SIXTH AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
EXHIBIT 10.1
EXECUTION COPY
SIXTH AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
SIXTH AMENDMENT TO CREDIT AND GUARANTY AGREEMENT, dated as of May 14, 2008 (this
“Amendment”), to the Credit and Guaranty Agreement, dated as of April 30, 2007 (as amended,
restated, supplemented or modified from time to time, the “Credit Agreement”), by and among
Xxxxxxxxx Company, a Michigan corporation (“Holdings”), Xxxxxxxxx Services Company, a
Michigan corporation (“Xxxxxxxxx Services”), certain subsidiaries of Holdings identified on
the signature page hereto as “Borrowers” (such Subsidiaries, together with Xxxxxxxxx Services, are
referred to individually as a “Borrower” and collectively, jointly and severally, as
“Borrowers”), certain subsidiaries of Holdings identified on the signature page hereto as
“Guarantors” (such subsidiaries, together with Holdings, are referred to individually as a
“Guarantor” and collectively, jointly and severally, as “Guarantors”), the lenders
party hereto from time to time (“Lenders”), and Silver Point Finance, LLC (“Silver
Point”), as administrative agent for Lenders (in such capacity, together with its successors
and assigns in such capacity, the “Administrative Agent”) and as collateral agent for
Lenders (in such capacity, together with its successors and assigns in such capacity, the
“Collateral Agent” and together with Administrative Agent, each an “Agent” and
collectively the “Agents”).
WHEREAS, Borrowers and Guarantors have requested that Agents and Lenders agree to amend
certain terms and conditions of the Credit Agreement, in each case, as more fully set forth herein;
and
WHEREAS, Agents and Lenders have agreed to make such amendments to the Credit Agreement, in
each case, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. All terms used herein which are defined in the Credit Agreement and
not otherwise defined herein are used herein as defined therein.
2. Amendments to Credit Agreement.
(a) Section 1.1 of the Credit Agreement is hereby amended by adding the following new
definitions thereto, in appropriate alphabetical order, to read in its entirety as follows:
“‘Trade Lien Agent’ shall mean the agent for certain trade creditors
under the Trade Lien Agreement, and its successors and assigns in
such capacity.”
“‘Trade Lien Agreement’ shall mean a Trade Lien Agreement, by and
among the Borrowers, the Guarantors, the Trade Lien Agent and the
trade creditors from time to time party thereto, in form and
substance satisfactory to the Agents and Lenders.”
“‘Trade Lien Intercreditor Agreement’ shall mean an Intercreditor
and Lien Subordination Agreement, by and among the Agents, the
Working Capital Agent and the Trade Lien Agent, and acknowledged by
the Borrowers and the Guarantors, in form and substance satisfactory
to the Agents and Lenders, as the same may be amended, supplemented
or
otherwise modified from time to time and any annexes, exhibits,
schedules to any of the foregoing.”
(b) Section 1.1 of the Credit Agreement is hereby amended by amending and restating the
definition of the term “Fixed Charge Coverage Ratio” to read in its entirety as follows:
“‘Fixed Charge Coverage Ratio’ means the ratio as of the last day of
any Fiscal Month of (a) Consolidated Adjusted EBITDA for the twelve
month period most recently ended, taken as a single accounting
period (or in the case of any period ended on or prior to May 2,
2009, Consolidated Adjusted EBITDA for the period from May 4, 2008
through the date of determination), to (b) Consolidated Fixed
Charges for such period.”
(c) Section 1.1 of the Credit Agreement is hereby amended by amending and restating clause (f)
of the definition of “Consolidated Adjusted EBITDA” contained therein to read in its entirety as
follows:
“(f) amortization of License Advances and Exclusive Distribution Costs;
plus”
(d) Section 1.1 of the Credit Agreement is hereby amended by deleting the word “Amounts”
contained in clause (f) of the definition of “Consolidated Excess Cash Flow” contained therein and
inserting the word “Costs” in its stead.
