EXHIBIT 10.5
EXECUTION COPY
AMENDMENT NO. 3
Amendment No. 3 dated as of November 13, 2002 (this "AMENDMENT")
among LIBERTY LIVEWIRE CORPORATION, a Delaware corporation (the "BORROWER"), the
several Lenders from time to time parties to the Credit Agreement (as defined
below), BANC OF AMERICA SECURITIES LLC, as Lead Arranger and Book Manager, BANK
OF AMERICA, N.A., as Issuer and Swingline Lender, BANK OF AMERICA, N.A., as
administrative agent for the Lenders (in such capacity, the "ADMINISTRATIVE
AGENT"), SALOMON SMITH BARNEY INC., as Syndication Agent, and THE BANK OF NEW
YORK COMPANY, INC., as Documentation Agent.
W I T N E S S E T H
WHEREAS, the Borrower, the Lenders, the Lead Arranger, the Issuer,
the Administrative Agent, the Syndication Agent and the Documentation Agent are
parties to the Credit Agreement, dated as of December 22, 2000 (as amended by
Amendment No. 1, dated as of November 1, 2001, and Amendment No. 2, dated as of
March 26, 2002, the "CREDIT AGREEMENT"; terms defined in the Credit Agreement
are used herein as defined therein);
WHEREAS, the parties desire to amend the Credit Agreement to modify
certain provisions thereof;
NOW THEREFORE, in consideration of the premises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT.
(a) AMENDMENT TO SECTION 1.1. Section 1.1 of the Credit Agreement is
hereby amended by:
(i) Deleting clause (a) of the definition of "Applicable
Margin" in its entirety and replacing it with the following:
(a) for each Type of Revolving Loan and Term A Loan, the
rate per annum set forth under the relevant column heading
opposite the applicable Total Leverage Ratio:
Eurodollar Alternate Base
Total Leverage Ratio Loans Rate Loans
-------------------- ---------- --------------
Greater than or equal to 4.50 to 1.00 3.50% 2.50%
Less than 4.50 to 1.00 but greater than or 3.25% 2.25%
equal to 4.00 to 1.00
Less than 4.00 to 1.00 but greater than or 2.50% 1.50%
equal to 3.50 to 1.00
Less than 3.50 to 1.00 but greater than or 2.25% 1.25%
equal to 3.00 to 1.00
Less than 3.00 to 1.00 but greater than or 2.00% 1.00%
equal to 2.50 to 1.00
Less than 2.50 to 1.00 1.75% 0.75%
; provided that, after June 30, 2003, if an EBITDA Event has
not yet occurred and the Total Leverage Ratio of the Borrower
for the applicable time period exceeds the level set forth
opposite such period in Section 6.1(c)(ii), for each Type of
Revolving Loan and Term A Loan, the rate per annum set forth
under the relevant column heading opposite the applicable
Total Leverage Ratio:
Eurodollar Alternate Base
Total Leverage Ratio Loans Rate Loans
-------------------- ---------- --------------
Greater than or equal to 4.50 to 1.00 4.50% 3.50%
Less than 4.50 to 1.00 but greater than or
equal to 4.00 to 1.00 4.25% 3.25%
Less than 4.00 to 1.00 but greater than or
equal to 3.50 to 1.00 2.50% 1.50%
Less than 3.50 to 1.00 but greater than or
equal to 3.00 to 1.00 2.25% 1.25%
Less than 3.00 to 1.00 but greater than or
equal to 2.50 to 1.00 2.00% 1.00%
Less than 2.50 to 1.00 1.75% 0.75%
(ii) Deleting clause (b) of the definition of "Applicable
Margin" in its entirety and replacing it with the following:
(b) for each Type of Term B Loan, (i) if the Total
Leverage Ratio is less than 4.50 to 1.00, a rate per annum
equal to (x) in the case of an Alternate Base Rate Loan, 3.00%
and (y) in the case of a Eurodollar Loan, 4.00%, and (ii) if
the Total Leverage Ratio equals or exceeds 4.50 to 1.00, a
rate per annum equal to (x) in the case of an Alternate Base
Rate Loan, 3.25% and (y) in the case of a Eurodollar Loan,
4.25%; provided that, after June 30, 2003, if an EBITDA Event
has not yet occurred and the Total Leverage Ratio of the
Borrower for the applicable time period exceeds the level set
forth opposite such period in Section 6.1(c)(ii), (i) if the
Total Leverage Ratio is less than 4.50 to 1.00, a rate per
annum equal to (x) in the case of an Alternate Base Rate Loan,
4.00% and (y) in the case of a Eurodollar Loan, 5.00%, and
(ii) if the Total Leverage Ratio
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equals or exceeds 4.50 to 1.00, a rate per annum equal to (x)
in the case of an Alternate Base Rate Loan, 4.25% and (y) in
the case of a Eurodollar Loan, 5.25%.
