EXHIBIT 10.110
AMENDMENT NO. 5 (the "Amendment") dated as of
December 20, 1999 to the CREDIT, SECURITY, GUARANTY
AND PLEDGE AGREEMENT, dated as of December 20, 1996,
as amended (the "Credit Agreement"), among TRIMARK
PICTURES, INC., a California corporation, and
TRIMARK TELEVISION, INC., a Delaware corporation
(each a "Borrower" and together, the "Borrowers"),
the Guarantors named herein, the Lenders referred to
herein, THE CHASE MANHATTAN BANK, a New York banking
corporation, as Agent (the "Administrative Agent")
for the Lenders and THE CHASE MANHATTAN BANK as
Fronting Bank (the "Fronting Bank').
INTRODUCTORY STATEMENT
The Borrowers and the Guarantors have now requested that the Lenders
amend certain provisions of the Credit Agreement in order to facilitate the
raising of outside equity financing for the Parent's subsidiary, CinemaNow,
Inc., and its operation as a separate entity. The Lenders are willing to comply
with such request on the terms and subject to the conditions hereinafter set
forth.
Accordingly, the parties hereto hereby agree as follows:
Section 1. DEFINED TERMS. All capitalized terms not otherwise defined
in this Amendment are used herein as defined in the Credit Agreement.
Section 2. AMENDMENT TO THE CREDIT AGREEMENT. Subject to the
satisfaction of the conditions in Section 3 hereof, the Credit Agreement is
hereby amended effective as of the date hereof, as follows:
(a) The definition of "pledged Securities" is hereby amended by
deleting the phrase ", as listed on Schedule 3.7 (a)" and inserting in lieu
thereof the parenthetical "(other than stock in CinemaNow, Inc.)".
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(b) The definition of "Subsidiary" is hereby amended by adding the
following proviso at the end thereof:
"; PROVIDED, HOWEVER, that for purposes of this Agreement (other than
the definition of Unrestricted Subsidiary) and the other Fundamental Documents,
an Unrestricted Subsidiary shall not be a Subsidiary of any Credit Party."
(c) The following definition is hereby added to Article 1 of the
Agreement in the correct alphabetical sequence:
"UNRESTRICTED SUBSIDIARY" shall mean CinemaNow, Inc."
(d) Section 5.1(k) of the Agreement is hereby amended by inserting the
words ", and Subsidiary of a Credit Party or any Unrestricted Subsidiary" after
the phrase "of the Credit Parties" appearing therein.
(e) Section 6.4 of the Agreement is hereby amended by adding a new
clause (ix) at the end thereof to read as follows:
"and (ix) Investments in CinemaNow, Inc. but solely to the extent
consisting of the entry into and performance by Trimark Pictures, Inc. of the
agreements referred to in the proviso to Section 6.12 and up to $500,000.00 in
cash."
(f) Section 6.1 of the Agreement is hereby amended by adding the
following new text at the end thereof:
"It is hereby agreed that this Section 6.7 shall not prohibit the
issuance of any new equity securities by any Unrestricted Subsidiary."
(g) Section 6.12 of the Agreement is hereby amended by adding the
following proviso to the end of the existing text:
"PROVIDED, HOWEVER, that this Section shall not apply to the Agreement
dated as of December 10, 1999 between Trimark Pictures, Inc. and CinemaNow,
Inc."
(h) Section 6.20 of the Agreement is hereby amended by adding a new
clause (iv) at the end of the existing text to read as follows:
"and (iv) the Investment in CinemaNow, Inc. to the extent permitted by
the other provisions hereof."
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(i) Schedule 3.7 (b) is hereby amended by designating the existing text
as section (I) and adding a new section (ii) at the end of the existing text to
read as follows:
"(ii) 18,200,000 shares of the common stock in CinemaNow, Inc.
evidenced by certificate No. 8 registered in the name of Trimark Holdings, Inc."
Section 3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment is subject to the satisfaction in full of the following conditions
precedent.
(a) The Administrative Agent shall have received executed counterparts
of this Amendment, which, when taken together, bear the signatures of each party
hereto.
(b) All legal matters in connection with this Amendment shall be
reasonably satisfactory to Morgan, Lewis & Bockius LLP, counsel for the
Administrative Agent.
Section 4. REPRESENTATIONS AND WARRANTIES. Each of the Credit Parties
hereby represents, warrants and acknowledges to the Administrative Agent (on
behalf of itself, Fronting Bank and the Lenders) that:
(a) Notwithstanding the terms of this Amendment, any outstanding shares
of capital stock of CinemaNow, Inc. held or acquired by a Credit Party shall
remain subject to the limitation on Liens set forth in Section 6.2 of the Credit
Agreement, it being understood that CinemaNow, Inc. stock held by Parent is
subject to certain restrictions pursuant to a Co-Sale Agreement among CinemaNow,
Inc., Trimark Holdings, Inc. and certain other investors substantially in the
form previously delivered to the agent.
