FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
CLEARVIEW CINEMA GROUP, ET AL.
AND
THE PROVIDENT BANK,
Agent and Lender
dated as of
December 12, 1997
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (as
hereinafter defined) ("First Amendment") dated as of December 12, 1997, by and
among CLEARVIEW CINEMA GROUP, INC., a Delaware corporation, (Holdings"),
CLEARVIEW THEATRE GROUP, INC., a New Jersey corporation, CCC XXXXXXX CINEMA
CORP., a Delaware corporation, CCC B.C. REALTY CORP., a Delaware corporation,
CCC BAYONNE CINEMA CORP., a Delaware corporation, CCC BEDFORD CINEMA CORP., a
Delaware corporation, CCC BELLEVUE CINEMA CORP., a Delaware corporation, CCC
BERGENFIELD CINEMA CORP., a Delaware corporation, CCC BRONXVILLE CINEMA CORP., a
Delaware corporation, CCC CEDAR GROVE CINEMA CORP., a Delaware corporation, CCC
XXXXXXX TWIN CINEMA CORPORATION, a New Jersey corporation, CCC CINEMA 304 CORP.,
a Delaware corporation, CCC CLOSTER CINEMA CORP., a Delaware corporation, CCC
EDISON CINEMA CORP., a Delaware corporation, CCC XXXXXXX CINEMA CORP., a
Delaware corporation, CCC GRAND AVENUE CINEMA CORP., a Delaware corporation, CCC
HERRICKS CINEMA CORP., a Delaware corporation, CCC KIN MALL CINEMA CORP., a
Delaware corporation, CCC KISCO CINEMA CORP., a Delaware corporation, CCC
LARCHMONT CINEMA CORP., a Delaware corporation, CCC MADISON TRIPLE CINEMA CORP.,
a New Jersey corporation, CCC MAMARONECK CINEMA CORP., a Delaware corporation,
CCC MANASQUAN CINEMA CORPORATION, a New Jersey corporation, CCC MANSFIELD CINEMA
CORP., a Delaware corporation, CCC MARBORO CINEMA CORP., a Delaware corporation,
CCC XXXXXXXXXXX CINEMA CORP., a Delaware corporation, CCC NEW CITY CINEMA CORP.,
a Delaware corporation, CCC PARSIPPANY CINEMA CORP., a Delaware corporation, CCC
PORT WASHINGTON CINEMA CORP., a Delaware corporation, CCC XXXXXX CINEMA CORP., a
Delaware corporation, CCC SUCCASUNNA CINEMA CORP., a Delaware corporation, CCC
SUMMIT CINEMA CORP. (formerly known as 000-000 Xxxxxxxxxxx Xxxxxx Corp.), a New
Jersey corporation, CCC TENAFLY CINEMA CORP., a Delaware corporation, CCC
WASHINGTON CINEMA CORP., a Delaware corporation, CCC XXXXX CINEMA CORP., a
Delaware corporation, and CCC WOODBRIDGE CINEMA CORP., a Delaware corporation,
(hereinafter, together with their successors in title and assigns called
"Borrowers" and each of which is a "Borrower") and THE PROVIDENT BANK, an Ohio
banking corporation ("Agent") and various Lenders as set forth in the Credit
Agreement.
PRELIMINARY STATEMENT
WHEREAS, Borrowers, Agent and Lenders have entered into an Amended and
Restated Credit Agreement dated as of September 12, 1997 ("Credit Agreement");
and
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WHEREAS, Borrowers have requested that Lenders make available to Borrowers
an additional Six Million and 00/Dollars ($6,000,000.00) in principal amount of
Term Loan B; and
WHEREAS, Borrower and Lender now wish to amend the Credit Agreement and
related documents in accordance with the terms and provisions hereof.
NOW, THEREFORE, the parties hereto agree to supplement and amend the
Credit Agreement upon such terms and conditions as follows:
1. Capitalized Terms. All capitalized terms used herein shall have the
meanings assigned to them in the Credit Agreement unless the context hereof
requires otherwise. Any definitions as capitalized terms set forth herein shall
be deemed incorporated into the Credit Agreement as amended by this First
Amendment.