(iii) Deleting in its entirety the definition of "Capital
Expenditures" and replacing it with the following:
"Capital Expenditures" of the Borrower and its
Subsidiaries shall mean any expenditure in respect of the
purchase or other acquisition of (including any expenditures
under any Financing Leases (but excluding operating leases
that are not Off Balance Sheet Lease Liabilities)) with
respect to fixed or capital assets of the Borrower or such
Subsidiary but shall exclude (a) Permitted Acquisitions, (b)
any fixed or capital assets purchased or acquired in
connection with normal replacement and maintenance programs
that, in accordance with GAAP, would be properly charged to
current operations, (c) Replacement Assets to the extent
funded pursuant to Section 2.9(c)(ii), (d) any equipment
purchased or acquired using the proceeds received from the
sale or disposition of other equipment as contemplated by
clauses (a) and (b) of Section 6.6, but only to the extent the
proceeds from such sale or disposition are reinvested in new
equipment within 60 days, (e) any fixed or capital assets
purchased or acquired from funds received from Liberty Media
Corporation pursuant to the Liberty Debt Documents, (f) any
fixed or capital assets purchased or acquired from funds
received through the issuance of Capital Stock of the Borrower
or any Subsidiary to any Person other than the Borrower or a
Subsidiary, and (g) any fixed or capital assets purchased or
acquired in connection with Net Disposition Proceeds not paid
to the Administrative Agent pursuant to Section 2.9(b).
(iv) Deleting in its entirety the first full paragraph of the
definition of "EBITDA" and replacing it with the following:
"EBITDA" shall mean, for any period of determination, an
amount (computed without duplication) equal to (a) Net Income
for such period, after exclusion of (i) all items which should
be classified as extraordinary (all determined in accordance
with GAAP) and (ii) all gains attributable to insurance
proceeds (other than proceeds of business interruption
insurance) received during such period to the extent, if any,
such gains are included in Net Income plus (b) all amounts
deducted in computing Net Income for such period in respect of
(i) Interest Expense (after giving effect to all Hedging
Agreements and payments and receipts thereunder), (ii) noncash
amortization expense (including amortization of financing
costs, noncurrent assets and noncash charges), (iii)
depreciation, (iv) income taxes, (v) all other non-cash
expenses, (vi) any cash payments made to repurchase vested
employee stock options of the Borrower in an amount not to
exceed $10,000,000 in the aggregate during the term of this
Agreement, (vii) if any Permitted Acquisition occurred during
such
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period, the amount of any Non-Recurring Expenses attributable
to the assets or Capital Stock so acquired, as set forth in
the certificate delivered pursuant to paragraph (c)(i) of the
definition of "Permitted Acquisition" and (viii) until
recognized in accordance with GAAP for the fiscal year 2000,
the items described in Schedule 1.1(c) in an aggregate amount
not to exceed $7,523,418, plus (c) Restructuring Charges
incurred in such period (provided, that (i) the amount of such
Charges shall be deducted from Net Income for purposes of
determining EBITDA in such period and each subsequent period
to the extent such Charges are paid in cash in such period or
subsequent period, as applicable, and (ii) in any fiscal year
of the Borrower, the aggregate of all Restructuring Charges
that shall be added back pursuant to this clause (c) shall not
exceed $10,000,000); provided that the amounts described in
clauses (a) and (b) above shall not include any amounts
attributable to any Venture Subsidiary that is Minority Owned,
except to the extent of cash dividends actually received by
the Borrower or any Subsidiary from on-going operations of
such Venture Subsidiary; provided further that, for periods of
determination on or prior to September 30, 2002, the amounts
described in clauses (a) and (b) above shall not include any
amounts attributable to ISG.
