As of November 28, 2001
Hollywood Entertainment Corporation
0000 X.X. Xxxxxx Xxxx
Xxxxxxxxxxx, OR 97070
Attention: Xx. Xxxxx Xxxxxx
Chief Financial Officer
Re: Consent and Amendment (this "Agreement")
Gentlemen:
Reference is made to that certain Revolving Credit Agreement, dated
as of September 5, 1997 (as amended as of August 4, 2000, and as further
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by and among (i) HOLLYWOOD ENTERTAINMENT CORPORATION (d/b/a
"Hollywood Video"), an Oregon corporation (the "Borrower"), (ii) SOCIETE
GENERALE and the other financial institutions identified as Lenders on the
signature pages hereto (each individually a "Lender" and collectively the
"Lenders"), and (iii) SOCIETE GENERALE, as agent for the Lenders (in that
capacity, the "Agent") and CREDIT LYONNAIS LOS ANGELES BRANCH, DEUTSCHE BANK
AG, NEW YORK BRANCH, U.S. BANK NATIONAL ASSOCIATION, and KEYBANK NATIONAL
ASSOCIATION, as Co-Agents (in that capacity, each individually a "Co-Agent" and
collectively the "Co-Agents"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings given to them in the Credit Agreement.
You have requested that the Majority Lenders (i) consent to (a) the
incurrence by the Borrower of Subordinated Debt, (b) an increase in the
permitted store openings and (c) the deferral of amortization payments required
under Section 6.6.5 of the Credit Agreement, and (ii) agree to amend the
definition of Capital Assets.
Subject to the satisfaction of the conditions precedent set forth
in the fifth paragraph hereof, the Majority Lenders hereby consent to the
following: (i) notwithstanding Section 6.2(f) of the Credit Agreement, the
Borrower may incur, on or prior to March 31, 2002, Subordinated Debt (in lieu
of, an not in addition to, the calculated allowance in clause (i) of Section
6.2(f)) in an amount not to exceed $250,000,000, provided, that (a) such
Subordinated Debt documentation contains subordination provisions substantially
identical to, or more favorable to the Agent and the Lenders than, those
contained in the Indenture (or otherwise acceptable to the Majority Lenders in
their sole discretion), such Subordinated Debt matures after the Maturity Date
and provides for no amortization of principal until after the Maturity Date,
and such Subordinated Debt is unsecured, and (b) notwithstanding Section 2.3.2
of the Credit Agreement, 75% of the Net Cash Proceeds of such Subordinated Debt
shall be immediately paid and applied (upon receipt by Borrower) as a Mandatory
Reduction and mandatory payment, in accordance with Sections 2.3.3 and
2.4.2(b), respectively (it being understood that such Mandatory Reduction and
mandatory payment shall be deemed in the aggregate one permanent reduction of
the Total Commitment and therefore, shall result in a margin reduction of .25%
, in accordance with the definition of "Margin"); (ii) notwithstanding Sections
6.12 and 6.13, so long as there shall not have occurred and be continuing an
Event of Default, (a) so long as each of the Total Commitment and Loans
outstanding is equal to or less than $125,000,000, the Borrower may open up to
50 new stores after December 31, 2001 and (b) so long as each of the Total
Commitment and Loans outstanding is less than $80,000,000, there shall be no
limit on the number of new stores that the Borrower may open during the
calendar year 2003; (iii) notwithstanding Section 6.6.5, the Borrower shall be
permitted to defer, until the earlier of the Maturity Date and the date on
which Loans are accelerated for any reason, any amount of the scheduled
principal amortization required thereunder; and (iv) notwithstanding Section
6.3 of the Credit Agreement, any Subsidiary required, under the terms of the
Subordinated Debt permitted under the preceding clause (i), to guaranty the
Borrower's obligations with respect to such Subordinated Debt may guaranty such
obligations, provided that (x) such Subsidiary's guaranty was required under
the Indenture and (y) the Subsidiary's obligations under such new guaranty are
contractually subordinated to the payment of the Obligations, to the same
extent that the Borrower's obligations under such Subordinated Debt are
subordinated to the Obligations.
Subject to the satisfaction of the conditions precedent set forth
in the next paragraph, and provided that each of the Total Commitment and Loans
outstanding has been reduced, on or at any time after the date hereof, to a
maximum amount of $125,000,000, the Lenders hereby agree that the definition of
"Capital Assets" shall automatically be deemed amended without further action
by deleting the parenthetical at the end of clause (a) and replacing it with
"(including, without limitation, catalogue DVD purchases)".
The consents and the amendment in the preceding paragraphs are
subject to the satisfaction (in the Agent's sole discretion) of the following
conditions precedent: (i) receipt by the Agent of counterparts of this letter
duly executed by the Borrower, Hollywood Management and the Majority Lenders;
(ii) the Borrower shall have paid in cash (a) all accrued fees of the Agent,
the Agents' legal counsel (including, without limitation, the payment of legal
counsel's retainer), advisors and professionals in connection with the
negotiation, preparation, execution and delivery of this Agreement and all
other documents and agreements relating thereto and (b) all travel costs and
related expenses of the members of the steering committee for which invoices
have been presented to the Borrower on or prior to the date hereof, (iii) the
Agent shall have received certificates of incumbency, dated as of a recent
date, for each of the Borrower and Hollywood Management, in form and substance
acceptable to the Agent, (iv) the Borrower shall have delivered to the Agent
such other documents as the Agent shall have reasonably requested, (v) there
shall be no pending or, to the knowledge of the Borrower after due inquiry,
threatened litigation, proceeding, inquiry or other action (a) seeking an
injunction or other restraining order, damages or other relief with respect to
the transactions contemplated by this Agreement and the other documents and
agreements executed or delivered in connection herewith or (b) which affects or
could reasonably be expected to affect the business, prospects, operations,
assets, liabilities or condition (financial or otherwise) of the Borrower or
any of its Subsidiaries, except, in the case of clause (b), where such
litigation, proceeding, inquiry or other action could not reasonably be
expected to cause a Material Adverse Effect, (vi) no Default or Event of
Default shall have occurred and be continuing on the date hereof (after giving
effect to the consents in the previous paragraph), (vii) receipt by the Agent
for the pro rata account of the Lenders which sign and return their signature
page by Wednesday, November 28, 2001, a non-refundable fee (such fee shall be
earned when paid) in the amount of .10% of such Xxxxxx's Commitments on the
date hereof, and (viii) receipt by the Agent of the Pro Forma Calculations
with respect to the incurrence of the Subordinated Debt described in the third
paragraph hereof.
In order to induce the Lenders to agree to the consents and
amendment contemplated herein, the Borrower represents and warrants to the
Agent and the Lenders that (i) each of the representations and warranties
contained in the Credit Agreement is true and correct in all material respects
as if made on the date hereof and (ii) no Default or Event of Default exists as
of the date hereof (after giving effect to the consents described above).
Except as expressly set forth herein, the Credit Agreement and each
document executed in connection therewith (including, without limitation, the
Hollywood Management Guaranty) shall continue to be, and shall remain, in full
force and effect in accordance with the provisions thereof. Except as
expressly provided herein, this letter shall not be deemed to be an amendment
or waiver of, or consent to any departure from, any other term or condition of
the Credit Agreement or any document executed in connection therewith
(including, without limitation, the Hollywood Management Guaranty) or to
prejudice any other right or rights which the Agent or any Lender may now have
or may have in the future under or in connection with the Credit Agreement or
any document executed in connection therewith (including, without limitation,
the Hollywood Management Guaranty).
The Borrower and each of its Subsidiaries on behalf of each of them
and for each of their direct and indirect affiliates, parent corporations,
subsidiaries, subdivisions, successors, predecessors, shareholders, and
assigns, and their present and former officers, directors, legal
representatives, employees, agents, and attorneys, and their heirs, executors,
administrators, trustee, successors and assigns (collectively, the
"Releasors"), hereby release and forever discharge (this "Release") each Lender
and the Agent and each of their respective direct and indirect affiliates,
parent corporations, subsidiaries, subdivisions, successors, predecessors,
shareholders, and assigns, and their present and former officers, directors,
legal representatives, employees, agents, and attorneys, and their heirs,
executors, administrators, trustees, successors and assigns (collectively, the
"Releasees") of and from any and all claims, liabilities, demands, rights,
obligations, damages, expenses, attorneys' fees and causes of action whatsoever
from the beginning of the world to the date hereof, whether individual, class
or derivative in nature, whether at law or in equity, whether based on federal,
state or foreign law or right of action, foreseen or unforeseen, mature or
unmatured, known or unknown, accrued or not accrued, which the Releasors have
or had against the Releasees, arising out of or relating to this letter or any
other Loan Document (the "Released Claims"), and covenants not to institute,
maintain, or prosecute any action, claim, suit, proceeding or cause of action
of any kind to enforce any of the Released Claims. In any litigation arising
from or related to an alleged breach of this Release, this Release may be
pleaded as a defense, counterclaim or crossclaim, and shall be admissible into
evidence without any foundation testimony whatsoever. The Releasors expressly
covenant and agree that this Release shall be binding in all respects upon
their respective successors, heirs, assigns and transferees, and shall inure to
the benefit of the heirs, successors and assigns of Releasees. Notwithstanding
the foregoing, (x) the Agent and the Lenders hereby expressly reserve any
rights they have or may have, collectively and individually, in connection with
the Wattles Loan and (y) the Borrower hereby reserves its rights to assert any
defense it may have with respect to the Wattles Loan in a proceeding brought
against the Borrower by the Agent or any Lender, provided that the Borrower may
not assert any such defense or defenses with respect to any of the Obligations.
This letter constitutes a Loan Document.
This letter may be executed by one or more of the parties hereto in
any number of counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed
signature page of this letter by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
This letter shall be governed by, and construed and interpreted in
accordance with the laws of the State of New York (without regard to New York
conflicts of laws principles).
Very truly yours,
SOCIETE GENERALE, NEW YORK
OFFICE
as Agent and as a Lender
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Director
AGREED TO BY:
HOLLYWOOD ENTERTAINMENT CORPORATION
By: /s/ Xxxxx XXxxxxx
Name: Xxxxx X Xxxxxx
Title: Executive Vice President and Chief Financial Officer
HOLLYWOOD MANAGEMENT COMPANY
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Secretary
LENDERS:
CREDIT LYONNAIS LOS ANGELES BRANCH,
as a Co-Agent and a Lender
By: /s/ Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
as a Co-Agent and a Lender
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION,
as a Co-Agent and a Lender
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
Name:
Title:
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
CITY NATIONAL BANK
By:
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ X. Xxxxxx XxXxxxxxx
Name: X. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC, as Collateral Manager to ARK CLO 2000-1, Limited
By: /s/ Xxxx XxXxx
Name: Xxxx XxXxx
Title: Authorized Signatory
XXXXX FARGO BANK
By:
Name:
Title:
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title:
CANPARTNERS INVESTMENTS IV, LLC
By: /s/
Name:
Title:
