AMENDMENT NO. 2 TO CREDIT AGREEMENT
Exhibit 10.78
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2 dated as of June 22, 2010 (the “Amendment”) to the Credit, Security,
Guaranty and Pledge Agreement dated as of October 6, 2009 (as amended, supplemented or otherwise
modified, renewed or replaced from time to time, the “Credit Agreement”) among (i) LIONS
GATE MANDATE FINANCING VEHICLE INC., (ii) the BORROWERS REFERRED TO THEREIN, (iii) the GUARANTORS
referred to therein, (iv) the LENDERS referred to therein (each, a “Lender,” and
collectively, the “Lenders”), (v) JPMORGAN CHASE BANK, N.A., as Administrative Agent (in
such capacity, the “Administrative Agent”) and as Issuing Bank, (vi) UNION BANK, N.A., as
Co-Administrative Agent and (vii) XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agent.
The Borrowers have requested, and the Administrative Agent and the Required Lenders have
agreed, to amend the Credit Agreement as set forth herein.
Therefore, the parties hereto hereby agree as follows:
1. Defined Terms. All terms used but not otherwise defined herein have the
meanings assigned to them in the Credit Agreement.
2. Amendments to Credit Agreement. Subject to the satisfaction of the
conditions precedent set forth in Section 3 below, the Credit Agreement is hereby amended
as of the Effective Date (as defined below) as follows:
(a) The definition of “Change in Management” in Article 1 of the Credit Agreement is
hereby amended by deleting the words “any three of (i) Xxx Xxxxxxxxxx, (ii) Xxxxxxx Xxxxx, (iii)
Xxxxxx Xxxxx or (iv) Xxxxxx Xxxxx” in the first two lines thereof and replacing them with the
following:
(b) “either (i) both Xxx Xxxxxxxxxx and Xxxxxxx Xxxxx or (ii) all four of Xxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxx and Xxxxxxx Xxxxxxxxx”.
3. Conditions to Effectiveness. The provisions of Section 2 of
this Amendment shall not become effective until the date upon which all of the following conditions
precedent have been satisfied (such date, the “Effective Date”):
(a) the Administrative Agent shall have received counterparts of this Amendment
which, when taken together, bear the signatures of each of the Borrowers, each of the Guarantors
and each of the Required Lenders;
(b) the payment of all fees and expenses (including, without limitation, fees and
disbursements of counsel and consultants retained by the Administrative Agent) due and payable by
any Credit Party to the Administrative Agent and/or the Lenders pursuant to the Credit Agreement or
any other Fundamental Document; and
(c) all legal matters incident to this Amendment shall be satisfactory to Xxxxxx,
Xxxxx & Bockius LLP, counsel for the Administrative Agent.
4. Representations and Warranties. Each Credit Party represents and
warrants that:
(c) 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
(d) after giving effect to this Amendment, no Default or Event of Default will have occurred
and be continuing on and as of the date hereof.
5. Fundamental Document. This Amendment is designated a Fundamental
Document by the Administrative Agent.
6. Full Force and Effect. Except as expressly amended hereby, the Credit
Agreement (as previously amended) 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,” “this Credit Agreement,” “herein,” “hereafter,” “hereto,” “hereof” and words of
similar import shall mean, unless the context otherwise requires, the Credit Agreement as amended
by this Amendment. This Amendment shall not be construed as extending to any other matter, similar
or dissimilar, or entitling the Credit Parties to any future amendments regarding similar matters
or otherwise.
7. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument.
9. Expenses. The Borrowers agree to pay all out-of-pocket expenses
incurred by the Administrative Agent and Co-Administrative Agent in connection with the
preparation, enforcement, waiver or modification, execution and delivery of this Amendment,
including, but not limited to, the reasonable fees and disbursements of counsel for the
Administrative Agent and the Co-Administrative Agent.
10. Headings. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of this Amendment.
[Signatures Begin on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
duly authorized officers, all as of the date and year first above written.
PARENT: LIONS GATE MANDATE FINANCING VEHICLE INC. |
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By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | ||||
BORROWERS NEXT PRODUCTION INC. |
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By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | ||||
IWC PRODUCTIONS, LLC |
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By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | ||||
[Signature Page to Amendment No. 2]
LENDERS: JPMORGAN CHASE BANK, N.A. individually and as Administrative Agent |
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By: | /s/ Xxx X. Xxxxx | |||
Name: | Xxx X. Xxxxx | |||
Title: | Vice President | |||
UNION BANK, N.A. individually and as Co-Administrative Agent |
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By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Vice President | |||
XXXXX FARGO BANK, NATIONAL ASSOCIATION individually and as Documentation Agent |
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By: | /s/ Xxxxxxxxx Xxxx | |||
Name: | Xxxxxxxxx Xxxx | |||
Title: | Senior Vice President | |||
COMERICA BANK |
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By: | /s/ Xxxx Xxxx | |||
Name: | Xxxx Xxxx | |||
Title: | Vice President | |||
U.S. BANK NATIONAL ASSOCIATION |
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By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Assistant Vice President | |||
CITY NATIONAL BANK |
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By: | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Senior Vice President | |||
[Signature Page to Amendment No. 2]