EXHIBIT 10.29
AMENDMENT AND WAIVER NO. 3 TO THE LOAN DOCUMENTS
AMENDMENT AND WAIVER dated as of June 29, 1998 to (a) the Second
Amended and Restated Credit Agreement dated as of October 28, 1997 (as amended
by Letter Amendment No. 1 dated as of November 18, 1997, the "CREDIT AGREEMENT")
among FCN Holding, Inc., a Delaware corporation ("FCN HOLDING"), International
Family Entertainment, Inc., a Delaware corporation ("IFE"), Saban Entertainment,
Inc., a Delaware corporation (together with FCN Holding and IFE, the "EXISTING
BORROWERS"), Fox Kids Holdings, LLC, a Delaware limited liability company
("HOLDINGS"), as Guarantor, the banks, financial institutions and other
institutional lenders (collectively, the "LENDERS") parties to the Credit
Agreement referred to below, Citicorp USA, Inc., as administrative agent (the
"ADMINISTRATIVE AGENT") for such Lenders and the other Secured Parties referred
to therein, and Citicorp Securities, Inc., Chase Securities, Inc. and
BankBoston, N.A., as Co-Arrangers for the Facilities referred to therein, (b)
the Fox Kids Guarantee dated as of October 28, 1997 (as amended by Letter
Amendment No. 2 dated as of April 16, 1998, the "FOX KIDS GUARANTEE") made by
Fox Family Worldwide, Inc. (formerly known as Fox Kids Worldwide, Inc.), a
Delaware corporation and the owner of all of the member interests in Holdings
("FOX KIDS"), in favor of the Secured Parties referred to therein and (c) the
other Loan Documents referred to therein. Capitalized terms not otherwise
defined in this Amendment and Waiver have the same meanings as specified
therefor in the Credit Agreement.
PRELIMINARY STATEMENTS
(1) The Existing Borrowers, Holdings and Fox Kids have requested that
the Lenders agree to amend and otherwise modify the Credit Agreement and the Fox
Kids Guarantee in order to:
(a) (i) waive any and all of the Defaults and Events of Default under
Section 7.01(c) of the Credit Agreement that have occurred and are
continuing as a result of the failure of Holdings to comply with the
requirements of Section 5.02(j) of the Credit Agreement prior to the date
of this Amendment and Waiver in connection with the creation and
incorporation of two new direct Subsidiaries of Holdings, Fox Family
Properties, Inc., a Delaware corporation ("FOX PROPERTIES"), and Fox Family
Management, LLC, a Delaware limited liability company ("FOX MANAGEMENT"),
and (ii) permit both Fox Properties and Fox Management to be and become
"Borrowers" under the Loan Documents on and after the Amendment No. 3
Effective Date (as hereinafter defined) having all of the rights and
Obligations of the Existing Borrowers under and in respect of the Loan
Documents (including, without limitation, all of the Obligations under
Article VI of the Credit Agreement);
(b) waive any and all of the Defaults and Events of Default under
Section 7.01(c) of the Credit Agreement that have occurred and are
continuing as a result of the pledge by Fox Kids of the 58,000 Class A
Shares (the "CINE-GROUP SHARES") of Distribution Internationale Cine-Groupe
J.P. Inc., a corporation organized under the laws of Quebec, Canada,
acquired thereby as security for the loan (the "A FAIRE LOAN") in the
aggregate amount of three million Canadian dollars (C$3,000,000) that was
made to Fox Kids by A Faire Aujourd'hui Inc., a corporation organized under
the laws of Canada ("A FAIRE"), under a loan agreement dated as of June 23,
1998 (the "A FAIRE LOAN AGREEMENT");
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(c) waive any and all of the Defaults and Events of Default under
Section 7.01(c) of the Credit Agreement that have occurred and are
continuing as a result of the sale (the "CAROLINA OPRY SALE") by Xxxxxx
Xxxxxxx Productions, Inc., a Delaware corporation and a Subsidiary of IFE
("CGP"), of the Carolina Opry Theater to Xxxxxxx Entertainment Group, LLC
in consideration for the cancellation of the Indebtedness owing by IFE and
Xxxxxxx Acquisition Corp., a Delaware corporation and a wholly owned
Subsidiary of IFE ("GAC"), to Xx. Xxxxxx Xxxxxxx in an aggregate principal
amount of $6,700,000 (as evidenced by the promissory notes dated December
12, 1993);
(d) permit CGP to sell the Legends Theater and the lease of the Xxxxx
Xxxxx Theater (collectively, the "THEATERS DISPOSITIONS") to On Stage
Entertainment, Inc., a Nevada corporation ("OSE"), in consideration for
shares of common stock ("OSE SHARES") of OSE having a Fair Market Value of
approximately $1,000,000 and approximately $750,000 in cash, with the cash
portion of the aggregate consideration for the Theaters Dispositions being
used by CGP promptly following its receipt thereof to purchase additional
OSE Shares;
(e) permit CGP to pledge (the "OSE SHARES PLEDGE") not more than 66%
of the OSE Shares acquired thereby as part of the Theaters Dispositions to
OSE as security for the indemnification obligations of CGP set forth in
Section 9.1 of the Theaters Disposition Sale Agreement dated as of June 30,
1998 (the "THEATERS DISPOSITION SALE AGREEMENT") by and among OSE, the
other buyers referred to therein and CGP, which pledge will automatically
be released and terminated no later than May 31, 2000 if no claims for
payment under such Section 9.1 have been made prior to such time; and
(f) permit Fox Kids to amend its Corrected Restated Certificate of
Incorporation (the "FOX KIDS CHARTER AMENDMENT") in order to reduce the
number of authorized shares of certain classes of its capital stock.
The creation of Fox Properties and Fox Management and the issuance of all of the
outstanding Equity Interests therein to Holdings and the execution and delivery
of all of the applicable Loan Documents by Fox Properties and Fox Management are
hereinafter collectively referred to as the "PROPERTIES/MANAGEMENT
TRANSACTIONS". The acquisition by Fox Kids of the Cine-Groupe Shares and the
entering into by Fox Kids of the related put and sale and other equity rights
documentation and the entering into by Fox Kids of the A Faire Loan Agreement
and related loan and collateral documentation are hereinafter collectively
referred to as the "CINE-GROUPE TRANSACTIONS". The Carolina Opry Sale, the
Theaters Dispositions and the OSE Shares Pledge are hereinafter collectively
referred to as the "XXXXXXX TRANSACTIONS". The Properties/Management
Transactions, the Cine-Groupe Transactions, the Xxxxxxx Transactions and the
adoption and filing of the Fox Kids Charter Amendment are hereinafter
collectively referred to as the "AMENDMENT NO. 3 TRANSACTIONS".
(2) The Lenders have indicated their willingness to agree to amend the
Credit Agreement and the other Loan Documents in order, among other things, to
permit the Amendment No. 3 Transactions on terms and subject to the satisfaction
of the conditions set forth herein.
SECTION 1. Amendments to Certain Provisions of the Credit Agreement.
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The Credit Agreement is, upon the occurrence of the Amendment No. 3 Effective
Date, hereby amended to read as follows:
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(a) The recital of parties to the Credit Agreement is hereby amended
to delete the phrase "together with FCN Holding and IFE," in the fourth
line thereof and to substitute therefor the new phrase "together with FCN
Holding, IFE, Fox Management and Fox Properties (both as hereinafter
defined),".
(b) The definition of "Appropriate Borrowers" set forth in Section
1.01 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
""APPROPRIATE BORROWERS" means (a) with respect to the Revolving
Credit Facility, FCN Holding, IFE, Saban, Fox Management and Fox
Properties and (b) with respect to the Term Facility, IFE.".
(c) The definition of "Appropriate Borrower's Account" set forth in
Section 1.01 of the Credit Agreement is hereby amended (i) to delete the
word "and" in the fifth line thereof and (ii) to delete the language "or
(d)" in the eighth line thereof and to substitute therefor the following
new language:
"(d) with respect to Fox Management, the account of Fox Management
maintained thereby with Imperial Bank at its office at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, ABA# , Account No.
, and (e) with respect to Fox Properties, the account of Fox
Properties maintained thereby with Imperial Bank at its office at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, ABA# ,
Account No. , or (f)".
(d) The definition of "Related Documents" set forth in Section 1.01
of the Credit Agreement is hereby amended (i) to delete the word "and"
after the phrase "NAHI Subordinated Notes Documents" in the third line
thereof and to substitute therefor the punctuation "," and (ii) to add
after the phrase "to the Refinancing" at the end of such definition the new
phrase ", the A Faire Loan Agreement, the A Faire Pledge Agreement, the
Theaters Disposition Sale Agreement, the Theaters Disposition Pledge
Agreement and each of the other instruments, agreements or documents (other
than correspondence) setting forth the terms of the Cine-Groupe
Transactions or the Xxxxxxx Transactions.".
(e) Section 1.01 of the Credit Agreement is hereby further amended to
add the following new definitions:
""A FAIRE LOAN" means the loan made to Fox Kids by A Faire
Aujourd'hui Inc. in the aggregate principal amount of three million
Canadian dollars (C$3,000,000) under the A Faire Loan Agreement.
"A FAIRE LOAN AGREEMENT" means the Loan Agreement dated as of
June 23, 1998 between Fox Kids and A Faire Aujourd'hui Inc., as such
agreement may be amended, supplemented or otherwise modified from time to
time after the Amendment No. 3 Effective Date in accordance with the terms
thereof, but to the extent permitted under the terms of the Loan Documents.
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"A FAIRE PLEDGE AGREEMENT" means the Pledge Agreement dated as of
June 23, 1998 made by Fox Kids in favor of A Faire Aujourd'hui Inc.,
as secured party thereunder, as such agreement may be amended,
supplemented or otherwise modified from time to time after the
Amendment No. 3 Effective Date in accordance with the terms thereof,
but to the extent permitted under the terms of the Loan Documents.
"AMENDMENT AND WAIVER NO. 3" means Amendment and Waiver No. 3
dated as of June 29, 1998 to the Loan Documents.
"AMENDMENT NO. 3 EFFECTIVE DATE" means the first date on which
all of the conditions precedent to the effectiveness of Amendment and
Waiver No. 3 were satisfied.
"CGP" means Xxxxxx Xxxxxxx Productions, Inc., a Delaware
corporation and, on and after the Amendment No. 3 Effective Date, a wholly
owned Subsidiary of IFE.
"CINE-GROUPE SHARES" means the 58,000 Class A Shares of
Distribution Internationale Cine-Groupe J.P., Inc., a corporation organized
under the laws of Quebec, Canada, acquired by Fox Kids in the Cine-Groupe
Transactions.
"CINE-GROUPE TRANSACTIONS" has the meaning specified in the
Preliminary Statement (1) to Amendment and Waiver No. 3.
"FOX MANAGEMENT" means Fox Family Management, LLC, a Delaware
limited liability company and a direct wholly owned Subsidiary of
Holdings.
"FOX PROPERTIES" means Fox Family Properties, Inc., a Delaware
corporation and a direct wholly owned Subsidiary of Holdings.
"XXXXXXX TRANSACTIONS" has the meaning specified in Preliminary
Statement (1) to Amendment and Waiver No. 3.
"OSE" means On Stage Entertainment, Inc., a Nevada corporation.
"OSE SHARES" means the common stock of On Stage Entertainment,
Inc., a Nevada corporation, received or acquired by CGP as part of the
Xxxxxxx Transactions.
"THEATERS DISPOSITION PLEDGE AGREEMENT" means the Pledge
Agreement dated as of June 30, 1998 made by CGP in favor of OSE, as
such agreement may be amended, supplemented or otherwise modified from
time to time after the Amendment No. 3 Effective Date in accordance
with the terms thereof, but to the extent permitted under the terms of
the Loan Documents.
"THEATERS DISPOSITION SALE AGREEMENT" means the Asset Purchase
Agreement dated as of June 30, 1998 by and among On Stage Theaters
Surfside Beach Inc., On Stage Theaters North Myrtle Beach Inc. and On
Stage Entertainment, Inc., each a Nevada corporation, and CGP, as such
agreement may be amended, supplemented or otherwise
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modified from time to time after the Amendment No. 3 Effective Date in
accordance with the terms thereof, but to the extent permitted under
the terms of the Loan Documents."
(f) Section 5.02(a) of the Credit Agreement is hereby amended (i) to
delete the word "and" at the end of subclause (ii)(M) thereof, (ii) to
delete the punctuation "." at the end of subclause (ii)(N) thereof and
substitute therefor the phrase "; and" and (iii) to add the following new
subclause (ii)(O) thereof:
"(O) Liens on not more than 66% of the OSE Shares received by CGP
as part of (or in connection with) the Theaters Dispositions, any
substitutions and replacements thereof, any dividends and other
distributions thereon and any proceeds therefrom, in favor of OSE as
collateral solely for the indemnification obligations of CGP set forth
in Section 9.1 of the Theaters Disposition Sale Agreement, until the
earlier of (1) the first date on which the lien and security interest
of OSE in such OSE Shares is released or terminated and (2) May 31,
2000."
(g) Section 5.02(d) of the Credit Agreement is hereby amended (i) to
delete the word "and" at the end of clause (viii) thereof, (ii) to delete
the punctuation "." at the end of clause (ix) thereof and to substitute
therefor the new language "; and" and (iii) to add the following new clause
(x) thereof:
"(x) CGP shall sell, transfer or otherwise dispose of all of the
OSE Shares owned or otherwise held thereby no later than June 15, 2000
for cash consideration at least equal to the Fair Market Value of OSE
Shares and shall apply the Net Cash Proceeds therefrom on the date of
receipt thereof by CGP to reduce the Commitments in accordance with,
and to the extent required under, Section 2.04(b)(iv) and to prepay
the Advances outstanding at such time in accordance with, and to the
extent required under, Section 2.05(b)."
