Exhibit 10.1
EXECUTION COPY
SIXTH AMENDMENT dated as of October 15, 2002 (this
"Amendment"), to the Credit Agreement dated as of February 26,
1999, as amended by the Amendment dated as of January 10,
2000, the Second Amendment dated as of January 31, 2000, the
Third Amendment dated as of June 9, 2000, the Fourth Amendment
dated as of June 1, 2001, and the Fifth Amendment dated as of
April 12, 2002 (the "Credit Agreement"), among PLAYBOY
ENTERPRISES, INC., a Delaware corporation (the "Company"), PEI
HOLDINGS, INC., a Delaware corporation and wholly owned
subsidiary of the Company ("PHI"), the financial institutions
from time to time party thereto (the "Lenders") and CREDIT
SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch, as
administrative agent (in such capacity, the "Administrative
Agent"), as collateral agent and as issuing bank.
A. The parties hereto have entered into the Credit Agreement,
pursuant to which the Lenders have agreed to extend credit to the Borrower (as
defined in the Credit Agreement) on the terms and subject to the conditions set
forth therein.
B. The Company and PHI have requested that the Lenders agree to
amend certain provisions of the Credit Agreement, and the Lenders are willing,
on the terms and subject to the conditions set forth below, to amend the Credit
Agreement as provided herein.
C. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment of Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) The following new definitions are inserted into Section 1.01 in
their proper alphabetical position:
"Existing Playboy TV International Agreements" shall mean the
agreements listed on Schedule 1.01(b) hereto, in the forms delivered
to the Lenders pursuant to Section 5.03(h)."
"Playboy TV International Amendments" shall mean the
amendments to the Existing Playboy TV International Agreements
implementing the Playboy TV International Restructuring."
"Playboy TV International Restructuring" shall mean a series
of transactions more fully described in the PTVI Deal Outline
attached as Schedule 1.01(d) hereto pursuant to which (a) Playboy
Entertainment Group, Inc., a wholly owned subsidiary of the Borrower
("PEGI"), will own all the Equity Interests in Playboy TV
International not currently owned by it, (b) PEGI will retain its
19% Equity Interest in Playboy TV-Latin America, LLC, (c) Claxson
Interactive Group Inc. and its Affiliates ("Claxson") will transfer
to the Company the Equity Interests owned by it in Playboy Online
and (d) the Latin American internet joint venture between Playboy
Online and Claxson will be canceled, all as described in the PTVI
Deal Outline attached as Schedule 1.01(d) hereto."
2
(b) The definitions of "Playboy International, Playboy International
Capital Contributions, Playboy International Initial Fee and Playboy
International Rights Acquisition Fee in Section 1.01 are amended to read as
follows:
"Playboy TV International" shall mean Playboy TV
International, LLC, a Delaware limited liability company that,
pursuant to the Playboy TV International Amendments, will become a
Wholly Owned Subsidiary.
"Playboy TV International Capital Contributions" shall mean
the capital contributions made by Playboy Entertainment Group, Inc.
to Playboy TV International pursuant to the Existing Playboy TV
International Agreements.
"Playboy TV International Initial Fee" shall mean the initial
fee paid under the Existing Playboy TV International Agreements at
the time of the initial closing of the transactions provided for
therein.
"Playboy TV International Rights Acquisition Fee" shall mean
the fees payable under Section 7.1 of the Operating Agreement for
Playboy TV International, LLC included in the Existing Playboy TV
International Agreements.
(c) The definition of "Playboy TV International Agreements in
Section 1.01 is amended to read as follows:
"Playboy TV International Agreements" shall mean, initially,
the Existing Playboy TV International Agreements, and after the
effectiveness of the Playboy TV International Amendments, the
Existing Playboy TV International Agreements as amended by such
Playboy TV International Amendments, in each case as the same may be
further amended from time to time in accordance with Section 6.09.
(d) Section 5.03 is amended by relettering paragraphs (i) and (j) as
paragraphs (j) and (k) respectively and by inserting after paragraph (h) the
following new paragraph (i):
"(i) promptly following their execution and delivery, copies
certified by a Responsible Officer of the Borrower of the Playboy TV
International Amendments;".
