CONFORMED COPY
FOURTH AMENDMENT dated as of June 1, 2001 (this
"Amendment"), to the Credit Agreement dated as of February 26,
1999, as amended by the Amendment dated as of January 10,
2000, the Second Amendment dated as of January 31, 2000, the
Third Amendment dated as of June 9, 2000 (the "Credit
Agreement"), among PLAYBOY ENTERPRISES, INC., a Delaware
corporation (the "Company"), PEI HOLDINGS, INC., a Delaware
corporation and wholly owned subsidiary of the Company
("PHI"), the financial institutions from time to time party
thereto (the "Lenders") and CREDIT SUISSE FIRST BOSTON, a bank
organized under the laws of Switzerland, acting through its
New York branch, as administrative agent (in such capacity,
the "Administrative Agent"), as collateral agent and as
issuing bank.
A. The parties hereto have entered into the Credit Agreement,
pursuant to which the Lenders have agreed to extend credit to the Borrower (as
defined in the Credit Agreement) on the terms and subject to the conditions set
forth therein.
B. The Company and PHI have requested that the Lenders agree to
amend certain provisions of the Credit Agreement, and the Lenders are willing,
on the terms and subject to the conditions set forth below, to amend the Credit
Agreement as provided herein.
C. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment of Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) The table and the paragraph below the table in the definition of
"Applicable Percentage" in Section 1.01 of the Credit Agreement is hereby
deleted and replaced with the following table and paragraph:
Eurodollar ABR
Consolidated Leverage Ratio Spread Spread
--------------------------- ------ ------
Category 1
Greater than or equal to 5.00 to 1.00 4.00% 3.00%
Category 2
Less than 5.00 to 1.00 but greater than or equal to 4.50 to 1.00 3.75% 2.75%
Consolidated Leverage Ratio Spread Spread
--------------------------- ------ ------
Category 3
Less than 4.50 to 1.00 but greater than or equal to 4.00 to 1.00 3.50% 2.50%
Category 4
Less than 4.00 to 1.00 but greater than or equal to 3.00 to 1.00 3.25% 2.25%
Category 5
Less than 3.00 to 1.00 3.00% 2.00%
; provided, that (i) from June 1, 2001, until the Determination Date following
the delivery of financial statements and certificates for the fiscal quarter
ended September 30, 2001, pursuant to Section 5.03(b), the Applicable Percentage
shall be determined by reference to Category 2; provided, that if the Category
indicated by the financial statements delivered pursuant to Section 5.03(b) for
the applicable fiscal quarter is Category 1, the "Applicable Percentage" for any
such period shall be Category 1; (ii) if the Borrower fails to deliver the
financial statements and certificates pursuant to Section 5.03(a) or (b), the
Applicable Percentage shall continue to be determined by the Category in effect
immediately prior to the date by which such financial statements and
certificates were required to have been delivered under such section and (iii)
except as provided in the preceding clause (i), after the delivery of such
financial statements and certificates, the Applicable Percentage shall be
redetermined by reference to the Category indicated by such financial
statements. Any increase in the interest rates or fees in effect upon the
delivery of the financial statements and certificates pursuant to Section 5.03
(a) or (b) shall be retroactive to (and including) the second Business Day
following the day by which such financial statements and certificates were
required to have been delivered under such section (and the Borrower shall
promptly pay to the Administrative Agent, for distribution to the Lenders, the
amount of such increase allocable to periods for which such interest or fees
shall already have been paid).
(b) The definition of "Consolidated EBITDA" in Section 1.01 of the
Credit Agreement is hereby amended by inserting the following new sentence at
the end thereof:
"Solely for purposes of this definition, if at any time on or prior
to December 31, 2001, (i) the Company has executed a definitive
purchase agreement providing for the Califa Acquisition, (ii) such
agreement has not been terminated and (iii) the Califa Acquisition
has not been consummated, Consolidated EBITDA shall be determined on
a pro forma basis as if the Califa Acquisition had been completed
during the fiscal quarter ending June 30, 2001. In addition, solely
for the purposes of this definition, if, at any time Consolidated
EBITDA is being determined, the Borrower or any Restricted
Subsidiary shall have completed an Acquisition or Disposition since
the beginning of the relevant period (which, for purposes of
Sections 6.14, 6.15 and 6.16, shall mean the prior four fiscal
quarters ended on or immediately preceding the relevant date),
Consolidated EBITDA shall be determined on a pro forma basis as if
such Acquisition or Disposition had occurred at the beginning of
such period."
(c) The definition of "Consolidated Fixed Charge Coverage Ratio" in
Section 1.01 of the Credit Agreement is hereby amended by inserting the
parenthetical "(other than any cash payments of the Califa Purchase Price,
excluding $250,000 per quarter listed under "Amounts Payable in Cash" on
Schedule 1.01(a) hereto)" at the end of clause (iii) thereof.
