Exhibit 10.3
FIRST AMENDMENT AND
WAIVER
Dated as of February 20, 2007
This FIRST AMENDMENT AND
WAIVER (this “ Amendment ”) is entered into
among CKX, INC., a Delaware corporation (the “
Borrower ”), and BEAR STEARNS CORPORATE LENDING
INC. , as administrative agent (in such capacity the “
Administrative Agent ”).
Preliminary
Statements
1. Reference is made to the
Credit Agreement, dated as of May 24, 2006 (as amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”), among the Borrower, the
Lenders party thereto, Bear, Stearns & Co. Inc., as exclusive
advisor, sole lead arranger and sole bookrunner, UBS Securities LLC
and The Bank of New York, as co-syndication agents, Lehman
Commercial Paper, Inc. and Credit Suisse, as co-documentation
agents, and the Administrative Agent. Capitalized terms used but
not otherwise defined herein are used with the meanings given in
the Credit Agreement.
2. The Borrower has requested
that the Credit Agreement be amended as herein set forth.
3. The Borrower is currently in
default of its obligations under Section 7.7 of the Credit
Agreement to not, nor to permit any of its Subsidiaries to,
directly or indirectly, make or commit to make any Capital
Expenditures in the ordinary course of business exceeding
$10,000,000 in any fiscal year as a result of the fact that it
incurred capital expenditures for its fiscal year 2006 in an amount
equal to approximately $10,500,000 (the “ Capex
Default ”).
4. The Borrower has requested
that the Required Lenders waive the Capex Default.
5. The Required Lenders are
willing to consent to the amendment and waiver request described
above on the terms and subject to the conditions set forth
below.
NOW, THEREFORE , in
consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Credit
Agreement.
(a) Section 1.1 of the
Credit Agreement is hereby amended by adding the following
definition in appropriate alphabetical order:
““ CDS Elvis
Venture ”: a joint venture or similar agreement entered
into between the Borrower and/or any Subsidiary and Cirque du
Soleil Nevada Inc., or an Affiliate thereof, for purposes of
creating, producing and presenting a permanent Elvis Presley-themed
live show in Las Vegas, Nevada pursuant to an agreement to be
entered into with an Affiliate of MGM Mirage; provided
that
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the CDS
Elvis Venture shall be predominantly engaged in media,
entertainment or content related businesses.”
(b) Section 7.7 of the
Credit Agreement is hereby amended by (i) deleting the
reference to “$10,000,000” in clause (a) thereof
and replacing it with “$12,000,000” and
(ii) inserting the following at the end of clause
(b) thereof: “and/or consisting of Investments made in
accordance with Section 7.8(n)”.
(c) Section 7.8 of the
Credit Agreement is hereby amended by deleting clause
(j) thereof in its entirety and replacing it with the
following new clause (j):
“(j)
Investments made after the Closing Date consisting of Permitted
Acquisitions and Permitted Joint Ventures; provided that
(i) the aggregate amount of Investments made in connection
with all Permitted Acquisitions and Permitted Joint Ventures in
accordance with this clause (j) shall not exceed $40,000,000
(after giving effect to any reinstatement of prior utilizations of
such amount with Net Cash Proceeds or cash dividends and other
distributions in accordance with clause (iii) below), (ii) the
aggregate amount of Investments made in connection with all
Permitted Joint Ventures in accordance with this clause
(j) shall not exceed $30,000,000 (after giving effect to any
reinstatement of prior utilizations of such amount with Net Cash
Proceeds or cash dividends and other distributions in accordance
with clause (iv) below), (iii) any amounts utilized in
respect of the dollar cap specified in clause (i) above shall
be reinstated by an amount equal to the sum of (x) the Net
Cash Proceeds actually received by the Borrower or any Subsidiary
Guarantor in respect of any Asset Sale consisting of a Permitted
Acquisition or Permitted Joint Venture in which Investments were
previously made pursuant to this clause (j) plus (y) the
aggregate amount of dividends and other distributions in the form
of cash, Cash Equivalents and non-cash assets that have been
converted into cash that have been actually received by the
Borrower or any Subsidiary Guarantor from Permitted Joint Ventures
in which Investments were previously made pursuant to this clause
(j), in each case, as certified by a Responsible Officer of the
Borrower (provided that in no event shall amounts available in
respect of such dollar cap be greater than $40,000,000 at any one
time after giving effect to any such reinstatement) and
(iv) any amounts utilized in respect of the dollar cap
specified in clause (ii) above shall be reinstated by an
amount equal to the sum of (x) the Net Cash Proceeds actually
received by the Borrower or any Subsidiary Guarantor in respect of
any Asset Sale consisting of a Permitted Joint Venture in which
Investments were previously made pursuant to this clause
(j) plus (y) the aggregate amount of dividends and other
distributions in the form of cash, Cash Equivalents and non-cash
assets that have been converted into cash that have been actually
received by the Borrower or any Subsidiary Guarantor from Permitted
Joint Ventures in which Investments were previously made pursuant
to this clause (j), in each case, as certified by a Responsible
Officer of the Borrower (provided that in no event shall amounts
available in respect of such dollar cap be greater than $30,000,000
at any one time after giving effect to any such
reinstatement);”.
(d) Section 7.8 of the
Credit Agreement is hereby further amended by (i) deleting the
word “and” at the end of clause (l) thereof;
(ii) deleting the period at the end of clause (m) thereof
and
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replacing it with a semicolon; and (iii) inserting the
following new clauses (n) and (o) at the end
thereof:
“(n) Investments made
after the Closing Date in the CDS Elvis Venture; provided
that the aggregate amount of Investments made in connection with
the CDS Elvis Venture shall not exceed $28,000,000; and
(o) Solely to the extent that
Investments are not then permitted under clause (j) above,
Investments made after the Closing Date by any Subsidiary t