2. Definitions; Schedules; Exhibits. (a) The following definitions
contained in Section 1.2 of the Credit Agreement are hereby amended in their
entirety to read as follows:
"Requisite Lenders" means at such times as there are any Loans
outstanding, the Lenders whose aggregate Pro Rata Shares of the
outstanding Loans are greater than or equal to sixty-six and two-thirds
percent (66 2/3%) of the aggregate amount of the outstanding Loans, and at
all other times, the Lenders whose aggregate Credit Commitments are
greater than or equal to sixty-six and two-thirds percent (66 2/3%) of the
aggregate Credit Commitments of all the Lenders; provided, however, that
so long as there are less than three Lenders, Requisite Lenders shall mean
all of the Lenders.
"Term Loan B Commitment" shall initially mean Twenty-Three Million and
00/100 Dollars ($23,000,000.00) plus any amounts available pursuant to
Section 2.2(c) hereof.
(b) Borrowers acknowledge that immediately following the execution
of this First Amendment, The Provident Bank intended to assign to The Bank of
New York an aggregate amount of the Loans and Credit Commitments equal to Ten
Million and 00/100 Dollars ($10,000,000.00). Immediately upon the effectiveness
of such assignment, Schedule 1 to the Credit Agreement is hereby amended in its
entirety to read as Schedule 1 to this First Amendment.
(c) Exhibit K-3 of the Credit Agreement is hereby amended in its
entirety by Exhibit K-3 to this First Amendment.
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3. Making the Term Loan B. Section 2.2(c) of the Credit Agreement is
hereby amended to in its entirety to read as follows:
"(c) Term Loan B. Subject to the terms and conditions of this
Agreement and in reliance upon the representation and warranties of each
Borrower herein set forth, each Lender severally agrees to lend to
Borrowers its Participation Percentage of the Term Loan B. The aggregate
amount of Term Loan B shall be Twenty-Three Million and 00/100 Dollars
($23,000,000.00). During the First Loan Year, amounts borrowed under this
subsection 2.2(c) and repaid or prepaid may be reborrowed subject to the
conditions precedent set forth in Sections 4.1 and 4.2 hereof. During the
Second Loan Year and thereafter, amounts borrowed under this subsection
2.2(c) and repaid or prepaid may not be reborrowed; provided, however,
that if such borrowing is deemed to be made only as a result of the
issuances of a Letter of Credit and no Reimbursement Obligation has arisen
with respect to such Letter of Credit, the amount of such Letter of Credit
may be borrowed upon cancellation or expiration of the Letter of Credit."
4. Debt to EBITDA. Lender hereby waives compliance for Borrowers with the
covenant regarding the ratio of Debt to EBITDA for the Reference Period ending
December 31, 1997, so long as the ratio for such Reference Period does not
exceed 5.0 to 1.0
This waiver applies only to Section 7.4 of the Credit Agreement for the
period referenced above and does not otherwise modify or waive any other
covenant or agreement contained in the Credit Agreement not otherwise modified
by this First Amendment.
5. Reaffirmation of Covenants, Warranties and Representations. Borrower
hereby agrees and covenants that all representations and warranties in the
Credit Agreement, including without limitation all of those warranties and
representations set forth in Article 5, are true and accurate as of the date
hereof. Borrower further reaffirms all covenants in the Credit Agreement, and
reaffirm each of the affirmative covenants set forth in Article 6 and financial
covenants set forth in Article 7 and negative covenants set forth in Article 8
thereof, as if fully set forth herein, except to the extent modified by this
First Amendment.
6. Conditions Precedent to Closing of First Amendment. On or prior to the
closing of the First Amendment (hereinafter the "First Amendment Closing Date"),
each of the following conditions precedent shall have been satisfied:
(a) Proof of Corporate Authority. Agent shall have received from
Borrower copies, certified by a duly authorized officer to be true and
complete on and as of the First Amendment Closing Date, of records of all
action taken by Borrower to authorize (i) the execution and delivery of
this First Amendment and all other certificates, documents and
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instruments to which it is or is to become a party as contemplated or
required by this First Amendment, and (ii) its performance of all of its
obligations under each of such documents.
