of the Fox Kids Guarantee or Section 5.03(b) or 5.03(c) of
the Credit Agreement, respectively, as though the European
Subsidiaries Restructuring and such other transactions had been
consummated on the first day of the fiscal period covered thereby.
(B) Certified copies of (1) the resolutions of the board of
directors of each Loan Party that is or is to be a party to any aspect
of the European Subsidiaries Restructuring or the transactions
contemplated thereby that are to have been consummated at or prior to
such time approving the Restructuring Transaction Documents to which
it is or is to be a party and the consummation of each aspect of the
EX-10.1 - 14
European Subsidiaries Restructuring and the other transactions
contemplated by any of the foregoing involving or affecting such Loan
Party, and (2) all documents evidencing necessary Governmental
Authorizations, or other necessary consents, approvals,
authorizations, notices, filings or actions, with respect to any of
the Restructuring Transaction Documents to which it is or is to be a
party or the consummation of any aspect of the European Subsidiaries
Restructuring, or any of the other transactions contemplated by any of
the foregoing, involving or affecting such Loan Party (other than the
Constitutive Documents of any Unrestricted Subsidiary that is or will
become a direct or indirect wholly owned Subsidiary of Fox Kids
Europe).
(C) A copy of the appraisal by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx of
the Fair Market Value of the FKE Intangibles.
(D) A copy of the certificate or articles of incorporation (or
similar Constitutive Document) of each of the wholly owned Domestic
Subsidiaries created as part of the European Subsidiaries
Restructuring other than the two special purpose companies organized
in a jurisdiction of the United States as part of the European
Subsidiaries Restructuring and referred to as "SPC3" and "SPC5" in
Annex A hereto (collectively, the "NEW RESTRICTED SUBSIDIARIES"), and
each amendment thereto, certified (as of a date reasonably near the
Restructuring Effective Date) as being a true and complete copy
thereof by the Secretary of State (or the equivalent Governmental
Authority) of the jurisdiction of incorporation of such New Restricted
Subsidiary.
(E) A copy of a certificate of the Secretary of State (or the
equivalent Governmental Authority) of the jurisdiction of
incorporation of each New Restricted Subsidiary, dated reasonably near
the Restructuring Effective Date, listing the certificate or articles
of incorporation (or similar Constitutive Document) of such New
Restricted Subsidiary and each amendment thereto on file in the office
thereof and certifying that (1) such amendments are the only
amendments to the certificate or articles of incorporation (or similar
Constitutive Document) of such New Restricted Subsidiary on file in
its office, (2) such New Restricted Subsidiary has paid all franchise
taxes (or the equivalent thereof) to the date of such certificate and
(3) such New Restricted Subsidiary is duly organized and is in good
standing under the laws of the jurisdiction of its incorporation.
(F) Certificates representing the Pledged Interests comprising
all of the outstanding Equity Interests in the New Restricted
Subsidiaries and, to the extent owned or otherwise held by the
Borrowers and the Restricted Subsidiaries, Fox Kids Europe, in each
case accompanied by undated stock powers or other appropriate powers
duly executed in blank, and instruments evidencing the Pledged
Indebtedness, if any, comprising all of the Indebtedness of any of the
New Restricted Subsidiaries owing to any of the other Loan Parties,
duly endorsed in blank, together with:
(1) proper amendments to existing financing statements (Form
UCC-3 or a comparable form) under the Uniform Commercial Code of
all jurisdictions that may be necessary or that the
Administrative Agent may reasonably deem desirable in order to
perfect and protect the liens and security interests created or
purported to be created under the Pledge and Assignment
EX-10.1 - 15
Agreement, covering such Pledged Interests and Pledged
Indebtedness, in each case completed in a manner satisfactory to
the Administrative Agent; and
(2) evidence that all of the other actions (including,
without limitation, the completion of all of the other recordings
and filing of or with respect to the Pledge and Assignment
Agreement) that may be necessary or that the Administrative Agent
may reasonably deem desirable in order to perfect and protect the
liens and security interests created under the Pledge and
Assignment Agreement have been taken or will be taken in
accordance with the terms of the Loan Documents.
(G) One or more guarantee supplements, in substantially the form
of Exhibit A to the Subsidiaries Guarantee, duly executed by each of
the New Restricted Subsidiaries.
