Exhibit 10.8
EQUITY MARKETING, INC.
FOURTH AMENDMENT
TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "AGREEMENT") is
dated as of October 15, 2003 and entered into by and among Equity Marketing,
Inc., a Delaware corporation ("COMPANY"), the financial institutions listed on
the signature pages hereof ("LENDERS") and Bank of America, N.A., as
administrative agent for Lenders ("ADMINISTRATIVE AGENT"), and is made with
reference to that certain Credit Agreement dated as of April 24, 2001, as
amended by that certain First Amendment dated as of November 14, 2001, that
certain Second Amendment dated as of February 8, 2002 and that certain Third
Amendment and Waiver to Credit Agreement dated as of September 30, 2002 (as so
amended, the "CREDIT AGREEMENT"), by and among Company, Lenders and
Administrative Agent. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit
Agreement as set forth below; and
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 of the Credit Agreement is hereby amended by
deleting the paragraph setting forth the defined term "Consolidated EBITDA" in
its entirety and substituting the following therefor:
"Consolidated EBITDA" means, for any period, for Borrower and
its Subsidiaries on a consolidated basis, an amount equal to (A)
the sum of (i) Consolidated Net Income, (ii) Consolidated
Interest Charges, (iii) the amount of taxes, based on or
measured by income, used or included in the determination of
such Consolidated Net Income, (iv) the amount of depreciation
and amortization expense deducted in determining such
Consolidated Net Income, (v) the amount of any expense for
restricted stock units or restricted shares granted under the
Borrower's equity-based compensation plans deducted in
determining Consolidated Net Income, and (vi) any extraordinary
losses or non-recurring charges not requiring the expenditure of
cash decreasing Consolidated Net Income (but not including such
non-cash losses or charges for such period that will give rise
to cash expenditures in the future), minus (B) any extraordinary
gains or non-recurring items increasing Consolidated Net Income.
1.2 AMENDMENTS TO SECTION 2: THE COMMITMENTS AND EXTENSIONS OF
CREDIT
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Section 2.03(a) of the Credit Agreement is hereby amended by
deleting the second paragraph of such Section 2.03(a) in its entirety and
substituting the following therefor:
"Subject to subsection (f) below and unless consented to
by Issuing Lender and Required Lenders, no Letter of Credit may
expire more than 18 months after the date of its issuance or
last renewal. If any Letter of Credit of Usage remains
outstanding after the Maturity Date, Borrower shall, not later
than the Maturity Date, deposit cash in an amount equal to such
Letter of Credit Usage in a Letter of Credit Cash Collateral
Account."
1.3 AMENDMENTS TO SECTION 7: NEGATIVE COVENANTS
Section 7.12 of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"(a) Fixed Charge Coverage Ratio. Permit the Fixed
Charge Coverage Ratio as of the last day of any Fiscal Quarter set forth
below to be less than the correlative ratio set forth below:
FISCAL QUARTER ENDING ON FIXED CHARGE COVERAGE RATIO
------------------------ ---------------------------
December 31, 2001 1.30:1.00
March 31, 2002 1.30:1.00
June 30, 2002 1.30:1.00
September 30, 2002 1.30:1.00
December 31, 2002 1.50:1.00
March 31, 2003 1.50:1.00
June 30, 2002 1.50:1.00
September 30, 2003 1.30:1.00
December 31, 2003 1.40:1.00
March 31, 2004 and each 1.50:1.00"
Fiscal Quarter thereafter
SECTION 2. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and
thereby amend the Credit Agreement in the manner provided herein, Company
represents and warrants to each Lender that the following statements are true,
correct and complete:
2.1 CORPORATE POWER AND AUTHORITY. Company has all requisite
corporate power and authority to enter into this Agreement and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Agreement (as so amended, the "AMENDED AGREEMENT").
2.2 AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Agreement and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Company.
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2.3 BINDING OBLIGATION. This Agreement and the Amended Agreement
are, together, the legal, valid and binding obligation of Company, enforceable
against it in accordance with their terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles, and any
instrument or agreement required hereunder or by the Amended Agreement, in each
case, when executed and delivered, will be similarly valid, binding and
enforceable.
2.4 INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are true, correct and complete in all material respects, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
2.5 ABSENCE OF DEFAULT. No event has occurred and is continuing
or will result from the consummation of this Agreement that would constitute an
Event of Default or a Default.
SECTION 3. MISCELLANEOUS
3.1 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(A) On and after the Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in the
other documents entered pursuant to the Credit Agreement to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Amended Agreement.
(B) Except as specifically amended by this Agreement, the Credit
Agreement and the other documents entered pursuant to the Credit Agreement shall
remain in full force and effect and are hereby ratified and confirmed.
(C) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under the Credit Agreement or any of the
other Loan Documents.
3.2 HEADINGS. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
3.3 CALIFORNIA LAW. This Agreement shall be governed by, and
shall be construed and enforced in accordance with, the internal laws of the
State of California, without regard to conflicts of laws principles.
3.4 COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple
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separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. This Agreement shall become
effective as of September 30, 2003 (the "EFFECTIVE DATE") upon the execution of
a counterpart hereof by Company and Required Lenders and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
COMPANY:
EQUITY MARKETING, INC.
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
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BANK OF AMERICA, N.A., as Administrative
Agent
By:
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Name: ▇▇▇ ▇▇▇▇
Title: Vice President
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BANK OF AMERICA, N.A., as Lender,
Swing Line Lender and Issuing Lender
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
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