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EXHIBIT 10.2
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
August 7, 1997, among HOLLYWOOD THEATER HOLDINGS, INC., a Delaware corporation
(the "Parent"), HOLLYWOOD THEATERS, INC., a Delaware corporation (the
"Company"), the several financial institutions from time to time party to this
Agreement (collectively, the "Banks"; individually, a "Bank"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Administrative Agent for the
Banks.
WHEREAS, the Parent, the Company, Administrative Agent and Bank of
America Illinois ("Original Bank") are parties to that Credit Agreement dated
as of November 1, 1996 (as amended, supplemented or otherwise modified prior to
the date hereof, the "Existing Credit Agreement") pursuant to which Original
Bank made the Existing Term Loans and the Existing Revolving Loans to the
Company and such Existing Term Loans and Existing Revolving Loans remain
outstanding; and
WHEREAS, BofA is the successor by merger to the Original Bank; and
WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement to (a) effect and permit the Recapitalization and (b)
otherwise amend and restate the Existing Credit Agreement in its entirety as
more fully set forth herein; and
WHEREAS, as part of the Recapitalization, the Existing Term Loans and
the Existing Revolving Loans shall be converted to Revolving Loans as provided
herein and the Banks shall make available to the Company a revolving credit
facility in an initial amount not to exceed $50,000,000 in the aggregate, which
amount may be increased at the option of any Bank to an amount not to exceed
$75,000,000 in the aggregate pursuant to Section 2.16 hereof, all as provided
herein; and
WHEREAS, as part of the Recapitalization, the Issuing Bank shall,
upon request of the Company from time to time, issue Letters of Credit in an
aggregate amount outstanding from time to time not to exceed $3,000,000, all as
provided more particularly herein; and
WHEREAS, as part of the Recapitalization, the Banks shall purchase
and assume, as of the Effective Date, all of the Banks' rights and obligations
under the Existing Credit Agreement as amended and restated herein and, after
giving effect to such purchase as of the Effective Date, the Commitment of and
the amount of Loans owing to each of the Banks will be as set forth on Schedule
2.1; and
WHEREAS, on or before the Effective Date, the Company shall
consummate the Recapitalization;
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NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the following meanings:
"Acceleration": as defined in subsection 8.2(b).
"Acquisition": any transaction or series of related transactions by
a Hollywood Entity for the purpose of or resulting, directly or indirectly, in
(a) the acquisition of one or more Theaters, (b) the acquisition of all or a
material portion of the assets of a Person, or of any business or division of a
Person, (c) the acquisition of greater than 50% of the Capital Stock of any
Person, (d) a merger or consolidation or any other combination with another
Person (other than the Parent, the Company or a Subsidiary) provided that the
Parent, the Company or a Hollywood Entity, as applicable, is the surviving
entity or (e) a Land Acquisition.
"Acquisition Costs": with respect to any Acquisition, the sum, as
calculated at the time of such Acquisition (without duplication), of (a) the
net purchase price of such Acquisition after accounting for customary closing
adjustments, (b) the outstanding amount of any Indebtedness assumed by any
Hollywood Entity in connection with such Acquisition, (c) the outstanding
amount of any Indebtedness secured by Liens encumbering the property acquired
pursuant to such Acquisition and (d) the outstanding amount of any other
Indebtedness incurred by any Hollywood Entity in connection with such
Acquisition.
"Adjustment Date": the second Business Day following receipt by the
Administrative Agent of a Compliance Certificate in respect of the then most
recently ended fiscal quarter pursuant to subsection 6.3(b).
"Administrative Agent": BofA in its capacity as agent for the Banks
hereunder, and any successor agent arising under Section 9.9.
"Administrative Agent-Related Persons": BofA and any successor agent
arising under Section 9.9, together with their respective Affiliates
(including, in the case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Administrative Agent's Payment Office": the address for payments
set forth on Schedule 11.2 or such other address as the Administrative Agent
may from time to time specify.
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"Affected Bank": as defined in Section 3.7.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"Aggregate Specified Swap Amount": at any time, the sum of all
Specified Swap Amounts then owing to all Swap Providers.
"Agreement": this Credit Agreement, as amended, supplemented,
restated or otherwise modified from time to time.
"Applicable Margin": for the periods (a) commencing on the Effective
Date and ending on the day immediately preceding the first Adjustment Date and
(b) commencing on the first Adjustment Date and ending on the day immediately
preceding the next succeeding Adjustment Date, the rate per annum for the
relevant type of Loan set forth below opposite the Consolidated Total Leverage
Ratio determined in accordance with this Agreement as at the end of the fiscal
quarter most recently ended prior to the first day of such period:
Eurodollar Base Rate
Period Rate Loans Loans
------ ---------- -----
Consolidated Total Leverage
Ratio is equal to or greater
than 5.0 to 1.0 2.500% 1.500%
Consolidated Total Leverage
Ratio is equal to or greater
than 4.5 to 1.0 but less
than 5.0 to 1.0 2.250% 1.250%
Consolidated Total Leverage
Ratio is equal to or greater
than 4.0 to 1.0 but less
than 4.5 to 1.0 1.750% 0.750%
Consolidated Total Leverage
Ratio is equal to or greater
than 3.5 to 1.0 but less
than 4.0 to 1.0 1.375% 0.375%
Consolidated Total Leverage
Ratio is less than 3.5 to 1.0 1.000% 0.00%
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The Applicable Margin in effect from the Effective Date until the first
Adjustment Date shall be determined on the basis of the Consolidated Total
Leverage Ratio set forth in the Compliance Certificate delivered on the
Effective Date. In the event that the Company fails to deliver a Compliance
Certificate for any fiscal quarter when due, then, commencing on the date on
which such Compliance Certificate is due and ending on the date the Company so
delivers such Compliance Certificate, the Applicable Margin shall be an amount
equal to the sum of (i) the Applicable Margin in effect hereunder on the date
immediately preceding the subject Adjustment Date (the "Prior Applicable
Margin") and (ii) the amount set forth below:
(A) in the event that the Prior Applicable Margin was equal to or
less than 2.00% in the case of Eurodollar Rate Loans, or 1.00% in the case of
Base Rate Loans, .50%; and
(B) in the event that the Prior Applicable Margin was greater
than 2.00% in the case of Eurodollar Rate Loans, or 1.00% in the case of Base
Rate Loans, .25%.
"Arranger": BancAmerica Securities, Inc., a Delaware corporation.
"Assignee": as defined in Section 11.8.
"Assignment and Acceptance": an agreement in the form of Exhibit E.
"Attorney Costs": includes all reasonable fees and disbursements of
any law firm or other external counsel, the reasonable allocated cost of
internal legal services and all reasonable disbursements of internal counsel.
"Bank": the institutions specified in the introductory clause
hereto. Unless the context otherwise clearly requires, "Bank" includes any such
institution in its capacity as a Swap Provider. Unless the context otherwise
clearly requires, references to any such institution as a "Bank" shall also
include any of such institution's Affiliates that may at any time of
determination be Swap Providers.
"Bankruptcy Code": the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Base Rate": for any day, the higher of: (a) 0.50% per annum above
the latest Federal Funds Rate in effect on such day; and (b) the rate of
interest in effect on such day as publicly announced from time to time by BofA
in San Francisco, California, as its "reference rate." The "reference rate" is
a rate set by BofA based upon various factors, including BofA's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing
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some loans, which may be priced at, above, or below such announced rate. Any
change in the reference rate announced by BofA shall take effect at the opening
of business on the day specified in the public announcement of such change.
"Base Rate Loan": a Loan that bears interest based on the Base Rate.
"Beacon": The Beacon Group III - Focus Value Fund, L.P., a Delaware
limited partnership.
"BofA": Bank of America National Trust and Savings Association, a
national banking association.
"Borrowing": a borrowing hereunder consisting of Loans of the same
Type made to the Company on the same day by the Banks under Article II, and,
other than in the case of Base Rate Loans, having the same Interest Period.
"Borrowing Date": any date on which a Borrowing occurs under Section
2.3.
"Business Day": any day other than a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco or Dallas, Texas
are authorized or required by law to close and, if the applicable Business Day
relates to any Eurodollar Rate Loan, such a day on which dealings are carried
on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation": any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any commercial bank or of any corporation controlling a
commercial bank.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries. Notwithstanding
the foregoing, there shall be excluded from Capital Expenditures the proceeds
arising out of any Event of Loss and expenditures incurred in connection with
Acquisitions and Construction Projects.
"Capital Expenditures Cap": as defined in Section 7.16.
"Capital Stock": (a) in the case of a corporation, any equity
security issued by that corporation; and (b) in the case of any other entity,
any share, membership, partnership or other percentage interest, unit of
participation or other equivalent (however designated) of a corporate equity
security; and (c) any and all warrants, rights or options to purchase any of
the foregoing.
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"Capitalized Lease": any lease the obligations under which have
been, or in accordance with GAAP are required to be, recorded on the books of
the Parent, the Company or any Subsidiary as a capital lease liability.
"Cash Collateralize": to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Bank and the Banks, as additional collateral for the L/C Obligations, cash or
deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the Issuing Bank (which documents
are hereby consented to by the Banks). Derivatives of such term shall have
corresponding meaning.
"CERCLA": as defined in the definition of "Environmental Laws."
"Code": the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Collateral": all property and interests in property and proceeds
thereof now owned or hereafter acquired by the Parent, the Company or any
Subsidiary in or upon which a Lien now or hereafter exists in favor of the
Banks, or the Administrative Agent on behalf of the Banks, whether under this
Agreement or under any other documents executed by any such Person and
delivered to the Administrative Agent or the Banks.
"Collateral Documents": collectively, (a) the Security Agreement,
the Mortgages, the Pledge Agreement, the Subsidiaries Guaranty and all other
security agreements, mortgages, deeds of trust, patent and trademark
assignments, lease assignments, guaranties and other similar agreements between
the Parent, the Company or any Subsidiary and the Banks, or the Administrative
Agent for the benefit of the Banks, now or hereafter delivered to the Banks or
the Administrative Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or comparable documents now
or hereafter filed in accordance with the Uniform Commercial Code or comparable
law) against the Parent, the Company or any Subsidiary as debtor in favor of
the Banks, or the Administrative Agent for the benefit of the Banks, as secured
party, and (b) any amendments, supplements, modifications, renewals,
replacements, consolidations, substitutions and extensions of any of the
foregoing.
"Commitment": as to each Bank, its Revolving Loan Commitment.
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"Compliance Certificate": a certificate duly executed by a
Responsible Officer of the Parent and the Company, substantially in the form of
Exhibit C (with such changes thereto as may be agreed upon from time to time by
the Administrative Agent and the Parent and the Company), and including
therein, among other things, calculations supporting compliance with Article
VII.
"Consolidated Cash Interest": for any period with respect to the
Parent, the Company and the Subsidiaries, without duplication of amounts, the
amounts classified as interest expense in determining Consolidated Net Income,
other than such interest expense that is not payable in cash during such period
(e.g., interest or dividends on securities paid in additional securities,
imputed interest and amortization of original issue discount). Notwithstanding
the foregoing, Consolidated Cash Interest for any period ending prior to the
first anniversary of the Effective Date shall be determined by multiplying (a)
Consolidated Cash Interest for the period beginning on the Effective Date and
ending on the last day of the applicable period, by (b) the quotient of (i)
365, divided by (ii) the number of days in the applicable period.
"Consolidated Current Assets": at a particular date, all amounts
which would, in conformity with GAAP, be classified as "current assets" on a
consolidated balance sheet of the Parent and its Subsidiaries at such date.
"Consolidated Current Liabilities": at a particular date, all
amounts which would, in conformity with GAAP, be classified as "current
liabilities" on a consolidated balance sheet of the Parent and its Subsidiaries
at such date.
