AMENDMENT NO. 6

EX-10.1 2 d752204dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

EXECUTION VERSION

AMENDMENT NO. 6

This AMENDMENT NO. 6 (this “Amendment”), dated as of July 2, 2014, amends the Credit Agreement (as defined below) and is among Barclays Bank PLC, as administrative agent (in such capacity, the “Administrative Agent”), National CineMedia, LLC, a Delaware limited liability company (the “Borrower”), the several banks and other financial institutions or entities parties thereto (the “Lenders”), the Swing Line Lender and the Issuing Lenders (as defined in the Credit Agreement).

RECITALS

WHEREAS, the Borrower, the Administrative Agent, the Lenders named therein and each of the other parties thereto are party to the Credit Agreement, dated as of February 13, 2007 (as amended and restated pursuant to that Amendment No. 4 dated as of November 26, 2012, as amended pursuant to Amendment No. 5 dated as of May 2, 2013 and as may be further amended, restated, modified or otherwise supplemented prior to the date hereof, the “Credit Agreement”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement.

WHEREAS, the Borrower, each of the 2017 Revolving Credit Lenders, the Required Lenders, the Administrative Agent, the Swing Line Lender and the Issuing Lenders have agreed to amend the Credit Agreement (the Credit Agreement as so amended, the “Amended Credit Agreement”) subject to the conditions set forth herein.

AGREEMENT

NOW THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as follows:

SECTION 1. Amendments to the Credit Agreement.

(a) Section 1.1 of the Credit Agreement is hereby amended by inserting the following definitions in the appropriate alphabetical order therein:

“Amendment No. 6”: Amendment No. 6 to this Agreement, dated as of July 2, 2014 among the Borrower, the Lenders party thereto, the Administrative Agent and the other parties thereto.

“Amendment No. 6 Closing Date”: the date on which each of the conditions in Section 3 of Amendment No. 6 have been satisfied.

“Holdings Acquisition”: the Acquisition by Holdings of the Screenvision Assets.

“Reference Period”: as defined in the definition of “Consolidated EBITDA”.

“Screenvision”: the Delaware limited liability company that is the surviving company of the merger between Screenvision, LLC and Acquiror Sub 2, LLC, a Delaware limited liability company directly owned by Holdings.

“Screenvision Contribution”: the Acquisition by the Borrower of the Screenvision Assets, including by way of contribution of Screenvision in accordance with the Screenvision Contribution Documents.

“Screenvision Contribution Documents”: the definitive documentation evidencing the Screenvision Contribution and the Screenvision Indebtedness, in each case, in accordance with the terms of Exhibit A to this Amendment.

“Screenvision Acquisition Indebtedness”: Indebtedness originally incurred by Holdings to finance the Holdings Acquisition, and any Permitted Refinancing thereof.

“Screenvision Assets” the interest in Screenvision, LLC acquired by Holdings pursuant to the Agreement and Plan of Merger dated as of May 5, 2014 by and among Screenvision, LLC, Holdings, certain subsidiaries of Holdings party thereto and SV Holdco, LLC, as seller.

(b) Section 1.1 of the Credit Agreement is hereby amended by amending and restating the following defined terms as follows:

“2017 Revolving Credit Commitment”: (a) as to any Revolving Credit Lender, the obligation of such Revolving Credit Lender, if any, to make Revolving Credit Loans and participate in Swing Line Loans and Letters of Credit, in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “2017 Revolving Credit Commitment” opposite such Revolving Credit Lender’s name on Schedule 1-A to Amendment No. 4, as such 2017 Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof, (b) in the case of any Lender that receives an assignment of any portion of a 2017 Revolving Credit Commitment, the amount specified as such Lender’s “2017 Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total 2017 Revolving Credit Commitment, as such 2017 Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof, (c) in the case of Royal Bank of Canada, the amount of such Lender’s 2017 Revolving Credit Commitment set forth in the Incremental Amendment No. 1 dated as of June 18, 2014, as such 2017 Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof and (d) in the case of any Revolving Credit Commitment Increase Lender, the amount of such Revolving Credit Commitment Increase Lender’s Revolving Credit Commitment Increase as set forth in the applicable Incremental Amendment, as such 2017 Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof. As of the Amendment No. 6 Effective Date, the aggregate amount of the 2017 Revolving Credit Commitments outstanding is $135,000,000.00.

“2017 Revolving Credit Maturity Date”: subject to Section 2.26, the seventh anniversary of the Restatement Effective Date or, if such day is not a Business Day, the next preceding Business Day.

“Term Loan Commitment”: as to any Lender, the obligation of such Lender, if any, to make a Term Loan to the Borrower as set forth in (a) Amendment No. 5, (b) the Assignment and Acceptance pursuant to which such Lender became a party hereto, or (c) in the case of an Incremental Term Loan, the applicable Incremental Amendment, in each case as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Term Loan Commitments as of the Amendment No. 5 Effective Date is $270,000,000.

(c) Section 1.1 of the Credit Agreement is hereby amended by replacing the words “February 13, 2015” with the words “November 26, 2019” in clause (g) of the definition of “Indebtedness”.

(d) Section 1.1 of the Credit Agreement is hereby amended by replacing the words “clause (f)” with the words “clause (g)” in the second clause (d) of the definition of “Consolidated EBITDA”.

(e) Section 1.1 of the Credit Agreement is hereby amended by (i) replacing the words “as of the last day of any period of four consecutive fiscal quarters” with the words “as of any date of determination” in the definition of “Consolidated Net Senior Secured Leverage Ratio” and (ii) replacing the words “for such period” with the words “for the Reference Period most recently ended on or prior to such date of determination for which (excluding for purposes of Section 7.1) financial statements have been prepared by the Borrower.”

(f) Section 2.25 of the Credit Agreement is hereby amended by (i) replacing the words “Restatement Effective Date” with the words “Amendment No. 6 Closing Date” in clause (a) thereof and (ii) replacing the word “$160,000,000” with the word “$250,000,000” in clause (b) thereof.

(g) Section 7.2 of the Credit Agreement is hereby amended by (i) replacing the word “$160,000,000” with the word “$250,000,000” in Section 7.2(p)(ii)(B)(x)(i), (ii) deleting the “and” at the end of Section 7.2(o), (iii) deleting the period at the end of Section 7.2(p) and replacing it with “; and” and (iv) adding the following new clause (q) at the end thereof:

“(q) the Screenvision Acquisition Indebtedness in an aggregate amount not to exceed $250,000,000 and any Permitted Refinancing thereof.”

(h) Section 7.3 of the Credit Agreement is hereby amended by amending and restating Section 7.3(s) as follows: “(s) Liens on the Collateral securing the Indebtedness permitted by Sections 7.2(p) and 7.2(q); provided that such Liens shall be subject to the Intercreditor Agreement.”

(i) Section 7.8 of the Credit Agreement is hereby amended by (i) deleting the “and” at the end of Section 7.8(t), (ii) deleting the period at the end of Section 7.8(u) and replacing it with “; and” and (iii) adding the following new clause (v) at the end thereof:

“(v) the Screenvision Contribution.”

(j) Section 7.10 of the Credit Agreement is hereby amended by adding the words “, the Screenvision Contribution Documents” before the words “and the other agreements identified on Schedule 7.10 shall be permitted” in clause (x) of the last sentence thereof.”

(k) Section 7.13 of the Credit Agreement is hereby amended by (i) deleting the period at the end of Section 7.13(e) and replacing it with “, and” and (ii) adding the following new clause (f) at the end thereof:

“(f) any restrictions existing in the Screenvision Contribution Documents.”

(l) Section 7.14 of the Credit Agreement is hereby amended by (i) deleting the period at the end of Section 7.14(vi) and replacing it with “, and” and (ii) adding the following new clause (vii) at the end thereof:

“(vii) any restrictions existing in the Screenvision Contribution Documents.”

SECTION 2. Conditions to Effectiveness of this Amendment and Extension of the 2017 Revolving Credit Maturity Date. This Amendment shall become a binding agreement of the parties hereto and the amendment to the definition of the term “2017 Revolving Credit Maturity Date shall become effective on the date (the “Amendment No. 6 Effective Date”) when the following conditions shall have been satisfied or waived by each applicable party:

(a) The Administrative Agent shall have received counterparts of this Amendment executed by a Responsible Officer of the Borrower, each of the 2017 Revolving Credit Lenders and the Required Lenders, or, as to any of the Lenders written evidence reasonably satisfactory to the Administrative Agent that such Lender has executed this Amendment.

(b) The Administrative Agent shall have received a certificate of the Borrower dated as of the Amendment No. 6 Effective Date signed by a Responsible Officer of the Borrower, certifying on behalf of the Borrower that, (i) the representations and warranties of the Borrower contained in Section 4 of the Amended Credit Agreement and in any other Loan Document are true and correct in all material respects as if made on and as of the Amendment No. 6 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date; provided that each reference to the “Credit Agreement” therein shall be deemed to be a reference to the Credit Agreement as amended pursuant to this Amendment and (ii) no Default or Event of Default has occurred and is continuing.

(c) In consideration for this Amendment, the Borrower shall have paid to the Administrative Agent, all fees payable to the Consenting 2017 Revolving Credit Lenders (as defined in Section 9 hereof) then payable pursuant to Section 9 hereof.

Each party hereto agrees that their respective signatures to this Amendment, once delivered, are irrevocable and may not be withdrawn.

SECTION 3. Conditions to Effectiveness of Other Amendments to the Credit Agreement. Notwithstanding anything contained herein or in any other Loan Document, the effectiveness of the Amendments set forth herein other than the amendment to the definition of

the term “2017 Revolving Credit Maturity Date”, which shall be effective as of the Amendment No. 6 Effective Date, shall be subject to prior or concurrent satisfaction of the following conditions on or before the Effective Date (as defined below) (the date on which such conditions are satisfied, the “Amendment No. 6 Closing Date”):

(a) The consummation of the Screenvision Contribution;

(b) In consideration for this Amendment, the Borrower shall have paid to the Administrative Agent, all fees payable to the Consenting Term Loan Lenders (as defined in Section 9 hereof) then payable pursuant to Section 9 hereof; and

(c) The Agents shall have received evidence that all fees and expenses (including those set forth in Section 6 hereof) of the Agents for which invoices have been presented (including the reasonable fees and expenses of counsel to the Administrative Agent) shall have been paid.

It is understood and agreed that, in the event that the conditions set forth above shall not be satisfied by the Effective Time (as defined below), the Amendments provided for herein (other than the amendment to the definition of the term “2017 Revolving Credit Maturity Date”) shall not become effective and Lender consent therefor shall immediately and automatically be revoked.

As used herein, “Effective Time” shall mean midnight (New York Time) on April 1, 2015.

SECTION 4. Representations and Warranties. The Borrower represents and warrants to the Administrative Agent and the Lenders that:

(a) The Borrower (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) has all requisite limited liability company or other organizational power and authority, and the legal right, to execute and deliver this Amendment and perform its obligations under this Amendment.

(b) The execution and delivery by the Borrower of this Amendment and the performance under this Amendment, (i) are within the Borrower’s power, (ii) have been duly authorized by all necessary organizational action, (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect and (iv) will not conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.3 of the Amended Credit Agreement) or require any payment to be made under any Contractual Obligation (except payments required by this Amendment and the Loan Documents) to which the Borrower is a party or affecting the Borrower or the Properties of the Borrower.

(c) No consent or authorization of, filing with, notice to or other act by, any Governmental Authority or any other Person is required on the part of or in respect of any Loan Party in connection with the execution, delivery or performance by the Borrower of this Amendment except (i) those consents, authorizations, filings and notices as have been obtained or made and are in full force and effect or made and (ii) those consents, authorization, filings, notices or actions, the failure of which to obtain or make, would not reasonably be expected to have a Material Adverse Effect.

(d) This Amendment has been duly executed and delivered by the Borrower. Upon the Amendment No. 6 Effective Date, this Amendment will constitute a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

(e) The Borrower represents and warrants that all representations and warranties contained in the Loan Documents to which it is a party or otherwise bound are true and correct in all material respects on and as of the Amendment No. 6 Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date.

SECTION 5. Reference to and Effect on the Credit Agreement and the Loan Documents. (a) On and after the Amendment No. 6 Effective Date, but subject to Section 3 hereof, 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 Notes and each of 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 Amended Credit Agreement.

(b) 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 6. Costs and Expenses. The Borrower agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 10.5 of the Credit Agreement.

SECTION 7. 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 shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier or other electronic delivery (e.g., “pdf”) shall be effective as delivery of a manually executed counterpart of this Amendment.

SECTION 8. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

SECTION 9. Consent Fees. The Borrower hereby covenants and agrees that, (i) concurrently with the Amendment No. 6 Effective Date, it shall pay to the Administrative Agent on account of each 2017 Revolving Credit Lender (the “Consenting 2017 Revolving Credit Lenders”) that has executed and delivered a counterpart thereof to the Administrative Agent (or its designee) on or prior to 5:00 p.m. prevailing New York city time on June 25, 2014, a fee equal to 0.25% of the outstanding used and unused 2017 Revolving Credit Commitments held by such Consenting 2017 Revolving Credit Lender as of Amendment No. 6 Effective Date and (ii) concurrently with the Amendment No. 6 Closing Date, it shall pay to the Administrative Agent on account of each Term Loan Lender (the “Consenting Term Loan Lenders”) that has executed and delivered a counterpart thereof to the Administrative Agent (or its designee) on or prior to 5:00 p.m. prevailing New York city time on June 27, 2014, a fee equal to 0.25% of the outstanding Term Loans held by such Consenting Term Loan Lender as of Amendment No. 6 Effective Date (the fees described in clauses (i) and (ii), collectively, the “Consent Fees”). The Consent Fees shall be payable in U.S. dollars in immediately available funds as directed by the Administrative Agent, free and clear of and without deduction for any and all present or future applicable taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto (with appropriate gross-up for withholding taxes). Once paid, no Consent Fees shall be refundable under any circumstances. For the avoidance of doubt, no Consent Fees will be payable to Consenting Term Loan Lenders if the conditions to the Amendment No. 6 Closing Date are not met prior to the Effective Time.

SECTION 10. FATCA. The parties agree to take the position that this Amendment (together with any relevant prior amendment) is a “significant modification” of the Term Loans and advances made pursuant to the 2017 Revolving Credit Commitment within the meaning of Treasury Regulations Section 1.1001-3(e), unless the Borrower notifies the Administrative Agent after the date hereof but prior to the Amendment No. 6 Closing Date that it has determined that this Amendment (together with any relevant prior amendment) is not a “significant modification” of the Term Loans and/or advances made pursuant to the 2017 Revolving Credit Commitment within the meaning of Treasury Regulations Section 1.1001-3(e).

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.


NATIONAL CINEMEDIA, LLC, as Borrower

By: National CineMedia, Inc., a Delaware corporation, its Manager


By:		/s/ Kurt C. Hall
Name:		Kurt C. Hall
Title:		President, Chief Executive Officer and Chairman