Exhibit 10.8
NOTE: THIS DOCUMENT IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. PORTIONS OF
THIS DOCUMENT FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
HAVE BEEN REDACTED AND ARE MARKED HEREIN BY “***”.
SUCH REDACTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO THE CONFIDENTIAL TREATMENT
REQUEST.
FIRST AMENDED AND
RESTATED
LOEWS SCREEN INTEGRATION
AGREEMENT
THIS FIRST AMENDED AND RESTATED
LOEWS SCREEN INTEGRATION AGREEMENT (this “ Agreement
”) is made and entered into as of February 13, 2007,
between NATIONAL CINEMEDIA, LLC, a Delaware limited liability
company (“ NCM LLC ”) and AMERICAN MULTI-CINEMA,
INC., a Missouri corporation (“ AMC ;”
collectively with NCM LLC, the “ Parties
”).
RECITALS
A. The Parties desire to hereby
amend and restate that certain Loews Screen Integration Agreement,
dated as of January 23, 2007 but effective as of
January 5, 2007, between the Parties.
B. AMC has acquired the Loews
Theatres and will grant NCM LLC exclusive rights to access and use
the Loews Theatres for the Services as defined in and pursuant to
the terms of the AMC ESA after the expiration of an existing third
party contract for similar uses.
C. Pursuant to Section 4.08 of
the AMC ESA, AMC will make payments as set forth herein in
recognition of the fact that AMC will not be capable of providing
access to and use of the Loews Theatres for the Services until the
expiration of the existing third party contract.
D. In consideration of the payments
to be made by AMC and in consideration of the additional theatre
screens and patrons that AMC will make available for the Services
upon the expiration of the existing third party contract with
respect to the Loews Theatres, the Class A membership units of
NCM LLC (the “ Units ”) were reallocated
pursuant to Section 8.7 of NCM LLC’s Second Amendment to
the Amended and Restated Limited Liability Company Operating
Agreement, dated as of January 23, 2007 but effective as of
January 5, 2007.
AGREEMENT
In consideration of the covenants
and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Definitions .
The following terms shall have the
indicated meaning:
“ Administrative Agent
” means Lehman Commercial Paper Inc., as administrative agent
under the LLC Credit Agreement and any successors and assignees in
accordance with the terms of the LLC Credit Agreement.
“ Advertising Services
” has the meaning assigned to it in the AMC ESA.
“ Affiliate ”
means with respect to a Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls, or is
Controlled by, or is under common Control with, such
Person.
“ AMC ESA ” means
that certain Exhibitor Services Agreement of even date herewith
between AMC and NCM LLC as the same may be amended, restated,
supplemented or otherwise modified from time to time.
“ Bankruptcy Code
” means Title 11 of the United States Code (11 U.S.C.
§101 et seq.), as amended from time to time.
“ Beverage Agreement
” has the meaning assigned to it in the AMC ESA.
“ Beverage Agreement
Advertising Rate ” has the meaning assigned to it in the
AMC ESA.
“ Business Day ”
means a day other than a Saturday, Sunday, federal holiday or other
day on which commercial banks in New York, New York are authorized
or required by law to close.
“ Change of Control
” with respect to any Person that is not an individual, means
(i) any merger or consolidation with or into any other entity
or any other similar transaction, whether in a single transaction
or series of related transactions, where (A) the members or
stockholders of such Person immediately prior to such transaction
in the aggregate cease to own more than 50% of the general voting
power of the entity surviving or resulting from such transaction
(or its stockholders) or (B) any Person or Group becomes the
beneficial owner of more than 50% of the general voting power of
the entity surviving or resulting from such transaction (or its
stockholders), (ii) any
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transaction or series of related transactions in
which in excess of 50% of such Person’s general voting power
is Transferred to any other Person or Group or (iii) the sale
or Transfer by such Person of all or substantially all of its
assets.
“ Common Unit Adjustment
Agreement ” means the Common Unit Adjustment Agreement,
dated as of February 13, 2007, by and among AMC, Cinemark
Media, Inc., a Delaware corporation, Cinemark USA, Inc., a Texas
corporation, Regal CineMedia Holdings, LLC, a Delaware limited
liability company, Regal Cinemas, Inc., a Tennessee corporation,
National CineMedia, Inc., a Delaware corporation, and NCM LLC, as
the same may be amended, supplemented or otherwise modified from
time to time.
“ Control ,”
(including the terms “ Controlled by ” and
“ under common Control with ”), with respect to
the relationship between or among two or more Persons, means the
possession, directly or indirectly, of the power to direct or cause
the direction of the affairs or management of a Person, whether
through ownership of voting Equity Interests, as trustee or
executor, by contract or otherwise.
“ Digitized Theatre
” has the meaning assigned to it in the AMC ESA.
“ Equity Interests
” means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership
interests (whether general or limited), limited liability company
interests or equivalent ownership interests in or issued by, or
interests, participations or other equivalents to share in the
revenues or earnings of (except as provided in any service
agreement that includes a revenue sharing component entered into in
the ordinary course of business), such Person or securities
convertible into, or exchangeable or exercisable for, such shares,
interests, participations or other equivalents and options,
warrants or other rights to acquire such shares, interests,
participations or other equivalents; provided that discounts
and rebates granted in the ordinary course of business shall not in
any event constitute an Equity Interest.
“ Exclusivity Run-Out
Payment ” has the meaning assigned to it in Attachment
A.
“ Governmental
Authority ” means any nation or government, any state or
other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
“ Group ” has the
meaning used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934.
“ Legacy Agreement
” has the meaning assigned to it in the AMC ESA.
“ LLC Agreement ”
means that certain Third Amended and Restated Limited Liability
Company Operating Agreement of National CineMedia, LLC, dated as
of
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February 13, 2007, by and among AMC,
Cinemark Media, Inc., a Delaware corporation, Regal CineMedia
Holdings, LLC, a Delaware limited liability company, and National
CineMedia, Inc., a Delaware corporation, as the same may be
amended, supplemented or otherwise modified from time to
time.
“ LLC Credit Agreement
” means the Credit Agreement dated as of February 13,
2007 among LLC, the several lenders from time to time parties
thereto, JPMorgan Chase Bank, N.A., as syndication agent, Credit
Suisse (USA) LLC and Morgan Stanley Senior Funding, Inc., as
co-documentation agents and the Administrative Agent, as amended,
modified or supplemented from time to time and any extension,
refunding, refinancing or replacement (in whole or in part)
thereof.
“ Loews Exhibitor
Allocation ” has the meaning assigned to it in Attachment
A.
“ Loews Theatres
” mean the theatres acquired (and not divested under
government order or subject to a divestiture order issued by a
Governmental Authority after January 5, 2007) by AMC
Entertainment Inc. in connection with its merger with Loews
Cineplex Entertainment Corporation completed on January 26,
2006 and which were operating as of January 5,
2007.
“ Marquee Holdings
” means Marquee Holdings Inc. or its successor or any Person
that wholly-owns Marquee Holdings, directly or indirectly, in the
future.
“ Permitted Transfer
” means
(a) with respect to the rights and
obligations of LLC under this Agreement, (i) the grant of a
security interest by LLC in this Agreement and all rights and
obligations of LLC hereunder to the Administrative Agent, on behalf
of the Secured Parties, pursuant to the Security Documents,
(ii) the assignment or other transfer of such rights and
obligations to the Administrative Agent (on behalf of the Secured
Parties) or other third party upon the exercise of remedies in
accordance with the LLC Credit Agreement and the Security Documents
and (iii) in the event that the Administrative Agent is the
initial assignee or transferee under the preceding clause (ii), the
subsequent assignment or other transfer of such rights and
obligations by the Administrative Agent on behalf of the Secured
Parties to a third party, or
(b) in the event that LLC becomes a
debtor in a case under the Bankruptcy Code, the assumption and/or
assignment by LLC of this Agreement under section 365 of the
Bankruptcy Code, notwithstanding the provisions of section 365(c)
thereof.
“ Permitted Transferee
” means in the case of AMC and any Permitted Transferee of
AMC (i) an Affiliate of AMC or such Permitted Transferee, or
(ii) a non-Affiliate of AMC or such Permitted Transferee if
more than 50% of the non-Affiliate’s general voting power is
owned directly or indirectly through one or more entities that are
the same entities that own 50% or more of the general voting power
of Marquee Holdings.
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“ Person ” means
any individual, corporation, limited liability company,
partnership, trust, joint stock company, business trust,
unincorporated association, joint venture, Governmental Authority
or other entity or organization of any nature whatsoever or any
Group of two or more of the foregoing.
“ Services ” has
the meaning assigned to it in the AMC ESA.
“ Secured Parties
” means the “Secured Parties” (or any analogous
concept) as defined in the LLC Credit Agreement.
“ Securities Act
” means the Securities Act of 1933, as it may be amended from
time to time.