(v) Deleting in its entirety the definition of "Indebtedness"
and replacing it with the following:
"Indebtedness" of any Person at any date shall mean
(without duplication), (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property
or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person under
Financing Leases, (d) all Off Balance Sheet Lease Liabilities
of such Person, (e) all obligations of such Person in respect
of outstanding letters of credit, acceptances and similar
obligations issued or created for the account of such Person,
(f) all liabilities secured by any Lien on any property owned
by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof, (g)
liabilities arising under Hedging Agreements (other than
interest rate caps) of such Person, (h) all Guarantee
Obligations of such Person, but excluding any Guarantee
Obligation where the primary obligor is a Subsidiary (except a
Venture Subsidiary) and the primary obligation does not
constitute Indebtedness, and (i) any asserted withdrawal
liability of such Person (either directly or indirectly
through a Commonly Controlled Entity) to a Plan.
(vi) Deleting in its entirety the definition of "Net
Disposition Proceeds" and replacing it with the following:
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"Net Disposition Proceeds" shall mean the gross cash
proceeds (including any cash received by way of deferred
payment pursuant to, or monetization of, a note receivable or
otherwise but only as and when received) received by the
Borrower or any Subsidiary from the sale (other than (i) the
sale of inventory in the ordinary course of business, (ii)
sales of assets in the ordinary course of business permitted
under clause (a) or (b) of Section 6.6 to the extent the
proceeds from such sales under either clause (a) or (b) are
reinvested in new equipment within 60 days, and (iii) sales to
the Borrower or Wholly Owned Subsidiaries permitted under
clause (d) or (e) of Section 6.6,), lease (other than a lease
in the ordinary course of business), transfer or other
disposition of any of its assets less the sum of (a)
reasonable selling expenses paid to non-affiliated third
parties, (b) any Indebtedness secured by a Lien on such asset
or property permitted to exist under clause (g) or (i) of
Section 6.3 to the extent the Borrower or such Subsidiary is
required to make a payment with respect thereto and (c) income
taxes reasonably estimated to be actually payable by the
Borrower or such Subsidiary with respect to any gain realized
as a result of such sale, lease, transfer or other disposition
and which taxes are payable by the Borrower or such Subsidiary
within two years of the date of such sale, lease, transfer or
other disposition or within two years of any installment
payment with respect thereto; provided that at the end of such
two year period any such amount not so paid shall constitute
Net Disposition Proceeds.
(vii) Deleting in its entirety the definition of "Replacement
Assets" and replacing it with the following:
"Replacement Assets" shall have the meaning ascribed
thereto in Section 2.9(c).
(viii) Deleting in its entirety the definition of "Revolving
Credit Commitment" and replacing it with the following:
"Revolving Credit Commitment" shall mean, as to any
Lender, the obligation of such Lender to make Revolving Loans
to the Borrower in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth under the
heading "Revolving Credit Commitments" opposite such Lender's
name on Schedule I or in the New Lender Joinder Agreement
pursuant to which it became a party hereto, as such amount may
be reduced from time to time pursuant to this Agreement or as
such amount may otherwise vary based upon any assignment of
Revolving Credit Commitments by or to such Lender pursuant to
a Commitment Transfer Supplement. As of November 14, 2002, the
aggregate amount of the Revolving Credit Commitment is equal
to the Dollar Equivalent of $191,500,000.
(ix) Adding the following new definitions:
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"Atlanta Property" shall mean the property located at
151 Ponce De Leon Avenue, Atlanta, Georgia and any personal
property attached thereto, including, without limitation,
buildings and fixtures, as further described in Schedule I
hereto.
"EBITDA Event" shall mean the sale by the Borrower or a
Subsidiary of (i) all the Capital Stock or all or
substantially all the assets of a Subsidiary or group of
Subsidiaries or (ii) an operating division of a Subsidiary or
group of Subsidiaries, such that, after giving effect to such
sale, EBITDA for the Borrower and its Subsidiaries for the
four fiscal quarter period most recently ended would have
increased by $3,000,000.
