Exhibit 10.35
AMENDMENT NO. 3 dated as of June 24, 2002 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 have made available to the Borrower a $40,000,000 five-year
secured revolving credit facility pursuant to the terms of the Credit Agreement.
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 "Production Exposure" in Article 1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
`Production Exposure' for an item of Product shall
mean the Budgeted Negative Cost or acquisition price paid or
to be paid by a Credit Party net of (without double counting)
(i) production fees and overhead of the applicable Credit
Party, (ii) amounts funded or committed to be funded in
connection with such item of Product on a cash-flow basis (and
which therefore are not included in the Borrowing Base as an
Eligible Receivable) by Persons unrelated to any Credit Party
pursuant to contractual arrangements approved in writing by
the Administrative Agent, and (iii) all pre-sales which would
constitute Eligible Receivables if they were payable by
Acceptable Obligors."
(B) Article 1 of the Credit Agreement is hereby amended by adding the
following defined term after the definition of "Schedule of Commitments":
"`Seven Hills Investment' shall mean the investment
by Seven Hills Pictures, LLC in common stock and warrants of
the Borrower in the amount of $6,050,000 on terms and subject
to conditions acceptable to the Administrative Agent."
(C) Section 5.20 of the Credit Agreement is hereby amended by deleting
at the end thereof the phrase "and (viii) a Completion Guarantee with respect to
such item of Product" and inserting before clause (vii) the word "and".
(D) Section 6.2 of the Credit Agreement is hereby amended by deleting
the word "and" at the end of clause (o), by replacing the period after clause
(p) with a semi-colon and by adding the following new section 6.2(q) to read as
follows:
"and (q) Liens granted by the Borrower to Seven Hills
Pictures, LLC, a Connecticut limited liability company ("Seven
Hills"), in and to the Borrower's membership interests in
First Look/Seven Hills, LLC, a Delaware limited liability
company ("F/S LLC") and the proceeds thereof, on terms and
subject to conditions acceptable to the Administrative Agent."
(E) Section 6.4 of the Credit Agreement is hereby amended by replacing
the word "and" at the end of paragraph (x) with a comma, by replacing the period
at the end of paragraph (xi) with the word "and" and by adding the following new
paragraph 6.4(xii) to read as follows:
"(xii) the Investment by the Borrower in F/S LLC on
terms and subject to conditions acceptable to the
Administrative Agent; provided, that such Investment is funded
solely by a non recourse loan from Seven Hills to the Borrower
(the "Seven Hills Loan") secured solely by the Borrower's
membership interests in F/S LLC."
(F) Section 6.5 of the Credit Agreement is hereby amended by deleting
the word "and" at the end of paragraph (d), by replacing the period at the end
of paragraph (e) with "; and" and by adding the following new paragraph (f) at
the end thereof to read as follows:
"(f) in addition, and without prejudice, to the
exception set forth in paragraph (c) of this Section 6.5, so
long as no Event of Default has occurred and is continuing,
the repurchase or other acquisition of shares of common stock
of the Borrower; provided, however, that the aggregate amount
of such repurchases and other acquisitions shall not exceed
$200,000."
(G) Paragraph (b) of Section 6.15 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(b) Begin production on an item of Product for which
the Credit Parties (or any of them) have a Production Exposure
(for which it is subject to a completion risk, as opposed to a
negative pick-up arrangement; i.e., payment by such Credit
Party is not conditioned upon delivery) if the amount of such
risk exceeds $750,000, unless a Completion Guarantee is in
place with respect to such item of Product; provided, that for
the purposes of this Section 6.15(b) only, Production Exposure
shall be calculated without deducting pre-sales which would
constitute Eligible Receivables if they were payable by
Acceptable Obligors."
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(H) Section 6.19 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"SECTION 6.19. Consolidated Net Worth. Permit
Consolidated Net Worth at the end of any fiscal quarter of the
Borrower to be less than $22,000,000 plus, on an aggregate
basis adjusted each quarter based on the following, (i) 100%
of the net proceeds of all new equity invested in the Borrower
after the Closing Date; provided, that only 50% of the net
proceeds of the Seven Hills Investment shall be added for the
purposes of this computation, and (ii) 50% of net earnings, if
any, for the trailing four fiscal quarters for each quarter
ending after the fourth fiscal quarter following the Closing
Date and prior to the date at which compliance is being
determined (without any deduction for net losses).
Consolidated Net Worth shall be calculated without giving
effect to the proposed Statement of Position which is expected
to replace FASB 53 (which replacement is expected to occur
before the end of the third calendar quarter of 2000)."
(I) "Paragraph (f) of Section 7 of the Credit Agreement is hereby
amended by inserting the following words before the period at the end thereof:
"; provided, that default with respect to any payment
of any amount of principal under or in connection with the
Seven Hills Loan shall not constitute an Event of Default;
provided, however, that the aforementioned exclusion of a
payment default under or in connection with the Seven Hills
Loan shall not be construed as a limitation on, and shall not
in any way affect, any of the other consequences under this
Credit Agreement resulting from such payment default and shall
not limit or prevent any such consequences from constituting
an Event of Default."
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
any such representations and warranties specifically relate to an earlier date);
and
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(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
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Name: Xxxxxxx X. Xxxxxxx
Title: COO/CFO
GUARANTORS:
INTRASTATE FILM DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: CFO
FIRST LOOK MUSIC, INC. (formerly known
as JACARANDA MUSIC, INC.)
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: CFO
WALRUS PICTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: CFO
ALIEN TOWERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: CFO
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CODE 99 PRODUCTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: CFO
MAP PRODUCTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: CFO
LENDERS:
JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank),
Individually and as Administrative Agent
and Issuing Bank
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BNP PARIBAS
By:
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Name:
Title:
BANKGESELLSCHAFT BERLIN AG
By:
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Name:
Title:
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CITY NATIONAL BANK
By:
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Name:
Title:
XXXXXX & CO.
By: /s/ XX Xxxxxxx
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Name: XX Xxxxxxx
Title: Manager
COMERICA BANK - CALIFORNIA
By:
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Name:
Title:
VEREINS-UND WESTBANK AG
By: /s/ A. Druskeit
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Name: A. Druskeit
Title: Ass. VP