"Consolidated Fixed Charge Coverage Ratio": as of the end of any
fiscal quarter, the ratio of (a) the sum of Consolidated Operating Cash Flow
plus aggregate rental expense for the Hollywood Entities for the prior twelve
month period ending on such date to (b) Consolidated Fixed Charges for the
prior twelve month period ending on such date.
"Consolidated Fixed Charges": for any period with respect to the
Parent, the Company and the Subsidiaries, the sum of the aggregate amount
(without duplication) of (a) rental expense (including rental payments under
real property operating leases) of such Persons during such period, (b)
Consolidated Cash Interest for such period, (c) Capital Expenditures of such
Persons during such period, (d) required principal repayments of all
Indebtedness of such Persons during such period (excluding the repayment of the
outstanding Loans on the Maturity Date), (e) Permitted Restricted Payments made
by such Person in respect of its Capital Stock during such period pursuant to
subsection 7.12(a)(iii), and (f) income tax expenses for the Hollywood
Entities. Notwithstanding the foregoing, Consolidated Fixed Charges for any
period ending prior to the first anniversary of the Effective Date shall be
determined by multiplying (a) Consolidated Fixed Charges for the period
beginning on the Effective Date and ending on the last day of the applicable
period, by (b) the quotient of (i) 365, divided by (ii) the number of days in
the applicable period.
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"Consolidated Interest Coverage Ratio": as of the end of any fiscal
quarter, the ratio of: (a) Consolidated Operating Cash Flow for the prior
twelve month period ending on such date to (b) Consolidated Cash Interest for
the prior twelve month period ending on such date.
"Consolidated Net Income": for any period with respect to the
Parent, the Company and the Subsidiaries, the net income (or loss) of such
Persons for that period, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Operating Cash Flow": for any period, with respect to
the Parent, the Company and the Subsidiaries, Consolidated Net Income for such
period plus, without duplication and to the extent deducted in determining
Consolidated Net Income for such period, the sum of (a) total income tax
expense, (b) interest expense, amortization or writeoff of debt discount and
debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary expenses or
losses (including, whether or not otherwise includable as a separate item in
the statement of such Consolidated Net Income for such period, losses on sales
of assets outside of the ordinary course of business) and (f) any other noncash
charges (excluding inventory writedowns), and minus, without duplication and to
the extent included in determining Consolidated Net Income for such period, the
sum of (a) non-cash interest income, (b) any extraordinary income or gains
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales
of assets outside of the ordinary course of business) and (c) any other noncash
income, all as determined on a consolidated basis.
Notwithstanding the foregoing, Consolidated Operating Cash Flow shall
be adjusted as set forth below to account for (a) Theaters which are newly
constructed by a Hollywood Entity, (b) Theaters which are substantially
renovated by a Hollywood Entity and/or (c) Theaters which were newly
constructed prior to acquisition by a Hollywood Entity and, in each such case,
have been open and operating for less than one year:
(i) with respect to the recently constructed Theaters in
Beaumont, Texas, Tyler, Texas and Lawrence, Kansas, (A) Consolidated Operating
Cash Flow for the Effective Date shall be determined by adding $2,987,000 to
Consolidated Operating Cash Flow as otherwise applicable for such date and (B)
Consolidated Operating Cash Flow for the Test Period ending September 30, 1997
shall be determined by adding $2,390,000 to Consolidated Operating Cash Flow as
otherwise applicable to such Test Period; and
(ii) with respect to (A) any new Theater constructed by any
Hollywood Entity from and after the Effective Date, (B) any existing Theater
substantially renovated by any Hollywood Entity from and after the Effective
Date (such that none of the screens in such Theater were in operation during
such renovation) and/or (C) any Theater acquired from and after the Effective
Date which had been newly constructed by a third party prior to the acquisition
of such Theater by a Hollywood Entity and not operated by such third party,
Consolidated Operating Cash
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Flow for any Test Period during which, in each such case, such Theater shall
have been open and operating (in the case of Theaters referenced in clause (B),
re-opened and operating) for at least six consecutive months but not more than
twelve consecutive months (in the case of Theaters referenced in clause (C),
such six month period shall include any period of operation by any predecessor
owner(s) to a Hollywood Entity) shall be calculated by annualizing the actual
applicable revenues and expenses for such New Theater as if such New Theater
had been in operation for the full twelve months prior to such Test Period.
For the purposes of this clause (ii), whenever income and expenses in respect
of Theaters of a type referenced in the foregoing clauses (A), (B) or (C) are
to be annualized in connection with the determination of Consolidated Operating
Cash Flow, such calculations shall be determined in good faith by the chief
financial officer of the Company and shall be reasonably satisfactory in all
respects to the Administrative Agent.
"Consolidated Senior Leverage Ratio": as of the end of any fiscal
quarter, the ratio of (a) Senior Debt on such day (after giving effect to all
prepayments made on such day) to (b) Consolidated Operating Cash Flow for the
prior twelve month period ending on such date.
"Consolidated Total Debt": at any date, the sum (without
duplication) of all Indebtedness of the Parent, the Company and the
Subsidiaries outstanding on such date.
"Consolidated Total Cash": at any date, the sum of all cash and cash
equivalents of the Parent, the Company and the Subsidiaries as of such date,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Leverage Ratio": as of the end of any fiscal
quarter, the ratio of (a) the difference between (i) Consolidated Total Debt on
such day minus (ii) (Consolidated Total Cash on such day less $1,000,000) (in
each case, after giving effect to all prepayments made on such day) to (b)
Consolidated Operating Cash Flow for the prior twelve month period ending on
such date.
"Consolidated Working Capital": the excess of Consolidated Current
Assets over Consolidated Current Liabilities.
