EXHIBIT 10.38
EXECUTION VERSION
AMENDMENT NO. 5 dated as of April 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 Borrower has advised the Lenders that as of the year ended December
2002, the Borrower is not in compliance with Section 6.19 of the Credit
Agreement. The Borrower has requested that the Lenders waive such
non-compliance. The Borrower has also advised the Administrative Agent that on
the Effective Date (as defined below) it will deliver an irrevocable notice (the
"Commitment Reduction Notice") to the Administrative Agent to permanently reduce
the Total Commitments, as more fully described herein. The Required Lenders and
the Administrative Agent have agreed to waive such non-compliance and to amend
certain other provisions of 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 5 hereof, the Credit Agreement
is hereby amended as of the Effective Date (as hereinafter defined) as follows:
(A) Section 2.6 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"Optional and Mandatory Termination or Reduction of Commitments. (a)
Upon at least three (3) Business Days' prior written, facsimile or
telephonic notice (provided that such telephonic notice is immediately
followed by written confirmation) to the Administrative Agent, the
Borrower may at any time in whole permanently terminate, or from time
to time in part permanently reduce, the Total Commitments. In the case
of a partial reduction, each such reduction of the Total Commitments
shall be in a minimum aggregate principal amount of $1,000,000 or an
integral multiple of $100,000.
(b) Simultaneously with any termination or reduction of the Total
Commitments under this Section 2.6, the Borrower shall pay to the
Administrative Agent for the benefit of the Lenders an amount equal to
the difference between (i) the Loans outstanding plus the L/C Exposure
plus the aggregate Completion Reserves for all items of Product and
(ii) the Total Commitments as reduced as of such date.
(c) Upon any reduction in the Total Commitments under this Section
2.6, the Commitment of each Lender shall be reduced in accordance with
each Lender's Percentage.
(d) Simultaneously with each termination or reduction of the Total
Commitments, the Borrower shall pay to the Administrative Agent for
the benefit of each Lender all accrued and unpaid Commitment Fees on
the amount of the Commitment so terminated or reduced through the date
of such termination or reduction."
Section 3. Commitment Reduction Notice. On the Effective Date, the Borrower
shall deliver to the Administrative Agent the Commitment Reduction Notice, which
shall permanently and irrevocably reduce the Total Commitments, in accordance
with Section 2.6 of the Credit Agreement, in the amounts and on the dates
specified therein.
Section 4. Limited Waiver. The Administrative Agent and the Lenders hereby
waive any Default or Event of Default, whether existing as of the Effective Date
hereof or arising on or prior to December 31, 2003 (the "Waiver Period"), due to
the failure by the Borrower to comply with Section 6.19 of the Credit Agreement;
provided that during such Waiver Period the Borrower does not report on its
financial statements aggregate net losses in excess of $2,659,000.
Section 5. Conditions to Effectiveness. The effectiveness of this Amendment
is subject to the receipt by the Administrative Agent of (i) 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, (ii) the
Commitment Reduction Notice, (iii) a revised schedule of Product identifying the
Laboratories where the Physical Materials are located, and (iv) an executed
Copyright Security Agreement Supplement in form and substance reasonably
acceptable to the Administrative Agent, (the date on which all such conditions
have been satisfied being herein called the "Effective Date").
Section 6. 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
2
(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 7. Reservation of Rights. Except as otherwise set forth herein,
this Amendment shall not be a waiver of any Defaults or Events of Default which
may now or hereafter exist and the Lenders reserve any and all rights and
remedies under the Fundamental Documents, at law or in equity, in connection
with such Defaults or Events of Default.
Section 8. Future Negotiations. This Amendment shall not (i) be construed
as a commitment to further restructure the Fundamental Documents or the
Obligations, (ii) be construed as an agreement to further amend the Credit
Agreement or any other Fundamental Document, and (iii) affect any other right
which the Administrative Agent or the Lenders may have under the Credit
Agreement or the Fundamental Documents.
Section 9. Release. By execution of this Amendment, each of the Credit
Parties, singly and for each of their respective successors and assigns, jointly
and severally hereby acknowledges and confirms that the Credit Parties do not
have, either singly or jointly, any offsets, defenses, rights of recoupment or
claims of any kind or nature against the Administrative Agent or the Lenders or
any of their officers, agents, directors or employees, whether asserted or
unasserted arising from or in any way related to the Fundamental Documents, this
Amendment, the Obligations and the transactions contemplated thereby or hereby.