(b) AMENDMENT OF SECTION 2.9(b). Section 2.9(b) of the Credit
Agreement is hereby deleted in its entirety and the following inserted in
its place:
(b) The Borrower, within ten days after receipt of any
Net Disposition Proceeds (other than Net Disposition Proceeds
not greater than $2,600,000 received from the sale of the
Atlanta Property permitted pursuant to Section 6.6(h) and
reinvested in the Atlanta Property for the purchase or other
acquisition of fixed or capital assets), shall (x) pay to the
Administrative Agent (1) 75% of such Net Disposition Proceeds,
if (A) the Total Leverage Ratio (prior to the application of
such Net Disposition Proceeds pursuant to this Section 2.9) is
greater than or equal to 3.50 to 1.00 on the date such Net
Disposition Proceeds are received and (B) the aggregate amount
of Net Disposition Proceeds received by the Borrower since
November 14, 2002 is not greater than $75,000,000, (2) 50% of
such Net Disposition Proceeds, if (A) the Total Leverage Ratio
(prior to the application of such Net Disposition Proceeds
pursuant to this Section 2.9) is less than 3.50 to 1.00 but
greater than or equal to 3.00 to 1.00 on the date such Net
Disposition Proceeds are received and (B) the aggregate amount
of Net Disposition Proceeds received by the Borrower since
November 14, 2002 is not greater than $75,000,000, (3)
notwithstanding the foregoing clauses (1) and (2), 100% of
such Net Disposition Proceeds, if such Net Disposition
Proceeds are received by the Borrower from dispositions
permitted under Section 6.6(c) or (4) 100% of such Net
Disposition Proceeds, if the aggregate amount of Net
Disposition Proceeds received by the Borrower since November
14, 2002 exceeds $75,000,000, and (y) deliver to the
Administrative Agent a certificate setting forth in reasonable
detail the calculation of such Net Disposition Proceeds;
provided that, any Net Disposition Proceeds from the Atlanta
Property less than $2,600,000 which may be received by
Borrower are held in a segregated account of the Borrower
until utilized to acquire fixed or capital leasehold
improvements in such property. Any Net Disposition Proceeds
shall be applied first, pro rata to all the Loans (with a
concomitant reduction in the Revolving Credit Commitments),
second, if the Loans have been repaid in full, to the payment
of any other Obligations then due and payable, and third, to
the extent of any remaining proceeds, to the Administrative
Agent to be held as cash collateral for any other Obligations
(including, without limitation, Obligations with respect to
outstanding Letters of Credit).
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(c) AMENDMENT TO SECTION 2.9(c). Section 2.9(c) of the Credit
Agreement is hereby deleted in its entirety and the following inserted in
its place:
(c) If the aggregate amount of Net Insurance Proceeds received
since the Closing Date exceeds $2,500,000, the Borrower shall,
within ten days after receipt thereof, (x) pay to the Administrative
Agent 100% of such Net Insurance Proceeds to the extent of such
excess, for application in the manner set forth in the next sentence
and (y) deliver to the Administrative Agent a certificate setting
forth in reasonable detail the calculation of such Net Insurance
Proceeds; provided that the Borrower, by written notice to the
Administrative Agent delivered within such ten day period, may elect
to defer applying Net Insurance Proceeds aggregating up to an
additional $50,000,000 in such manner if and only if (i) concurrent
with such notice such deferred proceeds are applied to repay the
Revolving Loans (with a concomitant temporary reduction in the
Revolving Credit Commitments), and (ii) within 270 days after
receipt by the Administrative Agent of such deferred proceeds, the
Borrower shall obtain Revolving Loans for purposes of acquiring
assets which are, in the ordinary course, used and useful in the
operation of the business of the Borrower and its Subsidiaries
permitted under Section 6.13 ("Replacement Assets") (it being
understood that (A) upon expiration of such 270-day period, any
portion of such deferred proceeds that has not been utilized by the
Borrower as a Revolving Loan to acquire such Replacement Assets
shall be applied to the payment of the Obligations in accordance
with the next succeeding sentence and the Lenders shall be deemed to
have made Revolving Loans the proceeds of which shall be used to
effect such application, (B) upon each disbursement of such deferred
proceeds as a Revolving Loan for purposes of acquiring Replacement
Assets or paying such Obligations, the Revolving Credit Commitments
shall (except as provided in the next sentence) be restored by the
amount of such disbursement or application and (C) if any Default
shall occur during such 270-day period, the Administrative Agent
may, in its discretion, and shall, if directed by the Required
Lenders, apply such deferred proceeds as a mandatory prepayment in
accordance with the next sentence and the Borrower shall be deemed
to have requested Revolving Loans in an amount equal to such
deferred proceeds (as such amount may have been reduced hereunder)
and, in the case of any mandatory prepayment, such Revolving Loans
shall be made regardless of the failure of the Borrower to satisfy
the conditions set forth in Section 4.2). Any Net Insurance Proceeds
shall be applied first, pro rata to all the Loans (with a
concomitant reduction in the Revolving Credit Commitments), second,
if the Loans have been repaid in full, to the payment of any other
Obligations then due and payable, and third, to the extent of any
remaining proceeds, to the Administrative Agent to be held as cash
collateral for any other Obligations (including, without limitation,
Obligations with respect to outstanding Letters of Credit).