(d)(i) Clause (a) of the definition of "Excess Cash Flow" in Section
1.01 of the Credit Agreement is hereby amended to read in its entirety as
follows:
"Consolidated Net Income, adjusted to exclude any income, gains or
losses attributable to any Asset Sale, the proceeds of which are
required to be applied to prepay Loans under Section 2.13(b); minus"
(d)(ii) Clause (b) of the definition of "Excess Cash Flow" is hereby
deleted and replaced in its entirety with "(b) any cash payments of the Califa
Purchase Price; plus".
(e) The parenthetical in clause (e) of the definition of
"Indebtedness" in Section 1.01 of the Credit Agreement is hereby amended by
inserting at the end thereof "and excluding all obligations in respect of the
Califa Purchase Price, as set forth on Schedule 1.01(a)".
(f) The following definitions shall be inserted in Section 1.01 in
their appropriate alphabetical positions:
"Califa Acquisition" shall mean the acquisition of substantially all
the assets of Califa Entertainment Group, Inc., a California
corporation, and V.O.D., Inc., a California corporation, by the
Company, pursuant to and on substantially the terms set forth in the
bank presentation dated April 17, 2001."
"Califa Purchase Price" shall mean the aggregate amounts payable by
the Borrower or any Subsidiary in connection with the Califa
Acquisition, as set forth on Schedule 1.01(a) hereto under the
headings "Amounts Payable in Cash" and "Amounts Payable in Cash or
Stock at the Option of the Company". As part of the "Califa Purchase
Price", the Borrower shall cause Spice to cancel the promissory note
in the amount of $10,000,000 issued to Spice in 1999."
(g)(i) Section 2.06(a) is hereby amended by deleting clause (ii) in
its entirety and inserting the following:
"(ii) on and after the date on which the Xxxxxxx Xxxxxxxxxxxxx
Transaction shall be completed, 3.50% per annum, if the Consolidated
Leverage Ratio is greater than or equal to 5.00 to 1.00, and 3.25%
per annum, otherwise."
(g)(ii) Section 2.06(b) is hereby amended by deleting clause (ii) in
its entirety and inserting the following:
"(ii) on and after the date on which the Xxxxxxx Xxxxxxxxxxxxx
Transaction shall be completed, 4.50% per annum, if the Consolidated
Leverage Ratio is greater than or equal to 5.00 to 1.00, and 4.25%
per annum, otherwise."
(h) Section 5.03 is hereby amended by adding the following new
section (k):
"(k) within 45 days after the end of each month (other than a month
ending on a fiscal quarter end), an unaudited report in a form
reasonably satisfactory to the Administrative Agent setting forth
(i) the revenues and (ii) the operating income before amortization
and depreciation of the Company and its consolidated subsidiaries,
in each case for each business segment, during such month."
(i) Section 6.05(c) of the Credit Agreement is hereby amended by
deleting the clause "other than the Equity Interests of Restricted Subsidiaries"
and inserting in its place "other than the Equity Interests of Restricted
Subsidiaries (except for VIPress Poland sp. z o.o. and EuroEast Publishing
Ventures, B.V.)".
(j) The last sentence of Section 6.05 (Mergers, Consolidations and
Sales of Assets) of the Credit Agreement is hereby amended to read in its
entirety as follows:
"Notwithstanding anything to the contrary in this Section 6.05, the
Company may consummate the Playboy Merger, the Spice Merger, the
Stock Transfer, the Xxxxxxx Xxxxxxxxxxxxx Transaction and the Califa
Acquisition."
(k) The table appearing in Section 6.14 (Consolidated Leverage
Ratio) of the Credit Agreement is hereby replaced with the following table:
"Date Ratio
----- -----
June 30, 2001 5.25 to 1.00
September 30, 2001 5.25 to 1.00
December 31, 2001 5.35 to 1.00
March 31, 2002 5.35 to 1.00
June 30, 2002 4.75 to 1.00
September 30, 2002 4.00 to 1.00
December 31, 2002 3.75 to 1.00
March 31, 2003 3.50 to 1.00
June 30, 2003 3.25 to 1.00
September 30, 2003 and thereafter 3.00 to 1.00"
(l) The table appearing in Section 6.15 (Consolidated Interest
Expense Coverage Ratio) of the Credit Agreement is hereby replaced with the
following table:
"Date Ratio
----- -----
June 30, 2001 1.75 to 1.00
September 30, 2001 2.00 to 1.00
December 31, 2001 2.00 to 1.00
March 31, 2002 2.00 to 1.00
June 30, 2002 2.25 to 1.00
September 30, 2002 2.50 to 1.00
December 31, 2002 2.75 to 1.00
March 31, 2003 and thereafter 3.00 to 1.00"
(m) The table appearing in Section 6.16 (Consolidated Fixed Charge
Coverage Ratio) of the Credit Agreement is hereby replaced with the following
table:
"Date Ratio
----- -----
June 30, 2001 0.90 to 1.00
September 30, 2001 0.90 to 1.00
December 31, 2001 1.00 to 1.00
March 31, 2002 1.00 to 1.00
June 30, 2002 1.00 to 1.00
September 30, 2002 1.10 to 1.00
December 31, 2002 1.10 to 1.00
March 31, 2003 1.10 to 1.00
June 30, 2003 1.10 to 1.00
September 30, 2003 and thereafter 1.25 to 1.00"
(n) The following new Section 6.18 is hereby inserted at the end of
Article VI of the Credit Agreement:
"SECTION 6.18. Cash Payments in Respect of Califa Purchase
Price. Pay any portion of the Califa Purchase Price set forth on
Schedule 1.01(a) hereto under the heading "Amounts Payable in Cash
or Stock at the Option of the Company" other than in common stock of
the Company unless, on the last day of each of the two consecutive
fiscal quarters of the Company ended on or immediately preceding the
date of such payment, the Consolidated Leverage Ratio (after giving
pro forma effect to any borrowings related to such payments as if
they had occurred on the last day of the most recently ended fiscal
quarter) shall not have exceeded 3:00:1.00 for each of such two
consecutive fiscal quarters."