(H) One or more pledge agreement supplements, in substantially
the form of Exhibit B to the Pledge and Assignment Agreement
(collectively, the "PLEDGE AGREEMENT SUPPLEMENTS"), duly executed by
each of the New Restricted Subsidiaries, together with:
(1) certificates representing the Pledged Interests referred
to therein, if any, accompanied by undated stock powers or other
appropriate powers, duly executed in blank;
(2) instruments evidencing the Pledged Indebtedness referred
to therein, if any, duly endorsed in blank;
(3) proper financing statements (Form UCC-1 or a comparable
form) under the Uniform Commercial Code of all jurisdictions that
may be necessary or that the Administrative Agent may reasonably
deem desirable in order to perfect and protect the liens and
security interests created or purported to be created under the
Pledge Agreement Supplements and the Pledge and Assignment
Agreement, covering the Collateral of the New Restricted
Subsidiaries described therein, in each case completed in a
manner satisfactory to the Administrative Agent and duly executed
by the applicable New Restricted Subsidiary; and
(4) evidence that all of the other actions (including,
without limitation, the completion of all of the other recordings
and filings of or with respect to the Pledge Agreement
Supplements and the Pledge and Assignment Agreement) that may be
necessary or that the Administrative Agent may reasonably deem
desirable in order to perfect and protect the liens and security
interests created under the Pledge Agreement Supplements and the
Pledge and Assignment Agreement have been taken or will be taken
in accordance with the terms of the Loan Documents.
(I) A certificate of each of the New Restricted Subsidiaries,
signed on behalf of such New Restricted Subsidiary by a Responsible
Officer thereof,
dated the Restructuring Effective Date (the statements made in which
certificate shall be true on and as of the Restructuring Effective
Date), certifying as to:
EX-10.1 - 16
(1) the absence of any amendments to the certificate or
articles of incorporation (or similar Constitutive Document) of
such New Restricted Subsidiary since the date of the Secretary of
State's (or equivalent Governmental Authority's) certificate
delivered pursuant to clause (E) of this Section 5(a)(iv) or any
steps taken by the board of directors or the shareholders (or the
persons performing similar functions) of such New Restricted
Subsidiary to effect or authorize any further amendment,
supplement or other modification thereto;
(2) the accuracy and completeness of the bylaws (or the
equivalent Constitutive Documents, if any) of such New Restricted
Subsidiary as in effect on the date on which the resolutions of
the board of directors (or the persons performing similar
functions) of such New Restricted Subsidiary referred to in
clause (B) of this Section 5(a)(iv) were adopted and on the
Restructuring Effective Date (a copy of which shall be attached
to such certificate);
(3) the due organization and good standing of such New
Restricted Subsidiary as a Person organized under the laws of the
jurisdiction of its organization, and the absence of any
proceeding (either pending or contemplated) for the dissolution,
liquidation or other termination of the existence of such New
Restricted Subsidiary;
(4) the legal and beneficial ownership by such New
Restricted Subsidiary of all of the Collateral in which such New
Restricted Subsidiary has purported to have granted a lien and
security interest to the Administrative Agent, on behalf of the
Secured Parties, under the Collateral Documents, free and clear
of all Liens, except for the liens and security interests created
under the Loan Documents;
(5) the accuracy in all material respects of the
representations and warranties made by such New Restricted
Subsidiary in the Loan Documents to which it is or is to be a
party as though made on and as of the Restructuring Effective
Date, before and after giving effect to this Amendment and Waiver
and the European Subsidiaries Restructuring; and
(6) the absence of any event occurring and continuing, or
resulting from this Amendment and Waiver or any aspect of the
European Subsidiaries Restructuring, that would constitute a
Default other than the Defaults and Events of Default expressly
waived under Section 4.
(J) A certificate of the Secretary or an Assistant Secretary of
each of the New Restricted Subsidiaries certifying the names and true
signatures of the officers of such New Restricted Subsidiary
authorized to sign each of the Loan Documents to which it is or is to
be a party and the other agreements, instruments and documents to be
delivered hereunder and thereunder.
EX-10.1 - 17
(K) A Deed of Pledge of Shares, in substantially the form of the
Deed of Pledge of Shares dated the Phase II Closing Date, dated the
Restructuring Effective Date (the "DUTCH FKE PLEDGE") among Saban and
its applicable Subsidiaries (including Fox Kids Europe) and the
Administrative Agent, duly executed by Saban, Fox Kids Europe and each
such Subsidiary, together with evidence that all of the actions
(including, without limitation, the completion of all of the
recordings and filings of or with respect to the Dutch FKE Pledge)
that may be necessary or that the Administrative Agent may reasonably
deem desirable in order to perfect and protect the liens and security
interests created under the Dutch FKE Pledge have been taken or will
be taken in accordance with the terms of the Loan Documents.
