EXHIBIT 10.108
AMENDMENT NO. 4 (the "Amendment")
dated as of September 27, 1999 to the
CREDIT, SECURITY, GUARANTY AND PLEDGE
AGREEMENT, dated as of December 20,
1996 (as amended by Amendment No. 1
dated as of June 30, 1997, Amendment
No. 2 dated as of March 31, 1998,
Amendment No. 3 dated as of December
20, 1998 and the Waiver and Amendment
dated as of February 20, 1997, and as
further amended, supplemented or
otherwise modified, renewed or
replaced from time to time, 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 names
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. 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 "Applicable Margin" is hereby amended
and restated to read as follows:
"'APPLICABLE MARGIN' shall mean in the case of Alternate Base
Rate Loans, 1.5% per annum, or in the case of Eurodollar
Loans, 2.50% per annum."
(b) Section 6.14 of the Credit Agreement is hereby amended and
restated to read as follows:
"Permit Consolidated Tangible Net Worth at the end of any
quarter to be less than the sum of $15,000,000 plus 100% of
net new equity invested and 50% of net earnings, if any, for
each fiscal year ending after September 30, 1999 and prior to
the date as of which compliance is being determined."
(c) Section 6.18 of the Credit Agreement is hereby amended and
restated to read as follows:
Section 6.18 CONSOLIDATED TANGIBLE NET WORTH RATIO
Permit the ration of (i) the aggregate amount of all
Indebtedness of the Parent and its Consolidated Subsidiaries,
consolidated in accordance with GAAP, plus 100% of Product
Acquisition Commitments of the Parent and its Consolidated
Subsidiaries, less the present value of related Off-Balance
Sheet Receivables (but not more than the related portion of
Product Acquisition Commitments), to (ii) Consolidated
Tangible Net Worth to be greater than the ratio set forth
below during the period corresponding thereto:
Ratio Period
----- ------
4.50:1 March 31, 1999 to September 29, 1999
4.25:1 September 30, 1999 to December 30, 1999
3.75:1 December 31, 1999 and thereafter
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) An amendment fee in the amount of 0.25% of the
Commitment of each lender shall have been paid to the
Administrative Agent of behalf of each Lender.
(c) 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) Their respective obligations to the Lenders under the
Credit Agreement remain in full force and effect.
(b) 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 extent such
representations and warranties expressly relate to an
earlier date).
(c) 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 or Event
of Default has occurred or is continuing under the
Credit Agreement or any other Fundamental Document.
(d) 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 provisions 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.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE
GOVERNED 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 of 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 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
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Jeff Gonzalez
Title: Authorized Signatory for each of the
foregoing
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By: /s/ John J. Huber III
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John J. Huber II
Managing Director
CITY NATIONAL BANK
By: /s/ Norman B. Starr
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Norman B. Starr
Vice President
COMERICA BANK-CALIFORNIA
By: /s/ Adam M. Bennecke
-----------------------------------
Adam M. Bennecke
Corporate Banking Officer
FIRST HAWAIIAN BANK
By: /s/ Donald C. Young
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Donald C. Young
Vice President
IMPERIAL BANK
By: /s/
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SILICON VALLEY BANK
By: /s/ Paul A. Wyckoff
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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
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Danny Mandel
Assistant Vice President
DE NATIONALE
INVESTERINGSBANK N.V.
By: /s/ Eric H. Snaterse
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Eric H. Snaterse
Senior Vice President