“ Security Documents
” means the “Security Documents” as defined in
the LLC Credit Agreement and any amendment, modification,
supplement or replacement of such Security Documents.
“ Theatre ” has
the meaning assigned to it in the AMC ESA.
“ Theatre Access Fee
” has the meaning assigned to it in the AMC ESA.
“ Transfer ”
(including the term “ Transferred ”) means,
directly or indirectly, to sell, transfer, give, exchange, bequest,
assign, pledge, encumber, hypothecate or otherwise dispose of,
either voluntarily or involuntarily (including (i) except as
provided in clause (a) below, the direct or indirect Change of
Control of AMC or any Permitted Transferee (or any direct or
indirect holder of equity in AMC or a Permitted Transferee), and
(ii) upon the foreclosure under any pledge or hypothecation
permitted by clause (b) below that results in a change of
title), any Equity Interests in NCM LLC or other assets
beneficially owned by a Person or any interest in any Equity
Interests in NCM LLC or other assets beneficially owned by a
Person. Notwithstanding the foregoing: (a) the Change of
Control of AMC or its stockholders shall not be deemed to be a
Transfer hereunder, and (b) a bona fide pledge of Equity
Interests in NCM LLC by AMC any of its Affiliates shall not be
deemed to be a Transfer hereunder.
In addition to the foregoing, the
following terms have the meanings assigned in the Sections referred
to in the table below:
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Section
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Term
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Section
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Agreement
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Preamble
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Non-Exclusivity
Run-Out Payment
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2.2(b)
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AMC
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Preamble
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Parties
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Preamble
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5
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Section
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Term
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Section
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Distributed
Units
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3.1
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Run-Out End
Date
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5.6
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NCM
LLC
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Preamble
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Run-Out
Exclusivity End Date
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5.6
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Units
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Recitals
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2. Loews.
2.1 Integration of Loews
Theatres. Loews Theatres are subject to certain valid,
pre-existing contractual obligations with a third party cinema
advertising provider that provides on-screen advertising services
on an exclusive basis and certain other advertising services on a
non-exclusive basis to the Loews Theatres (the “ Run-Out
Obligations ”). AMC shall discuss the Run-Out Obligations
and related contracts as reasonably requested by NCM LLC from time
to time, provided such discussion will not breach
confidentiality provisions related to the Run-Out Obligations. AMC
and/or its Affiliates (as applicable) shall be permitted to abide
by the terms of the Run-Out Obligations; however, AMC agrees it
shall neither extend nor renew such Run-Out Obligations. AMC
further agrees not to enter into any new agreement with any third
party with respect to any Loews Theatre, or amend or modify any
Run-Out Obligation, to the extent such agreement, amendment or
modification would be inconsistent with the exclusive rights
granted to NCM LLC pursuant to the AMC ESA or have the effect of
any extension of the Run-Out Obligation. Prior to the expiration of
the Run-Out Obligations and upon NCM LLC’s provision of at
least ten days’ advance written notice to AMC, NCM LLC may
provide some or all Services to any or all Loews Theatres as if
such theatres were Theatres as defined in and subject to the AMC
ESA, provided NCM LLC’s provision of Services does not
create a default under any Run-Out Obligation. In any event, except
in accordance with Section 4.13 of the AMC ESA (Excluded
Theatres; IMAX Screens) or as may be mutually agreed by the Parties
in writing, each Loews Theatre shall automatically become a
Theatre, as defined in and for all purposes of the AMC ESA, no
later than Run-Out End Date.
2.2 Loews
Payments.
(a) Exclusive Run-Out
Obligations. With respect to each of the Services for which the
third party to the Run-Out Obligations has exclusive rights, AMC
shall, until such Run-Out Obligations have terminated, make a
quarterly Exclusivity Run-Out Payment to NCM LLC. The method of
calculating the Exclusivity Run-Out Payment is summarized in
Attachment A . NCM LLC shall give AMC written notice of the
amount of the Exclusivity Run-Out Payment within 30 days following
the last day of the fiscal quarter in which one or more of the
Theatres is used by the third party for any use that is included
within the definition of the Services. AMC shall pay the
Exclusivity Run-Out Payment to NCM LLC with three (3) Business
Days following the date on which AMC receives the written notice
provided for in the immediately preceding sentence.
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(b) Non-Exclusive Run-Out
Obligations. With respect to each of the Services for which the
third party to the Run-Out Obligations has non-exclusive rights,
AMC shall, until such Run-Out Obligations have terminated, pay NCM
LLC the full amount received from the third party for such
S