"Construction Advance Compliance Certificate": a certificate duly
executed by a Responsible Officer of the Parent and the Company, substantially
in the form of Exhibit N (with such changes thereto as may be agreed upon from
time to time by the Administrative Agent and the Parent and the Company), and
including therein, among other things, calculations supporting compliance with
Article VII after taking into consideration the applicable Construction
Advance(s).
"Construction Advances": any Revolving Loan made hereunder the
proceeds of which are to be used in whole or in part in connection with (a)
costs and expenses related to any Land Acquisition and/or (b) the "hard" and
"soft" costs of construction incurred or to be incurred by any Hollywood Entity
in connection with a Construction Project (collectively, "Land
Acquisition/Construction Costs").
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"Construction Project": any construction related to a Theater,
including construction of a New Theater or the material renovation or
modification (excluding normal maintenance) of any Theater or any screen
addition at any Theater.
"Contingent Obligation": as to any Person, without duplication, any
direct or indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person (i) to purchase, repurchase or otherwise acquire such
primary obligations or any security therefor, (ii) to advance or provide funds
for the payment or discharge of any such primary obligation, or to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of income
or financial condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof (each, a
"Guaranty Obligation"); (b) with respect to any Surety Instrument issued for
the account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings or payments; (c) to purchase any materials, supplies
or other property from, or to obtain the services of, another Person if the
relevant contract or other related document or obligation requires that payment
for such materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed or
tendered, or (d) in respect of any Swap Contract. The amount of any Contingent
Obligation shall, in the case of Guaranty Obligations, be deemed equal to the
stated or determinable amount of the primary obligation in respect of which
such Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof, and in the case of
other Contingent Obligations other than in respect of Swap Contracts, shall be
equal to the maximum reasonably anticipated liability in respect thereof and,
in the case of Contingent Obligations in respect of Swap Contracts, shall be
equal to the Swap Termination Value. Notwithstanding the foregoing,
obligations in respect of indemnities and surety bonds, appeal bonds and
similar instruments which (a) are granted or which arise in the ordinary course
of business, including in connection with Acquisitions and Dispositions,
Construction Projects, lease agreements and other Contractual Obligations and
litigation, and (b) are not assurances with respect to Indebtedness of the
types described in clauses (a) through (f) of the definition of Indebtedness
shall not constitute "Contingent Obligations" for purposes of this Agreement.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement
to which such Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date": any date on which, under Section
2.4, the Company (a) converts Loans of one Type to another Type, or (b)
continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
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"Credit Extension": the collective reference to (a) the making of any
Revolving Loans hereunder, and (b) the Issuance of any Letters of Credit
hereunder, including the Existing BofA Letter of Credit.
"Credit Obligations": as defined in Section 7.17.
"Crown": Crown Theatre Corporation, a Missouri corporation.
"Crown Agreement": that certain Asset and Stock Purchase Agreement
dated as of August 26, 1996, by and between Xxxxxxx X. Xxxxxxx, individually
and as trustee pursuant to Trust Agreement dated May 7, 1980, Crown Cinema
Corporation, Crown, and the Company and the Parent, as amended by letter
agreement dated November 1, 1996.
"Crown Assets": the stock of Crown acquired by the Parent and the
assets acquired by the Company, in each case, pursuant to the Crown Agreement.
"Default": any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Default Rate": the rate of interest applicable from time to time
under subsection 2.9(c).
"Delayed Construction Project": as defined in Section 7.20.
"Disposition": the sale, lease, conveyance or other disposition of
assets by any Hollywood Entity to any Person (other than to a Hollywood Entity
other than the Parent), including Sale and Leaseback Transactions, and the sale
or transfer by any Hollywood Entity of any Capital Stock issued by any
Subsidiary held by such transferor Person to any Person (other than to a
Hollywood Entity).
"Dollars", "dollars" and "$": lawful money of the United States.
"Effective Date": the date on which all conditions precedent set
forth in Section 4.1 are satisfied or waived by all Banks (or, in the case of
subsection 4.1(e), waived by the Person entitled to receive such payment).
"Eligible Assignee": (a) any bank, insurance company, mutual fund
or other financial institution or (b)any other Person which is an "accredited
investor" as defined in Regulation D of the Securities Act of 1933, as amended,
excluding those Persons described in clauses (4), (5) and (6) of such
definition.
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"Environmental Claims": all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility of the Parent, the Company or any Subsidiary for violation of
any Environmental Law, or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or death), property
damage, natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), cleanup, removal, remedial
or response costs, restitution, civil or criminal penalties, injunctive relief,
or other type of relief, resulting from or based upon the presence, placement,
discharge, emission or release (including intentional and unintentional,
negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental, placement, spills, leaks, discharges, emissions or releases) of
any Hazardous Material at, in, or from property, whether or not owned by the
Parent, the Company or any Subsidiary.
"Environmental Laws": all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
Environmental Permits and all administrative orders and directed duties of, and
agreements with, any Governmental Authorities, in each case relating to
environmental, health, safety and natural resource preservation matters;
including the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 ("CERCLA"), the Clean Air Act, the Federal Water Pollution Control
Act of 1972, the Solid Waste Disposal Act, the Federal Resource Conservation
and Recovery Act, the Toxic Substances Control Act and the Emergency Planning
and Community Right-to-Know Act.
"Environmental Permits": as defined in Section 5.12.
"ERISA": the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA Affiliate": any trade or business (whether or not
incorporated) under common control with the Parent or the Company within the
meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the Code).
"ERISA Event": (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Parent or the Company or any ERISA Affiliate from
a Pension Plan subject to Section 4063 of ERISA during a plan year in which it
was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Parent or the
Company or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Section
4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
could reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the
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imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, on the Parent or the
Company or any ERISA Affiliate.
