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AMENDMENT NO. 5 dated as of December 22, 1997 to the Credit,
Security, Guaranty and Pledge Agreement dated as of June 19,
1996, as amended, among THE XXXXXXX-XXXXX COMPANY (the
"Borrower"), the Guarantors named therein, the Lenders referred
to therein and THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank), as Agent and as Fronting Bank for the Lenders
(the "Agent") (as heretofore amended, the "Credit Agreement").
INTRODUCTORY STATEMENT
The Lenders have made available to the Borrower a revolving credit
facility pursuant to the terms of the Credit Agreement.
The Borrower has requested certain modifications to the Credit
Agreement.
The Borrower, the Guarantor, the Lenders and the Agent have agreed to
make revisions to 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 September 30, 1997 (the "Effective
Date") as follows:
(A) The definition of "Consolidated Interest Expense" appearing in
Article 1 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"Consolidated Interest Expense" shall mean for any period for which such
amount is being determined, total interest expense paid or payable in cash
(including that properly attributable to Capital Leases in accordance with GAAP
and all capitalized interest but excluding in any event all amortization of
debt discount and debt issuance costs) of the Borrower and its Consolidated
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Subsidiaries on a consolidated basis including, without limitation, all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net cash costs
(or net profits) under Interest Rate Protection Agreements, net of
interest received in cash."
(B) Section 6.19 of the Credit Agreement is hereby deleted in its
entirety and replaced with the following new Section 6.19:
"SECTION 6.19 EBIT to Interest Expense Ratio. For any rolling four
quarter period, permit the ratio of (i) the sum of EBIT and film amortization
minus 50% of investments in film inventory made during such period, to (ii)
Consolidated Interest Expense, to be less than 2.25.1."
Section 3. Conditions to Effectiveness. The effectiveness of this
Amendment is subject to the satisfaction in full of each of the conditions
precedent set forth in this Section 3:
(A) the Agent shall have received counterparts of this Amendment which,
when taken together, bear the signatures of the Borrower, each Guarantor, the
Agent and such of the Lenders as are required by the Credit Agreement; and
(B) all legal matters incident to this Amendment shall be satisfactory
to Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Agent.
Section 4. Waiver. Each of the Lenders, by its execution hereof, hereby
waives the Credit Parties' non-compliance with Section 6.18 regarding the ratio
of Total Unsubordinated Liabilities to Consolidated Capital Base, solely
through the period ending September 30, 1997.
Section 5. 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
(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 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 Agent reasonably
deems necessary to effect the purposes of this Amendment.
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Section 7. Fundamental Documents. This Amendment is designated a
Fundamental Document by the Agent.
Section 8. 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 9. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 10. 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 11. Expenses. The Borrower agrees to pay all out-of-pocket
expenses incurred by the 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 Agent.
Section 12. 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.
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
duly executed as of the date first written above.
BORROWER:
THE XXXXXXX-XXXXX COMPANY
By: /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: Chief Financial Officer
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GUARANTORS:
KL PRODUCTIONS, INC.
KL INTERNATIONAL, INC.
ACME PRODUCTIONS, INC.
XXXXXXX-XXXXX PRODUCTIONS, INC.
THE RELATIVES COMPANY
POST AND PRODUCTION SERVICES, INC.
L-K ENTERTAINMENT, INC.
INTERNATIONAL COURTROOM NEWS SERVICE
FAMILY PICTURES, INC.
TROPICAL HEAT, INC.
KL SYNDICATION, INC.
ANDRE PRODUCTIONS, INC.
TKLC NO. 2, INC.
TWILIGHT ENTERTAINMENT, INC.
KLC FILMS, INC.
KL FEATURES, INC.
KLF GUILD CO.
KLF DEVELOPMENT CO.
KLTV GUILD CO.
KLTV DEVELOPMENT CO.
XXXXXXX-XXXXX INTERNATIONAL, INC.
KL INTERACTIVE MEDIA, INC.
By /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: Chief Financial Officer
KLC/NEW CITY
By its General Partner
THE XXXXXXX-XXXXX COMPANY
By /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: Chief Financial Officer
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DAYTON WAY PICTURES, INC.
DAYTON WAY PICTURES II, INC.
DAYTON WAY PICTURES III, INC.
DAYTON WAY PICTURES IV, INC.
FW COLD CO., INC.
BY /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: Chief Financial Officer
LENDERS:
Executed in
New York, New York THE CHASE MANHATTAN BANK (formerly
On December 29, 1997 known as Chemical Bank), as Agent
BY /s/ XXX X. XXXXX
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Name: Xxx X. Xxxxx
Title: Vice President
DE NATIONALE INVESTERINGSBANK N.V.
BY /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title:
BY /s/ J.L.J.M REISEN
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Name: J.L.J.M Reisen
Title:
COMERICA BANK -- CALIFORNIA
BY /s/ D. XXXXXXX XXXXXXX
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Name: D. Xxxxxxx Xxxxxxx
Title: V.P.
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