(L) A favorable opinion of Troop, Steuber, Pasich, Xxxxxxx &
Xxxxx, LLP, special counsel for the Loan Parties, in form and
substance satisfactory to the Lenders.
(M) A favorable opinion of Squadron, Ellenoff, Plesent &
Xxxxxxxxx, LLP, New York counsel for the Loan Parties, in form and
substance satisfactory to the Lenders.
(N) A favorable opinion of Stibbe Simont Xxxxxxx Duhot, Dutch
counsel for the Loan Parties, in form and substance satisfactory to
the Lenders.
(v) The representations and warranties set forth in each of the Loan
Documents shall be correct in all material respects on and as of the date
first above written and the Restructuring Effective Date, before and after
giving effect to this Amendment and Waiver and the European Subsidiaries
Restructuring and the transactions contemplated thereby, as though made on
and as of such date (except (A) for any such representation and warranty
that, by its terms, refers to a specific date other than the Restructuring
Effective Date, in which case as of such specific date and (B) that the
Consolidated financial statements of each of the Borrowers and its
Subsidiaries and Fox Kids and its Subsidiaries referred to in Sections
4.01(f), 4.01(g), 4.01(h) and 4.01(i) of the Credit Agreement,
respectively, shall be deemed to refer to the Consolidated financial
statements of each such Borrower and its Subsidiaries and Fox Kids and its
Subsidiaries most recently delivered to the Administrative Agent and the
Lenders pursuant to Sections 5.03(b) and 5.03(c) of the Credit Agreement
and Sections 7(i)(i) and 7(i)(ii) of the Fox Kids Guarantee, respectively,
on or prior to the Restructuring Effective Date and (C) that the forecasted
Consolidated financial statements of Fox Kids and its Subsidiaries referred
to in Section 4.01(j) of the Credit Agreement shall be deemed to refer to
the forecasted Consolidated financial statements of Fox Kids and its
Subsidiaries most recently delivered to the Administrative Agent and the
Lenders prior to the Restructuring Effective Date).
(vi) No event shall have occurred and be continuing, or shall result
from the effectiveness of this Amendment and Waiver or the European
Subsidiaries Restructuring, that constitutes a Default other than the
Defaults and Events of Default expressly waived under Section 4.
(vii) The Restructuring Effective Date shall have occurred on or prior
to December 15, 1999.
EX-10.1 - 18
(b) Section 2 of this Amendment and Waiver shall become effective as
of the first date (the "OFFERING EFFECTIVE DATE") on which each of the
following conditions precedent shall have been satisfied:
(i) The Restructuring Effective Date shall have occurred. The
Offering Effective Date shall have occurred on or prior to December
15, 1999.
(ii) The Required Lenders shall be reasonably satisfied with any
and all additions and other modifications (A) to the FKE Equity
Offering from the structure described in Part I of Annex A hereto and
(B) the terms and conditions of the IFE/FKE Senior Notes from the
terms and conditions thereof disclosed to the Lenders prior to the
Restructuring Effective Date. All of the Lenders shall have received
copies, certified by a Responsible Officer of Fox Kids or the
Borrowers, of the Final Offering Memorandum, the form of the IFE/FKE
Senior Notes and all of the other material agreements, instruments and
other documents evidencing or otherwise setting forth the terms and
conditions of the Amendment No. 5 Transactions at least three Business
Days prior to the Offering Effective Date, and shall be satisfied with
any and all additions and other changes to the terms and conditions
thereof from those disclosed to the Lenders prior to the date of this
Amendment and Waiver.
(iii) All of the Governmental Authorizations, and all of the
consents, approvals and authorizations of, notices and filings to or
with, and other actions by, any other Person necessary in connection
with any aspect of the Amendment No. 5 Transactions or any of the
other transactions contemplated thereby shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Required Lenders) and shall remain in full force and
effect; all applicable waiting periods shall have expired without any
action being taken by any competent authority; and no Requirement of
Law shall be applicable in the reasonable judgment of the Required
Lenders that restrains, prevents or imposes materially adverse
conditions upon any aspect of the Amendment No. 5 Transactions or any
of the other transactions contemplated thereby. Each aspect of the
Amendment No. 5 Transactions shall have been consummated or shall be
consummated on or prior to the Offering Effective Date in compliance
with all applicable Requirements of Law.
(iv) The Administrative Agent shall have received on or before
the Offering Effective Date a certificate of a Responsible Officer of
Fox Kids or the Borrowers, dated the Offering Effective Date and
otherwise in form and substance reasonably satisfactory to the
Administrative Agent, certifying that immediately before and after
giving PRO FORMA effect to each aspect of the Amendment No. 5
Transactions and the other transactions contemplated thereby, no
Default shall have occurred and be continuing and (A) immediately
after giving effect to each aspect of the Amendment No. 5 Transactions
and the other transactions contemplated thereby, Fox Kids and its
Subsidiaries shall be in PRO FORMA compliance with all of the
covenants set forth in Section 5.04, such compliance to have been
determined on the basis of the Consolidated financial statements of
Fox Kids and its Subsidiaries or Holdings and its Subsidiaries, as
applicable, most recently delivered to the Lenders pursuant to Section
7(i)(i) or 7(i)(ii) of the Fox Kids Guarantee or Section 5.03(b) or
5.03(c) of the Credit Agreement, respectively, as though the Amendment
No. 5 Transactions and such other transactions had been consummated on
the first day of the fiscal period covered thereby.
EX-10.1 - 19
(v) The representations and warranties set forth in each of the
Loan Documents shall be correct in all material respects on and as of
the date first above written and the Offering Effective Date, before
and after giving effect to this Amendment and Waiver and the Amendment
No. 5 Transactions, as though made on and as of such date (except (A)
for any such representation and warranty that, by its terms, refers to
a specific date other than the Offering Effective Date, in which case
as of such specific date and (B) that the Consolidated financial
statements of each of the Borrowers and its Subsidiaries and Fox Kids
and its Subsidiaries referred to in Sections 4.01(f), 4.01(g), 4.01(h)
and 4.01(i) of the Credit Agreement, respectively, shall be deemed to
refer to the Consolidated financial statements of each such Borrower
and its Subsidiaries and Fox Kids and its Subsidiaries most recently
delivered to the Administrative Agent and the Lenders pursuant to
Sections 5.03(b) and 5.03(c) of the Credit Agreement and Sections
7(i)(i) and 7(i)(ii) of the Fox Kids Guarantee, respectively, on or
prior to the Offering Effective Date and (C) that the forecasted
Consolidated financial statements of Fox Kids and its Subsidiaries
referred to in Section 4.01(j) of the Credit Agreement shall be deemed
to refer to the forecasted Consolidated financial statements of Fox
Kids and its Subsidiaries most recently delivered to the
Administrative Agent and the Lenders prior to the Offering Effective
Date).
(vi) No event shall have occurred and be continuing, or shall
result from the effectiveness of this Amendment and Waiver or the
Amendment No. 5 Transactions, that constitutes a Default.
(vii) The Borrowers shall have paid to the Administrative Agent,
for the account of each of the Lenders that has executed and delivered
a counterpart of this Amendment and Waiver to the Administrative Agent
on or prior to the date of this Amendment and Waiver (or advised the
Administrative Agent in a manner satisfactory to it that such Lender
has executed this Amendment and Waiver on or prior to the date of this
Amendment and Waiver), an amendment fee of 0.05% on the aggregate
Commitments of such Lender.
(viii) All of the accrued fees and expenses of the Administrative
Agent and the Lenders (including the accrued fees and expenses of
counsel for the Administrative Agent) shall have been paid in full.
The effectiveness of each of Sections 1, 3 and 4 (in accordance with subsection
(a) of this Section 5) and Section 2 (in accordance with subsection (b) of this
Section 5) of this Amendment and Waiver is further conditioned upon the accuracy
of all of the factual matters described herein. This Amendment and Waiver is
subject to the provisions of Section 9.01 of the Credit Agreement.