(o) Schedule 1.01(a) hereto is hereby added as a new Schedule
1.01(a) to the Credit Agreement.
SECTION 2. Representations and Warranties. Each of the Company and
PHI represents and warrants to each Lender that, on and as of the date hereof,
and after giving effect to the amendments provided for in Section 1 of this
Amendment:
(a) The representations and warranties set forth in Article III of
the Credit Agreement are true and correct in all material respects with
the same effect as if made on and as of the date hereof, except to the
extent such representations and warranties expressly relate to an earlier
date.
(b) No Event of Default or Default has occurred and is continuing.
SECTION 3. Effectiveness. This Amendment shall become effective upon
the execution of counterparts of the signature pages hereto by the Company, PHI,
the Administrative Agent and Lenders constituting the Required Lenders;
provided, that the amendments set forth in Section 1 shall not become effective
until each of the following conditions precedent shall have been satisfied, and
if any of such conditions shall not have been satisfied by August 1, 2001, then
the provisions of Section 1 shall terminate and cease to be of any force or
effect:
(a) The Borrower shall have paid to the Administrative Agent, for
the account of each Lender that shall have executed this Amendment at or
prior to noon, New York City time, on June 1, 2001, in immediately
available funds, an amendment fee equal to 0.25% of the aggregate
outstanding Term Loans, Revolving Credit Exposure and unused Revolving
Credit Commitment of such Lender on the date hereof (determined after
giving effect to any prepayments and Commitment reductions prior to the
date of this Amendment).
(b) The Administrative Agent shall have received such evidence as
the Administrative Agent or Cravath, Swaine & Xxxxx, counsel to the
Administrative Agent, shall reasonably have requested as to the corporate
power and authority of the Company and PHI to enter into and perform their
obligations under this Amendment reasonably satisfactory in form and
substance to the Administrative Agent and to Cravath, Swaine & Xxxxx.
The Administrative Agent shall notify the Lenders of the satisfaction of the
foregoing conditions, and such notice shall, in the absence of manifest error,
conclusively evidence the satisfaction of such conditions.
SECTION 4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 5. Expenses. The Borrower shall pay all reasonable
out-of-pocket fees and expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of this
Amendment, including, but not limited to, the reasonable fees, disbursements and
other charges of Cravath, Swaine & Xxxxx, counsel to the Administrative Agent.
SECTION 6. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be an original but all of which,
when taken together, shall constitute but one instrument. Delivery of an
executed counterpart of a signature page of this Amendment by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. Headings. Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
SECTION 8. Effect of Amendment. Except as specifically stated
herein, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof. As used therein, the terms "Agreement",
"herein", "hereunder", "hereinafter", "hereto", "hereof" and words of similar
import shall, unless the context otherwise requires, refer to the Credit
Agreement as modified hereby.
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the date first
above written.
PLAYBOY ENTERPRISES, INC,
by
/s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, Treasurer
PEI HOLDINGS, INC.,
by
/s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, individually and as
Administrative Agent, Collateral Agent and Issuing
Bank,
by
/s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
by
/s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
9
BANK OF AMERICA, N.A.,
by
/s/ Xxxxx X. Xxxxx, Xx.
-----------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Senior Vice President
GALAXY CLO 1999-1
by
/s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Agent
ING (U.S.) CAPITAL LLC
by
/s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Director
KZH ING-2 LLC
by
/s/ Xxxxx Xxx
-------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH ING-3 LLC
by
/s/ Xxxxx Xxx
-------------
Name: Xxxxx Xxx
Title: Authorized Agent
10
KZH SOLEIL LLC
by
/s/ Xxxxx Xxx
-------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH SOLEIL-2 LLC
by
/s/ Xxxxx Xxx
-------------
Name: Xxxxx Xxx
Title: Authorized Agent
LASALLE BANK NATIONAL ASSOCIATION
by
/s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Title: Vice President
MOUNTAIN CAPITAL CLO I, LTD.
by
/s/ X. Xxxxx
------------
Name: X. Xxxxx
Title: Authorized Signatory
PPM AMERICA, INC.
by
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
PPM SPYGLASS FUNDING TRUST
11
by
/s/ Xxx X. Xxxxxx
-----------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