(h) Section 5.02(g) of the Credit Agreement is hereby amended (i) to
delete the word "and" at the end of subclause (i)(D) thereof, (ii) to add
the word and after the punctuation ";" at the end of subclause (i)(E)
thereof and (iii) to add the following new subclause (i)(F) thereof:
"(F) the prepayment of advances outstanding under the Credit
Agreement dated as of January 5, 1995, as amended, between CGP and The
Bank of Boston and described on Schedule 4.01(jj) hereto in an
aggregate amount not to exceed $5,250,000";
(i) Section 5.03(c)(ii) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(ii) unaudited Consolidated balance sheets of each of FCN Holding and
its Subsidiaries, Saban and its Subsidiaries, IFE and its
Subsidiaries, Fox Management and its Subsidiaries and Fox Properties
and its Subsidiaries as of the end of such Fiscal Year and unaudited
Consolidated statements of operations, stockholders' equity and cash
flows of each of FCN Holding and its Subsidiaries, Saban and its
Subsidiaries, IFE and its Subsidiaries, Fox Management and its
Subsidiaries and Fox Properties and its Subsidiaries for such Fiscal
Year, in each case under this Section 5.03(c)".
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(j) Section 5.03(d)(ii) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(ii) in the case of any such financial statements delivered to
the Lenders pursuant to Section 5.03(c)(ii), duly certifying that the
Consolidated financial statements delivered with such certificate
fairly present the Consolidated financial condition of FCN Holding and
its Subsidiaries, Saban and its Subsidiaries, IFE and its
Subsidiaries, Fox Management and its Subsidiaries or Fox Properties
and its Subsidiaries, as appropriate, as of the last day of such
Fiscal Year and the Consolidated results of operations and cash flows
of FCN Holding and its Subsidiaries, Saban and its Subsidiaries, IFE
and its Subsidiaries, Fox Management and its Subsidiaries or Fox
Properties and its Subsidiaries, as appropriate, for the Fiscal Year
ended on such date";
SECTION 2. Amendments to Certain Provisions of the Fox Kids
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Guarantee. The Fox Kids Guarantee is, upon the occurrence of the Amendment No.
3 Effective Date, hereby amended to read as follows:
(a) Section 8(a) of the Fox Kids Guarantee is hereby amended (i) to
delete the word "and" at the end of clause (ii) thereof, (ii) to delete the
punctuation "." at the end of clause (iii) thereof and to substitute
therefor the phrase "; and" and (iii) to add the following new subsection
(iv) thereof:
"(iv) Liens created under the A Faire Loan Pledge Agreement
solely on the Cine-Groupe Shares, any substitutions and replacement
thereof, any dividends and other distributions thereon and any
proceeds therefrom".
(b) Section 8(f) of the Fox Kids Guarantee is hereby amended to
delete clause (i) thereof in its entirety and to substitute therefor the
following new clause (i) thereof:
"(i) amend its Corrected Restated Certificate of Incorporation (A) to
include certificates of designation for one or more series of
preferred stock thereof that, in each case, will qualify as Permitted
Preferred Stock, (B) to reduce or to increase the number of authorized
shares of any class of its common stock and (C) to reduce the number
of authorized shares of any class or series of its Preferred Stock, in
each case under subclauses (i)(B) and (i)(C) of this Section 8(f), in
such a manner as, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect or to
adversely affect the Administrative Agent or the Lenders in any
manner, and".
SECTION 3. Amendments to Certain Provisions of the Pledge and
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Assignment Agreement. The Pledge and Assignment Agreement is, upon the
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occurrence of the Amendment No. 3 Effective Date, hereby amended to read as
follows:
(a) Preliminary Statement (6) to the Pledge and Assignment Agreement
is hereby amended to delete the first sentence thereof in its entirety and
to substitute therefor the following new sentence:
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"(a) FCN Holding has opened a non-interest bearing cash collateral
account (the "FCN HOLDING CASH COLLATERAL ACCOUNT") with Citibank at
its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
, (b) IFE has opened a non-interest bearing cash collateral
account (the "IFE CASH COLLATERAL ACCOUNT") with Citibank at its
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
, (c) Saban has opened a non-interest bearing cash collateral
account (the "SABAN CASH COLLATERAL ACCOUNT") with Citibank at its
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
, (d) Fox Management has opened a non-interest bearing cash
collateral account (the "FOX MANAGEMENT CASH COLLATERAL ACCOUNT") with
Citibank at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Account No. , and (e) Fox Properties has opened a non-
interest bearing cash collateral account (the "FOX PROPERTIES CASH
COLLATERAL ACCOUNT" and, together with the FCN Holding Cash Collateral
Account, the IFE Cash Collateral Account, the Saban Cash Collateral
Account and the Fox Management Cash Collateral Account, the "CASH
COLLATERAL ACCOUNTS") with Citibank at its offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Account No. ".
(b) Section 1(b) of the Pledge and Assignment Agreement is hereby
amended (i) to add the following new clauses (iv) and (v) immediately
following the existing clause (iii) thereof:
"(iv) in the case of Fox Management, the Fox Management Cash
Collateral Account, all of the funds held therein and all of the
certificates and instruments, if any, from time to time representing
or evidencing the Fox Management Cash Collateral Account;
(v) in the case of Fox Properties, the Fox Properties Cash
Collateral Account, all of the funds held therein and all of the
certificates and instruments, if any, from time to time representing
or evidencing the Fox Properties Cash Collateral Account;"
and (ii) to renumber the existing clauses (iv), (v) and (vi) of such
Section 1(c) as clauses (vi), (vii) and (viii), respectively.
SECTION 4. Waiver to Certain Provisions of the Credit Agreement. (a)
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All of the Defaults and Events of Default under Section 7.01(c) of the Credit
Agreement that have occurred and are continuing as a result of the failure of
Holdings to comply with the requirements of Section 5.02(j) of the Credit
Agreement in connection with the creation and incorporation of Fox Management
and Fox Properties are, on and as of the Amendment No. 3 Effective Date, hereby
waived by the Lenders.