(b) Their respective obligations to the Lenders under the Credit
Agreement remain in full force and effect.
(c) The representations and warranties contained in the Credit
Agreement and in the other Fundamental Documents are true and correct in all
material respects on and as of the date hereof as if such representations and
warranties had been made on and as of the date hereof (except to the extend such
representations and warranties expressly relate to an earlier date).
(d) After giving effect hereto, each of the Credit Parties is in
compliance with all the terms and provisions set forth in the Credit Agreement
and the other Fundamental Documents and no Default
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or Event of Default has occurred or is continuing under the Credit Agreement
or any other Fundamental Document.
(e) The acknowledgments, representations and warranties in this
Section 4 have been a material inducement for the Lenders to agree to enter
into this Amendment, (ii) the Lenders are relying on such acknowledgments,
representations and warranties, and (iii) the Lenders would not have entered
into this Amendment without such acknowledgments, representations and
warranties.
Section 5. FULL FORCE AND EFFECT. Except as expressly set forth
herein, this amendment does not constitute a waiver or modification of any
provision of the Credit Agreement or a waiver of any Default or Event of
Default under the Credit Agreement, in either case whether or not known to
the Lenders. Except as expressly amended hereby, the Credit Agreement shall
continue in full force and effect in accordance with the provision thereof on
the date hereof. As used herein, the terms "Credit Agreement", "this
Agreement", "herein", "hereafter", "hereto", hereof", and words of similar
import, shall, unless the context otherwise requires, mean the Credit
Agreement as amended by this Amendment. References to the terms "Agreement"
or "Credit Agreement" appearing in the Exhibits or Schedules hereto or to the
Credit Agreement, shall, unless the context otherwise requires, mean the
Credit Agreement as amended by this Amendment. References to the terms
"Agreement" or "Credit Agreement" appearing in the Exhibits or Schedules
hereto or to the Credit Agreement, shall, unless the context otherwise
requires, mean the Credit Agreement as amended by this Amendment.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE COVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WHICH ARE
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF
NEW YORK.
Section 7. COUNTERPARTS. This Amendment may be executed in two or
more counterparts, each of which shall constitute as an original, but all
which when taken together shall constitute but one instrument.
Section 8. EXPENSES. The Borrowers agree to pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent in connection
with the preparation, execution, delivery, performance or enforcement of this
Amendment, the Credit Agreement or the other Fundamental Documents and any
other documentation contemplated hereby or thereby, including, but not
limited to, the reasonable fees and disbursements of external legal counsel
for the
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Administrative Agent and the allocated costs and charges of its internal
legal counsel.
Section 9. HEADINGS. The headings of this Amendment are for the
purposes of reference only and shall not affect the construction of, or be taken
into consideration in interpreting, this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date and year
first written above.
TRIMARK PICTURES, INC.
TRIMARK TELEVISION, INC.
TRIMARK HOLDINGS, INC.
TRIMARK MUSIC
CHEAP DATE, INC.
WRITERS ON THE WAVE
PURPLE TREE PRODUCTIONS, INC.
LOVING GUN PRODUCTIONS, INC.
TRIMARK INTERACTIVE
By: /s/ Jeff Gonzalez
---------------------------------
Jeff Gonzalez
Title: Authorized Signatory for
each of the foregoing
THE CHASE MANHATTAN BANK,
Individually and as Administrative
Agent
By: /s/ Tracey Navin Ewing
---------------------------------
Tracey Navin Ewing
Vice President
CITY NATIONAL BANK
By: /s/ Norman B. Starr
--------------------------------
Norman B. Starr
Vice President
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COMERICA BANK-CALIFORNIA
By: /s/ Adam M. Bennecke
--------------------------------
Adam M. Bennecke
Corporate Banking Officer
FIRST HAWAIIAN BANK
By: /s/ Donald C. Young
--------------------------------
Donald C. Young
Vice President
IMPERIAL BANK
By: /s/
--------------------------------
SILICON VALLEY BANK
By: /s/ Paul A. Wyckoff
--------------------------------
Paul A. Wyckoff
Vice President
THE SUMITOMO TRUST & BANKING
CO.,LTD., NEW YORK BRANCH
By: /s/ Stephen Stratico
--------------------------------
Stephen Stratico
Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Danny Mandel
--------------------------------
Danny Mandel
Assistant Vice President
DE NATIONALE
INVESTERINGSBANK N.V.
By: /s/ Eric H. Snaterse
--------------------------------
Eric H. Snaterse
Senior Vice President
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