(b) Documents. Each of the documents to be executed and delivered at
the First Amendment Closing and all other certificates, documents and
instruments to be executed in connection herewith shall have been duly and
properly authorized, executed and delivered by Borrower and shall be in
full force and effect on and as of the First Amendment Closing Date.
(c) Legality of Transactions. No change in applicable law shall have
occurred as a consequence of which it shall have become and continue to be
unlawful (i) for Agent and each Lender to perform any of its agreements or
obligations under any of the Loan Documents, or (ii) for Borrower to
perform any of its agreements or obligations under any of the Loan
Documents.
(d) Performance, Etc. Except as set forth herein, Borrower shall have
duly and properly performed, complied with and observed each of its
covenants, agreements and obligations contained in each of the Loan
Documents. Except as set forth herein, no event shall have occurred on or
prior to the First Amendment Closing Date, and no condition shall exist on
the First Amendment Closing Date, which constitutes a Default or an Event
of Default.
(e) Proceedings and Documents. All corporate, governmental and other
proceedings in connection with the transactions contemplated on the First
Amendment Closing Date, each of the other Loan Documents and all
instruments and documents incidental thereto shall be in form and substance
reasonably satisfactory to Provident.
(f) Changes; None Adverse. Since the date of the most recent balance
sheets of Borrower delivered to Provident, no changes shall have occurred
in the assets, liabilities, financial condition, business, operations or
prospects of Borrower which, individually or in the aggregate, are
material to Borrower, and Provident shall have completed such review of
the status of all current and pending legal issues as Agent shall deem
necessary or appropriate.
7. Miscellaneous. (a) Borrower shall reimburse Agent for all fees and
disbursements of legal counsel to Agent which shall have been incurred by Agent
in connection with the preparation, negotiation, review, execution and delivery
of this First Amendment and the handling of any other matters incidental hereto.
(b) All of the terms, conditions and provisions of the Agreement not
herein modified shall remain in full force and effect. In the event a
term, condition or provision of
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the Agreement conflicts with a term, condition or provision of this
First Amendment, the latter shall govern.
(c) This First Amendment shall be governed by and shall be construed
and interpreted in accordance with the laws of the State of Ohio.
(d) This First Amendment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns.
(e) This First Amendment may be executed in several counterparts, each
of which shall constitute an original, but all which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by
or on behalf of each of the parties as of the day and in the year first above
written.
CLEARVIEW CINEMA GROUP, INC.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CLEARVIEW THEATRE GROUP, INC.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXXX CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC B.C. REALTY CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BAYONNE CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BEDFORD CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BELLEVUE CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BERGENFIELD CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BRONXVILLE CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC CEDAR GROVE CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXXX TWIN CINEMA CORPORATION
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC CINEMA 304 CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC CLOSTER CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC EDISON CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXXX CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC GRAND AVENUE CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC HERRICKS CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC KIN MALL CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC KISCO CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC LARCHMONT CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MADISON TRIPLE CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MAMARONECK CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MANASQUAN CINEMA CORPORATION
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MANSFIELD CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MARBORO CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXXXXXXX CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC NEW CITY CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC PARSIPPANY CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC PORT WASHINGTON CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXX CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC SUCCASUNNA CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC SUMMIT CINEMA CORP. (formerly known
as 000-000 Xxxxxxxxxxx Xxxxxx Corp.)
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC TENAFLY CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC WASHINGTON CINEMA CORP.
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXX CINEMA CORP
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
CCC WOODBRIDGE CINEMA CORP
By: /s/ A. Xxxx Xxxx
------------------------
Name: A. Xxxx Xxxx
Title: President
THE LENDERS:
THE PROVIDENT BANK
By:/s/ Xxxxxxxxxxx X Xxxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
AGENT:
THE PROVIDENT BANK, as Agent
By:/s/ Xxxxxxxxxxx X Xxxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
List of Exhibits
Schedule 1 - Participants
Schedule 3.1 - Leasehold Interests
Exhibit K-3 - Form of Amended and Restated Term Note B
[Schedules and exhibits will be provided upon request.]
