Exhibit 10.2
AMENDMENT NO. 1 dated as of June 15,
2004 to the Amended and Restated Credit,
Security, Guaranty and Pledge Agreement
dated as of December 15, 2003 among
Lions Gate Entertainment Corp. and Lions
Gate Entertainment Inc. (together, the
"Borrowers"), the Guarantors named
therein, the Lenders referred to
therein, JPMorgan Chase Bank, as
Administrative Agent and as Issuing Bank
for the Lenders (the "Agent"), JPMorgan
Chase Bank, Toronto Branch as Canadian
Agent, Fleet National Bank , as
Co-Syndication Agent and BNP Paribas, as
Co-Syndication Agent (as the same may be
amended, supplemented or otherwise
modified, the "Credit Agreement").
INTRODUCTORY STATEMENT
The Lenders have made available to the Borrowers a credit facility
pursuant to the terms of the Credit Agreement.
The Lenders and the Agent have agreed to amend the Credit Agreement,
all on the terms and subject to the conditions herein set forth.
Therefore, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meaning given them in the Credit
Agreement.
Section 2. Amendments to the Credit Agreement. Subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, the
Credit Agreement is hereby amended as of the Effective Date (as hereinafter
defined) as follows:
(A) Article 1 of the Credit Agreement is hereby amended by adding the
following definition in the appropriate alphabetical sequence:
" `FASB' shall mean the Financial Accounting Standards Board or any
successor body."
(B) The definition of "Direct to Video Credit" appearing in Article 1
of the Credit Agreement is hereby amended by replacing the words "in the United
States and Canada" appearing therein with the word "worldwide".
(C) The definition of "Foreign Rights Credit" appearing in Article 1 of
the Credit Agreement is hereby amended by adding the words "that is intented for
theatrical release and" after the words "each item of Product" appearing in the
first line thereof.
(D) The definition of "GAAP" appearing in Article 1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
" `GAAP' shall mean generally accepted accounting principles in the
United States of America from time to time consistently applied (except
for accounting changes in response to FASB releases, or other
authoritative pronouncements)."
(E) Section 2.12(c) of the Credit Agreement is hereby amended by adding
a new sentence at the end thereof that reads as follows:
"The Borrowers shall also pay to the Administrative Agent for the pro
rata account of each Lender the first US$20,000,000 of proceeds
received by any Credit Party from Replication Advances in excess of
US$55,000,000 of proceeds received by any Credit Party from Replication
Advances of which the first US$10,000,000 shall be applied to the next
principal payment of the Term Loans due in accordance with Section 2.5
hereof and the second US$10,000,000 shall be applied to the last
principal payment of the Term Loans due in accordance with Section 2.5
hereof; provided, that after the Term Loans have been repaid in full,
then all such proceeds shall be used to prepay the Revolving Credit
Loans."
(F) Section 5.1(a) of the Credit Agreement is hereby amended by (i)
deleting the reference to "Canadian Institute of Chartered Accountants" and (ii)
deleting the phrase "and with a note explaining any material difference from the
statement of operations and shareholders equity prepared under generally
accepted accounting principals in the United States" appearing at the end
thereof and adding in lieu thereof the following proviso:
";provided, however, that the financial statements prepared for the
fiscal year ended March 31, 2004 shall be prepared in accordance with
the generally accepted accounting principles as adopted by the Canadian
Institute of Chartered Accountants accompanied with a note explaining
any material difference from the statement of operations and
shareholders equity prepared under GAAP and such other information as
may be required to reconcile such statements with GAAP for the purpose
of demonstrating compliance with the provisions of Sections 6.11, 6.15,
6.16, 6.17, 6.18, 6.19 and 6.22 hereof."
(G) Section 6.1 of the Credit Agreement is hereby amended by replacing
the dollar amount "$55,000,000" appearing in clause (m) thereof with the dollar
amount "US$75,000,000".
(H) Section 6.4 of the Credit Agreement is hereby amended by adding the
following clause (xvii) at the end thereof:
"(xvii) Investments in an amount not to exceed US$15,000,000 in the
aggregate outstanding at any one time made by issuing new capital stock
or by using the proceeds of such newly issued capital stock."
(I) Section 6.15 of the Credit Agreement is hereby amended by adding
the following proviso at the end thereof:
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";provided, however, that if the Credit Parties incur Replication
Advances in an aggregate amount at any one time outstanding in excess
of US$50,000,000, then the maximum amount of overhead expenses
permitted hereunder shall be increased by US$5,000,000."
(J) Section 6.16 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"Consolidated Capital Base. Permit Consolidated Capital Base at the end
of any quarter, including the quarter ended March 31, 2004 and all
quarters thereafter, to be less than US$115,000,000 plus (i) 75% of all
net new equity invested in LGEC after the quarter ending June 30, 2004,
plus (ii) 50% of Consolidated Net Income, if positive, for each fiscal
year ending subsequent to the fiscal year ended March 31, 2004 and
prior to the date at which compliance is being determined."
(K) Section 12.2(b) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"As between the Administrative Agent and the Canadian Agent on one hand
and the Lenders on the other hand, any amounts received by the
Administrative Agent and the Canadian Agent in connection with the
Fundamental Documents, the application of which is not otherwise
provided for, shall be applied, first, to pay the accrued but unpaid
Commitment Fees in accordance with each Lender's Percentage, second, to
pay accrued but unpaid interest on the Notes in accordance with the
amount of outstanding Loans owed to each Lender, third, to pay the
principal balance outstanding on the Notes (with amounts payable on the
principal balance outstanding on the Notes in accordance with each
Lender's percentage), amounts then due in respect of outstanding
Bankers' Acceptances and unreimbursed draws under the Letter of Credit,
fourth, amounts outstanding under Currency Agreements and Interest Rate
Protection Agreements, and fifth, to pay any other amounts then due
under this Credit Agreement. All amounts to be paid to any Lender by
the Administrative Agent or the Canadian Agent, as applicable, shall be
credited to that Lender, after collection by the Administrative Agent
or the Canadian Agent, as applicable, in immediately available funds
either by wire transfer or deposit in such Lender's correspondent
account with the Administrative Agent or the Canadian Agent, as
applicable, or as such Lender and the Administrative Agent or the
Canadian Agent, as applicable, shall from time to time agree."
(L) Schedule 1.2 of the Credit Agreement (Acceptable Obligors/Allowable
Amounts) is hereby amended by (i) changing the words "Vivendi Universal"
appearing on the list of Acceptable Major Account Debtors to "NBC Universal",
(ii) moving "Canal Plus" from the list of Acceptable Major Account Debtors to
the list of Acceptable Foreign Account Debtors with an Allowable Amount of
US$10,000,000, (iii) deleting "Helkon SK" and "Tobis Filmkunst" from the list of
Acceptable Foreign Account Debtors, (iv) increasing the Allowable Amount for
"Bertelsmann/RTL/BMG" to US$20,000,000 and deleting the references to "RTL TV1
Benelux", "RTL TV Germany" and "RTL2 Fernsehem GmbH Germany" appearing on the
list of Foreign Account Debtors, (v) combining "Icon UK" and "Icon Australia"
into one Acceptable Foreign Account Debtor called "Icon" with an Allowable
Amount of US$10,000,000, (vi) combining "Pathe France" and "Pathe UK" into one
Acceptable Foreign Account Debtor called "Pathe" with an Allowable Amount of
US$10,000,000, (vii) combining "UGC France", "UGC
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UK" and "UGC PH" into one Acceptable Foreign Account Debtor called "UGC" with an
Allowable Amount of US$5,000,000, (viii) combining "TF1 S.A. TV" and "TF1 Video"
into one Acceptable Foreign Account Debtor called "TF1" with an Allowable Amount
of US$8,000,000, (ix) increasing the Allowable Amount for "Musicland Group"
appearing on the list of Acceptable Domestic Account Debtors to US$1,500,000,
and (x) adding the following to the list of Acceptable Domestic Account Debtors:
"HDNet Movies LLC" with an Allowable Amount of US$1,500,000, "Modern
Entertainment Ltd." with an Allowable Amount of US$1,500,000, "NGC Network U.S.,
LLC" with an Allowable Amount of US$1,000,000 and "Oxygen Cable LLC" with an
Allowable Amount of US$1,500,000.
Section 3. Conditions to Effectiveness. The effectiveness of this
Amendment is subject to the satisfaction of all of the following conditions
precedent (the date on which all such conditions have been satisfied being
herein called the "Effective Date"):
(A) the receipt by the Agent of counterparts of this Amendment which,
when taken together, bear the signatures of the Borrowers, each Guarantor, the
Agent and the Required Lenders;
(B) the receipt by the Agent of all fees as set forth in Section 5 of
this Amendment;
(C) the payment of all fees and expenses (including, without
limitation, fees and disbursements of counsel and consultants retained by the
Agent) due and payable by any Credit Party to the Agent and/or the Lenders; and
(D) all legal matters incident to this Amendment shall be satisfactory
to Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Agent.
