AMENDMENT No. III TO AMENDED AND RESTATED CREDIT AGREEMENT AMENDMENT No. II TO AMENDED AND RESTATED HOLDINGS AGREEMENT
EXHIBIT 10.1
AMENDMENT No. III
TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT No. II
TO AMENDED AND RESTATED HOLDINGS AGREEMENT
AMENDMENT No. III dated as of April 30, 1999 to the Amended and Restated
Credit Agreement dated as of October 15, 1997 (as amended from time to time,
the "Credit Agreement") among METRO-▇▇▇▇▇▇▇-▇▇▇▇▇ STUDIOS INC. ("MGM Studios"),
ORION PICTURES CORPORATION ("Orion" and, together with MGM Studios, the
"Borrowers"), the LENDERS listed on the signature pages thereof, the L/C ISSUERS
named therein, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent")
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Syndication
Agent; and AMENDMENT No. II dated as of April 30, 1999 to the Amended and
Restated Holdings Agreement dated as of October 15, 1997 (the "Holdings
Agreement") between METRO-▇▇▇▇▇▇▇-▇▇▇▇▇ INC. ("MGM") and the Agent
(collectively, this "Amendment").
The parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Credit Agreement has the
meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement or the Holdings Agreement, as the case may be,
shall, from and after the date hereof, refer to the Credit Agreement or Holdings
Agreement, as relevant, as amended hereby.
SECTION 2. Amendments to Credit Agreement.
(a) Addition of Definition of Equity Bridge Financing. A new definition
of "Equity Bridge Financing" is added to Section 1.01 of the Credit Agreement,
immediately before the definition of "ERISA", to read in full as follows:
"Equity Bridge Financing" means at any time any MGM Debt Incurrence
that has been repaid or refinanced in full, prior to the end of the 18th
month after the incurrence thereof, with the proceeds of an issuance
by MGM of capital stock or rights to acquire capital stock (other than
mandatorily redeemable preferred stock).
(b) Amendment to Definition of Reduction Amount. The definition of
"Reduction Amount" is amended by adding the words "net of the amount of any such
MGM Debt Incurrence that has become an Equity Bridge Financing" at the end of
clause (iii)(y)(I) of such definition, such that clause (iii)(y)(I) reads in
full as follows:
(I) the aggregate Net Cash Proceeds thereof and of all other MGM Debt
Incurrences consummated prior to or contemporaneously therewith and on or
after the Qualifying Equity Issuance Date, net of the amount of any such
MGM Debt Incurrence that has become an Equity Bridge Financing over
(c) Amendment to Library Cash Flows Definition. The definition of "Library
Cash Flows" is amended by replacing the words "July 31, 1998" in the fifth line
thereof with the words "December 31, 1998".
(d) Amendment to Combined Adjusted Net Worth Covenant. Section 5.15 of the
Credit Agreement is amended to read in full as follows:
SECTION 5.15. Minimum Combined Adjusted Net Worth. Combined Adjusted
Net Worth will at no time be less than an amount equal to the sum of (i)
$1,337,000,000 plus (ii) an amount equal to 50% of Combined Net Income for
each Fiscal Year ending on or after December 31, 1998 but prior to the date
of determination, in each case, for which such Combined Net Income is
positive (but with no deduction on account of negative Combined Net Income
for any Fiscal Year), plus (iii) 80 % of the aggregate net proceeds,
including the fair market value of property other than cash (as determined
in good faith by the Board of Directors of MGM) received by MGM from the
issuance and sale after March 31, 1999 of any capital stock of MGM or in
connection with the conversion or exchange of any Debt of MGM into capital
stock of MGM after March 31, 1999 (including without limitation any
contribution to capital).
SECTION 3. Amendment to Holdings Agreement. Section 2.1 of the Holdings
Agreement is amended by adding the words "and net of the amount of any such MGM
Debt Incurrence that has become an Equity Bridge Financing" at the end of the
second parenthetical of clause (b) thereof, such that clause (b) reads in full
as follows:
(b) at any time on or after the Qualifying Equity Issuance Date (if
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any), Debt in an aggregate principal amount (excluding original issue
discount and accretion to principal upon amortization thereof and net of
the amount of any such MGM Debt Incurrence that has become an Equity Bridge
Financing) not in excess of $250,000,000, which Debt has no Required
Payment prior to July 15, 2006; provided that (i) in determining the
Reduction Amount (if any) of any such Debt in respect of which MGM is a
guarantor or otherwise does not receive the cash proceeds, "Net Cash
Proceeds" shall be calculated by including all cash proceeds thereof
received by MGM and/or any issuer of such Debt and (ii) the Reduction
Amount (if any) with respect to such MGM Debt is applied in accordance with
Section 2.04(d) of the Credit Agreement;
SECTION 4. No Waiver. This Amendment shall not operate as a waiver of any
right, remedy, power or privilege of the Lenders under any Loan Document or of
any other term or condition thereof.