SECTION 6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On and after
each of the Restructuring Effective Date and the Offering Effective Date, as
applicable, (i) each reference in the Credit Agreement to "THIS AGREEMENT",
"HEREUNDER", "HEREOF" or words of like import referring to the Credit Agreement,
and each reference in the Notes and each of the other Loan Documents to "THE
CREDIT AGREEMENT", "THEREUNDER", "THEREOF " or words of like import referring to
the Credit Agreement, shall mean and be a reference to the Credit Agreement, as
amended and otherwise modified by this Amendment and Waiver, as applicable; (ii)
each reference in the Fox Kids Guarantee to "THIS GUARANTEE", "HEREUNDER",
"HEREOF " or words of like import referring to the Fox Kids Guarantee, and
EX-10.1 - 20
each reference in each of the other Loan Documents to "THE FOX KIDS GUARANTEE",
"THEREUNDER", "THEREOF " or words of like import referring to the Fox Kids
Guarantee, shall mean and be a reference to the Fox Kids Guarantee, as amended
and otherwise modified by this Amendment and Waiver, as applicable; (iii) each
reference in the Pledge and Assignment Agreement to "THIS AGREEMENT,"
"HEREUNDER" "HEREOF", or words of like import referring to such Pledge and
Assignment Agreement and each reference in each of the other Loan Documents to
"THE PLEDGE AND ASSIGNMENT AGREEMENT," "THEREUNDER", "THEREOF" or words of like
import referring to the Pledge and Assignment Agreement, shall mean and be a
reference to the Pledge and Assignment Agreement, as amended and otherwise
modified by this Amendment and Waiver, as applicable; (iv) each reference in the
Subsidiaries Guarantee to "THIS Guarantee", "HEREUNDER", "HEREOF" or words of
like import referring to the Subsidiaries Guarantee, and each reference in the
Notes and each of the other Loan Documents to "THE SUBSIDIARIES GUARANTEE",
"THEREUNDER", "THEREOF " or words of like import referring to the Subsidiaries
Guarantee, shall mean and be a reference to the Subsidiaries Guarantee, as
amended and otherwise modified by this Amendment and Waiver, as applicable; and
(v) each reference in each Collateral Document to "THIS AGREEMENT", "HEREUNDER",
"HEREOF" or words of like import referring to such Collateral Document, and each
reference in the Notes and each of the other Loan Documents to "THE COLLATERAL
DOCUMENTS", "THEREUNDER", "THEREOF " or words of like import referring to such
Collateral Document, shall mean and be a reference to such Collateral Document,
as amended and otherwise modified by this Amendment and Waiver, as applicable.
(b) The Credit Agreement, the Notes and each of the other Loan Documents,
as amended, supplemented and otherwise modified by the amendments, supplements,
waivers and affirmations specifically provided above in Sections 1 through 4,
are and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed. Without limiting the generality of the
foregoing, each of the Collateral Documents and all of the Collateral described
therein do and shall continue to secure the payment of all Obligations of the
Loan Parties under the Loan Documents, in each case as amended and otherwise
modified in accordance with this Amendment and Waiver.
(c) The execution, delivery and effectiveness of this Amendment and Waiver
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any of the Secured Parties or the Administrative Agent
under any of the Loan Documents, or constitute a waiver of any provision of any
of the Loan Documents.
SECTION 7. COSTS AND EXPENSES. Each of the Borrowers hereby severally
agrees to pay, upon demand, all of the reasonably and properly documented costs
and expenses of the Administrative Agent (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent) in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Amendment and Waiver and all of the
instruments, agreements and other documents delivered or to be delivered in
connection herewith, all in accordance with the terms of Section 9.05 of the
Credit Agreement.
SECTION 8. EXECUTION IN COUNTERPARTS. This Amendment and Waiver may be
executed in any number of counterparts and by different 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. Delivery of an executed counterpart of a signature page to this
Amendment and Waiver by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment and Waiver.
EX-10.1 - 21
SECTION 9. GOVERNING LAW. This Amendment and Waiver shall be governed by,
and construed in accordance with, the laws of the State of New York, excluding
(to the fullest extent a New York court would permit) any rule of law that would
cause application of the laws of any jurisdiction other than the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be executed by their respective officers, thereunto duly authorized,
as of the date first written above.
THE LOAN PARTIES
FCN HOLDING, INC.
By /S/ XXX XXXXX
--------------------------
Name: Xxx Xxxxx
Title: President
INTERNATIONAL FAMILY
ENTERTAINMENT, INC.
By /S/ XXX XXXXX
--------------------------
Name: Xxx Xxxxx
Title: President
SABAN ENTERTAINMENT, INC.
By /S/ XXXX XXXXXX
--------------------------
Name: Xxxx Xxxxxx
Title: President
FOX FAMILY MANAGEMENT, LLC
By Xxxx Xxxxx, as its Manager
/S/ XXXX XXXXX
-------------------------
EX-10.1 - 22
FOX FAMILY PROPERTIES, INC.
By /S/ XXX XXXXX
--------------------------
Name: Xxx Xxxxx
Title: President
FOX FAMILY WORLDWIDE, INC.
By /S/ XXX XXXXX
--------------------------
Name: Xxx Xxxxx
Title: President
FOX KIDS HOLDINGS, LLC
By Fox Family Worldwide, Inc.
as its Managing Member
By /S/ XXX XXXXX
--------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
EX-10.1 - 23
THE AGENTS AND THE LENDERS
CITICORP USA, INC., as Agent and as
Lender
By /S/ XXXXXXXXX X. XXXXXXXX
----------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXX XXXXX XXXXXX INC., as Agent
By /S/ XXXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Attorney-In-Fact
EX-10.1 - 24
BANKBOSTON, N.A., as Agent and as
Lender
By /S/ XXXXXX X. XXXXXXX
------------------------------
Name:
Title:
EX-10.1 - 25
THE CHASE MANHATTAN BANK, as
Lender
By /S/ XXXX XXXXXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
CHASE SECURITIES, INC., as Agent
By /S/ XXXX X.XXXXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
EX-10.1 - 26
BANK OF AMERICA, N.A., as Lender
By /S/ XXXX X. XXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
EX-10.1 - 00
XXX XXXX XX XXXX XXXXXX, as Lender
By /S/ XXX X. XXXXXXX
------------------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Signatory
EX-10.1 - 28
FLEET BANK, N.A., as Lender
By /S/ XXXXX XXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
EX-10.1 - 29
THE INDUSTRIAL BANK OF JAPAN
LIMITED, LOS ANGELES AGENCY, as
Lender
By /S/ XXXX-XXXX XXXXXXXXX
------------------------------
Name: Xxxx-Xxxx Xxxxxxxxx
Title: SVP & SDGM
EX-10.1 - 30
TORONTO-DOMINION (TEXAS), INC., as
Lender
By /S/ XXXX X. XXXXX
------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
EX-10.1 - 31
SOCIETE GENERALE, NEW YORK
BRANCH, as Co-Agent and as Lender
By /S/ XXXXXX XXXXXX
------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
EX-10.1 - 00
XXX XXXX XX XXX XXXX, as Lender
By /S/ XXXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
EX-10.1 - 33
BANQUE NATIONALE DE PARIS, as
Lender
By /S/ XXXXX XXXXXX
------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By /S/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
EX-10.1 - 34
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES
AGENCY, as Lender
By
------------------------------
Name:
Title:
EX-10.1 - 35
THE SUMITOMO BANK, LIMITED, as
Lender
By
------------------------------
Name:
Title:
EX-10.1 - 36
CRESTAR BANK, as Lender
By /S/ XXXXXX X. XXXX
------------------------------
Name: Xxx Xxxx
Title: Assistant Vice President
EX-10.1 - 37
THE DAI-ICHI KANGYO BANK, LIMITED,
as Lender
By /S/ XXXXXX XXX
------------------------------
Name: Xxxxxx Xxx
Title: Account Officer
EX-10.1 - 38
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Lender
By /S/ XXXXXXX IMGRASSIN
------------------------------
Name: Xxxxxxx Imgrassin
Title: V.P.
EX-10.1 - 39
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender
By /S/ XXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
EX-10.1 - 40
FIRST HAWAIIAN BANK, as Lender
By
------------------------------
Name:
Title:
EX-10.1 - 41
ISRAEL DISCOUNT BANK LIMITED, LOS
ANGELES AGENCY., as Lender
By /S/ XXXX X. XXXXXX
------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
EX-10.1 - 42
CONSENT
Reference is made to (a) Amendment and Waiver No. 5 dated as of October 26,
1999 (the "AMENDMENT AND WAIVER"; capitalized terms not otherwise defined herein
being used herein as defined in the Amendment and Waiver and in the Credit
Agreement referred to therein), (b) the Second Amended and Restated Credit
Agreement dated as of October 28, 1997 (as amended by Letter Amendment No. 1
dated as of November 18, 1997, Letter Amendment No. 2 dated as of April 16,
1998, Amendment and Waiver No. 3 to the Loan Documents dated as of June 29,
1998, Amendment and Waiver No. 4 dated as of May 26, 1999, the Amendment and
Waiver, the "CREDIT AGREEMENT") among FCN Holding, Inc., International Family
Entertainment, Inc., Saban Entertainment, Inc., Fox Family Properties, Inc. and
Fox Family Management, LLC (collectively, the "BORROWERS"), Fox Kids Holdings,
LLC, a Delaware limited liability company ("HOLDINGS"), as Guarantor, the banks,
financial institutions and other institutional lenders (collectively, the
"LENDERS") party to the Credit Agreement, Citicorp USA, Inc., as administrative
agent (the "ADMINISTRATIVE AGENT") for such Lenders and the other Secured
Parties referred to therein, and Xxxxxxx Xxxxx Xxxxxx Inc. (formerly known as
Citicorp Securities, Inc.), Chase Securities, Inc. and BankBoston, N.A., as
Co-Arrangers for the Facilities referred to therein, and (c) the other Loan
Documents referred to therein.