(d) AMENDMENT OF SECTION 5.1. Section 5.1 of the Credit Agreement is
hereby deleted in its entirety and the following inserted in its place:
5.1 Financial Statements. Furnish to each Lender:
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(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of such year and the related statements
of operations, stockholders equity and cash flows for such year,
setting forth in each case in comparative form the figures as of the
end of and for the previous year, reported on without a
qualification or exception arising out of the scope of the audit, by
KPMG or other independent certified public accountants of nationally
recognized standing; provided that the submission of the Borrower's
report on Form 10-K shall satisfy the foregoing requirements;
(b) as soon as available, but in any event not later than 45
days after the end of each quarterly period for each of the first
three fiscal quarters of each fiscal year of the Borrower, the
unaudited consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as at the end of such quarter and the
related unaudited statements of operations, stockholders' equity and
cash flows of the Borrower and its Subsidiaries for such quarter and
the portion of the fiscal year through the end of such quarter and
setting forth in each case in comparative form the figures from the
budget for such fiscal year furnished to the Lenders pursuant to
Section 5.2(d) and the actual figures for the corresponding date or
period in the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal
year-end audit adjustments); provided that the submission of the
Borrower's report on Form 10-Q shall satisfy the foregoing
requirements; and
(c) as soon as available, but in any event not later than 30
days after the end of each monthly period of each fiscal year of the
Borrower, the unaudited consolidated and consolidating balance sheet
of the Borrower and its Subsidiaries as at the end of such month and
the related unaudited statements of operations, stockholders' equity
and cash flows of the Borrower and its Subsidiaries for such month
and the portion of the fiscal year through the end of such month and
setting forth in each case in comparative form the figures from the
budget for such fiscal year furnished to the Lenders pursuant to
Section 5.2(d) and the actual figures for the corresponding date or
period in the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal
year-end audit adjustments).
All such financial statements shall be complete and correct in
all material respects and shall be prepared in reasonable detail and
in accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such
accountants or officer, as the case may be, and disclosed therein).
(e) AMENDMENT OF SECTION 6.1(b). Section 6.1(b) of the Credit
Agreement is hereby deleted in its entirety and the following inserted in
its place:
(b) Fixed Charge Coverage. From and after January 1, 2003, on
any date during any period set forth below, (i) prior to the
occurrence of an EBITDA
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Event, after giving effect to the making of each Loan to be made on
such date, permit the Fixed Charge Coverage Ratio to be less than
the ratio set forth opposite such period below:
Period Fixed Charge Coverage Ratio
------ ---------------------------
1/01/03 to 3/31/03 0.80 to 1.00
4/01/03 to 6/30/03 0.85 to 1.00
7/01/03 to 9/30/03 0.95 to 1.00
10/01/03 and thereafter 1.00 to 1.00
and (ii) after the occurrence of an EBITDA Event, after giving
effect to the making of each Loan to be made on such date, permit
the Fixed Charges Coverage Ratio to be less than the ratio set forth
opposite such period below:
Period Fixed Charge Coverage Ratio
------ ---------------------------
1/01/03 to 3/31/03 0.85 to 1.00
4/01/03 to 6/30/03 0.90 to 1.00
7/01/03 to 9/30/03 0.95 to 1.00