"Eurodollar Rate": for any day in any Interest Period, with respect
to Eurodollar Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/100th of 1%) determined by the
Administrative Agent as follows:
IBOR
------------------------------------
Eurodollar Rate = 1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentages": for any day in any Interest Period
the maximum reserve percentage (expressed as a decimal, rounded upward to the
next 1/100th of 1%) in effect on such day under regulations issued from time to
time by the FRB for determining the maximum reserve requirement applicable to
the Administrative Agent (including any emergency, supplemental or other
marginal reserve requirement) with respect to "Eurocurrency liabilities" having
a term equal to such Interest Period (as such term is currently defined in
Regulation D of the FRB, or under any similar or successor regulation with
respect to Eurocurrency liabilities or Eurocurrency funding); and
"IBOR" means the rate of interest per annum determined by the
Administrative Agent as the rate at which dollar deposits in the approximate
amount of BofA's Eurodollar Rate Loan for such Interest Period offered by
BofA's Grand Cayman Branch, Grand Cayman B.W.I. (or such other office as may be
designated for such purpose by BofA), to major banks in the offshore dollar
interbank market at their request at approximately 11:00 a.m. (New York City
time) two Business Days prior to the commencement of such Interest Period.
The Eurodollar Rate shall be adjusted automatically as to all
Eurodollar Rate Loans then outstanding as of the effective date of any change
in the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan": a Loan that bears interest based on the
Eurodollar Rate.
"Eurodollar Reserve Percentage": as defined in the definition of
"Eurodollar Rate".
"Event of Default": any of the events or circumstances specified in
Section 8.1.
"Event of Loss": with respect to any fee or leasehold interest in
real property of any Hollywood Entity or any other material property of any
Hollywood Entity, any of the following: (a) any loss, destruction or damage of
such property; (b) any sale, transfer, conveyance or other Disposition of such
property in lieu of or in settlement of any pending or threatened institution
of any proceedings for the condemnation or seizure of such property or for the
exercise of any right of eminent domain; or (c) any actual condemnation,
seizure or taking, by exercise of the power of
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eminent domain or otherwise, of such property, or confiscation of such property
or the requisition of the use of such property.
"Excess Cash Flow": for any twelve month period, the excess of (a)
the sum, without duplication, of (i) Consolidated Net Income for such twelve
month period, (ii) an amount equal to the amount of all non-cash charges
deducted in arriving at such Consolidated Net Income, (iii) decreases in
Consolidated Working Capital (other than cash) for such twelve month period and
(iv) an amount equal to the aggregate net non-cash loss on the sale, lease,
transfer or other disposition of assets by the Parent, the Company and their
Subsidiaries during such twelve month period (other than sales of inventory in
the ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income over (b) the sum, without duplication, of (i) an amount
equal to the amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by the Parent,
the Company and their Subsidiaries in cash during such twelve month period on
account of Capital Expenditures and Construction Projects (excluding the
principal amount of Indebtedness incurred in connection with such expenditures,
but including amounts repaid during such period in respect of such
Indebtedness), (iii) the aggregate amount of all payments and prepayments of
Revolving Loans to the extent accompanying permanent reductions of the
Revolving Commitments (other than pursuant to subsection 2.7(b), but not
including any payments or prepayments made in respect of the Existing Term
Loans and/or the Existing Revolving Loan), (iv) the aggregate amount of all
regularly scheduled principal payments of Indebtedness of the Parent and the
Company permitted hereunder and its Subsidiaries made during such twelve month
period (other than under this Agreement), (v) increases in Consolidated Working
Capital (other than cash) for such twelve month period, and (vi) an amount
equal to the aggregate net non-cash gain on the sale, lease, transfer or other
disposition of assets by the Parent, the Company and their Subsidiaries during
such twelve month period (other than sales of inventory in the ordinary course
of business), to the extent included in arriving at such Consolidated Net
Income.
"Excess Cash Flow Application Date": as defined in subsection
2.7(b).
"Exchange Act": the Securities Exchange Act of 1934, and regulations
promulgated thereunder.
"Excluded Taxes": as defined in the definition of "Taxes".
"Existing BofA Letter of Credit": the collective reference to the
Letters of Credit issued by BofA prior to the Effective Date for the account of
the Company and listed on Schedule 2.17 attached hereto.
"Existing Credit Agreement": as defined in the recitals to this
Agreement.
"Existing Revolving Loans": the revolving loans made by the Banks
parties to the Existing Credit Agreement pursuant to subsection 2.1(b) of the
Existing Credit Agreement.
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"Existing Term Loans": the term loans made by the Banks parties to
the Existing Credit Agreement pursuant to subsection 2.1(a) of the Existing
Credit Agreement.
"FDIC": the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate": for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such
successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
"Fee Letter": as defined in subsection 2.10(a).
"Fee Mortgaged Properties": all of the Fee Properties, as to which
the Administrative Agent for the benefit of the Banks has been or shall be
granted a Lien pursuant to the Fee Mortgages, and all real properties and the
improvements thereon hereafter acquired in fee by any Hollywood Entity which
are to be mortgaged to secure the obligations of the Obligations.
"Fee Mortgages": each of the mortgages or deeds of trust made by any
Loan Party in favor of, or for the benefit of, the Administrative Agent for the
benefit of the Banks and encumbering any of the Fee Mortgaged Properties,
substantially in the form of Exhibit G (with such changes thereto as shall be
advisable under the law of the jurisdiction in which such mortgage or deed of
trust is to be recorded), as the same may be amended, supplemented or otherwise
modified from time to time.
"Fee Properties": the real properties listed on Schedule 5.9(a) and
the improvements thereon.
"FRB": the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
"Funded Debt": as defined in the definition of "Indebtedness".
"Further Taxes": as defined in subsection 3.1(b).
"GAAP": generally accepted accounting principles and practices in
the United States set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable
stature
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and authority within the U.S. accounting profession), which are applicable to
the circumstances as of the date of determination.
"GC Agreement": Purchase and Assignment Agreement dated as of July
25, 1997 by and between General Cinema Corp. of Oklahoma, Inc., as seller, and
the Company, as purchaser, as amended by Amendment No. 1 to Purchase and
Assignment Agreement dated as of July 31, 1997.
"GC Assets": the assets to be acquired by the Company pursuant to
the GC Agreement.
"Governmental Authority": Any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation": as defined in the definition of "Contingent
Obligation."
"Hazardous Materials": all those substances that are regulated by,
or which may form the basis of liability under, any Environmental Law,
including any substance identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
"Hollywood Entities": the collective reference to the Parent, the
Company and all Subsidiaries from time to time; individually, each a "Hollywood
Entity".
"Honor Date": as defined in subsection 2.17(c).
"Indebtedness": as to any Person, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables arising in the ordinary course of business on customary terms
and accrued expenses and deferred compensation and other pension, benefit and
welfare expenses arising in the ordinary course of business); (c) all
noncontingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by that Person (even though the
rights and remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
obligations with respect to capital leases; (g) all obligations as a lessee
under synthetic or leveraged leases, (h) all indebtedness referred to in
clauses (a) through (g) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property
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(including accounts and contracts rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
Indebtedness, but only to the extent of the value of such property; and (i) all
Guaranty Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (h) above. For all purposes of this
Agreement, the Indebtedness of any Person shall include all Indebtedness of any
partnership or joint venture in which such Person is a general partner or a
joint venturer and with respect to which the holder of such Indebtedness has
recourse to such Person, but only to the extent of such recourse. "Funded
Debt" shall mean the collective reference (without duplication) to the
Indebtedness referred to in clauses (a) and (d) above.
"Indemnified Environmental Liabilities": as defined in Section 11.5.
"Indemnified Liabilities": as defined in Section 11.5.
"Indemnified Person": as defined in Section 11.5.
"Independent Auditor": as defined in subsection 6.1(a).
"Ineligible Securities": as defined in Section 7.8.
"Information": written information, including, without limitation,
certificates, reports, statements (excluding financial statements of the
Parent, the Company and the Subsidiaries) and documents.
"Insolvency Proceeding": with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshalling
of assets for creditors, or other, similar arrangement in respect of its
creditors generally or any substantial portion of its creditors; undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy Code.
"Intercompany Indebtedness": as defined in subsection 7.6(f).
"Interest Payment Date": as to any Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Loan and, as to any
Base Rate Loan, the last Business Day of each calendar quarter and each date
such Loan is converted into another Type of Loan, provided, however, that if
any Interest Period for a Eurodollar Rate Loan exceeds three months, the date
that falls three months after the beginning of such Interest Period and after
each Interest Payment Date thereafter is also an Interest Payment Date.
"Interest Period": as to any Eurodollar Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is
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converted into or continued as an Eurodollar Rate Loan, and, except as provided
in clause (e) below, ending on the date one, two, three or six months
thereafter as selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation;
provided that:
(a) if any Interest Period would otherwise end on a day that is not
a Business Day, that Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall
end on the last Business Day of the calendar month at the end of such Interest
Period;
(c) no Interest Period shall extend beyond the Maturity Date;
(d) no Interest Period applicable to a Revolving Loan shall extend
beyond any date upon which is due any scheduled principal payment in respect of
the Revolving Loans except, unless the aggregate principal amount of Revolving
Loans represented by Base Rate Loans or Eurodollar Rate Loans having Interest
Periods that will expire on or before such date, equals or exceeds the amount
of such principal payment; and
(e) until the earlier of (i) the date the Administrative Agent
notifies the Company that the primary syndication of the Loans is completed and
(ii) 60 days after the Effective Date, and subject to the provisions of
subsection 3.4(d) hereof, without prior consent of the Administrative Agent, no
Interest Period shall exceed one month with respect to outstanding Revolving
Loans.
"Investment": as defined in Section 7.5.
"IRS": the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
"Issuance Date": as defined in subsection 2.17(a).
"Issue": with respect to any Letter of Credit, to incorporate the
Existing BofA Letter of Credit into this Agreement, or to issue or to extend
the expiry of, or to renew or increase the amount of, such Letter of Credit;
and the terms "Issued," "Issuing" and "Issuance" have corresponding meanings.
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"Issuing Bank": BofA in its capacity as issuer of one or more
Letters of Credit hereunder, together with any replacement letter of credit
issuer arising under subsection 9.1(b) or Section 9.9.
"Joint Venture": a single-purpose corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by the Company or any of the Subsidiaries with another Person
in order to conduct a common venture or enterprise with such Person.
"Land Acquisition": any acquisition of a fee or leasehold interest
(or a combination thereof) in real property which, at the time of such
acquisition, is not used for operating a Theater.
"Land Acquisition/Construction Costs": as defined in the definition
of Construction Advances.
"Lawrence Property": that certain parcel of real property owned by
the Company and located at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxx.
"L/C Advance": with respect to each Bank, such Bank's participation
in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Amendment Application": an application form for amendment of
outstanding standby or commercial documentary letters of credit as shall at any
time be in use at the Issuing Bank, as the Issuing Bank shall request.
"L/C Application": an application form for issuances of standby or
commercial documentary letters of credit as shall at any time be in use at the
Issuing Bank, as the Issuing Bank shall request.
"L/C Borrowing": an extension of credit under subsection 2.17(c)(v)
resulting from a drawing under any Letter of Credit which shall not have been
reimbursed on the date when made nor converted into a Borrowing of Revolving
Loans under subsection 2.17(c)(iii).
"L/C Commitment": the commitment of the Issuing Bank to Issue, and
the commitment of the Banks severally to participate in, Letters of Credit
(including the Existing BofA Letter of Credit) from time to time Issued or
outstanding under Section 2.17, in an aggregate amount not to exceed on any
date the amount equal to the lesser of (a) $3,000,000 and (b) the aggregate
amount of the Commitments (as the same shall be reduced from time to time in
accordance with the provisions of Sections 2.5 and 2.7); provided that the L/C
Commitment is a part of the combined Commitments, rather than a separate,
independent commitment.