Each of the undersigned, in its capacity as (a) a Guarantor under the
Second Amended and Restated Subsidiaries Guarantee dated October 28, 1997 (the
"SUBSIDIARIES GUARANTEE") in favor of the Secured Parties referred to therein
and a Pledgor under the Pledge and Assignment Agreement and/or (b) a Pledgor
under the Pledge and Assignment Agreement and/or under one or more of the
following Agreements, (i) the Amended and Restated Memorandum of Deposit of
Shares of Equity Interests dated October 28, 1997 (the "U.K./SABAN U.K. PLEDGE
AGREEMENT") between Saban and the Administrative Agent, (ii) the Amended and
Restated Memorandum of Deposit of Shares of Equity Interests dated October 28,
1997 (the "U.K./FKE PLEDGE AGREEMENT"), among FKE Holdings, Fox Kids Network
Europe Holdings, Inc. and the Administrative Agent, (iii) the Deeds of Pledge
dated September 4, 1997 and June 24, 1998 (collectively, the "NETHERLANDS PLEDGE
AGREEMENT"), among FKE Holdings, T.V. 10 and the Administrative Agent, (iv) the
Amended and Restated Pledge Agreement of Shares dated September 4, 1997 (the
"NETHERLANDS ANTILLES PLEDGE AGREEMENT"), among Saban, SINV and the
Administrative Agent, (v) the Pledge Agreement dated September 4, 1997 (the
"GERMAN PLEDGE AGREEMENT") among Saban and the Administrative Agent, (vi) the
Deed of Pledge of Shares dated September 4, 1997 (the "FRENCH/FOX KIDS PLEDGE
AGREEMENT"), among FKE Holdings, Fox Kids Network, Fox Kids France SARL and the
Administrative Agent and (vii) the Deed of Pledge of Shares dated September 4,
1997 (together with the U.K./Saban U.K. Pledge Agreement, the U.K./FKE Pledge
Agreement, the Netherlands Pledge Agreement, the Netherlands Antilles Pledge
Agreement, the German Pledge Agreement and the French/Fox Kids Pledge Agreement,
the "FOREIGN SUBSIDIARY PLEDGE AGREEMENTS"), among Saban, Saban International
Paris SARL and the Administrative Agent, hereby consents to the execution,
delivery and performance of the Amendment and Waiver and agrees that:
EX-10.1 - 43
(A) each of the Subsidiaries Guarantee, the Pledge and Assignment
Agreement, the Foreign Subsidiary Pledge Agreements and the other
Collateral Documents to which it is a party is, and shall continue to be,
in full force and effect and is hereby in all respects ratified and
confirmed on each of the Restructuring Effective Date and the Offering
Effective Date, except that, on and after each of the Restructuring
Effective Date and the Offering Effective Date, as applicable, (1) each
reference to "THE CREDIT AGREEMENT", "THEREUNDER", "THEREOF", "THEREIN" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement, as amended and otherwise modified by the
Amendment and Waiver, (2) each reference to "THE FOX KIDS GUARANTEE",
EX-10.1 - 44
"THEREUNDER", "THEREOF", "THEREIN" or words of like import referring to the
Fox Kids Guarantee shall mean and be a reference to the Fox Kids Guarantee,
as amended and otherwise modified by the Amendment and Waiver, (3) each
reference to the "THE PLEDGE AND ASSIGNMENT AGREEMENT", "THEREUNDER",
"THEREOF", "THEREIN" or words of like import referring to the Pledge and
Assignment Agreement shall mean and be a reference to the Pledge and
Assignment Agreement, as amended and otherwise modified by the Amendment
and Waiver, (4) each reference to "THE SUBSIDIARIES GUARANTEE",
"THEREUNDER", "THEREOF", "THEREIN" or words of like import referring to the
Subsidiaries Guarantee shall mean and be a reference to the Subsidiaries
Guarantee, as amended and otherwise modified by the Amendment and Waiver,
and (5) each reference to the "THE COLLATERAL DOCUMENTS", "THEREUNDER",
"THEREOF", "THEREIN" or words of like import referring to any Collateral
Document shall mean and be a reference to such Collateral Document, as
amended and otherwise modified by the Amendment and Waiver; and
(B) as of each of the Restructuring Effective Date and the Offering
Effective Date, as applicable, the Pledge and Assignment Agreement and the
Foreign Subsidiary Pledge Agreements to which it is a party and all of the
Collateral of such Person described therein do, and shall continue to,
secure the payment of all of the Secured Obligations.
This Consent shall be governed by, and construed in accordance with, the
laws of the State of New York, excluding (to the fullest extent a New York court
would permit) any rule of law that would cause application of the laws of any
jurisdiction other than the State of New York.
Delivery of an executed counterpart of a signature page of this Consent by
telecopier shall be effective as the delivery of a manually executed counterpart
of this Consent.
XXXXX XXXXX PRODUCTIONS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
BUGBOY PRODUCTIONS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
CYBERPROD, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
EX-10.1 - 45
FOX KIDS EUROPE HOLDINGS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
XXXX PRODUCTIONS
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
FOX KIDS (LATIN AMERICA), INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FOX KIDS WORLDWIDE, L.L.C.
By Fox Kids Holdings, LLC,
as Managing Member
By Fox Family Worldwide, Inc.,
as Managing Member
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
EX-10.1 - 46
IAN PRODUCTIONS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
INTERPROD, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
KIDS ROCK, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
LAUREL WAY PRODUCTIONS, INC.
By /S/ XXXX XXXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
MMPR PRODUCTIONS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
POCKET PRODUCTIONS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
EX-10.1 - 47
SABAN DOMESTIC SERVICES, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
SABAN FOODS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
SABAN INTERNATIONAL SERVICES, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
SABAN MERCHANDISING, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
SABAN/SCHERICK PRODUCTIONS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
SANDSCAPE, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
EX-10.1 - 48
TEEN DREAM PRODUCTIONS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
MELVILLE PRODUCTIONS, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
FCNH SUB, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
FOX CHILDREN'S PRODUCTIONS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FOX CHILDREN'S NETWORK, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
STORYMAKERS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
EX-10.1 - 49
FOX KID'S MUSIC, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FOX CHILDREN'S MUSIC, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FAMILY CHANNEL PICTURES, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FAMILY DEVELOPMENT CORP.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FAMILY GAME SHOWS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
GAME TV, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
EX-10.1 - 50
XXXXXXX ACQUISITION CORP.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
HOME PRODUCTIONS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
IFE CHINA, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
IFE DIRECT MARKETING, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
IFE JAKE ACQUISITION CORP.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
IFE LATIN AMERICA, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
EX-10.1 - 51
LYNNHAVEN ACQUISITION CORP.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
MOBILINK PARTNERS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
MTM ACQUISITION COMPANY, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
MTM ENTERPRISES, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
MTM ENTERTAINMENT, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
MTM HOLDING COMPANY, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
EX-10.1 - 52
PRETENDER PRODUCTIONS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
UNITED STATES FAMILY
ENTERTAINMENT, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
RED CHECK, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
PLAZA PICTURES, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
PAPER GARDENS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
XXXXXXX PARK, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
EX-10.1 - 53
APRIL PARK, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FAMILY SATELLITE BROADCASTING
SERVICES, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
F.F.P. WEST, L.L.C.
By Xxx Xxxxx, as its Manager
/S/ XXX XXXXX
------------------------------
FIRST PAPER, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FOX FAMILY MUSIC, L.L.C.
By Xxx Xxxxx, as its Manager
/S/ XXX XXXXX
------------------------------
FOX FAMILY MUSIC, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
EX-10.1 - 54
FOX FAMILY POST PRODUCTION, INC.
By /S/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: President
FOX FAMILY POST PRODUCTION, L.L.C.
By Xxx Xxxxx, as its Manager
/S/ XXX XXXXX
-------------------------------
FOX FAMILY RECORDING ARTISTS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
HOPSCOTCH PRODUCTIONS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
MONUMENT PRODUCTIONS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
KID GUMBO PRODUCTIONS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
EX-10.1 - 55
FOX KIDS TOURING, L.L.C.
ByMel Xxxxx, as its Manager
/S/ XXX XXXXX
-------------------------------
XXXXXXX.XXX, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FOX LATIN PRODUCTIONS, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
CABLE HEALTH TV, INC.
By /S/ XXX XXXXX
-------------------------------
Name: Xxx Xxxxx
Title: President
FOX KIDS EUROPE LIMITED
By /S/ XXXX XXXXX
-------------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
FOX KIDS SPC1, INC.
By /S/ XXXXXXXXXX XXXX GRENFELD
-------------------------------
Name: Xxxxxxxxxx Xxxx Grenfeld
Title: Secretary
EX-10.1 - 56
FOX KIDS SPC2, INC.
By /S/ XXXXXXXXXX XXXX GRENFELD
-------------------------------
Name: Xxxxxxxxxx Xxxx Grenfeld
Title: Secretary
EX-10.1 - 56