10/01/03 and thereafter 1.00 to 1.00
(f) AMENDMENT OF SECTION 6.1(c). Section 6.1(c) of the Credit
Agreement is hereby deleted in its entirety and the following inserted in
its place:
(c) Total Leverage Ratio. On any date during any period set
forth below, (i) prior to the occurrence of an EBITDA Event, after
giving effect to the making of each Loan to be made on such date,
permit the Total Leverage Ratio to exceed the ratio set forth
opposite such period below:
Period Total Leverage Ratio
------ --------------------
1/1/02 through 3/31/02 4.65 to 1.00
4/1/02 through 6/30/02 4.55 to 1.00
7/1/02 through 9/30/02 4.45 to 1.00
10/1/02 through 6/30/03 4.75 to 1.00
7/1/03 through 9/30/03 4.70 to 1.00
10/1/03 to 12/31/03 4.65 to 1.00
1/1/04 to 3/31/04 4.55 to 1.00
4/1/04 to 6/30/04 4.05 to 1.00
7/1/04 to 9/30/04 4.00 to 1.00
10/1/04 to 12/31/04 3.80 to 1.00
1/1/05 and thereafter 3.50 to 1.00
and (ii) after the occurrence of an EBITDA Event, after giving
effect to the making of each Loan to be made on such date, permit
the Total Leverage Ratio to exceed the ratio set forth opposite such
period below:
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Period Total Leverage Ratio
------ --------------------
1/1/02 through 3/31/02 4.65 to 1.00
4/1/02 through 6/30/02 4.55 to 1.00
7/1/02 through 9/30/02 4.45 to 1.00
10/1/02 through 6/30/03 4.55 to 1.00
7/1/03 through 9/30/03 4.50 to 1.00
10/1/03 to 12/31/03 4.40 to 1.00
1/1/04 to 3/31/04 4.35 to 1.00
4/1/04 to 6/30/04 4.05 to 1.00
7/1/04 to 9/30/04 4.00 to 1.00
10/1/04 to 12/31/04 3.80 to 1.00
1/1/05 and thereafter 3.50 to 1.00
; provided that if the Borrower declares or pays any dividends, then
at all times thereafter the Borrower will not permit the Total
Leverage Ratio to exceed 3.00 to 1.00.
(g) AMENDMENT OF SECTION 6.4(d). Section 6.4(d) of the Credit
Agreement is hereby deleted in its entirety and the following inserted in
its place:
(d) guarantees by the Borrower of performance of its
Subsidiaries under service agreements and lease agreements entered
into in the ordinary course of business and consistent with industry
standards; and
(h) AMENDMENT OF SECTION 6.5. Section 6.5 of the Credit Agreement is
hereby deleted in its entirety and the following inserted in its place:
6.5 Limitation on Fundamental Changes. Enter into any merger,
acquisition, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of, all
or substantially all its property, business or assets except:
(a) any Subsidiary may be merged or consolidated with or into the
Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or any Subsidiary of the Borrower may be
merged or consolidated with or into any one or more Wholly Owned
Subsidiaries of the Borrower;
(b) any Wholly Owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other Wholly Owned
Subsidiary of the Borrower;
(c) any Wholly Owned Subsidiary of the Borrower may enter into any
merger or consolidation necessary to effect a Permitted Acquisition;
(d) Permitted Acquisitions; and
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(e) any Subsidiary may sell, lease, transfer or otherwise dispose of
assets permitted by Section 6.6(g).
(i) AMENDMENT OF SECTION 6.6. Section 6.6 of the Credit Agreement is
hereby amended by:
(i) Deleting clauses (g) and (h) thereof in their entirety and
the following inserted in its place:
(g) the sale of other assets in the aggregate amount not to
exceed $75,000,000 from November 14, 2002; and
(h) the sale and lease of the Atlanta Property.
(ii) Inserting the following proviso at the end of Section
6.6:
provided that all Net Disposition Proceeds from such sales pursuant
this Section 6.6 shall be applied in accordance with Section 2.9.
(j) AMENDMENT OF SECTION 6.10. Section 6.10 is hereby amended by
deleting the reference to Section 6.6(h) in the last sentence and
replacing it with a reference to Sections 6.6(g) and 6.6(h).