(e) The following new sentence is inserted at the end of Section
5.09(a):
"Without limiting the foregoing, (i) promptly, and in any event
within 10 Business Days after the acquisition thereof, cause all
Equity Interests acquired by it pursuant to the Playboy TV
International Restructuring to be pledged to the Collateral Agent
under the Pledge Agreement and (ii) promptly, and in any event
within 10 Business Days after Playboy TV International shall become
a Subsidiary pursuant to the Playboy TV International Restructuring,
cause Playboy TV International and each of its subsidiaries (other
than any Foreign Subsidiary) to become a party to the Subsidiary
Guarantee Agreement and the applicable Security Documents and to
deliver to the Collateral Agent for filing or recordation all such
instruments as shall be necessary in order for the Collateral
Requirement and the Guarantee Requirement to be satisfied with
respect to such corporations."
(f) Section 6.04(h) is amended to read as follows:
"(h) investments made pursuant to the Playboy TV International
Agreements;".
3
(g) Section 6.09 is amended to read as follows:
"SECTION 6.09. Amendment of Material Agreements. Amend,
modify or waive in any material respect the Playboy TV
International Agreements (other than by execution of the
Playboy TV International Amendments) or any agreement
governing Material Indebtedness if any such amendment,
modification or waiver, taken together with any related
amendments, modifications or waivers, would be materially
likely to result in a Material Adverse Effect or to be
materially adverse to the rights or interests of the Lenders
(including by materially reducing the amount of any prepayment
required to be made hereunder), or permit the Playboy TV
International Amendments to contain any terms not described in
Schedule 1.01(d) hereto that would be materially likely to
result in a Material Adverse Effect or to be materially
adverse to the rights or interests of the Lenders.
(h) Paragraph (f)(i) of Article VII is amended by deleting the
reference therein to "Bloomfield Mercantile Inc. or its successors or assigns,
or any of their respective Affiliates" and replacing it with the words "any
party to the Playboy TV International Agreements other than the Company and the
Subsidiaries".
(i) Schedules 1.01(b) and 1.01(d) to this Amendment are hereby
appended to the Credit Agreement as Schedules 1.01(b) and 1.01(d) thereto.
(j) The words "Playboy International" are replaced with the words
"Playboy TV International" wherever they exist in the Credit Agreement and the
other Loan Documents.
SECTION 2. Representations and Warranties. Each of the Company and
PHI represents and warrants to and covenants with each Lender as follows:
(a) on and as of the date hereof, and after giving effect to
the amendments provided for in Section 1 of this Amendment:
(i) The representations and warranties set forth in
Article III of the Credit Agreement are true and correct in
all material respects with the same effect as if made on and
as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier
date; and
(ii) No Event of Default or Default has occurred and is
continuing.
(b) The consideration given by the Company and the
Subsidiaries in connection with the Playboy TV International
Restructuring will consist solely of the termination or modification
of rights of the Company and the Subsidiaries under the Existing
Playboy TV International Agreements and not of any cash, cash
equivalents or Indebtedness. The Playboy TV International
Restructuring and the Playboy TV International Amendments will not
include any terms not described in Schedule 1.01(d) hereto that
would be materially likely to be materially adverse to the Company
and the Subsidiaries, taken as a whole, or to the rights or
interests of the Lenders.
The representations and warranties and the covenants contained in
this Section 2 shall for all purposes of the Credit Agreement be deemed to be
set forth in Articles III and VI thereof, respectively.
SECTION 3. Effectiveness. This Amendment shall become effective upon
the execution of counterparts of the signature pages hereto by the Company, PHI,
the Administrative Agent and Lenders constituting the Required Lenders;
provided, that the amendments set forth in
4
Section 1 shall not become effective until each of the following conditions
precedent shall have been satisfied:
(a) The Borrower shall have paid to the Administrative Agent, for
the account of each Lender that shall have executed this Amendment at or
prior to 5:00 p.m., New York City time, on October 18, 2002, in
immediately available funds, an amendment fee equal to 0.125% of the
aggregate outstanding Term Loans, Revolving Credit Exposure and unused
Revolving Credit Commitment of such Lender on the date hereof (determined
after giving effect to any prepayments and Commitment reductions prior to
the date of this Amendment).