(b) Each of the Lenders hereby agrees to waive, on and as of the
Amendment No. 3 Effective Date but solely in connection with each of the
Carolina Opry Sale and the Theaters Dispositions, the requirements of Section
5.02(d)(vii)(2) of the Credit Agreement that CGP have received or receive at
least 90% of the value of the consideration from each of the Carolina Opry Sale
and the Theaters Dispositions in cash and Section 2.04(b)(iv) of the Credit
Agreement that the Facilities be automatically and permanently reduced by the
amount of the Net Cash Proceeds from the Theaters Dispositions on the date of
the receipt thereof by CGP; provided that:
(i) all of the Indebtedness of IFE and GAC owing to Xx. Xxxxxx Xxxxxxx
on the Amendment No. 3 Effective Date have been canceled and forgiven in
full in consideration for the
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Carolina Opry Sale, the aggregate principal amount of which shall not be
less than $6,700,000 on such date; and
(ii) CGP shall receive OSE Shares having a Fair Market Value on the
date of consummation of the Theaters Dispositions of not less than
$1,000,000 and at least $750,000 in cash in consideration for the Theaters
Dispositions (it being understood and agreed that such cash consideration
will be used by CGP promptly following the receipt thereof to acquire
additional OSE Shares); and
provided, further that, by its execution and delivery of this Amendment and
Waiver, IFE agrees to cause CGP to sell all of the OSE Shares acquired by it as
part of (or in connection with) the Theaters Dispositions for not less than the
Fair Market Value thereof on or prior to the earlier of (i) the third Business
Day following date on which the lien and security interest of OSE in such OSE
Shares is released or terminated and (ii) June 15, 2000, and to apply the Net
Cash Proceeds therefrom on the date of receipt thereof by CGP to reduce the
Commitments in accordance with, and to the extent required under, Section
2.04(b)(iv) and to prepay the Advances outstanding at such time in accordance
with, and to the extent required under, Section 2.05(b).
(c) All of the Defaults and Events of Default under Section 7.01(c) of
the Credit Agreement that have occurred and are continuing as a result of the
pledge by Fox Kids of the 58,000 Cine-Group Shares owned thereby on the date of
this Amendment and Waiver as security for the A Faire Loan are, on and as of the
Amendment No. 3 Effective Date, hereby waived by the Lenders.
SECTION 5. Consent to Substitution of Independent Public Accountants.
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The Lenders hereby consent, in accordance with the terms of Section 5.03(c) of
the Credit Agreement and Section 7(i)(ii) of the Fox Kids Guarantee, to the
appointment of Xxxxxx Xxxxxxxx LLP as the accountant of Holdings and its
Subsidiaries and Fox Kids and its Subsidiaries in lieu of Ernst & Young LLP.
SECTION 6. Acknowledgments by Fox Management and Fox Properties.
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Each of Fox Management and Fox Properties, by its execution and delivery of this
Amendment and Waiver, acknowledge and agree that, as of the Amendment No. 3
Effective Date, (a) it will have all of the Obligations (including, without
limitation, all of the Obligations set forth in Article VI of the Credit
Agreement) of a Borrower under and in respect of the Loan Documents to the same
extent as each of the Existing Borrowers, (b) it will have all of the
Obligations (including, without limitation, all of the Obligations set forth in
the applicable Collateral Documents) of a Loan Party under and in respect of the
Loan Documents to the same extent as each of the other Loan Parties and (c) each
reference in the Loan Documents to a "Borrower" or a "Loan Party" shall also
mean and be a reference to it.
SECTION 7. Conditions of Effectiveness to this Amendment and Waiver.
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This Amendment and Waiver shall become effective as of the first date (the
"AMENDMENT NO. 3 EFFECTIVE DATE") on which, and only if, each of the following
conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of
this Amendment and Waiver executed by the Existing Borrowers, Fox
Management, Fox Properties, Fox Kids, Holdings and the Required Lenders or,
as to any of the Lenders, advice satisfactory to the Administrative Agent
that such Lender has executed this Amendment and Waiver, and (ii) the
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Consent attached hereto executed by each of the Loan Parties (other than
Holdings, Fox Kids and the Borrowers).
(b) The Lenders shall be reasonably satisfied with the organizational
and legal structure and capitalization of Fox Management and Fox Properties
(collectively, the "ADDITIONAL BORROWERS"), including, without limitation,
the terms and conditions of the Constitutive Documents of, and each class
of Equity Interests in, each of the Additional Borrowers and of each
agreement or instrument relating to such structure or capitalization.
Neither Fox Management nor Fox Properties shall have any Subsidiaries or
any Indebtedness or other liabilities (whether direct or indirect, matured
or unmatured, fixed or contingent) immediately prior to their execution and
delivery of the Loan Documents thereby other than de minimus liabilities
incidental to the creation and incorporation thereof.
(c) The Lenders shall be reasonably satisfied with the A Faire Loan
Agreement, the A Faire Pledge Agreement, the Theaters Disposition Sale
Agreement, the Theaters Disposition Pledge Agreement and all of the other
agreements, instruments and other documents related to the Cine-Groupe
Transactions, the Xxxxxxx Transactions and the Fox Kids Charter Amendment
(collectively, the "AMENDMENT NO. 3 TRANSACTION DOCUMENTS"); and all of the
Amendment No. 3 Transaction Documents shall be in full force and effect in
the form delivered to the Administrative Agent on or prior to the Amendment
No. 3 Effective Date.
(d) All of the Governmental Authorizations, and all of the consents,
approvals and authorizations of, notices and filings to or with, and other
actions by, any other Person necessary in connection with any aspect of the
Amendment No. 3 Transactions, the Amendment No. 3 Transaction Documents or
any of the other transactions contemplated thereby shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Lenders) and shall remain in full force and effect; all
applicable waiting periods shall have expired without any action being
taken by any competent authority; and no Requirement of Law shall be
applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon any aspect of the
Amendment No. 3 Transactions, the Amendment No. 3 Transaction Documents or
any of the other transactions contemplated thereby. Each aspect of the
Amendment No. 3 Transactions shall have been consummated or shall be
consummated on the Amendment No. 3 Effective Date in compliance with all
applicable Requirements of Law.
(e) The Administrative Agent shall have received on or before the
Amendment No. 3 Effective Date the following, each dated such date (unless
otherwise specified), in form and substance reasonably satisfactory to the
Lenders (unless otherwise specified) and (unless otherwise specified) in
sufficient copies for each of the Lenders:
(i) The Revolving Credit Notes of each of Fox Management and Fox
Properties, payable to the order of the Revolving Credit Lenders.
(ii) Certified copies of the resolutions of each of the board of
directors of Fox Properties and the members (or persons performing similar
functions) of Fox Management approving each of the Loan Documents to which
it is or is to be a party, the consummation of each aspect of the
Properties/Management Transactions involving or affecting such Person and
the other transactions contemplated by any of the foregoing, and of all
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documents evidencing necessary Governmental Authorizations, or other
necessary consents, approvals, authorizations, notices, filings or actions,
with respect to any of the Loan Documents to which it is or is to be a
party, the consummation of any aspect of the Properties/Management
Transactions involving or affecting such Person or any of the other
transactions contemplated by any of the foregoing.
(iii) Certified copies of the resolutions of the board of
directors of Fox Kids approving each of the Amendment No. 3 Transaction
Documents to which it is or is to be a party, the Fox Kids Charter
Amendment and the consummation of each aspect of the Amendment No. 3
Transactions involving or affecting Fox Kids and the other transactions
contemplated by any of the foregoing, and all documents evidencing
necessary Governmental Authorizations, or other necessary consents,
approvals, authorizations, notices, filings or actions, with respect to any
of the Amendment No. 3 Transaction Documents to which it is or is to be a
party, the Fox Kids Charter Amendment or the consummation any aspect of the
Amendment No. 3 Transactions involving or affecting Fox Kids or any of the
other transactions contemplated by any of the foregoing.
(iv) Certified copies of the resolutions of the board of
directors of CGP (A) approving each of the Amendment No. 3 Transaction
Documents to which it is or is to be a party and the consummation of each
aspect of the Amendment No. 3 Transactions involving or affecting CGP and
the other transactions contemplated by any of the foregoing, and all
documents evidencing necessary Governmental Authorizations, or other
necessary consents, approvals, authorizations, notices, filings or actions,
with respect to any of the Amendment No. 3 Transaction Documents to which
it is or is to be a party or the consummation of any aspect of the
Amendment No. 3 Transactions involving or affecting CGP or any of the other
transactions contemplated by any of the foregoing and (B) determining in
good faith that the consideration being received thereby in each of the
Carolina Opry Sale and the Theaters Dispositions is at least equal to the
Fair Market Value of the property and assets being sold, leased or
otherwise disposed of in such transactions.
(v) A copy of the certificate or articles of incorporation or
the operating agreement (or similar Constitutive Document) of each of the
Additional Borrowers, and each amendment thereto, certified (as of a date
reasonably near the Amendment No. 3 Effective Date) as being a true and
complete copy thereof by the Secretary of State of the State of Delaware.
(vi) A copy of a certificate of the Secretary of State of the
State of Delaware, dated reasonably near the Amendment No. 3 Effective
Date, listing the certificate or articles of incorporation or the operating
agreement (or similar Constitutive Document) of each of the Additional
Borrowers and each amendment thereto on file in the office of such
Secretary of State and certifying that (A) such amendments are the only
amendments to the certificate or articles of incorporation or the operating
agreement (or similar Constitutive Document) of such Additional Borrower on
file in its office, (B) such Additional Borrower has paid all franchise
taxes (or the equivalent thereof) to the date of such certificate and (C)
such Additional Borrower is duly organized and is in good standing under
the laws of the State of Delaware.
11
(vii) A copy of the certificate of the Secretary of State (or
the equivalent Governmental Authority) of each jurisdiction in which
any of the Additional Borrowers is (or is required under Section
5.01(a) of the Credit Agreement to be) qualified or licensed as a
foreign corporation or limited liability company, as the case may be,
in each case dated reasonably near the Amendment No. 3 Effective Date
and stating that such Additional Borrower is duly qualified and in
good standing as a foreign corporation or limited liability company in
such jurisdiction and has filed all annual reports required to be
filed, and has paid all franchise taxes (or the equivalent thereof)
required to be paid, in such jurisdiction to the date of such
certificate.
(viii) A certified copy of the amendment to the Corrected
Restated Certificate of Incorporation of Fox Kids effecting the Fox
Kids Charter Amendment, in the form to be filed with the Secretary of
State of the State of Delaware;
(ix) A certificate of Fox Kids, signed on behalf of Fox Kids by
a Responsible Officer thereof, dated the Amendment No. 3 Effective
Date (the statements made in which certificate shall be true on and as
of the Amendment No. 3 Effective Date), certifying as to:
(A) the accuracy and completeness of each of the Amendment
No. 3 Transaction Documents relating to the Cine-Groupe
Transactions (copies of all of which shall be attached thereto);
(B) the absence of any amendments to the Corrected
Restated Certificate of Incorporation of Fox Kids since May 7,
1998, or any steps taken by the board of directors or the
shareholders of Fox Kids to effect or authorize any further
amendment, supplement or other modification thereto other than
the Fox Kids Charter Amendment;
(C) the accuracy in all material respects of the
representations and warranties made by Fox Kids in the Loan
Documents and the Amendment No. 3 Transaction Documents to which
Fox Kids is or is to be a party as though made on and as of the
Amendment No. 3 Effective Date, before and after giving effect to
this Amendment and Waiver and the Amendment No. 3 Transactions;
and
(D) the absence of any event occurring and continuing, or
resulting from this Amendment and Waiver or any of the Amendment
No. 3 Transactions, that would constitute a Default, other than
the Defaults that are or are to be expressly waived by the
Lenders pursuant to Section 4.
(x) A certificate of GAC, signed on behalf of GAC by a
Responsible Officer thereof, dated the Amendment No. 3 Effective Date
(the statements made in which certificate shall be true on and as of
the Amendment No. 3 Effective Date), certifying as to:
(A) the satisfaction of each of the conditions precedent to
the Carolina Opry Sale and each of the Theaters Dispositions set
forth in Section 5.02(d)(vii) of the Credit Agreement and not
expressly waived by the Lenders under Section 4;
12
(B) the absence of any amendments to the certificate or
articles of incorporation of GAC since October 28, 1997 or any steps
taken by the board of directors or the shareholders of GAC to effect or
authorize any further amendment, supplement or other modification
thereto;
(C) the accuracy and completeness of the bylaws of GAC as in
effect on the Amendment No. 3 Effective Date (a copy of which, if
different from the bylaws previously delivered to the Lenders, shall be
attached to such certificate);
(D) the legal and beneficial ownership by GAC of all of the
Collateral in which GAC is purported to have granted a lien and security
interest to the Administrative Agent, on behalf of the Secured Parties,
under the Collateral Documents, free and clear of all Liens, except for
the liens and security interests created under the Loan Documents;
(E) the accuracy in all material respects of the
representations and warranties made by GAC in the Loan Documents and the
Amendment No. 3 Transaction Documents to which it is or is to be a party
as though made on and as of the Amendment No. 3 Effective Date, before
and after giving effect to this Amendment and Waiver and the Amendment
No. 3 Transactions; and
(F) the absence of any event occurring and continuing, or
resulting from this Amendment and Waiver or any of the Amendment No. 3
Transactions, that would constitute a Default, other than the Defaults
that are or are to be expressly waived by the Lenders pursuant to
Section 4.
(xi) A certificate of each of the Additional Borrowers, signed on
behalf of such Additional Borrower by a Responsible Officer thereof, dated
the Amendment No. 3 Effective Date (the statements made in which certificate
shall be true on and as of the Amendment No. 3 Effective Date), certifying as
to:
(A) the absence of any amendments to the certificate or
articles of incorporation or the operating agreement (or similar
Constitutive Document) of such Additional Borrower since the date of the
Secretary of State's certificate delivered pursuant to clause (vi) of
this Section 7 or any steps taken by the board of directors or the
shareholders or the members (or the persons performing similar
functions) of such Additional Borrower to effect or authorize any
further amendment, supplement or other modification thereto;
(B) the accuracy and completeness of the bylaws (or the
equivalent Constitutive Documents, if any) of such Additional Borrower
as in effect on the date on which the resolutions of the board of
directors or the members (or the persons performing similar functions)
of such Additional Borrower referred to in clause (ii) of this Section 7
were adopted and on the Amendment No. 3 Effective Date (a copy of which
shall be attached to such certificate);
13
(C) the due organization and good standing of such Additional
Borrower as a corporation or limited liability company, as the case may
be, organized under the laws of the State of Delaware, and the absence
of any proceeding (either pending or contemplated) for the dissolution,
liquidation or other termination of the existence of such Additional
Borrower;
(D) the legal and beneficial ownership by such Additional
Borrower of all of the Collateral in which such Additional Borrower is
purported to have granted a lien and security interest to the
Administrative Agent, on behalf of the Secured Parties, under the
Collateral Documents, free and clear of all Liens, except for the liens
and security interests created under the Loan Documents;
(E) the accuracy in all material respects of the
representations and warranties made by such Additional Borrower in the
Loan Documents and the Amendment No. 3 Transaction Documents to which it
is or is to be a party as though made on and as of the Amendment No. 3
Effective Date, before and after giving effect to this Amendment and
Waiver and the Amendment No. 3 Transactions; and
(F) the absence of any event occurring and continuing, or
resulting from this Amendment and Waiver or any of the Amendment No. 3
Transactions, that would constitute a Default, other than the Defaults
that are or are to be expressly waived by the Lenders pursuant to
Section 4.
(xii) A certificate of the Secretary or an Assistant Secretary of
each of the Additional Borrowers certifying the names and true signatures of
the officers of such Additional Borrower authorized to sign each of the Loan
Documents to which it is or is to be a party and the other agreements,
instruments and documents to be delivered hereunder and thereunder.
(xiii) A certificate of CGP, signed on behalf of CGP by a Responsible
Officer thereof, dated the Amendment No. 3 Effective Date (the statements
made in which certificate shall be true on and as of the Amendment No. 3
Effective Date), certifying as to (i) the accuracy and completeness of each
of the Amendment No. 3 Transaction Documents relating to the Xxxxxxx
Transactions (copies of all of which shall be attached thereto) and (ii) the
satisfaction of each of the conditions precedent to the Carolina Opry Sale
and each of the Theaters Dispositions set forth in Section 5.02(d)(vii) of
the Credit Agreement and not expressly waived by the Lenders under Section 4.
(xiv) Certificates representing the Pledged Interests comprised of
all of the Equity Interests in the Additional Borrowers and all of the OSE
Shares received by CGP as part of (or in connection with) the Theaters
Dispositions and not pledged to OSE as collateral for the indemnification
obligations of CGP set forth in Section 9.1 of the Theaters Disposition Sale
Agreement in accordance with Section 5.02(a)(ii)(O) of the Credit Agreement,
as amended hereby, in each case accompanied by undated stock powers or other
appropriate powers duly executed in blank, and instruments evidencing Pledged
Indebtedness, if any,
14
comprised of intercompany Indebtedness of any of the Additional Borrowers
owing to any of the other Loan Parties, together with:
(A) proper amendments to existing financing statements (Form
UCC-3 or a comparable form) under the Uniform Commercial Code of all
jurisdictions that may be necessary or that the Administrative Agent
may reasonably deem desirable in order to perfect and protect the
liens and security interests created or purported to be created by the
Pledge and Assignment Agreement, covering such Pledged Interests and
Pledged Indebtedness, in each case completed in a manner satisfactory
to the Administrative Agent; and
(B) evidence that all of the other actions (including,
without limitation, the completion of all of the other recordings and
filing of or with respect to the Pledge and Assignment Agreement) that
may be necessary or that the Administrative Agent may reasonably deem
desirable in order to perfect and protect the liens and security
interests created under the Pledge and Assignment Agreement have been
taken or will be taken in accordance with the terms of the Loan
Documents.
(xv) One or more pledge agreement supplements, in substantially
the form of Exhibit B to the Pledge and Assignment Agreement (collectively,
the "PLEDGE AGREEMENT SUPPLEMENTS"), duly executed by each of the
Additional Borrowers, together with:
(A) certificates representing the Pledged Interests
referred to therein, if any, accompanied by undated stock powers
or other appropriate powers, duly executed in blank;
(B) instruments evidencing the Pledged Indebtedness
referred to therein, if any, duly endorsed in blank;
(C) proper financing statements (Form UCC-1 or a comparable
form) under the Uniform Commercial Code of all jurisdictions that
may be necessary or that the Administrative Agent may reasonably
deem desirable in order to perfect and protect the liens and
security interests created or purported to be created under the
Pledge Agreement Supplements and the Pledge and Assignment
Agreement, covering the Collateral of the Additional Borrowers
described therein, in each case completed in a manner
satisfactory to the Administrative Agent and duly executed by the
applicable Additional Borrower;
(D) the Cash Collateral Account Letter of each of Fox
Management and Fox Properties, duly executed by such Person and
Citibank; and
(E) evidence that all of the other actions (including,
without limitation, the completion of all of the other recordings
and filings of or with respect to the Pledge Agreement
Supplements and the Pledge and Assignment Agreement) that may be
necessary or that the Administrative Agent may reasonably deem
desirable in order to perfect and protect the liens and security
interests created under the
15
Pledge Agreement Supplements and the Pledge and Assignment
Agreement have been taken or will be taken in accordance with the
terms of the Loan Documents.
(xvi) A favorable opinion of Troop Xxxxxxxxx Xxxxxxx & Xxxxxx,
LLP, special counsel for the Loan Parties, in form and substance
satisfactory to the Lenders.
(xvii) A favorable opinion of Squadron, Ellenoff, Plesent &
Xxxxxxxxx, LLP, New York counsel for the Loan Parties, in form and
substance satisfactory to the Lenders.
(f) The representations and warranties contained in each of the Loan
Documents shall be correct in all material respects on and as of the date
first above written and the Amendment No. 3 Effective Date, before and
after giving effect to this Amendment and Waiver and the Amendment No. 3
Transactions, as though made on and as of such date (other than any such
representation and warranty that, by its terms, refers to a specific date
other than such date, in which case as of such specific date). No event
shall have occurred and be continuing, or shall result from the
effectiveness of this Amendment and Waiver or any of the Amendment No. 3
Transactions, that constitutes a Default, other than the Defaults that are
or are to be expressly waived by the Lenders pursuant to Section 4.
The effectiveness of this Amendment and Waiver is further conditioned upon the
accuracy of all of the factual matters described herein. This Amendment and
Waiver is subject to the provisions of Section 9.01 of the Credit Agreement.
SECTION 8. Reference to and Effect on the Loan Documents. (a) On
---------------------------------------------
and after the Amendment No. 3 Effective Date, (i) each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended and otherwise modified by this
Amendment and Waiver, (ii) each reference in the Fox Kids Guarantee to "this
Guarantee", "hereunder", "hereof" or words of like import referring to the Fox
Kids Guarantee, and each reference in each of the other Loan Documents to "the
Fox Kids Guarantee", "hereunder", "hereof" or words of like import referring to
the Fox Kids Guarantee, shall mean and be a reference to the Fox Kids Guarantee,
as amended and otherwise modified by this Amendment and Waiver, and (iii) each
reference in the Pledge and Assignment Agreement to "this Agreement" ,
"hereunder", "hereof" or words of like import referring to the Pledge and
Assignment Agreement, and each reference in each of the other Loan Documents to
"the Pledge and Assignment Agreement", "hereunder", "hereof" or words of like
import referring to the Pledge and Assignment Agreement, shall mean and be a
reference to the Pledge and Assignment Agreement, as amended and otherwise
modified by this Amendment and Waiver.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, except to the extent of the amendments and waivers specifically
provided above, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed. Without limiting the generality
of the foregoing, each of the Collateral Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Obligations
of the Loan Parties under the Loan Documents, in each case as amended and
otherwise modified in accordance with this Amendment and Waiver.
16
(c) The execution, delivery and effectiveness of this Amendment and
Waiver shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any of the Secured Parties or the Administrative
Agent under any of the Loan Documents, nor constitute a waiver of any provision
of any of the Loan Documents.
(d) Upon the occurrence of the Amendment No. 3 Effective Date, each of
the Loan Parties and each of the Lenders hereby authorize the Administrative
Agent to supplement and revise each of the Schedules to the Pledge and
Assignment Agreement, as appropriate, to reflect the supplements to such
Schedules attached to the Pledge Agreement Supplements.
SECTION 9. Costs and Expenses. Each of the Borrowers hereby
-------------------
severally agrees to pay, upon demand, all of the reasonably and properly
documented costs and expenses of the Administrative Agent (including, without
limitation, the reasonable fees and expenses of counsel for the Administrative
Agent) in connection with the preparation, execution, delivery, administration,
modification and amendment of this Amendment and Waiver and all of the
instruments, agreements and other documents delivered or to be delivered in
connection herewith, all in accordance with the terms of Section 9.05 of the
Credit Agreement.
SECTION 10. Execution in Counterparts. This Amendment and Waiver may
-------------------------
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment and Waiver by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment and Waiver.
SECTION 11. Governing Law. This Amendment and Waiver shall be
-------------
governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be executed by their respective officers, thereunto duly authorized,
as of the date first written above.
THE LOAN PARTIES
FCN HOLDING, INC.
By /s/ Xxx Xxxxx
---------------------
Name:
Title:
17
INTERNATIONAL FAMILY
ENTERTAINMENT, INC.
By /s/ Xxx Xxxxx
-------------------
Name:
Title:
SABAN ENTERTAINMENT, INC.
By /s/ Xxx Xxxxx
--------------
Name:
Title:
FOX FAMILY MANAGEMENT LLC
/s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Manager
FOX FAMILY PROPERTIES, INC.
By /s/ Xxx Xxxxx
--------------------
Name:
Title:
FOX FAMILY WORLDWIDE, INC.
By /s/ Xxx Xxxxx
---------------
Name:
Title:
18
FOX KIDS HOLDINGS, LLC
By: Fox Family Worldwide, Inc.
as its Managing Member
By /s/ Xxx Xxxxx
-------------
Name:
Title:
THE AGENTS AND THE LENDERS
CITICORP USA, INC., as Agent and as Lender
By /s/ Xxxxxx Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
CITICORP SECURITIES, INC., as Agent
By /s/ Xxxxxx Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
BANKBOSTON, N.A., as Agent and as Lender
By /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
THE CHASE MANHATTAN BANK, as Lender
By /s/ Xxxx X. Xxxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
19
CHASE SECURITIES, INC., as Agent
By /s/ Xxxx X. Xxxxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
BANK OF AMERICA NT & SA, as Lender
By /s/ Xxxx X. Xxxxx
----------------------
Name: Xxxx X. Xxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as Lender
By /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
FLEET BANK, N.A., as Lender
By /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN
LIMITED, LOS ANGELES AGENCY, as Lender
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: SVP & SDGM
20
NationsBank, N.A. as successor by merger to
NATIONSBANK OF TEXAS, N.A., as Lender
By /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
TORONTO-DOMINION (TEXAS), INC., as Lender
By /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH, as Lender
By /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK, as Lender
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS, as Lender
By /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
By /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
21
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY,
as Lender
By /s/ Yasushi Satomi
------------------------------
Name: Yasushi Satomi
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED, as
Lender
By______________________________
Name:
Title:
CRESTAR BANK, as Lender
By /s/ J. Xxxx Xxxxxxxx
------------------------------
Name: J. Xxxx Xxxxxxxx
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
as Lender
By /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: AVP
22
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY, as Lender
By /s/ Xxxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Joint General Manager
LONG TERM CREDIT BANK OF
JAPAN, as Lender
By /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Deputy General Manager
FIRST HAWAIIAN BANK, as Lender
By /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
CONSENT
Reference is made to Amendment and Waiver No. 3 dated as of June 29,
1998 (the "AMENDMENT AND WAIVER"; capitalized terms not otherwise defined herein
being used herein as defined in the Amendment and Waiver and in the Credit
Agreement referred to therein) to (a) the Amended and Restated Credit Agreement
among FCN Holding, Inc., International Family Entertainment, Inc. and Saban
Entertainment, Inc., as Existing Borrowers, Fox Kids Holdings, LLC, as
Guarantor, Fox Kids Worldwide, Inc., as Guarantor, the Lenders party thereto,
Citicorp USA, Inc., as Administrative Agent for the Lenders and the other
Secured Parties referred to therein, and Citicorp Securities, Inc., Chase
Securities, Inc. and BankBoston, N.A., as Co-Arrangers for the Facilities
referred to therein, (b) the Fox Kids Guarantee dated as of October 28, 1997 (as
amended by Letter Amendment No. 2 dated as of April 16, 1998, the "FOX KIDS
GUARANTEE") made by Fox Family Worldwide, Inc. (formerly known as Fox Kids
Worldwide, Inc.), a Delaware corporation and the owner of all of the member
interests in Holdings ("FOX KIDS"), in favor of the Secured Parties referred to
therein and (c) the other Loan Documents referred to therein.
Each of the undersigned, in its capacity as (a) a Guarantor under the
Second Amended and Restated Subsidiaries Guarantee dated October 28, 1997 (the
"SUBSIDIARIES GUARANTEE") in favor of the Secured Parties referred to therein
and a Pledgor under the Pledge and Assignment Agreement and/or (b) a Pledgor
under the Pledge and Assignment Agreement and/or under one or more of (i) the
Amended and Restated Memorandum of Deposit of Shares of Equity Interests dated
October 28, 1997 (the "U.K./SABAN U.K. PLEDGE AGREEMENT") between Saban and the
Administrative Agent, (ii) the Amended and Restated Memorandum of Deposit of
Shares of Equity Interests dated October 28, 1997 (the "U.K./FKE PLEDGE
AGREEMENT"), among FKE Holdings, Fox Kids Network and the Administrative Agent,
(iii) the Deeds of Pledge dated September 4, 1997 and June 24, 1998
(collectively, the "NETHERLANDS PLEDGE AGREEMENT"), among FKE Holdings, T.V.10
and the Administrative Agent, (iv) the Amended and Restated Pledge Agreement of
Shares dated September 4, 1997 (the "NETHERLANDS ANTILLES PLEDGE AGREEMENT"),
among Saban, Saban International, N.V. and the Administrative Agent, (v) the
Pledge Agreement dated September 4, 1997 (the "GERMAN PLEDGE AGREEMENT") among
Saban and the Administrative Agent, (vi) the Deed of Pledge of Shares dated
September 4, 1997 (the "FRENCH/FOX KIDS SARL PLEDGE AGREEMENT"), among FKE
Holdings, Fox Kids Network, Fox Kids France SARL and the Administrative Agent,
and (vii) the Deed of Pledge of Shares dated September 4, 1997 (together with
the U.K./Saban U.K. Pledge Agreement, the U.K./FKE Pledge Agreement, the
Netherlands Pledge Agreement, the Netherlands Antilles Pledge Agreement, the
German Pledge Agreement and the French/Fox Kids SARL Pledge Agreement, the
"FOREIGN SUBSIDIARY PLEDGE AGREEMENTS"), among Saban, Saban International Paris
SARL and the Administrative Agent, hereby consents to the execution, delivery
and performance of the Amendment and Waiver and agrees that:
(A) each of the Subsidiaries Guarantee, the Pledge and Assignment
Agreement and the Foreign Subsidiary Pledge Agreements to which it is a
party is, and shall continue to be, in full force and effect and is hereby
in all respects ratified and confirmed, except that, on and after the
Amendment No. 3 Effective Date, (1) each reference to the "Credit
Agreement", "thereunder", "thereof", "therein" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement, as amended and otherwise modified by the Amendment and
Waiver, (2) each reference to "the Fox Kids Guarantee", "thereunder",
"thereof", "therein" or words of like import referring to the Fox Kids
Guarantee shall mean and be a reference to the Fox Kids Guarantee, as
amended and otherwise modified by the Amendment and Waiver, and (3) each
reference in the Pledge and Assignment Agreement to "this Agreement" ,
"hereunder", "hereof" or
2
words of like import referring to the Pledge and Assignment Agreement, and
each reference in each of the other Loan Documents to "the Pledge and
Assignment Agreement", "hereunder", "hereof" or words of like import
referring to the Pledge and Assignment Agreement, shall mean and be a
reference to the Pledge and Assignment Agreement, as amended and otherwise
modified by this Amendment and Waiver; and
(B) the Pledge and Assignment Agreement and the Foreign Subsidiary
Pledge Agreements to which it is a party and all of the Collateral of such
Person described therein do, and shall continue to, secure the payment of
all of the Secured Obligations.
This Consent shall be governed by, and construed in accordance with,
the laws of the State of New York, excluding (to the fullest extent a New York
court would permit) any rule of law that would cause application of the laws of
any jurisdiction other than the State of New York.
Delivery of an executed counterpart of a signature page of this
Consent by telecopier shall be effective as the delivery of a manually executed
counterpart of this Consent.
XXXXX XXXXX PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
------------------------------
Name:
Title:
BUGBOY PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
------------------------------
Name:
Title:
CYBERPROD, INC.
By /s/ Xxx Xxxxx
------------------------------
Name:
Title:
3
FOX KIDS EUROPE HOLDINGS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
XXXX PRODUCTIONS
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
FOX KIDS (LATIN AMERICA), INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
FOX KIDS EUROPE LIMITED
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
FOX KIDS WORLDWIDE, L.L.C.
By: Fox Kids Holdings, LLC,
as Managing Member
By: Fox Family Worldwide, Inc.,
as Managing Member
By /s/ Xxx Xxxxx
------------------------------
Name:
Title:
4
IAN PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
INTERPROD, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
KIDS ROCK, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
LAUREL WAY PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
5
MMPR PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
FOX KIDS NETWORKS-EUROPE, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
POCKET PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
SABAN DOMESTIC SERVICES, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
SABAN FOODS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
SABAN INTERNATIONAL SERVICES, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
6
SABAN MERCHANDISING, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
SABAN/SCHERICK PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
------------------------------
Name:
Title:
SANDSCAPE, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
TEEN DREAM PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
MELVILLE PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
7
FCNH SUB, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
FOX CHILDREN'S PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
FOX CHILDREN'S NETWORK, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
STORYMAKERS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
FOX KID'S MUSIC, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
8
FOX CHILDREN'S MUSIC, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
APOLLO PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
BLANKET SHOW PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
CAPE PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
COMPANY SIX, LTD.
By /s/ Xxx Xxxxx
-------------------------------
Name:
Title:
9
DITCHDIGGERS PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
EARTH PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
FAMILY CHALLENGE PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
FAMILY CHANNEL PICTURES, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
FAMILY DEVELOPMENT CORP.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
10
FAMILY GAME SHOWS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
GAME TV, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
XXXXXXX ACQUISITION CORP.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
GOOD NEWS PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
HOME PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
11
IFE CHINA, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
IFE DIRECT MARKETING, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
IFE JAKE ACQUISITION CORP.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
IFE LATIN AMERICA, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
KIPPER PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
12
LYNNHAVEN ACQUISITION CORP.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
MELODY TO MELODY, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
MIMSEY MUSIC, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
MOBILINK PARTNERS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
MTM ACQUISITION COMPANY, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
13
MTM CONSUMER PRODUCTS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
MTM ENTERPRISES, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
MTM ENTERTAINMENT, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
MTM HOLDING COMPANY, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
MTM MUSIC, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
14
MUSIC TO MUSIC, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
PRETENDER PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
QUEENS PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
SPARKS PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
TREASURE PRODUCTIONS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
00
XXXXXX XXXXXX FAMILY
ENTERTAINMENT, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
RED CHECK, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
PLAZA PICTURES, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
PAPER GARDENS, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
XXXXXXX PARK, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
16
APRIL PARK, INC.
By /s/ Xxx Xxxxx
----------------------------
Name:
Title:
