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Exhibit
10.1
FIRST AMENDMENT
TO
SECURED SUPER-PRIORITY
DEBTOR IN POSSESSION
CREDIT AND GUARANTY
AGREEMENT
FIRST AMENDMENT (
“Amendment” ), dated as of November 26,
2007, to the Secured Super-Priority Debtor in Possession Credit and
Guaranty Agreement, dated as of October 16, 2007 (
“Credit Agreement” ), by and among MOVIE
GALLERY, INC. , a Delaware corporation and a debtor and debtor
in possession under Chapter 11 of the Bankruptcy Code (as defined
below) ( “Borrower” ), CERTAIN SUBSIDIARIES
OF BORROWER as Guarantors, the Lenders party thereto from time
to time, GOLDMAN SACHS CREDIT PARTNERS L.P. as Syndication
Agent and as Documentation Agent, and THE BANK OF NEW YORK
as Administrative Agent and as Collateral Agent.
RECITALS:
WHEREAS, on
October 16, 2007 ( “Petition Date” ),
Borrower and each of the Guarantors filed voluntary petitions for
relief commencing cases (collectively, the “ Cases
”) under Chapter 11 of the Bankruptcy Code with the United
States Bankruptcy Court for the District of Virginia, Eastern
Division ( “Bankruptcy Court” ).
WHEREAS, on the
Petition Date, the Bankruptcy Court entered its Interim Order
Pursuant to 11 U.S.C. §§ 105, 361, 362, 363, 364(c),
364(d) and 364(e) and Fed. R. Bankr. P. 4001 and 9014
(i) Authorizing Debtors to Obtain Secured Post-Petition
Financing on Super-Priority Priming Lien Basis, Granting Adequate
Protection for Priming and Modifying Automatic Stay,
(ii) Authorizing Debtors to Use Cash Collateral of Existing
Secured Lenders and Granting Adequate Protection for Use,
(iii) Authorizing Debtors to Repay Existing Revolver
Indebtedness upon Interim Approval and (iv) Prescribing Form
and Manner of Notice and Setting Time for Final Hearing (
“Interim DIP Order” ).
WHEREAS, pursuant to
the authorization granted in the Interim DIP Order, the parties
thereto entered into the Credit Agreement.
WHEREAS, on
November 16, 2007, the Bankruptcy Court entered its Final
Order Pursuant to 11 U.S.C. §§ 105, 361, 362, 363,
364(c), 364(d) and 364(e) and Fed. R. Bankr. P. 4001 and 9014
(i) Authorizing Debtors to Obtain Secured Post-Petition
Financing on Super-Priority Priming Lien Basis, Granting Adequate
Protection for Priming and Modifying Automatic Stay,
(ii) Authorizing Debtors to Use Cash Collateral of Existing
Secured Lenders and Granting Adequate Protection for Use, and
(iii) Confirming Authorization for Debtors to Repay Existing
Revolver Indebtedness upon Interim Approval ( “Final DIP
Order” );
WHEREAS, the Final DIP
Order requires that the Credit Agreement be amended as provided
herein;
WHEREAS, the Final DIP
Order further provides that the required amendments to the Credit
Agreement may be evidenced by a writing signed by the
Administrative Agent and Debtors; and
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WHEREAS, in accordance
with the Final DIP Order, the Credit Agreement is hereby amended
upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS
1.1 All capitalized terms
used herein (including in the introductory paragraph and Recitals
set forth above) and not otherwise defined shall have the meanings
assigned to such terms in the Credit Agreement.
SECTION 2. CONDITIONS TO
EFFECTIVENESS
This Amendment shall be
effective on the date on which all of the following conditions
precedent have been satisfied or waived ( “Effective
Date” ):
2.1 Administrative Agent
shall have received this Amendment, executed and delivered by a
duly authorized officer of each of the parties hereto.
2.2 Borrower shall have paid
Agents and Arranger for all reasonable out-of-pocket expenses
incurred by them and invoiced on or prior to the date hereof in
connection with the negotiation and preparation of this Amendment,
including the reasonable fees, charges and disbursements of counsel
for the Agents and Arranger.
SECTION 3. REPRESENTATIONS AND
WARRANTIES
Each Credit Party represents
and warrants to the Administrative Agent, the Issuing Bank and each
of the Lenders that:
3.1 The execution, delivery
and performance of this Amendment by each Credit Party is within
its power and has been duly authorized by all necessary action on
the part of such Credit Party.
3.2 This Amendment has been
duly executed and delivered by each Credit Party and constitutes a
legal, valid and binding obligation of such Credit Party,
enforceable against each of the Credit Parties in accordance with
its terms.
3.3 No Default or Event of
Default has occurred and is continuing.
3.4 Each of the
representations and warranties made by any Credit Party set forth
in the Credit Agreement and in any other Credit Document are true
and correct in all material respects on and as of the date of this
Amendment to the same extent as though made on and as of such date,
except to the extent such representations and warranties
specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in
all material respects on and as of such earlier date.
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SECTION 4. AMENDMENT TO CREDIT
AGREEMENT
4.1 Section 3.2(b) of
the Credit Agreement is hereby deleted in its entirety.
4.2 Section 8.1(l) of
the Credit Agreement is amended by deleting subclause
(iv) thereof in its entirety and replacing it with the
following: “(iv) granting any other relief that is materially
adverse to Administrative Agent’s, Syndication Agent’s,
Collateral Agent’s or Lenders’ interests under any
Credit Document or their rights and remedies hereunder or their
interest in the Collateral, provided that, in respect of the
foregoing subclause (iv), if such relief was sought by parties
other than Credit Parties, any of the Administrative Agent,
Syndication Agent or Collateral Agent or any Lender shall have
requested in writing that Credit Parties oppose the motion and
Credit Parties shall have failed to do so;”.
SECTION 5.
MISCELLANEOUS
5.1 Headings . Section
headings in this Amendment are for convenience of reference only,
are not part of this Amendment and shall not affect
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