(b) The Administrative Agent shall have received such evidence as
the Administrative Agent or Cravath, Swaine & Moore, counsel to the
Administrative Agent, shall reasonably have requested as to the corporate
power and authority of the Company and PHI to enter into and perform their
obligations under this Amendment reasonably satisfactory in form and
substance to the Administrative Agent and to Cravath, Swaine & Moore.
The Administrative Agent shall notify the Lenders of the satisfaction of the
foregoing conditions, and such notice shall, in the absence of manifest error,
conclusively evidence the satisfaction of such conditions.
SECTION 4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 5. Expenses. The Borrower shall pay all reasonable
out-of-pocket fees and expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of this
Amendment, including, but not limited to, the reasonable fees, disbursements and
other charges of Cravath, Swaine & Moore, counsel to the Administrative Agent.
SECTION 6. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be an original but all of which,
when taken together, shall constitute but one instrument. Delivery of an
executed counterpart of a signature page of this Amendment by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. Headings. Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
SECTION 8. Effect of Amendment. Except as specifically stated
herein, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof. As used therein, the terms "Agreement",
"herein", "hereunder", "hereinafter", "hereto", "hereof" and words of similar
import shall, unless the context otherwise requires, refer to the Credit
Agreement as modified hereby.
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the date first
above written.
PLAYBOY ENTERPRISES, INC,
by
/s/ Robert D. Campbell
------------------------------------
Name: Robert D. Campbell
Title: SVP, Treasurer
PEI HOLDINGS, INC.,
by
/s/ Robert D. Campbell
----------------------------------
Name: Robert D. Campbell
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, individually and
as Administrative Agent, Collateral Agent and
Issuing Bank,
by
/s/ Bill O'Daly
------------------------------------
Name: Bill O'Daly
Title: Director
by
/s/ Jay Chall
------------------------------------
Name: Jay Chall
Title: Director
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: ING CAPITAL LLC
---------------------------
by /s/ William James
---------------------------
Name: William James
Title: Director
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: FIRST DOMINION FUNDING II
-------------------------------
by /s/ Andrew H. Marshak
-------------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: FIRST DOMINION FUNDING III
-------------------------------
by /s/ Andrew H. Marshak
-------------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: BANK OF AMERICA, N.A.
----------------------------
by /s/ Ronald Prince
-----------------------------
Name: Ronald Prince
Title: Senior Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: FRANKLIN FLOATING RATE TRUST
---------------------------------
by /s/ Richard Hsu
---------------------------------
Name: Richard Hsu
Title: Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: HARRIS TRUST AND SAVINGS BANK
----------------------------------
by /s/ Ronald V. Redd
----------------------------------
Name: Ronald V. Redd
Title: Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: KZH SOLEIL LLC
--------------------------
by /s/ Susan Lee
--------------------------
Name: Susan Lee
Title: Authorized Agent
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: KZH SOLEIL-2 LLC
------------------------------
by /s/ Susan Lee
------------------------------
Name: Susan Lee
Title: Authorized Agent
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: GALAXY CLO 1999-1 LTD.
----------------------------
by /s/ Scott H. Richland
----------------------------
Name: Scott H. Richland
Title: Managing Director
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: LASALLE BANK, N.A.
---------------------------
by /s/ Kyle Freimuth
---------------------------
Name: Kyle Freimuth
Title: Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: KZH ING-2 LLC
---------------------------
by /s/ Susan Lee
---------------------------
Name: Susan Lee
Title: Authorized Agent
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: MOUNTAIN CAPITAL CLO 1 LTD.
-------------------------------
by /s/ Darren P. Riley
---------------------------
Name: Darren P. Riley
Title: Director
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: PPM AMERICA, INC., as Attorney-in-fact,
on behalf of JACKSON NATIONAL LIFE
INSURANCE COMPANY
-----------------------------------------
by /s/ David C. Wagner
-----------------------------------------
Name: David C. Wagner
Title: Managing Director
SIGNATURE PAGE TO
SIXTH AMENDMENT
DATED AS OF
OCTOBER 15, 2002
TO THE PLAYBOY
ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 26, 1999
To Approve This Amendment:
NAME OF INSTITUTION: PPM SPYGLASS FUNDING TRUST
-------------------------------
by /s/ Diana L. Mushill
-------------------------------
Name: Diana L. Mushill
Title: Authorized Agent