Section 4. Representations and Warranties. Each Credit Party represents
and warrants that:
(A) after giving effect to this Amendment, the representations and
warranties contained in the Credit Agreement are true and correct in all
material respects on and as of the date hereof as if such representations and
warranties had been made on and as of the date hereof (except to the extent that
any such representations and warranties specifically relate to an earlier date);
and
(B) after giving effect to this Amendment, no Event of Default or
Default will have occurred and be continuing on and as of the date hereof.
Section 5. Fees. The Borrowers agree to pay the Agent for the account
of each of the Lenders who executes this Agreement by June 24, 2004, a fee equal
to .1% of the aggregate Commitment of each such Lender under the Credit
Agreement.
Section 6. Further Assurances. At any time and from time to time, upon
the Agent's request and at the sole expense of the Credit Parties, each Credit
Party will promptly and duly execute and deliver any and all further instruments
and documents and take such further action as the Agent reasonably deems
necessary to effect the purposes of this Amendment.
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Section 7. Fundamental Documents. This Amendment is designated a
Fundamental Document by the Agent.
Section 8. Full Force and Effect. Except as expressly amended hereby,
the Credit Agreement and the other Fundamental Documents shall continue in full
force and effect in accordance with the provisions thereof on the date hereof.
As used in the Credit Agreement, the terms "Agreement", "this Agreement",
"herein", "hereafter", "hereto", "hereof", and words of similar import, shall,
unless the context otherwise requires, mean the Credit Agreement as amended by
this Amendment.
Section 9. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 10. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
Section 11. Expenses. The Borrowers agree to pay all out-of-pocket
expenses incurred by the Agent in connection with the preparation, execution and
delivery of this Amendment, including, but not limited to, the reasonable fees
and disbursements of counsel for the Agent.
Section 12. Headings. The headings of this Amendment are for the
purposes of reference only and shall not affect the construction of or be taken
into consideration in interpreting this Amendment.
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IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
duly executed as of the date first written above:
BORROWERS:
LIONS GATE ENTERTAINMENT CORP.
By:_________________________________________
Name:
Title:
LIONS GATE ENTERTAINMENT INC.
By:_________________________________________
Name:
Title:
GUARANTORS:
408376 B.C. LIMITED
AM PSYCHO PRODUCTIONS, INC.
ATTRACTION PRODUCTIONS LLC
BLUE PRODUCTIONS INC.
CINEPIX ANIMATION INC./ANIMATION CINEPIX INC.
CINEPIX FILMS INC./FILMS CINEPIX INC.
CONFIDENCE PRODUCTIONS, INC.
COVEN PRODUCTIONS CORP.
CUBE FORWARD PRODUCTIONS CORP.
DEAD ZONE PRODUCTION CORP.
DEVILS REJECTS, INC.
FINAL CUT PRODUCTIONS CORP.
FIVE DAYS PRODUCTIONS CORP.
FRAILTY PRODUCTIONS, INC.
HIGH CONCEPT PRODUCTIONS INC.
HYPERCUBE PRODUCTIONS CORP.
KING OF THE WORLD PRODUCTIONS LLC
LG PICTURES INC.
LIONS GATE FILMS CORP.
LIONS GATE FILMS DEVELOPMENT CORP.
LIONS GATE FILMS INC.
LIONS GATE FILMS PRODUCTIONS
CORP./PRODUCTIONS FILMS LIONS
GATE S.A.R.F.
LIONS GATE MUSIC CORP.
LIONS GATE RECORDS, INC.
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LIONS GATE STUDIO MANAGEMENT LTD.
LIONS GATE TELEVISION CORP.
LIONS GATE TELEVISION (ONTARIO) CORP.
LIONS GATE TELEVISION
DEVELOPMENT LLC
LIONS GATE TELEVISION INC.
LUCKY 7 PRODUCTIONS CORP.
MISSING PRODUCTIONS CORP.
MISSING PRODUCTIONS I CORP.
MISSING PRODUCTIONS II CORP.
MOTHER PRODUCTIONS CORP.
M WAYS PRODUCTIONS CORP.
M WAYS II PRODUCTIONS CORP.
PLANETARY PRODUCTIONS, LLC
PRESSURE PRODUCTIONS CORP.
PRISONER OF LOVE PRODUCTIONS CORP.
PROFILER PRODUCTIONS CORP.
PSYCHO PRODUCTIONS SERVICES CORP.
SHUTTERSPEED PRODUCTIONS CORP.
TERRESTRIAL PRODUCTIONS CORP.