(e) Section 1.1 of the Credit Agreement is hereby amended by amending and restating clause
(vi) of the definition of “Consolidated Fixed Charges” contained therein to read in its entirety as
follows:
“(vi) License Advances paid in cash and Exclusive Distribution Costs paid
in cash; plus”
(f) Section 1.1 of the Credit Agreement is hereby amended by adding the phrase “Trade Lien
Intercreditor Agreement,” immediately after the phrase “Intercreditor Agreement,” in the definition
of the term “Credit Documents” contained therein.
(g) Section 1.1 of the Credit Agreement is hereby amended by deleting each reference to the
phrase “Section 6.7(f)” contained in the definition of the term “Permitted Acquisition” and
inserting the phrase “Section 6.7(g)” in its stead.
(h) Section 2.7(a) of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
“2.7 Interest on Loans.
(a) Except as otherwise set forth herein, each Class of Loan shall bear
interest on the unpaid principal amount thereof from the date made through
repayment (whether by acceleration or otherwise) thereof as follows:
(i) in the case of Tranche A Term Loans and Revolving Loans:
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(A) if a Base Rate Loan, at the Base Rate plus seven percent (7.0%)
per annum; or
(B) if a LIBOR Rate Loan, at the Adjusted LIBOR Rate plus eight
percent (8.0%) per annum;
(ii) in the case of Tranche B Term Loans:
(A) if a Base Rate Loan, at the Base Rate plus ten percent (10.0%)
per annum; or
(B) if a LIBOR Rate Loan, at the Adjusted LIBOR Rate plus eleven
percent (11.0%) per annum.”
(i) Section 5.1(i) of the Credit Agreement is hereby amended by adding the following proviso
to the end thereof to read in its entirety as follows:
“provided, that the Financial Plan required to be submitted
on May 5, 2008 shall not be required to include information for the
2010, 2011 and 2012 Fiscal Years of the Credit Parties so long as
such information is delivered to Agents by not later than December
31, 2008.”
(j) Section 5.21 of the Credit Agreement is hereby amended by deleting the phrase “April 15,
2008” contained therein and inserting the phrase “August 31, 2008” in its stead.
(k) Section 6.2 of the Credit Agreement is hereby amended by (i) deleting the word “and” at
the end of clause (o) thereof, (ii) deleting the period at the end of clause (p) thereof and
inserting a semicolon and the word “and” in its stead, and (iii) adding the following new clause
(q) to the end thereof to read in its entirety as follows:
“(q) Liens in favor of the Trade Lien Agent under the Trade Lien
Agreement, so long as any such Lien is subject to the Trade Lien
Intercreditor Agreement;”
(l) Section 6.4 of the Credit Agreement is hereby amended by deleting each reference to the
phrase “Section 6.7(f)” contained therein and inserting the phrase “Section 6.7(g)” in its stead.
(m) Clause (v) of Section 6.6(a) of the Credit Agreement is hereby amended by inserting the
parenthetical “(or in the case of amounts held exclusively for purposes of payroll, two Business
Days)” immediately following the phrase “one Business Day” contained therein.
(n) Clause (e) of Section 6.6 of the Credit Agreement is hereby amended and restated to read
in its entirety as follows:
“(e) Consolidated Capital Expenditures, License Advances, Exclusive
Distribution Costs and Software Development Costs, in each case, to
the extent permitted by Section 6.7(b);”
(o) Section 6.7 of the Credit Agreement is hereby amended and restated to read in its entirety
as follows:
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“6.7 Financial Covenants.
