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THIRD AMENDMENT TO
CREDIT AGREEMENT
BY AND AMONG
CLEARVIEW CINEMA GROUP, ET AL.
AND
THE PROVIDENT BANK,
Agent and Lender
dated as of
June 30, 1997
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THIRD AMENDMENT TO
CREDIT AGREEMENT
AND WARRANT REPURCHASE AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (as hereinafter defined) ("Third
Amendment") dated as of June 30, 1997, by and among CLEARVIEW CINEMA GROUP,
INC., a Delaware corporation (hereinafter, together with its successors in title
and assigns called "Holdings"), CCC MADISON TRIPLE CINEMA CORP., a New Jersey
corporation, CCC XXXXXXX TWIN CINEMA CORPORATION, a New Jersey corporation, CCC
MANASQUAN CINEMA CORPORATION, a New Jersey corporation, CLEARVIEW THEATRE GROUP,
INC., a New Jersey corporation, CCC HERRICKS CINEMA CORP., a Delaware
corporation, CCC PORT WASHINGTON CINEMA CORP., a Delaware corporation, CCC GRAND
AVENUE CINEMA CORP., a Delaware corporation, CCC WASHINGTON CINEMA CORP., a
Delaware corporation, CCC XXXXXXX CINEMA CORP., a Delaware corporation, CCC
XXXXXXX CINEMA CORP., a Delaware corporation, CCC NEW CITY CINEMA CORP., a
Delaware corporation, and CCC SUMMIT CINEMA CORP. (formerly known as 000-000
XXXXXXXXXXX XXXXXX CORP.), a New Jersey corporation, (hereinafter collectively
the Original Borrowers), and CCC BEDFORD CINEMA CORP., a Delaware corporation
("CCC Bedford") and CCC KISCO CINEMA CORP., a Delaware corporation ("CCC
Kisco"), CCC CLOSTER CINEMA CORP., a Delaware corporation, ("CCC Closter"), CCC
BERGENFIELD CINEMA CORP., a Delaware corporation, ("CCC Bergenfield"), CCC
TENAFLY CINEMA CORP., a Delaware corporation, ("CCC Tenafly") and CCC B.C.
REALTY CORP., a Delaware corporation, ("CCC Realty"), (hereinafter, together
with their successors in title and assigns and the Original Borrowers,
collectively 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, Original Borrowers, Agent and Lenders have entered into a Credit
Agreement dated as of May 29, 1996, as amended by a Joinder Agreement and First
Amendment dated as of December 13, 1996 ("First Amendment") and as further
amended by a Second Amendment dated as of March 27, 1997 ("Second Amendment")
(collectively the "Credit Agreement");
WHEREAS, CCC Bedford and CCC Kisco were joined as borrowers to the Credit
Agreement by that certain Joinder Agreement dated as of July 18, 1996, and CCC
Closter, CCC Bergenfield, CCC Tenafly, and CCC Realty were joined as borrowers
by the First Amendment;
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WHEREAS, Holdings has agreed to purchase from Lenders the warrants granted
to Lenders pursuant to that certain Warrant Agreement made and entered into as
of May 29, 1996, by and between Holdings and Agent, as amended by Amendment No.
1. To Warrant Agreement, dated as of December 13, 1996, (the "Warrant
Agreement");
WHEREAS, Lenders are willing to finance Borrower's repurchase the
aforementioned warrants and to make certain other changes in the terms of the
Credit Agreement which are mutually beneficial to Lenders and Borrower; and
WHEREAS, Borrower and Lender now wish to amend the Credit Agreement
supplement and upon such 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. Definitions, Schedules and Exhibits
(a) The Credit Agreement is hereby amended to replace Schedule 1, Lenders,
in its entirety by Schedule 1 to this Third Amendment.
(b) The Credit Agreement is hereby amended to replace Schedule 5.1(b),
Capital Stock, in its entirety by Schedule 5.1(b) to this Third Amendment.
(c) The Credit Agreement is hereby amended to replace Exhibit J-1, Form of
Revolving Promissory Note, in its entirety by Exhibit J-1 to this Third
Amendment.
(d) The Credit Agreement is hereby amended to add a new Exhibit J-4 to
read in its entirety as Exhibit J-4 to this Third Amendment.
