Exhibit 10.37
AMENDMENT NO. 4 dated as of February 18,
2003 to the Credit, Security, Guaranty and
Pledge Agreement dated as of June 20, 2000,
as amended, among First Look Media, Inc.
(formerly known as Overseas Filmgroup, Inc.)
(the "Borrower"), the Guarantors named
therein, the Lenders referred to therein,
JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as Administrative
Agent (in its capacity as such, the
"Administrative Agent") and as Issuing Bank
(in its capacity as such, the "Issuing
Bank") (as the same may be amended,
supplemented or otherwise modified, the
"Credit Agreement").
INTRODUCTORY STATEMENT
----------------------
The Lenders and the Administrative Agent have agreed to amend the Credit
Agreement, all on the terms and subject to the conditions hereinafter 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) The definition "Borrowing Base" in Article 1 of the Credit Agreement is
hereby amended as follows:
(1) Clause (c) is amended in its entirety to read as follows:
"(c) the following amount determined in accordance with the
appropriate reference period:
July 1, 2002 to The lesser of (i) $11,000,000 or
Xxxxx 00, 0000 (xx) 50% of the Library Credit
April 1, 2003 to The lesser of (i) $10,000,000 or
June 30, 2003 (ii) 45% of the Library Credit
July 1, 2003 to The lesser of (i) $9,000,000 or
September 30, 2003 (ii) 40% of the Library Credit
October 1, 2003 to The lesser of (i) $8,000,000 or
the Commitment (ii) 35% of the Library Credit
Termination Date
provided, that in no event shall the value of the Library Credit
for purposes of determining Borrowing Base exceed $22,662,262;
plus"
(B) The definition of "Library Credit" in Article 1 of the Credit Agreement
is hereby amended in its entirety to read as follows:
""Library Credit" shall mean $22,662,262, as of July 1, 2002,
which amount represents the value of Completed but unsold Product and
which amount shall be (i) decreased as a result of (a) the sale of
such Completed but unsold Product by the amount previously included in
the value of Completed but unsold Product and (b) the reduction
resulting from any adjustment in ultimates used in determining the
value of Completed but unsold Product so that the ultimates are
reflective of management's then current assessment of the value of
such ultimates and so that such ultimates are consistent with
ultimates used for financial reporting purposes and/or (ii) increased
as a result of the acquisition or production of additional Completed
but unsold Product by the respective actual acquisition or production
cost, marketing and distribution costs and fees attributable to such
item of Product based upon Borrower's ultimates relating to such item
of Product; the value of the Completed but unsold Product may be
redetermined once every twelve (12) months, at the request of the
Administrative Agent, by an independent consultant selected by the
Administrative Agent in its reasonable discretion to an amount equal
to the net present value of unsold rights without double-counting for
any item of value otherwise included in the Borrowing Base and will be
subject to periodic downward adjustments by the Borrower to reflect a
decrease in market value indicated by subsequent sales.
(C) The definition of "Unsold Major Foreign Territory" in Article 1 of the
Credit Agreement is hereby amended in its entirety to read as follows:
""Unsold Major Foreign Territory" shall mean each of (i)
Australia/New Zealand, (ii) Benelux, (iii) France, (iv) Germany, (v)
Italy, (vi) Japan, (vii) Scandinavia, (viii) Spain, (ix) United
Kingdom, and (x) all other foreign territories in the aggregate, to
the extent no part of such territory has not been presold."
(D) The definition of "Unsold Territory Credit" in Article 1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
""Unsold Territory Credit" shall mean with respect to each item
of Product being funded hereunder, an amount equal to 50% of the
aggregate amount, determined on a territory-by-territory basis for
each Unsold Major Foreign Territory, of the lesser of (x) the
Borrower's good faith estimates of the minimum guarantee to be
obtained with respect to each such Unsold Major Foreign Territory and
(y) the Estimated Value of each such Unsold Major Foreign Territory
(or if the major territories that were sold were sold in the aggregate
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for less than the aggregate amount contemplated for such territories
under "Estimated Value," an amount equal to the product of the
Estimated Value of the Unsold Major Foreign Territory and a fraction
the numerator of which is the aggregate contract amount for the sold
territories and the denomination of which is Estimated Value of those
sold territories expressed in dollars; provided, however, that no
Unsold Territory Credit shall be included in the Borrowing Base with
respect to such item of Product unless (i) at least three of the
territories listed in the definition "Unsold Major Foreign
Territories" remain unsold and (ii) the Borrower shall have delivered
to the Administrative Agent satisfactory evidence that it has
concluded presales for at least three (3) of the territories listed in
the definition "Estimated Value" (at least one of which shall be
either France, Germany, Japan or the United Kingdom); further
provided, that six months subsequent to Completion, no Unsold
Territory Credit will be included in the Borrowing Base with respect
to such item of Product and the amount of unsold territory credit
shall be reduced upon the sale of such territory by an amount equal to
the greater of the amount included in the Unsold Territory Credit for
that territory and the actual amount of the sale."
(E) Schedule 1.2 to the Credit Agreement is hereby amended by inserting the
following in its proper place:
Customer Location Territory OFG Limit
-------- -------- --------- ---------
Xxxxxxxx Merchandisers (Walmart) Domestic USA 500,000
Crown Media Domestic USA 500,000
Egmont Entertainment Foreign Netherland 1,000,000
LAPTV Atlanta Partners Foreign Latin America 1,000,000
Oxygen Domestic USA 500,000
Premium Movie Partnership Foreign Australia 250,000
Presidio Corporation Foreign Japan 500,000
Spentzos Film Foreign Greece 500,000
Telecine Foreign Brazil 500,000
Section 3. Conditions to Effectiveness. The effectiveness of this Amendment
is subject to the receipt by the Administrative Agent of counterparts of this
Amendment which, when taken together, bear the signatures of the Borrower, each
Guarantor, the Administrative Agent, the Issuing Bank and the Lenders which, in
the aggregate, hold the minimum percentage of the aggregate Credit Exposure
required pursuant to Section 13.11 of the Credit Agreement (the date on which
such condition has been satisfied being herein called the "Effective Date").
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
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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. Further Assurances. At any time and from time to time, upon the
Administrative 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 Administrative
Agent reasonably deems necessary to effect the purposes of this Amendment.
Section 6. Fundamental Documents. This Amendment is designated a
Fundamental Document by the Administrative Agent.
Section 7. 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 8. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 9. 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 10. Expenses. The Borrower agrees to pay all out-of-pocket expenses
incurred by the Administrative 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 Administrative Agent.
Section 11. 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:
BORROWER:
FIRST LOOK MEDIA, INC. (formerly known as OVERSEAS
FILMGROUP, INC.)
By: /s/ Xxxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title:
GUARANTORS:
INTRASTATE FILM DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title:
FIRST LOOK MUSIC, INC. (formerly known as
JACARANDA MUSIC, INC.)
By: /s/ Xxxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title:
WALRUS PICTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title:
ALIEN TOWERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title:
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CODE 99 PRODUCTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title:
MAP PRODUCTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title:
LENDERS:
JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank),
Individually and as Administrative Agent
and Issuing Bank
By: /s/ Xxxxxx Xxxxxxxxx
____________________________________
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BNP PARIBAS
By: /s/ X. Xxxxxxx
____________________________________
Name: X. Xxxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx Xxxxxxxx
____________________________________
Name: Xxxxxxxx Xxxxxxxx
Title: Director
BANKGESELLSCHAFT BERLIN AG
By: /s/ Herc van Wyk
____________________________________
Name: Herc van Wyk
Title: Director
By: /s/ Xxxxxxxx Sarafjan
____________________________________
Name: Xxxxxxxx Sarafjan
Title: Manager
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CITY NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxx
____________________________________
Name: Xxxxxx X. Xxxxx
Title:Senior Vice President
XXXXXX & CO.
By: /s/ X. X. Xxxxxxx
____________________________________
Name: X. X. Xxxxxxx
Title: Commercial Banker
COMERICA BANK - CALIFORNIA
By: /s/ Xxxxxx Xxxxxxxxx
____________________________________
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
VEREINS-UND WESTBANK AG
By: /s/ A. Druskeit
____________________________________
Name: A. Druskeit
Title: Assistant Vice President
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