VOID PRODUCTIONS CORP.
WRITERS ON THE WAVE
3F SERVICES, INC.
ARIMA INC.
ARTISAN ENTERTAINMENT INC.
ARTISAN FILMED PRODUCTIONS, INC.
ARTISAN HOME ENTERTAINMENT INC.
ARTISAN MUSIC INC.
ARTISAN PICTURES INC.
ARTISAN RELEASING INC.
ARTISAN TELEVISION INC.
BD OPTICAL MEDIA, INC.
BL DISTRIBUTION CORP.
CAVE PRODUCTIONS, INC.
FHCL, LLC
FILM HOLDINGS CO.
FUSION PRODUCTIONS, INC.
LANDSCAPE ENTERTAINMENT CORP.
POST PRODUCTION, INC.
PUNISHER PRODUCTIONS, INC.
SCREENING ROOM, INC.
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SILENT DEVELOPMENT CORP.
VESTRON INC.
By:_________________________________________
Name:
Title:
XXXXX WITCH FILM PARTNERS LTD.
By: Artisan Filmed Productions Inc.
Its: General Partner
By:_________________________________________
Name:
Title:
LENDERS:
JPMORGAN CHASE BANK,
individually and as Administrative Agent
By:_________________________________________
Name:
Title:
Address: 1166 Avenue of the Xxxxxxxx,
00xx xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
BANK LEUMI USA
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
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BNP PARIBAS
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
CITY NATIONAL BANK
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
FLEET NATIONAL BANK
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
9
ISRAEL DISCOUNT BANK OF NEW YORK
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
XX XXXXXX CHASE BANK, TORONTO
BRANCH, individually and as Canadian Agent
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
MANUFACTURERS BANK
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
10
U.S. BANK NATIONAL ASSOCIATION
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
SOCIETE GENERALE
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
THE XXXXX XXXXXXX ORGANIZATION, a
division of Imperial Capital Bank
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
UNION BANK OF CALIFORNIA, N.A.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
11
WESTLB AG (formerly Westdeutsche Landesbank
Girozentrale), NEW YORK BRANCH
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
THE ROYAL BANK OF SCOTLAND PLC
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
ARES VI CLO LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
12
ARES VII CLO LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
ARES VIII CLO LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
ARES LEVERAGED INVESTMENT FUND II, L.P.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
BLACKROCK LIMITED DURATION INCOME TRUST
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
13
MAGNETITE ASSET INVESTORS III LLC
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
APEX (IDM) CDO I LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
BABSON CLO LTD. 2003-I
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
ELC (CAYMAN) CDO SERIES 1999-I
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
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ELC (CAYMAN) LTD. 1999-II
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
ELC (CAYMAN) LTD. 1999-III
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
ELC (CAYMAN) LTD. 2000-I
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
MAPLEWOOD (CAYMAN) LIMITED
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
15
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
PERSEUS CDO I LIMITED
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
SEABOARD CLO 2000 LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
SIMSBURY CLO, LIMITED
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
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XXXXX CLO LTD. 2000-I
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
XXXXX XXXXX LIMITED DURATION INCOME FUND
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
XXXXX XXXXX SENIOR FLOATING RATE TRUST
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
17
XXXXX XXXXX SENIOR INCOME TRUST
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
XXXXX XXXXX VT FLOATING-RATE INCOME FUND
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
XXXXXXX & CO.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
SENIOR DEBT PORTFOLIO
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
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OXFORD STRATEGIC INCOME FUND
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
FIDELITY ADVISOR SERIES II: FIDELITY
ADVISOR FLOATING HIGH RATE INCOME FUND (161)
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
19
ARCHIMEDES FUNDING III, LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
ARCHIMEDES FUNDING IV, LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
ENDURANCE CLO I, LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
ING-ORYX CLO LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
20
NEMEAN CLO LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
SEQUILS-ING I (HBDGM), LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
OCTAGON INVESTMENT PARTNERS II, LLC
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
OCTAGON INVESTMENT PARTNERS III, LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
21
OCTAGON INVESTMENT PARTNERS IV, LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
OCTAGON INVESTMENT PARTNERS V, LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
OCTAGON INVESTMENT PARTNERS VI, LTD.
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
22
XXXXXX DIVERSIFIED INCOME TRUST
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
XXXXXX HIGH YIELD ADVANTAGE FUND
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
XXXXXX HIGH YIELD TRUST
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
XXXXXX VARIABLE TRUST - PVT HIGH YIELD FUND
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
23
FOOTHILL INCOME TRUST, LP
By:_________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
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