(e) 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 Third Amendment. The following
definitions contained in the Credit Agreement are amended and restated as
follows:
"Interest Rate" (i) for the Revolving Credit Notes, the Term Loan A
Notes, and the Term Loan B Notes, means the rate of interest per annum
equal to two percent (2.0%) in excess of the Prime Rate, and (ii) for the
Term Loan C Notes, shall mean the Prime Rate.
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"Maximum Revolving Commitment" means Four Hundred Thousand Dollars
($400,000).
"Term Loans" means Term Loan A, Term Loan B and Term Loan C.
"Termination Date" means (A) with respect to the Revolving Credit
Loan, the earlier of (i) December 31, 2001; (ii) the date upon which the
entire principal of the Notes shall become due pursuant to the provisions
hereof (whether as a result of acceleration by Agent or the Requisite
Lenders or otherwise); or (iii) the date upon which the Credit Commitments
terminate pursuant to Section 9.2 hereof; (B) with respect to Term Loan A
and Term Loan B, the earlier of (i) December 31, 2001; (ii) the date upon
which the entire principal of the Notes shall become due pursuant to the
provisions hereof (whether as a result of acceleration by Agent or the
Requisite Lenders or otherwise); or (iii) the date on which the Term Loan A
or Term Loan B, as the case may be, shall be paid in full; (C) with respect
to Term Loan C, the earlier of (i) June 30, 20002; (ii) the date upon which
the entire principal of the Notes shall become due pursuant to the
provisions hereof (whether as a result of acceleration by Agent or the
Requisite Lenders or otherwise); or (iii) the date on which the Term Loan C
shall be paid in full.
"Notes" mean, collectively, the Revolving Credit Notes, the Term Loan
A Notes, the Term Loan B Notes and the Term Loan C Notes. "Note" shall mean
any one of the Notes, unless specifically identified.
(f) The Credit Agreement is hereby amended to add the following terms
to Section 1.2
"Public Offering" means any underwritten public offering of the Common
Stock.
"Public Offering Expenses" means expenses incurred by Holdings
relative to a Public Offering.
"Contingent Warrant Purchase Price" means an amount equal to the
lesser of (i) the product of (A) 149 (being an amount equal to the number
of shares represented by the Warrants), as adjusted by multiplying 149 by
the number of shares into which the stock of Holdings are split at or prior
to the Public Offering, and (B) the difference between the gross sale price
per share of Common Stock sold to the public (without consideration of
underwriters' discounts) in the Public Offering and $6,711.41 (such amount
being divided by the multiple used in (A) above to reflect the stock split
of Holdings occurring at or prior to the Public Offering), and (ii) Three
Hundred Thousand and 00/100 Dollars ($300,000).
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"Term Loan C" means the loan made pursuant to Section 2.2(d) of the
Credit Agreement.
"Term Loan C Note" means, with respect to Term Loan C, the Promissory
Note of Borrowers, in the face amount of each Lender's Participation
Percentage of the Term Loan C in or substantially in the form of Exhibit
J-4 to the Credit Agreement.
"Third Amendment Closing Date" means Monday, June 30, 1997.
References in the Loan Documents to the "Loan Documents", "Loans", "Notes",
"Warrants", "Warrant Agreement" and other documents, instruments, and other
agreements executed in connection with the Loans shall in each case refer to
each such document, instrument or other agreement, as it may be amended or
restated from time to time.
2. Commitments. Section 2.1 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"Section 2.1 Commitments. Each Lender, severally and not jointly,
agrees, upon the terms and subject to the conditions contained in this
Agreement, to make the Revolving Credit Loans to Borrowers from time to
time prior to the Termination Date for such Loans, the Term Loan A on the
Closing Date in a principal amount equal to such Lender's Participation
Percentage of the aggregate principal amount of such Loan requested by
Borrowers on each occasion, the Term Loan B upon satisfaction of the
conditions contained in Section 4.2 of this Agreement and Term Loan C on
the Third Amendment Closing Date in a principal amount equal to such
Lender's Participation Percentage of the aggregate principal amount of such
loan."
3. Making the Loans. Section 2.2. of the Credit Agreement is hereby
amended to include Section 2.2(d) to read, in its entirety, as follows:
"(d) Term Loan C. 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 on the Third Amendment Closing Date its Participation Percentage
of the Term Loan C. The aggregate amount of the Term Loan C shall not
exceed One Million Three Hundred Thousand and 00/100 Dollars
($1,300,000.00). Amounts borrowed under this Subsection and repaid or
prepaid may not be reborrowed."
