Exhibit 10.26
AMENDMENT NO. 2 dated as of April 2, 1999 to the Amended and
Restated Credit and Guaranty Agreement dated as of July 9,
1997, as amended and restated as of August 10, 1998, among
ARTISAN PICTURES INC. ("Pictures"), the Guarantors named
therein, the Lenders referred to therein and THE CHASE
MANHATTAN BANK, as Administrative Agent and as Fronting Bank
for the Lenders (the "Agent") (as the same may be amended,
supplemented or otherwise modified, the "Credit Agreement").
INTRODUCTORY STATEMENT
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The Lenders have made available to Pictures a credit facility pursuant
to the terms of the Credit Agreement.
Pictures, the Guarantors, the Lenders and the Agent have agreed to
make revisions to the Credit Agreement, all on the terms and subject to the
conditions hereinafter set forth.
Therefore, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Capitalized terms used herein and not
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otherwise defined herein shall have the meaning given them in the Credit
Agreement.
Section 2. Amendments to the Credit Agreement. Subject to the
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satisfaction of the conditions precedent set forth in Section 3 hereof, the
Credit Agreement is hereby amended as of the Effective Date (as hereinafter
defined) as follows:
(A) Section 6.1 of the Credit Agreement is hereby amended by adding the
following clause (o) at the end thereof:
"Indebtedness in respect of Capital Expenditures permitted by Section
6.11(iii)."
(B) Section 6.2 of the Credit Agreement is hereby amended by adding the
following clause (s) at the end thereof:
"(s) Liens related to the Capital Expenditures permitted under Section
6.11(iii) hereof if (i) limited to the particular assets acquired, (ii) the
aggregate amount of all Indebtedness secured by Liens permitted under this
paragraph does not exceed $3,000,000 at any one time outstanding and (iii)
on terms and conditions acceptable to the Agent."
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(C) Section 6.2 of the Credit Agreement is hereby amended by adding the
following clause (t) at the end thereof:
"(t) Liens granted in connection with the Borrower's acquisition of items
of Product or pursuant to co-financing arrangements of items of Product, in
each case on terms and conditions satisfactory to the Administrative Agent;
provided, that the secured party of such Lien shall have entered into an
intercreditor agreement with the Administrative Agent and Collateral Agent
substantially in the form of Exhibit R hereto or in form and substance
satisfactory to the Administrative Agent."
(D) Section 6.11 of the Credit Agreement is hereby amended by (i) deleting
the "and" before "(ii)", inserting a comma in lieu thereof and (ii) adding the
following clause (iii) at the end thereof:
"and (iii) Capital Expenditures (other than amounts included in the
Budgeted Negative Cost of an item of Product or amounts expended in
connection with MIS Expenditures) for fiscal year 1999 in excess of
$3,000,000; provided that such financing is provided on terms and
conditions acceptable to the Administrative Agent."
(E) Section 6.16 of the Credit Agreement is hereby amended by (i) deleting
the phrase "$18,000,000 in fiscal year 1997" and (ii) inserting the phrase
"$23,300,000 in fiscal year 1999" in lieu thereof.
(F) Section 6.19 of the Credit Agreement is hereby amended by (i) deleting
the ratio "5:1" and (ii) inserting the ratio "6.5:1" through the quarter ended
September 30, 1999, 6.0:1 through the quarter ending June 30, 2000 and
thereafter 5.5:1 in lieu thereof.
(G) Section 10.1(c) of the Credit Agreement is hereby amended by adding
the following clause (xi) at the end thereof:
"(xi) to enter into intercreditor agreements (in such forms as the
Administrative Agent may deem appropriate) in connection with Liens granted
pursuant to Section 6.2(s) hereof."
Section 3. Conditions to Effectiveness. The effectiveness of this
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Amendment is subject to the satisfaction in full of each of the conditions
precedent set forth in this Section 3 (the date on which all such conditions
have been satisfied being herein called the "Effective Date"):
(A) the Agent shall have received counterparts of this Amendment which,
when taken together, bear the signatures of the Borrower, each Guarantor, the
Agent and such of the Lenders as are required by the Credit Agreement;
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(B) the Agent shall have received the written consent of the holders of
the Senior Subordinated Notes to the provisions of Section 6.2(t) as amended by
this Amendment No. 2; and
(C) all legal matters incident to this Amendment shall be satisfactory to
Morgan, Lewis & Bockius LLP, counsel for the Agent.
Section 4. Representations and Warranties. Each Credit Party
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represents and warrants that:
(A) after giving effect to this Amendment, the representations and
warranties contained in the Credit Agreement 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 that
any such representations and warranties specifically relate to an earlier date);
and
(B) after giving effect to this Amendment, no Event of Default or Default
will have occurred and be continuing on and as of the date hereof.
SECTION 5. Further Assurances. At any time and from time to time, upon
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the Agent's request and at the sole expense of the Credit Parties, each Credit
Party will promptly and duly execute and deliver any and all further instruments
and documents and take such further action as the Agent reasonably deems
necessary to effect the purposes of this Amendment.
Section 6. Fundamental Documents. This Amendment is designated a
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Fundamental Document by the Agent.
Section 7. Full Force and Effect. Except as expressly amended hereby, the
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Credit Agreement and the other Fundamental Documents shall continue in full
force and effect in accordance with the provisions thereof on the date hereof.
As used in the Credit Agreement, the terms "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.
Section 8. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 9. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
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Section 10. Expenses. The Borrower agrees to pay all out-of-pocket
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expenses incurred by the Agent in connection with the preparation, execution and
delivery of this Amendment, including, but not limited to, the reasonable fees
and disbursements of counsel for the Agent.
Section 11. Headings. The headings of this Amendment are for the purposes
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of reference only and shall not affect the construction of or be taken into
consideration in interpreting this Amendment
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
duly executed as of the date first written above.
ARTISAN PICTURES INC.
ARTISAN ENTERTAINMENT INC.
ARTISAN HOME ENTERTAINMENT INC.
AFICIONADO PRODUCTIONS, INC.
ARTISAN RELEASING INC.
ARTISAN MUSIC INC.
BE MINE PRODUCTIONS, INC.
BEACH DANCE PRODUCTIONS, INC.
CACOPHONY PRODUCTIONS, INC.
DETENTION PRODUCTIONS, INC.
HEATWAVE PRODUCTIONS, INC.
LIVE AMERICA INC.
LIVE VENTURES INC.
LIVENET INC.
MELTDOWN PRODUCTIONS, INC.
MILK MISSION PRODUCTIONS INC.
SWEET TIME PRODUCTIONS, INC.
VESTRON INC.
WISH AGAIN PRODUCTIONS, INC.
By /s/ Mark Curcio
Name:
Title: CEO
Authorized Signatory for each of the
foregoing
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FILM HOLDINGS CO.
By /s/ Joe Pretlow
Name:
Title:Principal
SILENT DEVELOPMENT CORP.
TONGUE-TIED INC.
By /s/ Ken Schapiro
Name:
Title:EVP
LENDERS:
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By /s/ William E. Rottino
Name: William E. Rottino
Title:VP
SOCIETE GENERALE
By /s/ Maureen Kelly
Name: Maureen E. Kelly
Title:Director
UNION BANK OF CALIFORNIA
By /s/ Janice Zeitinger
Name:
Title:VP
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COMERICA BANK -- CALIFORNIA
By /s/ D. Jeffrey Andrick
Name:
Title:VP
FLEET BANK, N.A.
By /s/ Eric S. Meyer
Name:
Title:VP
PACIFIC CENTURY BANK, N.A.
By /s/ Jan Van Houdt
Name:
Title:VP
BANQUE INTERNATIONALE A LUXEMBOURG
By /s/ E. Rolin
Name:
Title:Senior Manager
By /s/ N. Weaver
Name:
Title: Assistant Director
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NATEXIS BANQUE BFCE
By /s/ Daniel Touffu
Name:Daniel Touffu
Title:Sr. VP & Regional Manager
By /s/ Ian A. Whyte
Name:
Title:VP
CITY NATIONAL BANK
By /s/ Norman Starr
Name:
Title:VP
DE NATIONALE INVESTERINGSBANK N.V.
By /s/ Eric H. Snaterse
Name:
Title:SR VP
By /s/ N.C.J. Renkeals
Name:
Title:Legal Counsel
BANQUE NATIONALE DE PARIS
By /s/ Clive Bettles
Name:
Title:SVP & Manager
By /s/ Janice S.H. Ho
Name:
Title:VP
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THE FUJI BANK, LTD.
By /s/ Hideo Nakajima
Name:
Title:General Manager
PARIBAS
By /s/ Douglas E. Hansen
Name:
Title:Director
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EXHIBIT R
(to Credit Agreement)
Form of Intercreditor Agreement
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