(a) Consolidated Adjusted EBITDA. Holdings shall not
permit Consolidated Adjusted EBITDA as at the end of the
most-recently-ended Fiscal Month for the trailing twelve-month
period then ended (or in the case of any period ended on or prior to
May 2, 2009, for the period from May 4, 2008 through the date of
determination) to be less than the correlative amount indicated
below:
| Consolidated Adjusted | ||
| Fiscal Month Ended On or About | EBITDA | |
| May 31, 2008 | ($1,637,000) | |
| June 30, 2008 | ($1,478,000) | |
| July 31, 2008 | ($2,445,000) | |
| August 30, 2008 | ($383,000) | |
| September 30, 2008 | $1,613,000 | |
| October 31, 2008 | $8,347,000 | |
| November 30, 2008 | $23,677,000 | |
| December 31, 2008 | $28,676,000 | |
| January 31, 2009 | $20,335,000 | |
| February 28, 2009 | $21,581,000 | |
| March 31, 2009 | $22,018,000 | |
| April 30, 2009 and each Fiscal Month ended thereafter | $23,331,000 |
(b) Maximum Consolidated Capital Expenditures, License
Advances, Exclusive Distribution Costs and Software Development
Costs. Holdings shall not make or incur any Capital
Expenditures, License Advances, Exclusive Distribution Costs or
Software Development Costs. Holdings shall not permit its
Subsidiaries to make or incur Consolidated Capital Expenditures,
License Advances, Exclusive Distribution Costs and Software
Development Costs in an aggregate amount for all of its Subsidiaries
to exceed the lesser of (i) the Permitted Capital Expenditure Amount
(as hereinafter defined) for such period, and (ii) the amount
specified below for such period.
| Period | Amount | |||
April 20, 2008 through Fiscal Month ended
on or about May 31, 2008 |
$ | 3,350,000 | ||
April 20, 2008 through Fiscal Month ended
on or about June 30, 2008 |
$ | 5,000,000 | ||
April 20, 2008 through Fiscal Month ended
on or about July 31, 2008 |
$ | 6,450,000 | ||
April 20, 2008 through Fiscal Month ended
on or about August 31, 2008 |
$ | 7,800,000 | ||
April 20, 2008 through Fiscal Month ended
on or about September 30, 2008 |
$ | 9,250,000 | ||
April 20, 2008 through Fiscal Month ended
on or about October 31, 2008 |
$ | 10,000,000 | ||
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| Period | Amount | |||
April 20, 2008 through Fiscal Month ended
on or about November 30, 2008 |
$ | 10,750,000 | ||
April 20, 2008 through Fiscal Month ended
on or about December 31, 2008 |
$ | 11,500,000 | ||
April 20, 2008 through Fiscal Month ended
on or about January 31, 2009 |
$ | 12,250,000 | ||
April 20, 2008 through Fiscal Month ended
on or about February 28, 2009 |
$ | 13,000,000 | ||
April 20, 2008 through Fiscal Month ended
on or about March 31, 2009 |
$ | 13,750,000 | ||
April 20, 2008 through Fiscal Month ended
on or about April 30, 2009 |
$ | 14,500,000 | ||
Any period after April 30, 2009 |
An amount to be agreed between Borrowers and Agents | |||
‘Permitted Capital Expenditure Amount’ shall mean each
amount that is approved in writing by the Agents (which approval may
be delivered by Agents to Holdings via email, and may not be
unreasonably withheld) for such purpose for such period following
receipt of a written request from Holdings therefor, supported by
any schedules and other documentation Agents may reasonably request
(it being understood and agreed that no amount approved by Agents
shall be used for any purpose other than the purpose detailed in the
applicable request).
(c) Maximum Lease Obligations. Holdings shall not create,
incur or suffer to exist, or permit any of its Subsidiaries to
create, incur or suffer to exist, any obligations as lessee (i) for
the payment of rent for any personal property in connection with any
sale and leaseback transaction, or (ii) for the payment of rent for
any personal property under leases or agreements to lease other than
(A) obligations in respect of Capital Leases which would not cause
the aggregate amount of all obligations under Capital Leases entered
into after the Closing Date owing by Holdings and its Subsidiaries
in the aggregate in any Fiscal Year to exceed the amounts set forth
in subsection (b) of this Section 6.7, and (B) Operating Lease
Obligations which would not cause the aggregate amount of all
Operating Lease Obligations owing by Holdings and its Subsidiaries
in the aggregate in any Fiscal Year to exceed $10,000,000.