4. Draws, Advances and Settlement of Payments and Advances. Sections
2.3(a) of the Credit Agreement is hereby amended in its entirety to read as
follows:
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"(a) [INTENTIONALLY OMITTED]."
5. The Notes. Section 2.4 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"Section 2.4 The Notes. The absolute and unconditional obligation of
Borrowers to repay to each Lender its respective Pro Rata Share of the
principal of each Loan and the interest thereon shall be evidenced by a
separate Revolving Credit Note, Term Loan A Note, Term Loan B Note and Term
Loan C Note for each Lender in the amount of its respective Credit
Commitment for each Loan. All payments under the Notes shall be made to
Agent at its Head Office, for the account of Lenders, and Agent shall
allocate all payments on each Loan received from Borrowers among all
Lenders in accordance with each Lender's Pro Rata Share of such Loan in
accordance with Section 2.7(b)."
6. Maturity. Section 2.6(i) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(i) Maturity. Subject to the terms and conditions of this
Agreement, Borrowers will be entitled to reborrow all or any part of the
principal of the Revolving Credit Notes repaid or prepaid prior to the
Termination Date. The Credit Commitments shall terminate and all of the
indebtedness evidenced by the Revolving Credit Notes and the Term Loan B
Notes shall, if not sooner paid, be in any event absolutely and
unconditionally due and payable in full by Borrower on December 31, 2001,
the date of the final maturity of such Notes. The Term Loan A Notes shall,
if not sooner paid, be in any event absolutely and unconditionally due and
payable in full by Borrowers on December 31, 2001, the date of the final
maturity of such Notes. The Term Loan C Notes shall, if not sooner paid, be
in any event absolutely and unconditionally due and payable in full by
Borrowers on June 30, 2002, the date of Final Maturity of such Notes."
7. Prepayment Fees. Section 2.6(k) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(k) Prepayment Fees. Except for a prepayment of Term Loan C, if
Borrowers voluntarily prepay the Term Loans in full prior to the third
anniversary of the Closing Date, the Revolving Credit Loan shall, in
accordance with Section 2.2(a) become due and payable in full, and
Borrowers shall pay to Agent, for the ratable benefit of Lenders, as
liquidated damages and compensation for the costs of being prepared to make
funds available to Borrowers under this Agreement, and not as a penalty, an
amount determined by multiplying (x) the amount of the Credit Commitment
times (y) three percent (3%) upon prepayment during the first Loan Year,
two percent (2%) upon prepayment during the second Loan Year;
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and one percent (1%) upon prepayment during the third Loan Year (the
"Prepayment Fee"). Borrowers shall also pay a Prepayment Fee in connection
with any partial prepayment of any Term Loan, except a partial prepayment
of Term Loan C; provided, however, that if such prepayment, either in full
or in part, occurs as a result of any event described in paragraphs 2.6(e),
2.6(f), 2.6(g) or 2.6(h) above, no such Prepayment Fee shall be required.
8. Payments on Term Loan C. Section 2.6 of the Credit Agreement is hereby
amended to add a new paragraph (l) to read in its entirety as follows:
"(l) Payments on Term Loan C. Borrowers shall pay to Agent, for the
account of Lenders in accordance with their respective Pro Rata Share on
Term Loan C, monthly in arrears on the first Business Day of each month
beginning on November 1, 1997, interest on the outstanding principal amount
of the Term Loan C equal to the Interest Rate applicable thereto, provided,
however, that interest in the Term Loan C shall not begin to accrue until
September 29, 1997. Borrowers shall pay to Agent, and Borrowers hereby
authorize Agent to charge the respective accounts of Borrowers maintained
with Agent, on the earlier of (i) June 30, 2002, or (ii) the third Business
Day following the date of a Public Offering, as defined herein, an amount
sufficient to pay in full the entire unpaid principal amount of the Term
Loan C.
9. Financial Covenants. Sections 7.1, 7.2, 7.3, 7.4, and 7.5 of the
Credit Agreement are hereby amended to the extent necessary to exclude from the
calculations contained therein the principal amount of the Term Loan C and the
Indebtedness represented therein and any accrued interest thereon.