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"L/C Obligations": at any time the sum of (a) the aggregate undrawn
amount of all Letters of Credit then outstanding, plus (b) the amount of all
unreimbursed drawings under all Letters of Credit, including all outstanding
L/C Borrowings.
"L/C-Related Documents": the collective reference to the Letters of
Credit, the L/C Applications, the L/C Amendment Applications and any other
document relating to any Letter of Credit (other than any underlying
transactional document), including any of the Issuing Bank's standard form
documents for letter of credit issuances.
"Leasehold Mortgaged Properties": all of the Leasehold Properties,
as to which the Administrative Agent for the benefit of the Banks has been or
shall be granted a Lien pursuant to the Leasehold Mortgages, and all leasehold
interests in real property and the improvements thereon hereafter acquired by
any Hollywood Entity which are to be mortgaged to secure the Obligations.
"Leasehold Mortgages": each of the leasehold mortgages or deeds of
trust made by any Loan Party in favor of, or for the benefit of, the
Administrative Agent for the benefit of the Banks and encumbering any of the
Leasehold Mortgaged Properties, substantially in the form of Exhibit H (with
such changes thereto as shall be advisable under the law of the jurisdiction in
which such mortgage or deed of trust is to be recorded), as the same may be
amended, supplemented or otherwise modified from time to time.
"Leasehold Properties": the leasehold interest of any Hollywood
Entity now or hereafter acquired in each of the real properties listed on
Schedule 5.9(b) and the improvements thereon.
"Lending Office": as to any Bank, the office or offices of such Bank
specified as its "Lending Office" Lending Office" or "Eurodollar Lending
Office", as the case may be, on Schedule 11.2, or such other office or offices
as the Bank may from time to time notify the Company and the Administrative
Agent.
"Letters of Credit": the Existing BofA Letter of Credit and any
letters of credit (whether standby letters of credit or commercial documentary
letters of credit) Issued by the Issuing Bank pursuant to Section 2.17.
"Lien": any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title retention agreement,
the interest of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing
of any financing statement naming the owner of the asset to which such lien
relates as debtor, under the Uniform Commercial Code or any comparable law) and
any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease.
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"Lien Restriction": as defined in Section 7.17.
"Loan": an extension of credit by a Bank to the Company under
Sections 2.1 through 2.16 which may be a Base Rate Loan or an Eurodollar Rate
Loan (each, a "Type" of Loan), and includes any Revolving Loan.
"Loan Documents": this Agreement, any Notes, the L/C Related
Documents, the Collateral Documents, the Fee Letter, any documents evidencing
Specified Swap Contracts, and all other documents delivered to the
Administrative Agent or any Bank in connection with this Agreement evidencing
or securing the Obligations, and all amendments, restatements, supplements,
replacements, extensions or other modifications to any of the foregoing.
"Loan Parties": the Parent, the Company and each of the Subsidiaries
that is or becomes a party to a Loan Document.
"Margin Stock": "margin stock" as such term is defined in Regulation
G, T, U or X of the FRB.
"Material Adverse Effect": (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties or condition
(financial or otherwise) of the Parent, the Company and the Subsidiaries taken
as a whole; (b) a material impairment of the ability of the Parent, the Company
or any Subsidiary to perform in any material respect under any Loan Document to
which it is a party and to avoid any Event of Default; or (c) a material
adverse effect upon (i) the legality, validity, binding effect or
enforceability against the Parent, the Company or any Subsidiary of any Loan
Document to which it is a party, or (ii) the perfection or priority of any Lien
on material Collateral granted under any of the Collateral Documents.
"Maturity Date": August 7, 2002.
"Maximum Lawful Rate": for any Bank, the maximum rate of interest
which, at the time in question, would not cause the interest charged hereunder
or any other Loan Document to exceed the maximum amount which such Bank would
be allowed to contract for, charge, take, reserve or receive under applicable
law, after taking into account, to the extent required by applicable law, any
and all relevant payments, fees and charges under the Loan Documents.
"Minimum Required Ownership": (a) with respect to Xxxxxxxxxx, the
collective reference to all Capital Stock of the Parent owned by Xxxxxxxxxx on
November 1, 1996, (b) with respect to Beacon for the period beginning on
November 1, 1996 and ending on November 1, 1997, the collective reference to
all Capital Stock of the Parent owned by Beacon on November 1, 1996, and (c)
with respect to Beacon from and after November 1, 1997, beneficial ownership by
Beacon of not less than 51% of the Capital Stock of the Parent; provided,
however, that any sale, transfer or other disposition of Capital Stock of the
Parent by Beacon permitted under the foregoing clause (c) shall not be so sold,
transferred or disposed of for a purchase price of less than its par value; and
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provided, further, that each of the foregoing Minimum Required Ownerships shall
not be applicable from and after the consummation of a public equity offering
of the Capital Stock of the Parent.
"Monetary Event of Default": any Event of Default occurring pursuant
to subsection (a), (e) or (i) of Section 8.1.
"Mortgage Amendments": the collective reference to the mortgage
amendments referred to in subsection 4.1(g)(iii).
"Mortgaged Property": the Fee Mortgaged Properties and the Leasehold
Mortgaged Properties, collectively.
"Mortgages": the Fee Mortgages and the Leasehold Mortgages,
collectively.
"Multiemployer Plan": a "multiemployer plan", within the meaning of
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes,
is making, or is obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contributions.
"Net Issuance Proceeds": as to any issuance of debt or equity by any
Person, cash proceeds received or receivable by such Person in connection
therewith, net of reasonable out-of-pocket costs and expenses (including
underwriting fees and commissions) paid or incurred in connection therewith in
favor of any Person not an Affiliate of such Person.