SECTION 5. Representations of Borrowers. Each of the Borrowers represents
and warrants that, on and as of the date hereof and after giving effect to this
Amendment, (i) the representations and warranties of the Obligors set forth in
the Loan Documents will be true and correct in all respects and (ii) no Default
will have occurred and be continuing.
SECTION 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 8. Effectiveness. This Amendment shall become effective on the
date when the Agent shall have received from each of the Borrowers and the
Required Lenders a counterpart hereof signed by such party or facsimile or other
written confirmation (in form satisfactory to the Agent) that such party has
signed a counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
METRO-▇▇▇▇▇▇▇-▇▇▇▇▇
STUDIOS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Title: Executive Vice President and
Chief Financial Officer
ORION PICTURES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Title: Executive Vice President and
Chief Financial Officer
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Agent and as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Syndication Agent and as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Title: Vice President
4
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Title: Managing Director
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Director
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME
TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Title: Senior Vice President &
Director
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Title: Senior Vice President &
Director
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Relationship Manager
5
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Title: Senior Vice President
ING (U.S.) CAPTIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Assistant Vice President
BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇ ▇▇▇▇ Tat
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Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES
AGENCY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------
Title: Deputy General Manager
▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Title: Authorized Signatory
SENIOR HIGH INCOME PORTFOLIO,
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Title: Authorized Signatory
DEBT STRATEGIES FUND, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Title: Authorized Signatory
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DEBT STRATEGIES FUND II, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE
PORTFOLIO
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEBT STRATEGIES
PORTFOLIO
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES PORTFOLIO
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Title: Authorized Signatory
8
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Duly Authorized Signatory
PACIFIC CENTURY BANK N.A.
By: /s/ Jan Van Houdt
------------------
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR
FUNDING, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
For ARAB BANKING CORPORATION
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Title: Chief Representative
FLEET BUSINESS CREDIT
CORPORATION (f/k/a Sanwa Business
Credit Corporation)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
Title: Vice President
9
PAMCO CAYMAN LTD.
By Highland Capital Management L.P.,
as Collateral Manager
By:
---------------------
Title:
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
By Highland Capital Management L.P.,
as Attorney-in-Fact
By:
---------------------
Title:
ML CBO IV (CAYMAN) LTD.
By Highland Capital Management L.P.,
as Collateral Manager
By:
---------------------
Title:
▇▇▇ CAPITAL FUNDING LP
By Highland Capital Management L.P.,
as Collateral Manager
By:
---------------------
Title:
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KZH PAMCO LLC
By:
---------------------
Title:
GULF INTERNATIONAL BANK B.S.C.
By:
---------------------
Title:
By:
---------------------
Title:
BANQUE WORMS CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------
Title: Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-----------------------
Title: Vice President
11
CITY NATIONAL BANK, a National
Banking Association
By:
---------------------------------
Title:
FIRST HAWAIIAN BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
By ING Capital Advisors LLC, as
Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President &
Portfolio Manager
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By ING Capital Advisors, LLC, as
Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President &
Portfolio Manager
12
ARCHIMEDES FUNDING LLC
By ING Capital Advisors, LLC as
Collateral Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President &
Portfolio Manager
KZH ING-1 LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
KZH ING-3 LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
13
PILGRIM PRIME RATE TRUST
By Pilgrim Investments, Inc., as its
investment manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
By Pilgrim Investments, Inc., as its
investment manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
SENIOR DEBT PORTFOLIO
By Boston Management & Research, as
Investment Advisor
By:
---------------------------------
Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
---------------------------------
Title:
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PFL LIFE INSURANCE COMPANY
By:
---------------------------------
Title:
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title:
CYPRESSTREE INVESTMENT
PARTNERS I, LTD.
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Principal
CYPRESSTREE INVESTMENT
PARTNERS I, LTD.
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Principal
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
PRIME INCOME TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
15
PACIFIC LIFE INSURANCE COMPANY
By:
---------------------------------
Title:
By:
---------------------------------
Title:
PACIFIC LIFE CBO 1998-1 LTD
By:
---------------------------------
Title:
By:
---------------------------------
Title:
NATEXIS BANQUE - BFCE
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇ Touffu
---------------------------------
Title: Senior vice President and
Regional Manager
16
THE FUJI BANK, LIMITED
By:
---------------------------------
Title:
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇▇ O'▇. ▇▇▇▇▇
---------------------------------
Title: Group Vice President
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
FC CBO LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Director
17
THE TORONTO DOMINION BANK
By:
---------------------------------
Title:
FREMONT FINANCIAL CORPORATION
By:
---------------------------------
Title:
FIRST DOMINION FUNDING
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Authorized Signatory
KEYPORT LIFE INSURANCE COMPANY
By ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇ Incorporated,
as its agent
By: /s/ ▇▇▇▇▇ ▇. Good
---------------------------------
Title: Vice President &
Portfolio Manager
BANKBOSTON, N.A. as trust administrator
for Longlane Master Trust IV
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Managing Director
18
BLACK DIAMOND CAPITAL FUNDING
By:
---------------------------------
Title:
KZH CYPRESSTREE-1 LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
KZH IV LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
KZH STERLING LLC
By:
---------------------------------
Title:
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