10. Repurchase of Warrant. Holdings hereby agrees to purchase from Agent,
and Agent hereby agrees to sell to Holdings the warrants issued to Agent
pursuant to the Warrant Agreement. In consideration therefor and as additional
consideration for the closing of the Third Amendment, Borrowers shall pay to
Agent:
(a) on the Third Amendment Closing Date, the sum of $1,000,000; and
(b) in the event that Holdings or any Borrower closes a Public
Offering of any class of its Capital Stock on or prior to June 30, 1998, on
the date of the initial closing with its underwriters of such Public
Offering, the Contingent Warrant Purchase Price in cash or other
immediately available funds.
Upon receipt of the consideration set forth in clause (a) above, Agent shall
deliver to Holdings as soon thereafter as reasonably practicable thereafter, the
original warrants issued pursuant to the Warrant Agreement, endorsed in blank or
canceled.
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11. 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 Loan Agreement, and
reaffirms each of the affirmative covenants set forth in Article 6 and the
financial and negative covenants set forth in Articles 7 and 8, respectively,
thereof, as if fully set forth herein, except to the extent modified by this
Third Amendment.
12. Conditions Precedent to Closing of Third Amendment. On or prior to
the Third Amendment Closing Date, each of the following conditions precedent
shall have been satisfied.
(a) Proof of Corporate Authority. Lender shall have received from
Borrowers copies, certified by a duly authorized officer to be true and
complete on and as of the Third Amendement Closing Date, of records of all
action taken by each Borrower to authorize (i) the execution and delivery
of this Third Amendment and all other certificates, documents and
instruments to which it is or is to become a party as contemplated or
required by this Third Amendment, and (ii) its performance of all its
obligations under each of such documents.
(b) Documents. Each of the documents to be executed and delivered at
the 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 Borrowers and shall be in full force
and effect on and as of the Third Amendment Closing Date.
(c) Legal Opinion. Agent and each Lender shall have received a
written legal opinion, addressed to Agent and each Lender and dated as of
the Third Amendment Closing Date, from legal counsel for Borrowers, which
shall be in form and substance acceptable to Lender, opining as to the due
execution, delivery and enforceability of the documents to be delivered in
connection herewith.
(d) 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 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.
(e) Performance, Etc. 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 Third Amendment
Closing Date, and no condition shall exist on the Third Amendment Closing
Date, which constitutes a Default or an Event of Default.
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13. Miscellaneous:
(a) Borrower shall reimburse Lender for all fees and disbursements of
legal counsel to Lender which shall have been incurred by Lender in
connection with the preparation, negotiation, review, execution and
delivery of this Third Amendment and the handling of any other matters
incidental hereto.
(b) All of the terms, conditions and provisions of the Credit
Agreement not herein modified shall remain in full force and effect. In the
event a term, condition or provision of the Credit Agreement conflicts with
a term, condition or provision of this Third Amendment, the latter shall
govern.
(c) This Third Amendment shall be governed by and shall be construed
and interpreted in accordance with the laws of the State of Ohio.
(d) This Third Amendment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns.
(e) This Third 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.
[space intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, this Third 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.
SIGNED IN THE PRESENCE OF: BORROWERS
CLEARVIEW CINEMA GROUP, INC.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC MADISON TRIPLE CINEMA CORP.,
a New Jersey corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC XXXXXXX TWIN CINEMA
CORPORATION
a New Jersey corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC MANASQUAN CINEMA CORPORATION,
a New Jersey corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CLEARVIEW THEATRE GROUP, INC.,
a New Jersey corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC HERRICKS CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC PORT WASHINGTON CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC GRAND AVENUE CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC WASHINGTON CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC XXXXXXX CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC XXXXXXX CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC NEW CITY CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC SUMMIT CINEMA CORP. (formerly known
as 000-000 XXXXXXXXXXX XXXXXX CORP.),
a New Jersey corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC BEDFORD CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC KISCO CINEMA CORP.,
a Delaware corporation ("CCC Kisco"),
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC CLOSTER CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC BERGENFIELD CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC TENAFLY CINEMA CORP.,
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
CCC B.C. REALTY CORP.
a Delaware corporation
_________________________ By: ______________________________
Name: A. Xxxx Xxxx
_________________________ Title: President
THE PROVIDENT BANK, Agent
_________________________ By: ______________________________
Name: Xxxxxxxxxxx X. Xxxxxxx
_________________________ Title: Assistant Vice President
THE PROVIDENT BANK, Lender
_________________________ By: ______________________________
Name: Xxxxxxxxxxx X. Xxxxxxx
_________________________ Title: Assistant Vice President
[Exhibits will be provided by the Company upon request.]
