EXHIBIT 10.38
LETTER AMENDMENT AND CONSENT NO. 7
Dated as of July 20, 2001
To the banks, financial institutions
and other institutional lenders
(collectively, the "Lenders") parties
to the Credit Agreement referred to
below, to Citicorp USA, Inc., as administrative
agent (the "Administrative Agent") for such Lenders
and the other Secured Parties referred to therein,
and to Xxxxxxx Xxxxx Xxxxxx (formerly known as Citicorp
Securities, Inc.), Chase Securities, Inc. and BankBoston, N.A.
as Co-Arrangers for the Facilities referred to therein.
Ladies and Gentlemen:
We refer to 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 to the Loan Documents ("Amendment No. 4") dated as of May 26, 1999,
Amendment and Waiver No. 5 to the Loan Documents dated as of October 26, 1999
and Letter Amendment No. 6 dated as of October 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 and you. Capitalized terms not
otherwise defined in this Letter Amendment and Consent No. 7 (this "Letter
Amendment") have the same meanings as specified in the Credit Agreement.
The TNCL Group and the Saban Group are exploring the option of selling
Fox Kids to a third party. We hereby request that the Lenders agree to amend
the definition of "Change of Control" set forth in Section 1.01 of the Credit
Agreement to allow the Shareholders to enter into but not close a contract for
the sale of Fox Kids.
You have indicated your willingness, on the terms and conditions set
forth below, to so agree. Accordingly, it is hereby agreed by you and us as
follows:
Upon the occurrence of the Amendment Effective Date, subclause (d) of
the definition of "Change of Control" in Section 1.01 of the Credit Agreement
shall be amended by deleting the phrase ", or shall have entered into a contract
or arrangement that, upon consummation thereof, will result in its or their
acquisition of" from such subclause (d).
This Letter Amendment shall become effective as of the first date (the
"Amendment Effective Date") on which the Administrative Agent shall have
received counterparts of this Letter Amendment 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
Letter Amendment, and the consent attached hereto executed by each Loan Party
(other than the Borrowers and Holdings).
On and after the effectiveness of this Letter Amendment, 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 by
this Letter Amendment.
The Credit Agreement, as specifically amended by this Letter
Amendment, the Notes and each of the other Loan Documents 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, 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 by this Letter Amendment. The execution,
delivery and effectiveness of this Letter Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
any Lender or any Agent under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents.
If you agree to the terms and provisions hereof, please evidence such
agreement by executing and returning at least one counterpart of this Letter
Amendment to the attention of Petal Xxxxxxx, Xxxxxxxx & Sterling, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000-0000, facsimile no. (000) 000-0000.
This Letter Amendment 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 Letter Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Letter Amendment.
This Letter Amendment 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.
Very truly yours,
FCN HOLDING, INC., as Borrower
By: /s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Title: President
INTERNATIONAL FAMILY
ENTERTAINMENT, INC., as Borrower
By: /s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Title: President
SABAN ENTERTAINMENT, INC., as Borrower
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: President
FOX FAMILY MANAGEMENT, LLC
/s/ Xxxx Xxxxx
---------------------------------------
By: Xxxx Xxxxx, as its Manager
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, as its Manager
Agreed by each of the following Lenders as of the date first above written:
THE AGENTS AND THE LENDERS
CITICORP USA, INC., as Agent and as Lender
By /s/ Xxxxxx Xxxx
----------------------------------
Name: Xxxxxx Xxxx
Title: M.D.
XXXXXXX XXXXX XXXXXX INC., as Agent
By /s/ Xxxxxx Xxxx
----------------------------------
Name: Xxxxxx Xxxx
Title: Attorney-In-Fact
FLEET NATIONAL BANK, as Agent and as Lender
By /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
X.X. XXXXXX CHASE, as Lender
By /s/ Xxxxxx XxXxxxxx
----------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
CHASE SECURITIES, INC., as Agent
By /s/ Xxx X. Xxxxxx
----------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Lender
By /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Principal
THE BANK OF NOVA SCOTIA, as Lender
By /s/ Xxx X. Xxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Signatory
THE INDUSTRIAL BANK OF JAPAN LIMITED,
LOS ANGELES AGENCY, as Lender
By /s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President and Manager
TORONTO-DOMINION (TEXAS), INC., as Lender
By /s/
----------------------------------
Name:
Title: Managing Director
SOCIETE GENERALE, NEW YORK BRANCH, as
Co-Agent and as Lender
By /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
THE BANK OF NEW YORK, as Lender
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS, as Lender
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY,
as Lender
By /s/ Xxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED, as Lender
By /s/ Xxx X. Xxxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Vice President
SUNTRUST BANK (f/k/a CRESTAR BANK), as
Lender
By /s/ Xxxxxx X. Xxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED, as
Lender
By /s/ Xxxxxx-Xxxxx Xxxxx
----------------------------------
Name: Xxxxxx-Xxxxx Xxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION, as
Lender
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
FIRST HAWAIIAN BANK, as Lender
By __________________________________
Name:
Title:
ISRAEL DISCOUNT BANK LIMITED, LOS
ANGELES AGENCY as Lender
By /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: AVP
CONSENT
Reference is made to (a) Letter Amendment and Consent No. 7 dated as
of August 15, 2001 (the "Letter Amendment"; capitalized terms not otherwise
defined herein being used herein as defined in the Letter Amendment 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, Amendment and Waiver
No. 5 to the Loan Documents dated as of October 26, 1999 and Letter Amendment
No. 6 dated as of October 26, 1999 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.
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 Letter Amendment and agrees that:
(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 the effective of the Letter Amendment, except that, on and
after such effective date 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 Letter Amendment; and
(B) as of the effective date of the Letter Amendment, 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
FOX KIDS EUROPE HOLDINGS, INC.
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/ Xxx Xxxxx
------------------------------
Name: Xxx Xxxxx, as its Manager
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 Xxxxxx
------------------------------
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
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
SANDSCAPE, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: President
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/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
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
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 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
THE SERENADE THEATRE
COMPANY, INC.
f/k/a XXXXXX XXXXXXX
PRODUCTIONS, INC.
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: President
XXXXXXX ACQUISITION CORP.
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: President
HOME PRODUCTIONS, 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
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/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
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
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.
/s/ Xxx Xxxxx
--------------------------------------
By: Xxx Xxxxx, as its Manager
FIRST PAPER, INC.
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: President
FOX FAMILY MUSIC, L.L.C.
/s/ Xxx Xxxxx
--------------------------------------
By: Xxx Xxxxx, as its Manager
FOX FAMILY MUSIC, INC.
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: President
FOX FAMILY POST PRODUCTION, INC.
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: President
FOX FAMILY POST PRODUCTION, L.L.C.
/s/ Xxx Xxxxx
--------------------------------------
By: Xxx Xxxxx, as its Manager
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
FOX KIDS TOURING, L.L.C.
/s/ Xxx Xxxxx
--------------------------------------
By: Xxx Xxxxx, as its Manager
FOX LATIN PRODUCTIONS, INC.
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: President
FOX KIDS SPC1, INC.
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: President
FOX KIDS SPC2, INC.
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: President
TEEN QUEST PRODUCTIONS, INC.
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: President
MAGIC HAT PRODUCTIONS, INC.
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: President
FOX KIDS CUP, L.L.C
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx, as its Manager
FOX FAMILY PROPERTIES STUDIO, L.L.C.
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx, as its Manager
