EXHIBIT 10.29
AMENDMENT NO. 5 dated as of December 17, 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"), ARTISAN HOME
ENTERTAINMENT INC. ("Home Entertainment"; and together with
Pictures, collectively, the "Borrower"), 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
----------------------
The Lenders have made available to the Borrower a credit facility
pursuant to the terms of the Credit Agreement.
The Borrower and Guarantors have requested certain modifications to
the Credit Agreement to allow the making of loans to their officers and
employees to purchase stock in Film Holdings Co. and to permit Artisan
Entertainment Inc. to acquire an equity interest in The Baby Einstein Company
LLC.
The Lenders and the Agent have agreed to make revisions to amend 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
-------------
otherwise defined herein shall have the meaning given them in the Credit
Agreement.
Section 2. Amendments to the Credit Agreement. Subject to the
----------------------------------
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 6.4 of the Credit Agreement is hereby amended by (1)
inserting the words ", (xvii) loans or advances to officers or employees of the
Credit Parties (in addition to loans permitted under clause (xii) hereof) for
the purpose of purchasing stock in Holdings and/or paying tax obligations
incurred by such officers or employees in respect thereof in an amount not
-1-
to exceed $2,000,000 in the aggregate, (xviii) Investments in connection with
the acquisition by Parent of an equity interest in The Baby Einstein Company LLC
on the terms set forth in the letter agreement dated November 8, 1999 between
Parent and The Baby Einstein Company LLC" after the word "Product" appearing in
clause (xvi), (2) changing the reference to the existing clause (xvii) from
"(xvii)" to "(xix)" and (3) changing the number "$1,000,000" appearing in the
existing clause (xvii) to "$5,000,000".
(B) Section 5.1 of the Credit Agreement is hereby amended by (1)
deleting the words "Simultaneously with the delivery of the statements referred
to in paragraph (a) of this Section 5.1" appearing in clause (i) thereof and (2)
inserting the words "No later than June 30, 2000 and June 30 of each year
thereafter" at the beginning of clause (i).
Section 3. Conditions to Effectiveness. The effectiveness of this
---------------------------
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; and
(B) 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
------------------------------
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.
(C) the Eligible Library Amount if determined as of the date hereof
would remain $180,000,000.
Section 5. Further Assurances. At any time and from time to time,
------------------
upon 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.
-2-
Section 6. Fundamental Documents. This Amendment is designated a
---------------------
Fundamental Document by the Agent.
Section 7. Full Force and Effect. Except as expressly amended
---------------------
hereby, the 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
--------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 9. Counterparts. This Amendment may be executed in two or
------------
more counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute but one instrument.
Section 10. Expenses. The Borrower agrees to pay all out-of-pocket
--------
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 of reference only and shall not affect the construction of or be taken
into consideration in interpreting this Amendment
-3-
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.
ARTISAN RELEASING INC.
ARTISAN MUSIC INC.
BE MINE PRODUCTIONS, INC.
BEACH DANCE PRODUCTIONS, INC.
CACAPHONY PRODUCTIONS, INC.
DETENTION PRODUCTIONS, INC.
HEATWAVE PRODUCTIONS, INC.
LIVE AMERICA INC.
MILK MISSION PRODUCTIONS INC.
SWEET TIME PRODUCTIONS, INC.
VESTRON INC.
WISH AGAIN PRODUCTIONS, INC.
By /s/ Mark Curcio
------------------------------------------------------
Name: Mark Curcio
Title: Authorized Signatory for each of the foregoing
FILM HOLDINGS CO.
By /s/ Joe Pretlow
------------------------------------------------------
Name: Joe Pretlow
Title: Principal
SILENT DEVELOPMENT CORP.
TONGUE-TIED INC.
By /s/ Mark Curcio
-----------------------------------------------------
Name: Mark Curcio
Title: CEO
-4-
LENDERS:
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By /s/ Edmund DeForest
-------------------------------------
Name: Edmund DeForest
Title: VP
SOCIETE GENERALE
By /s/ Brian McDonald
------------------------------------
Name: Brian McDonald
Title: VP
UNION BANK OF CALIFORNIA
By /s/ Thomas P. Garry, Jr.
------------------------------------
Name: Thomas P. Garry, Jr.
Title: VP
COMERICA BANK -- CALIFORNIA
By /s/ Carmen Carpenter
------------------------------------
Name: Carmen Carpenter
Title: VP
FLEET BANK, N.A.
By /s/ Eric S. Meyer
------------------------------------
Name: Eric S. Meyer
Title: VP
-5-
PACIFIC CENTURY BANK, N.A.
By /s/ David K. Henry
---------------------------------------
Name: David K. Henry
Title: VP
BANQUE INTERNATIONALE A LUXEMBOURG
By /s/ E. Rolin
---------------------------------------
Name: E. Rolin
Title: Senior Manager
By /s/ N. Weaver
---------------------------------------
Name: N. Weaver
Title: Assistant Director
NATEXIS BANQUE BFCE
By Bennett C. Pozil
---------------------------------------
Name: Bennett C. Pozil
Title: VP and Group Manager
By /s/ Mark A. Harrington
---------------------------------------
Name: Mark A. Harrington
Title: Sr. VP & Regional Manager
CITY NATIONAL BANK
By /s/ Norman Starr
------------------------------------------
Name: Norman B. Starr
Title: VP
-6-
DE NATIONALE INVESTERINGSBANK N.V.
By /s/ J.B. Spanjersberg
------------------------------------------
Name: J.B. Spanjersberg
Title: General Manager
By /s/ J.H. Naglegoal
------------------------------------------
Name: J.H. Naglegoal
Title: Vice President
BANQUE NATIONALE DE PARIS
By /s/ Janice Ho
------------------------------------------
Name: Janice Ho
Title: Vice President
By /s/ Tjalling Terpstra
------------------------------------------
Name: Tjalling Terpstra
Title: Vice President
THE FUJI BANK, LTD.
By /s/ Hiromitsu Ugawa
------------------------------------------
Name: Hiromitsu Ugawa
Title: Senior Vice President
PARIBAS
By /s/ Ching Lim
------------------------------------------
Name: Ching Lim
Title: Vice President
By /s/ Thomas G. Brandt
------------------------------------------
Name: Thomas G. Brandt
Title: Managing Director
-7-
FAR EAST NATIONAL BANK
By /s/ CHC
---------------------------
Name: CHC
Title: Vice President
-8-