(d) Minimum Working Capital Availability. The Credit
Parties shall not permit Working Capital Availability (after giving
effect to the Revolver/Term Loan A Reserve, the Minimum Availability
Amount and
all other Reserves (as defined in the Working Capital Agreement)
then in effect) to be less than zero.
(e) Minimum Asset Coverage. Credit Parties shall not
permit, at any time, (i) the positive difference between (A) the
Working Capital Borrowing Base at such time (without taking into
account the Revolver/Term Loan A Reserve, the Minimum Availability
Amount or any other Reserves (as defined in the Working Capital
Agreement)) and
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(B) the principal amount of all Indebtedness
outstanding (including without limitation, all undrawn letters of
credit) under the Working Capital Agreement and this Agreement at
such time (such positive difference, the “Minimum Asset Coverage”)
to be less than the correlative amount indicated below under the
heading “Minimum Asset Coverage” for such period, or (ii) the
percentage obtained by dividing (A) the amount specified in clause
(i)(B) above at such time by (B) the amount specified in clause
(i)(A) above at such time to be greater than the percentage
specified below under the heading “Maximum Coverage Percentage” for
such period:
| Maximum | ||||||||
| Minimum Asset | Coverage | |||||||
| Period | Coverage | Percentage | ||||||
May 1, 2008 through May
31, 2008 |
$ | 25,000,000 | 74.1 | % | ||||
June 1, 2008 through June
30, 2008 |
$ | 30,000,000 | 69.3 | % | ||||
July 1, 2008 through July
31, 2008 |
$ | 30,000,000 | 68.9 | % | ||||
August 1, 2008 through
August 31, 2008 |
$ | 30,000,000 | 69.8 | % | ||||
September 1, 2008 through
September 30, 2008 |
$ | 35,000,000 | 69.9 | % | ||||
October 1, 2008 through
October 31, 2008 |
$ | 60,000,000 | 60.4 | % | ||||
November 1, 2008 through
November 30, 2008 |
$ | 90,000,000 | 53.8 | % | ||||
December 1, 2008 through
December 31, 2008 |
$ | 70,000,000 | 56.5 | % | ||||
January 1, 2009 and all
times thereafter |
$ | 60,000,000 | 60.0 | % | ||||
(f) Minimum Fixed Charge Coverage Ratio. Holdings shall not
permit the Fixed Charge Coverage Ratio as at any date specified
below to be less than the correlative amount indicated below:
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| Fiscal Month Ended On or About | Fixed Charge Coverage Ratio | |
May 31, 2008
|
(0.45) : 1.00 | |
| June 30, 2008 | (0.18) : 1.00 | |
| July 31, 2008 | (0.20) : 1.00 | |
| August 30, 2008 | (0.03) : 1.00 | |
| September 30, 2008 | 0.09 : 1.00 | |
| October 31, 2008 | 0.40 : 1.00 | |
| November 30, 2008 | 1.02 : 1.00 | |
| December 31, 2008 | 1.08 : 1.00 | |
| January 31, 2009 and each Fiscal Month ended thereafter | 1.00 : 1.00 | |
(g) Certain Calculations. For purposes of determining
compliance with (i) the financial covenants set forth in this
Section 6.7, (ii) the Fixed Charge Coverage Ratio requirements, and
(iii) Working Capital Availability, in each case, in connection with
a proposed Permitted Acquisition or a proposed Restricted Junior
Payment, Consolidated Adjusted EBITDA, the components of
Consolidated Fixed Charges and Working Capital Availability shall be
calculated with respect to such period on a pro-forma basis
(including pro forma adjustments approved by Administrative Agent in
its sole discretion) using the historical audited (if available)
financial statement of any business so acquired or to be acquired
(in connection with a proposed Permitted Acquisition) and the
consolidated financial statements of Holdings and its Subsidiaries
which shall be reformulated as if the Permitted Acquisition or
Restricted Junior Payment had been consummated at the beginning of
such period.”
(p) Section 6.8 of the Credit Agreement is hereby amended by amending and restating the final
parenthetical contained in the introductory paragraph thereof to read in its entirety as follows:
“(other than purchases or other acquisitions of inventory, materials
and equipment and Capital Expenditures, License Advances, Exclusive
Distribution Costs and Software Development Costs, in each case, in
the ordinary course of business)”
(q) Article VI of the Credit Agreement is hereby amended by adding a new section to the end
thereof to read in its entirety as follows:
“6.24 Crave Business Plan. Holdings shall not fail to deliver to
Agents (a) by not later than May 15, 2008, a business plan for Crave
Entertainment Group, Inc., Crave Entertainment, Inc. and SVG
Distribution, Inc. (collectively, the “Crave Entities”), in
form and substance satisfactory to Agents, and (b) by not later than
June 30, 2008, a historical and projected return on investment
report for each title owned by the Crave Entities, which report
shall be in form and substance satisfactory to Agents.”
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3. Waiver. (a) Credit Parties have advised Agents and Lenders that certain Events of
Default have occurred and are continuing under Section 8.1 of the Credit Agreement due to the
failure of Credit Parties to comply with (i) Section 5.24 of the Credit Agreement by reason of the
Credit Parties failing to retain an investment banker, acceptable to the Agents, for the purpose of
exploring strategic options with respect to specified discrete businesses, pursuant to a written
agreement in form and substance acceptable to Agents and Lenders, and failing to deliver a
fully-executed copy of such agreement to the Administrative Agent, certified as true and correct by
an Authorized Officer of Holdings, in each case, by Xxxxx 00, 0000, (xx) Section 6.6(a)(v) of the
Credit Agreement, by reason of the Credit Parties maintaining more than $2,000,000 in Deposit
Accounts in the United Kingdom for more than one Business Day prior to the date hereof, (iii)
Section 5.21 of the Credit Agreement, by reason of the Credit Parties failing to deliver control
agreements to the Administrative Agent with respect to all Deposit Accounts maintained by any
Credit Party in the U.K by April 15, 2008, and (iv) Section 5.1(i) of the Credit Agreement, by
reason of the Credit Parties failing to include information for the 2010, 2011 and 2012 Fiscal
Years of the Credit Parties in the Financial Plan delivered to the Agents on May 5, 2008 (such
Events of Default, the “Specified Events of Default”).
(b) At the request of Credit Parties, effective upon the Amendment Effective Date, each of
Agents and Lenders hereby waives each Specified Event of Default that occurred prior to the date
hereof.
(c) The waivers set forth in Section 3(b) above shall be effective only in this specific
instance and for the specific purposes set forth herein, and do not allow for any other or further
departure from the terms and conditions of the Credit Agreement (including, without limitation, any
further violation of Sections 5.24, 6.6(a)(v), 5.21 or 5.1(i) of the Credit Agreement), or any
further amendment of any other provision of the Credit Agreement or any other Credit Document,
which terms and conditions shall continue in full force and effect.
4. Conditions to Effectiveness. This Amendment shall become effective (the
“Amendment Effective Date”) upon satisfaction in full of the following conditions
precedent:
(a) Immediately after giving effect to this Amendment, (i) the representations and
warranties contained in this Amendment, the Credit Agreement and the other Credit Documents
shall be correct on and as of the date of this Amendment as though made on and as of such
date (except where such representations and warranties relate to an earlier date in which
case such representations and warranties shall be true and correct as of such earlier date)
and (ii) no Default or Event of Default shall have occurred and be continuing (or would
result from this Amendment becoming effective in accordance with its terms).
(b) Administrative Agent shall have received counterparts of this Amendment that bear
the signatures of each of Credit Parties, Agents and Lenders.
(c) Administrative Agent shall have received a copy of an amendment (or similar
agreement), in form and substance reasonably satisfactory to Agents, duly executed by Credit
Parties, Working Capital Agent, and Working Capital Lenders amending and waiving the
corresponding provisions of the Working Capital Agreement.
5. Credit Parties’ Representations and Warranties. Each Credit Party represents and
warrants to Agents and Lenders as follows:
(a) Such Credit Party (i) is duly organized, validly existing and in good standing
under the laws of the state of its organization and (ii) has all requisite power, authority
and legal
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right to execute, deliver and perform this Amendment and to perform the Credit
Agreement, as amended hereby.
(b) The execution, delivery and performance by such Credit Party of this Amendment and
the performance by such Credit Party of the Credit Agreement, as amended hereby (i) have
been duly authorized by all necessary action, (ii) do not and will not violate or create a
default under such Credit Party’s organizational documents, any applicable law or any
contractual restriction binding on or otherwise affecting such Credit Party or any of such
Credit Party’s properties, and (iii) except as provided in the Credit Documents, do not and
will not result in or require the creation of any Lien, upon or with respect to such Credit
Party’s property.
(c) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority is required in connection with the due execution, delivery and
performance by such Credit Party of this Amendment or the performance by such Credit Party
of the Credit Agreement, as amended hereby.
(d) This Amendment and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of such Credit Party, enforceable against such Credit Party in
accordance with their terms except to the extent the enforceability thereof may be limited
by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws from
time to time in effect affecting generally the enforcement of creditors’ rights and remedies
and by general principles of equity.
(e) Immediately after giving effect to this Amendment, (i) the representations and
warranties contained in the Credit Agreement are correct on and as of the date of this
Amendment as though made on and as of the date hereof (except where such representations and
warranties relate to an earlier date in which case such representations and warranties shall
be true and correct as of such earlier date), and (ii) other than the Specified Events of
Default, no Default or Event of Default has occurred and is continuing (or would result from
this Amendment becoming effective in accordance with its terms).
6. Continued Effectiveness of Credit Agreement. Each Credit Party hereby confirms and
agrees that (a) the Credit Agreement and each other Credit Document to which it is a party is, and
shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects
except that on and after the Amendment Effective Date all references in any such Credit Document to
“the Credit Agreement”, “hereto”, “hereof”, “hereunder”, “thereto”, “thereof”, “thereunder” or
words of like import referring to the Credit Agreement shall mean the Credit Agreement as amended
by this Amendment, (b) to the extent that any such Credit Document purports to assign or pledge to
Collateral Agent, for the ratable benefit of Lenders, or to grant to Collateral Agent, for the
ratable benefit of Lenders a security interest in or Lien on, any Collateral as security for the
Obligations of the Credit Party, or any of their respective Subsidiaries from time to time existing
in respect of the Credit Agreement and the other Credit Documents, such pledge, assignment and/or
grant of the security interest or Lien is hereby ratified and confirmed in all respects, (c) the
execution and delivery of this Amendment does not limit any other action that the Administrative
Agent is entitled to take, or that the Credit Parties are required to perform, under the Fifth
Amendment Fee Letter, and (d) no amendment or waiver of any terms or provisions of the Credit
Agreement, or the amendments or waivers granted hereunder, shall relieve any Credit Party from
complying with such terms and provisions other than as expressly amended or waived hereby or from
complying with any other term or provision thereof or herein.
7. Release. Each Credit Party hereby acknowledges and agrees that: (a) neither it nor
any of its Affiliates has any claim or cause of action against any Agent or any Lender (or any of
their
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respective Affiliates, officers, directors, employees, attorneys, consultants or agents) and
(b) each Agent and each Lender has heretofore properly performed and satisfied in a timely manner
all of its obligations to Credit Parties and their Affiliates under the Credit Agreement and the
other Credit Documents. Notwithstanding the foregoing, Credit Parties wish (and Agents and Lenders
agree) to eliminate any possibility that any past conditions, acts, omissions, events or
circumstances would impair or otherwise adversely affect any Agent’s or any Lenders’ rights,
interests, security and/or remedies under the Credit Agreement and the other Credit Documents.
Accordingly, for and in consideration of the agreements contained in this Amendment and other good
and valuable consideration, each Credit Party (for itself and its Affiliates and the successors,
assigns, heirs and representatives of each of the foregoing) (collectively, the
“Releasors”) does hereby fully, finally, unconditionally and irrevocably release and
forever discharge each Agent and each Lender and each of their respective Affiliates, officers,
directors, employees, attorneys, consultants and agents (collectively, the “Released
Parties”) from any and all debts, claims, obligations, damages, costs, attorneys’ fees, suits,
demands, liabilities, actions, proceedings and causes of action, in each case, whether known or
unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and
whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has
heretofore had or now or hereafter can, shall or may have against any Released Party by reason of
any act, omission or thing whatsoever done or omitted to be done, arising out of, connected with or
related in any way to the Credit Agreement or any other Credit Document, or any act, event or
transaction related or attendant thereto, or the agreements of any Agent or any Lender contained
therein, or the possession, use, operation or control of any of the assets of any Credit Party, or
the making of any Loans or other advances, or the management of such Loans or advances or the
Collateral.
8. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Amendment by telefacsimile or electronic method shall be
equally as effective as delivery of an original executed counterpart of this Amendment.
(b) Section and paragraph headings herein are included for convenience of reference
only and shall not constitute a part of this Amendment for any other purpose.
(c) This Amendment shall be governed by, and construed in accordance with, the laws of
the State of New York. Each of the parties to this Amendment hereby irrevocably waives all
rights to trial by jury in any action, proceeding or counterclaim arising out of or relating
to this Amendment.
(d) Borrowers will pay on demand all reasonable fees, costs and expenses of Agents and
Lenders in connection with the preparation, execution and delivery of this Amendment or
otherwise payable under the Credit Agreement, including, without limitation, reasonable fees
disbursements and other charges of counsel to Agents and Lenders.
(e) This Amendment is a Credit Document executed pursuant to the Credit Agreement and
shall be construed, administered and interpreted in accordance with the terms thereof.
Accordingly, it shall be an Event of Default under the Credit Agreement if any
representation or warranty made or deemed made by any Credit Party under or in connection
with this Amendment shall have been incorrect when made or deemed made or if any Credit
Party fails to perform or comply with any covenant or agreement contained herein.
[remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.
| BORROWERS: | ||||
| XXXXXXXXX CATEGORY MANAGEMENT COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXXXXX SERVICES COMPANY | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXXXXX REAL ESTATE LLC | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ARTIST TO MARKET DISTRIBUTION LLC | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| REPS, L.L.C. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Sixth
Amendment To Credit And Guaranty Agreement
| CREDIT PARTIES: | ||||
| XXXXXXXXX COMPANY | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CRAVE ENTERTAINMENT GROUP, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXX ADVERTISING COMPANY | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXXXXX COMPANY OF CANADA LIMITED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXXXXX UK LIMITED | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Sixth
Amendment To Credit And Guaranty Agreement
| SVG DISTRIBUTION, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CRAVE ENTERTAINMENT, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Sixth
Amendment To Credit And Guaranty Agreement
| ADMINISTRATIVE
AGENT AND COLLATERAL AGENT: |
||||
| SILVER POINT FINANCE, LLC, | ||||
| as Administrative Agent and Collateral Agent | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Sixth
Amendment To Credit And Guaranty Agreement
| LENDERS: | ||||
| SPF CDOI, LTD. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| SPCP GROUP, LLC | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THERMOPYLAE FUNDING CORP. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FIELD POINT I, LTD. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FIELD POINT II, LTD. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Sixth
Amendment To Credit And Guaranty Agreement