(k) AMENDMENT OF SCHEDULE I. Part A of Schedule I to the Credit
Agreement is hereby deleted in its entirety and replaced by Schedule II
hereto.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants that, after giving effect to this Amendment,
all the representations and warranties of the Borrower contained in Section 3 of
the Credit Agreement shall be true in all material respects.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall be
effective upon the satisfaction of the following conditions precedent:
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(a) the Administrative Agent shall have received counterparts hereof
executed by duly authorized officers of the Borrower and by duly
authorized signatories of the Required Lenders;
(b) the Administrative Agent shall have received a certificate of a
Responsible Officer of the Borrower certifying that (i) this Amendment has
been duly authorized, (ii) all representations and warranties are true as
of the effective date hereof, and (iii) prior to and after giving effect
to this Amendment, no Default or Event of Default shall have occurred
which is continuing;
(c) the Administrative Agent shall have received a consent from each
Guarantor not a party hereto in the form attached as EXHIBIT A;
(d) each consenting Lender shall have received a commitment fee
equal to the product of (x) 37.5 basis points, times (y) the amount of
such Lender's Commitment (after giving effect to this Amendment); and
(e) the Administrative Agent shall have received such other
documents and certificates as the Administrative Agent may request.
SECTION 4. REFERENCE TO AND EFFECT IN THE LOAN DOCUMENTS.
(a) Upon the effectiveness of this Amendment, 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
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 hereby.
(b) Except as specifically amended above, the Credit Agreement and
all other Loan Documents 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, the Loan Documents and all the
Collateral described therein do and shall continue to secure the payment
of all obligations of the Borrower under the Credit Agreement, the Notes
and the other Loan Documents, in each case as amended hereby.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Administrative Agent under any
of the Loan Documents, nor constitute a waiver of any provision of any of
the Loan Documents.
SECTION 5. EXECUTION IN COUNTERPARTS. This Amendment 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 to be
an original and all of which taken together shall constitute but one and the
same agreement.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
12
[NO ADDITIONAL TEXT ON THIS PAGE; SIGNATURE PAGES FOLLOW]
13
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
BORROWER:
LIBERTY LIVEWIRE CORPORATION
By: /s/ WILLIAM E. NILES
-------------------------------------
Name: William E. Niles
Title: Executive Vice President
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ JAMES T. GILLAND
-------------------------------------
Name: James T. Gilland
Title: Managing Director
THE LENDERS:
BANK OF AMERICA, N.A.
By: /s/ JAMES T. GILLAND
-------------------------------------
Name: James T. Gilland
Title: Managing Director
CITICORP USA, INC.
By: /s/ ROBERT F. PARR
-------------------------------------
Name: Robert F. Parr
Title: Managing Director
Global Media & Communication
388 Greenwich St./21st Floor
212-816-8489
THE BANK OF NEW YORK COMPANY, INC.
By: /s/ JOHN C. LAMBERT
-------------------------------------
Name: John C. Lambert
Title: Authorized Signer
S-1
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
-------------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By:
-------------------------------------
Name:
Title:
ING (U.S.) CAPITAL LLC
By:
-------------------------------------
Name:
Title:
BNP PARIBAS
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
MIZUHO CORPORATE BANK, LTD.
By: /S/ MASAHITO FUKADA
-------------------------------------
Name: Masahito Fukada
Title: Senior Vice President
S-2
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
-------------------------------------
Name:
Title:
U.S. BANK N.A.
By:
-------------------------------------
Name:
Title:
EAST WEST BANK
By: /s/ NANCY A. MOORE
-------------------------------------
Name: Nancy A. Moore
Title: Senior Vice President
S-3
EXHIBIT A
REAFFIRMATION AND CONSENT
Dated as of November 13, 2002
Each of the undersigned, a Subsidiary of Liberty Livewire
Corporation that has entered into one or more Loan Documents (as defined in the
Credit Agreement referred to in the foregoing Amendment No. 3), hereby consents
to said Amendment and hereby reaffirms and agrees that (i) such Loan Documents
are, and shall continue to be, in full force and effect and are hereby ratified
and confirmed in all respects except that, upon the effectiveness of, and on and
after the date of, such Amendment No. 3, each reference in such Loan Documents
to the "Credit Agreement", "thereunder", "thereof" or words of like import shall
mean and be a reference to the Credit Agreement as amended by said Amendment,
and (ii) the Loan Documents to which the undersigned is a party and all of the
Collateral described therein do, and shall continue to, secure the payment of
all Obligations.
10 MOONS AT POP, INC.
4MC COMPANY 3, INC.
4MC RADIANT, INC.
4MC-BURBANK, INC.
525 HOLDINGS, INC.
525 STUDIOS, LLC
A.F. ASSOCIATES, INC.
AFA PRODUCTS GROUP, INC.
AMERICAN SIMULCAST CORP.
ANDERSON VIDEO COMPANY
ANGAROLA, INC.
ANS ACQUISITION SUB, INC.
ATLANTIC SATELLITE COMMUNICATIONS, INC.
AUDIO PLUS VIDEO INTERNATIONAL, INC.
CABANA CORP.
CATALINA TRANSMISSION CORP.
CINRAM-POP DVD CENTER LLC
COMPANY 11 PRODUCTIONS
COMPANY 3 NEW YORK, INC.
DIGITAL DOCTORS LLC
DIGITAL MAGIC COMPANY
DIGITAL SOUND & PICTURE, INC.
FILMCORE EDITORIAL LOS ANGELES LLC
FILMCORE EDITORIAL SAN FRANCISCO LLC
FOUR MEDIA COMPANY
GWNS ACQUISITION SUB, INC.
HOLLYWOOD SUPPLY COMPANY
INTERNATIONAL POST FINANCE LIMITED
INTERNATIONAL POST LEASING LIMITED
IPL 235 CORP.
LIBERTY LIVEWIRE LLC
LIBERTY SEG ACQUISITION SUB, LLC
LIVEWIRE NETWORK SERVICES, LLC
MANHATTAN TRANSFER/EDIT, INC.
MERIDIAN SOUND CORP.
MERIDIAN SOUND, LLC
MODERN MUSIC MAGIC, LLC
MSCL, INC.
POP ANIMATION
SANTA MONICA FINANCIAL, INC.
SOUND ONE CORPORATION
SOUNDELUX HOLLYWOOD II, LLC
SOUNDELUX HOLLYWOOD III, LLC
SYMPHONIC VIDEO LLC
THE TRIUMPH SWITCH COMPANY LLC
TODD-AO AMUSEMENT PRODUCTION SERVICES, LLC
TODD-AO DIGITAL IMAGES
TODD-AO DVD, INC.
TODD-AO HOLLYWOOD DIGITAL
TODD-AO PRESERVATION SERVICES
TODD-AO PRODUCTIONS, INC.
TODD-AO STUDIOS
TODD-AO STUDIOS EAST, INC.
TODD-AO STUDIOS WEST
TODD-AO VIDEO SERVICES
TODD-AO, ESPANA
TRIUMPH COMMUNICATIONS & FIBER SERVICES, LLC
TRIUMPH COMMUNICATIONS & LEASING SERVICES INC.
TRIUMPH COMMUNICATIONS INC.
VIDEO RENTALS, INC.
VIDEO SERVICES CORPORATION
VINE STREET MAGIC, LLC
VISUALIZE
VSC CORPORATION
VSC EXPRESS COURIER, LLC
VSC LIMA CORP.
VSC MAL CORP.
VSDD ACQUISITION CORP.
WATERFRONT COMMUNICATIONS CORPORATION
Each By: /s/ WILLIAM E. NILES
------------------------------------
Name: William E. Niles
Title: Vice President
SCHEDULE I
[See attached]
SCHEDULE II
A. COMMITMENTS
NAME REVOLVING CREDIT TERM A TERM B
OF THE LENDER COMMITMENT COMMITMENT COMMITMENT
- ------------- ---------------- ---------- ----------
Bank of America, N.A. $36,397,408.21 $28,000,000 $0
Citicorp USA, Inc. $31,020,518.36 $22,500,000 $0
The Bank of New York Company, Inc. $28,952,483.80 $20,000,000 $0
General Electric Capital Corporation $12,408,207.34 $0 $35,000,000
Royal Bank of Canada $18,198,704.10 $11,000,000 $7,000,000
ING (U.S.) Capital LLC $16,544,276.45 $10,000,000 $10,000,000
BNP Paribas $13,235,421.17 $9,000,000 $0
Mizuho Corporate Bank, Ltd. $10,753,779.70 $7,000,000 $5,000,000
The Governor and Company of the Bank $8,272,138.23 $5,000,000 $0
of Ireland
Bank of Tokyo-Mitsubishi Trust $8,272,138.23 $5,000,000 $0
Company
US Bank N.A. $7,444,924.41 $6,000,000 $0
East West $0 $1,500,000 $1,500,000