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FIRST AMENDED AND RESTATED LOEWS SCREEN INTEGRATION AGREEMENT

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FIRST AMENDED AND RESTATED LOEWS SCREEN INTEGRATION AGREEMENT | Document Parties: NATIONAL CINEMEDIA, INC. | NATIONAL CINEMEDIA, LLC | AMERICAN MULTI-CINEMA, INC You are currently viewing:
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NATIONAL CINEMEDIA, INC. | NATIONAL CINEMEDIA, LLC | AMERICAN MULTI-CINEMA, INC

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Title: FIRST AMENDED AND RESTATED LOEWS SCREEN INTEGRATION AGREEMENT
Governing Law: Delaware     Date: 2/16/2007
Industry: Motion Pictures     Law Firm: Holme Roberts & Owen LLP;Latham & Watkins LLP    

FIRST AMENDED AND RESTATED LOEWS SCREEN INTEGRATION AGREEMENT, Parties: national cinemedia  inc. , national cinemedia  llc , american multi-cinema  inc
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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:

 

 

 

 

 

 

 

 

 

 

Term

  

Section

  

 

 

Term

  

Section

Agreement

  

Preamble

  

 

 

Non-Exclusivity Run-Out Payment

  

2.2(b)

AMC

  

Preamble

  

 

 

Parties

  

Preamble

 

5


 

 

 

 

 

 

 

 

 

Term

  

Section

  

 

 

Term

  

Section

Distributed Units

  

3.1

  

 

 

Run-Out End Date

  

5.6

NCM LLC

  

Preamble

  

 

 

Run-Out Exclusivity End Date

  

5.6

 

  

 

  

 

 

Units

  

Recitals

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


 
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