EXHIBIT 10.1
EXECUTION COPY
As of June 28, 2002
Liberty Livewire Corporation
520 Broadway
Santa Monica, CA 90401
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of December
22, 2000 (as amended by Amendment No. 1, dated as of November 1, 2001, and as
further amended by Amendment No. 2, dated as of March 26, 2002, the "CREDIT
AGREEMENT") among LIBERTY LIVEWIRE CORPORATION, a Delaware corporation (the
"BORROWER"), the several Lenders from time to time parties to the Credit
Agreement, 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. Terms used but not defined in this
letter agreement shall have the meanings ascribed to such terms in the Credit
Agreement.
The Borrower has informed the Administrative Agent and the
Lenders of its intention (i) to borrow up to an additional $25,000,000 under the
Liberty Debt Documents for the exclusive purpose of (a) purchasing capital
assets and (b) paying up to $3,750,000 to Mr. Paul Dujardin pursuant to an
arbitration award dated June 13, 2002 (the "DUJARDIN AWARD") and (ii) to amend
the Liberty Debt Documents solely to modify the conversion rights set forth in
Section 8 of the First Amended and Restated Credit Agreement, dated as of
December 22, 2000, between Liberty Media and the Borrower (the "LIBERTY CREDIT
AGREEMENT") with respect thereto. The Borrower has requested that the
Administrative Agent and all the Lenders consent to such amendment of Section 8
of the Liberty Credit Agreement and that, notwithstanding the provisions of the
Liberty Subordination Agreement, but subject to satisfaction of the conditions
set forth below, the Administrative Agent and all the Lenders consent to the
repayment of such additional $25,000,000 of Liberty Debt prior to the Senior
Indebtedness (as defined in the Liberty Subordination Agreement) having been
indefeasibly paid in full in cash, it being understood that such consent would
apply only to the next $25,000,000 of principal of Liberty Debt incurred
(without regard to any payments).
By your signature below, you hereby (i) represent that there is
no Default or Event of Default that has occurred and is continuing under the
Loan Documents, (ii) represent that, as of the date hereof, (w) the drawn amount
under the Liberty Debt Documents is $206,191,736, (x) the remaining
availability under the Liberty Debt Documents (subject to the terms set forth in
the Liberty Debt Documents) is $107,408,264 and (y) there is no condition that
the Borrower could not satisfy in order to draw such remaining availability, and
(iii) agree that, except with respect to the specific matters set forth above,
this letter agreement does not
modify any of the obligations of the Borrower or any Loan Party or any of the
rights and remedies of the Administrative Agent or the Lenders under the Credit
Agreement.
The Lenders signatory hereto and the Administrative Agent hereby
agree that (I) notwithstanding the provisions of the Liberty Subordination
Agreement, the Borrower shall be permitted to repay the next additional
$25,000,000 of principal of Liberty Debt referred to above prior to the Senior
Indebtedness having been indefeasibly paid in full in cash, (II) notwithstanding
Section 6.15 of the Credit Agreement and Section 7(c) of the Liberty
Subordination Agreement, the Borrower and Liberty Media may amend Section 8 of
the Liberty Credit Agreement solely to modify the conversion rights set forth
therein with respect to such additional $25,000,000 of Liberty Debt, (III) the
repayment of such additional $25,000,000 of Liberty Debt shall not constitute a
distribution of dividends for purposes of Section 6.1(c) of the Credit Agreement
(IV) the repayment of such additional $25,000,000 of Liberty Debt does not
violate Section 6.7(b) of the Credit Agreement, (V) the transactions
contemplated by this letter agreement do not violate Section 6.9 of the Credit
Agreement, (VI) to the extent that all or any portion of the Dujardin Award is
paid utilizing such additional $25,000,000 of Liberty Debt, the amount paid in
respect of the Dujardin Award shall not be included in the calculation of Net
Income and (VII) the execution of this letter agreement shall not be construed
as an amendment of the Liberty Debt Documents except as authorized in clause
(II) of this paragraph with respect to Section 8 of the Liberty Credit
Agreement, provided that:
(i) such repayment shall be funded solely with the proceeds of
additional equity contributions from Liberty Media or any of its Affiliates
(other than the Borrower and its Subsidiaries) in the form of cash or cash
equivalents (it being understood that marketable securities shall be deemed as
cash equivalents) made after the date of such additional borrowing;
(ii) at the time of such repayment, no Default or Event of
Default shall have occurred and be continuing under the Loan Documents;
(iii) after giving effect to such repayment, the Borrower shall
be in compliance with all of the financial covenants set forth in Section 6.1 of
the Credit Agreement; and
(iv) promptly upon execution of the amendment authorized in
clause (II) above, the Borrower shall provide a true and complete executed copy
of such amendment to the Administrative Agent and the Administrative Agent shall
have confirmed that only Section 8 the Liberty Credit Agreement has been
amended.
The Lenders' and the Administrative Agent's agreement set forth above is
predicated upon the representations, warranties and covenants contained in the
preceding paragraphs.
By your signature below, you further agree that upon any draw on
the additional $25,000,000 of Liberty Debt, the Borrower shall provide such
documentation as the Administrative Agent may reasonably request to demonstrate
that such draw has been utilized solely for the purposes permitted by this
letter agreement.
This letter agreement shall not be construed as an amendment or
novation of the Credit Agreement.
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This letter agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same document. This letter agreement shall become
effective upon the granting of the consent, which shall be evidenced by the
execution of a counterpart of this letter by all the Lenders. Delivery of an
executed counterpart of this letter agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Sincerely,
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ THOMAS J. KANE
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Name: Thomas J. Kane
Title: Principal
THE LENDERS:
BANK OF AMERICA, N.A.
By: /s/ THOMAS J. KANE
-------------------------------
Name: Thomas J. Kane
Title: Principal
CITICORP USA, INC.
By: /s/ JEFFREY ROTHMAN
-------------------------------
Name: Jeffrey Rothman
Title: Director
(415) 627-6348
THE BANK OF NEW YORK COMPANY, INC.
By: /s/ JOHN C. LAMBERT
-------------------------------
Name: John C. Lambert
Title: Authorized Signer
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ MOIRA A. DUNCAN
-------------------------------
Name: Moira A. Duncan
Title: Senior Risk Manager
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ROYAL BANK OF CANADA
By:
-------------------------------
Name:
Title:
ING (U.S.) CAPITAL LLC
By:
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Name:
Title:
BNP PARIBAS
By:
-------------------------------
Name:
Title:
By:
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Name:
Title:
MIZUHO CORPORATE BANK, LTD.
By: /s/ MASAHITO FUKUDA
-------------------------------
Name: Masahito Fukuda
Title: Senior Vice President
and Group Head
THE GOVERNOR AND COMPANY OF THE BANK
OF IRELAND
By: /s/ GERALDINE HANNON
-------------------------------
Name: Geraldine Hannon
Title: Authorised Signatory
By: /s/ MARY CONNOLLY
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Name: Mary Connolly
Title: Authorised Signatory
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BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
-------------------------------
Name:
Title:
U.S. BANK N.A.
By: /s/ KENNETH D. BROWN
-------------------------------
Name: Kenneth D. Brown
Title: Vice President
EAST WEST BANK
By: /s/ NANCY A. MOORE
-------------------------------
Name: Nancy A. Moore
Title:
East West Bank
Acknowledged and Agreed to:
LIBERTY LIVEWIRE CORPORATION
By: /s/ WILLIAM E. NILES
-------------------------------
Name: William E. Niles
Title: Executive Vice President
LIBERTY MEDIA CORPORATION
By: /s/ ELIZABETH M. MARKOWSKI
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Name: Elizabeth M. Markowski
Title: Senior Vice President
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