EXHIBIT 10.28
AMENDMENT NO. 1 dated as of May 16, 2001 to
the Credit, Security, Guaranty and Pledge
Agreement dated as of June 20, 2000 among
First Look Media, Inc. (formerly known as
Overseas Filmgroup, Inc.) (the "Borrower"),
the Guarantors named therein, the Lenders
referred to therein, The Chase Manhattan
Bank, as Administrative Agent (in its
capacity as such, the "Administrative
Agent") and as 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 (of which only $33,000,000 was committed as of
the date of the Credit Agreement) 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 Credit Agreement is hereby amended by replacing all
references therein to "Overseas Filmgroup, Inc." with "First Look Media, Inc.
(formerly known as Overseas Filmgroup, Inc.)".
(B) Section 6.1 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (j), by replacing the period after
clause (k) with a semi-colon and by adding the following:
"and (l) Indebtedness of the Borrower to the ▇▇▇▇▇
▇▇▇▇▇▇▇ Organization, a division of Southern Pacific Bank, a
California corporation ("LHO"), to finance the Borrower's
minimum guarantee commitment for the motion picture entitled
"The Hermit of Amsterdam" ("Hermit") not to exceed $1,515,000,
of which $750,000 shall be recoverable from the Borrower on a
recourse basis and all other amounts outstanding thereunder
shall be recoverable from the Borrower on a non-recourse basis
solely from the rights, title and interests of the Borrower in
and to Hermit; provided that (i) the Borrower shall have
exclusive distribution rights in and to Hermit throughout the
universe (except in the territory of Benelux) in perpetuity
and such distribution rights cannot be adversely affected by
any default or irregularity in the chain of title with respect
to Hermit, (ii) the Borrower shall be entitled to recoup in
first position its minimum guarantee commitment and
distribution fees and expenses for Hermit from the worldwide
(other than the territory of Benelux) gross receipts for
Hermit, (iii) the Borrower shall grant to the Administrative
Agent (for the benefit of itself, the Issuing Bank and the
Lenders) a perfected second priority security interest in and
to the receivables payable to the Borrower in connection with
Hermit subject only to the first priority security interest in
and to the Borrower's right, title and interest in and to
Hermit granted by the Borrower in favor of LHO to secure the
Indebtedness set forth in this Section 6.1(l), (iv) the
Borrower shall not be liable for any payment or obligation in
respect of Hermit until Hermit is completed and delivered in
accordance with reasonable and customary terms and conditions
agreed by the Borrower, and (v) the Borrower's obligations
with respect to Hermit shall be limited to the obligations set
forth in this Section 6.1(l) subject to the terms and
conditions hereof.
(C) Section 6.2 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (m), by replacing the period after
clause (n) with a semi-colon and by adding the following new Section 6.2(o) to
read as follows:
"and (o) Liens granted to LHO by the Borrower in and
to the Borrower's right, title and interest in and to Hermit.
(D) Section 6.17 of the Credit Agreement is hereby amended by
substituting the amount of "$7,250,000" for the amount "$5,000,000" and
inserting "(excluding reserves for bad debts)" after "overhead expenses".
(E) Section 6.19 of the Credit Agreement is hereby amended by
deleting the following "(x) $28,000,000 in the event the Borrower has expensed
no less than $300,000 in fees associated with closing of the Facility and the
Overseas Equity Offering on or before June 30, 2000 or (y) $28,400,000 in the
event the Borrower has not expensed the fees described in clause (x) on or
before June 30, 2000, in each case" and inserting in lieu thereof the following:
"$22,000,000".
(F) Section 13.1 of the Credit Agreement is hereby amended by
substituting "▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇" for "▇▇▇▇ ▇. ▇▇▇▇▇ III".
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 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
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warranties had been made on and as of the date hereof (except to the extent that
any such representations and warranties specifically relate to an earlier date);
and
(B) after giving effect to this Amendment, no Event of Default or
Default will have occurred and be continuing on and as of the date hereof.
Section 5. Further Assurances. At any time and from time to time, upon
the 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.)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO, COO
GUARANTORS:
INTRASTATE FILM DISTRIBUTORS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO
JACARANDA MUSIC, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO
WALRUS PICTURES, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO, Treasurer
ALIEN TOWERS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO
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CODE 99 PRODUCTIONS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President, CFO, Secretary
MAP PRODUCTIONS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President, CFO, Secretary
LENDERS:
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
and Issuing Bank
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BNP PARIBAS
By:_____________________________________
Name:
Title:
BANKGESELLSCHAFT BERLIN AG
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Associate Director
BANKGESELLSCHAFT BERLIN AG
/s/ ▇▇▇▇▇▇▇▇ Sarafjan
By:_____________________________________
Name: ▇▇▇▇▇▇▇▇ Sarafjan
Title: Executive
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CITY NATIONAL BANK
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ & CO.
By:_____________________________________
Name:
Title:
COMERICA BANK - CALIFORNIA
By:_____________________________________
Name:
Title:
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