To the extent that any Credit Party may have such offsets, defenses, rights of
recoupment or claims, each Credit Party and each of its respective successors,
assigns, parents, subsidiaries, affiliates, predecessors, employees and agents,
as applicable, jointly and severally, releases and forever discharges the
Administrative Agent and the Lenders, their subsidiaries, affiliates, officers,
directors, shareholders, employees, agents, attorneys, successors and assigns,
both present and former (collectively the "Lenders' Affiliates"), of and from
any and all manner of action and actions, cause and causes of action, suits,
debts, controversies, damages, judgments, executions, claims and demands
whatsoever, asserted or unasserted, in law or in equity which any Credit Party
ever had, now have or which any Credit Party's successors, assigns, parents,
subsidiaries, affiliates, predecessors, employees or agents, as applicable, both
present and former, ever had or now has, upon or by reason of any manner, cause,
causes or thing whatsoever, including, without limitation, any presently
existing claim or defense whether or not presently suspected, contemplated or
anticipated against the Lenders or the Lenders' Affiliates. It is understood and
agreed that the release set forth above will not be impaired or otherwise
affected by the occurrence of an Event of Default and the Administrative Agent's
exercise of any rights and remedies available to the Administrative Agent or any
Lender. The provisions of this Section shall be effective and binding upon the
Credit Parties and enforceable by the Administrative Agent and the Lenders as of
the Effective Date.
Section 10. 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 11. Fundamental Documents. This Amendment is designated a
Fundamental Document by the Administrative Agent.
3
Section 12. 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 13. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 14. 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 15. 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 16. Headings. The headings of this Amendment are for the purposes
of reference only and shall not affect theconstruction of or be taken into
consideration in interpreting this Amendment.
[Signature page follows]
4
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: Chief Operating Officer
and Chief Financial Officer
GUARANTORS:
INTRASTATE FILM DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
FIRST LOOK MUSIC, INC. (formerly known as
JACARANDA MUSIC, INC.)
By: /s/ Xxxxxxx X. Xxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
WALRUS PICTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
ALIEN TOWERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
CODE 99 PRODUCTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
MAP PRODUCTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
LENDERS:
JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank),
Individually and as Administrative
Administrative Agent and Issuing Bank
By: /s/ Xxxxxxx X. Xxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
BNP PARIBAS
By: /s/ Frederique Marhaut
_______________________________
Name: Frederique Marhaut
Title: Director
By: /s/ Xxxxxxxx Xxxxxxxx
_______________________________
Name: Xxxxxxxx Xxxxxxxx
Title: Director
BANKGESELLSCHAFT BERLIN AG
By:______________________________
Name:
Title:
By: ______________________________
Name:
Title:
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: Manager
COMERICA BANK - CALIFORNIA
By: _____________________________
Name:
Title:
VEREINS-UND WESTBANK AG
By: /s/ X. Xxxxx
_____________________________
Name: X. Xxxxx
Title: Vice President
By: /s/ A. Druskeit
______________________________
Name: A. Druskeit
Title: Vice President
Commitment Reduction Notice
Reference is made 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"; the defined terms therein being herein used with the
same meanings). In accordance with Section 2.6 of the Credit Agreement, the
Borrower hereby instructs the Administrative Agent to permanently reduce that
the Total Commitments to the amounts specified below on the dates specified
below:
------------------------------------ --------------------------------------
Date of Reduction Total Commitments
of Total Commitments
------------------------------------ --------------------------------------
April 15, 2003 $19,000,000
------------------------------------- -------------------------------------
July 1, 2003 $18,000,000
------------------------------------- -------------------------------------
October 1, 2003 $17,000,000
------------------------------------- -------------------------------------
January 1, 2004 $14,500,000
------------------------------------- -------------------------------------
The foregoing notice made and delivered this 18th day of April, 2003
pursuant to Section 2.6 of the Credit Agreement is irrevocable and may not be
modified, terminated or revoked.
First Look Media, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Operating Officer
and Chief Financial Officer