"Net Proceeds": as to any Disposition by a Person other than
pursuant to subsection (a) through (f) of Section 7.3 hereof, proceeds in cash,
checks or other cash equivalent financial instruments as and when received by
such Person, net of: (a) the direct costs relating to such Disposition
excluding amounts payable to such Person or any Affiliate of such Person to the
extent in excess of arms' length costs, (b) sale, use or other transaction
taxes paid or payable by such Person as a direct result thereof, (c) a
reasonable reserve for taxes payable incident to such Disposition (without
duplication of taxes included in clause (b)) and (d) amounts required to be
applied to repay principal, interest and prepayment premiums and penalties on
Indebtedness secured by a Lien on the asset which is the subject of such
Disposition. "Net Proceeds" shall also include proceeds in cash, checks or
other cash equivalent financial instruments paid on account of any Event of
Loss, net of (i) so long as no Event of Default has occurred and is continuing,
all money actually applied to repair, replace or reconstruct the damaged
property or property affected by the condemnation or taking, (ii) so long as no
Event of Default has occurred and is continuing, all of the costs and expenses
reasonably incurred in connection with the collection of such proceeds, award
or other payments, and (iii) any amounts retained by or paid to parties having
superior rights to such proceeds, awards or other payments.
"New Theater": any Theater to be acquired or leased by or
constructed by any Hollywood Entity from and after the Effective Date.
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"Non-monetary Event of Default": any Event of Default other than a
Monetary Event of Default.
"Note": any Revolving Note.
"Notice of Borrowing": a notice in substantially the form of Exhibit
A.
"Notice of Conversion/Continuation": a notice in substantially the
form of Exhibit B.
"Obligations": all advances, debts, liabilities, obligations and
covenants arising under any Loan Document owing by the Parent and the Company
to any Bank, the Administrative Agent, or any Indemnified Person, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising.
"Organization Documents": with respect to any Person, (a) the
articles or certificate of formation, incorporation or organization (or
equivalent organizational documents) of such Person, (b) the bylaws, limited
liability company agreement or regulations (or the equivalent governing
documents) of such Person, (c) all applicable resolutions of the board of
directors (or any committee thereof), or applicable consents of partners or
members and (d) each document setting forth the designation, amount and
relative rights, limitations and preferences of any class or series of such
Person's Capital Stock or of any rights in respect of such Person's Capital
Stock.
"Other Taxes": any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents other than Taxes, Further Taxes and
Excluded Taxes.
"Participant": as defined in subsection 11.8(d).
"PBGC": the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
"Pension Plan": a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA which the Parent or the Company sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.
"Permitted Liens": as defined in Section 7.2.
"Permitted Restricted Payments": as defined in Section 7.12.
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"Permitted Swap Obligations": all obligations (contingent or
otherwise) of the Parent, the Company or any Subsidiary existing or arising
under Swap Contracts, provided that each of the following criteria is
satisfied: (a) such obligations are (or were) entered into by such Person in
the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments or assets held by such Person, or
changes in the value of securities issued by such Person in conjunction with a
securities repurchase program not otherwise prohibited hereunder, and not for
purposes of speculation or taking a "market view;" (b) such Swap Contracts do
not contain any provision ("walk-away" provision) exonerating the
non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party; and (c) a perfected security interest in
such Person's rights and interests to and in such Swap Contracts has been
granted, and exists, in favor of the Administrative Agent, for the benefit of
the Banks, as collateral for the Obligations.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Plan": an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Parent or the Company sponsors or maintains or to which the
Company makes, is making, or is obligated to make contributions and includes
any Pension Plan.
"Pledge Agreement": the collective reference to (i) that Amended and
Restated Pledge and Security Agreement to be executed and delivered by the
Parent, substantially in the form of Exhibit I-1 and (ii) that Pledge and
Security Agreement to be executed and delivered by the Company, substantially
in the form of Exhibit I-2, as each of the same may be amended, supplemented or
otherwise modified from time to time.
"Pledged Collateral": as defined in the Pledge Agreement.
"Principal Payment": as defined in Section 2.8.
"Principal Payment Date": as defined in Section 2.8.
"Pro Rata Share": as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the combined Commitments of all
Banks.
"Recapitalization": the collective reference to (a) the purchase by
the Banks of the Existing Term Loans, the Existing Revolving Credit Loans and
the Revolving Loan Commitments (as defined in the Existing Credit Agreement)
under the Existing Credit Agreement, (b) the conversion and extension of the
Existing Term Loans to Revolving Credit Loans as provided herein and the
amendment, restatement and extension of the Existing Revolving Loans as
provided herein,
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(c) the amendment and restatement of the Existing Credit Agreement as provided
herein, and (d) the issuance by the Company of the Senior Subordinated Notes.
"Replacement Banks": as defined in Section 3.7.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"Required Banks": at any time Banks then holding in excess of 50% of
the then aggregate unpaid principal amount of the Loans, or, if no such
principal amount is then outstanding, Banks then having in excess of 50% of the
Commitments, or, if the Commitments have been terminated and no Loans are then
outstanding, Banks then owed in excess of 50% of the Aggregate Specified Swap
Amount.
"Requirement of Law": as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon that Person
or any of its property or to which that Person or any of its property is
subject.
"Responsible Officer": as to either the Parent or the Company, the
chief executive officer or the president of such Person or any other officer
having substantially the same authority and responsibility; or, with respect to
compliance with financial covenants, the chief financial officer or the
treasurer of such Person, or any other officer having substantially the same
authority and responsibility.
"Restricted Payments": as defined in subsection 7.12(a).
"Revolving Loan": as defined in Section 2.1.
"Revolving Loan Commitment": for each Bank, initially, the amount
set forth on Schedule 2.1 as the "Revolving Loan Commitment" of such Bank, as
the same is reduced, increased or otherwise adjusted from time to time pursuant
to Section 2.5, 2.7, 2.16 or subsection 11.8(a)).
"Revolving Loan Commitment Increase": as defined in Section 2.16.
"Revolving Loan Commitment Increase Amount": as defined in Section
2.16.
"Revolving Loan Commitment Reduction Amount": as defined in Section
2.5.
"Revolving Loan Commitment Reduction Date": as defined in Section
2.5.
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"Revolving Note": a promissory note executed by the Company in favor
of a Bank pursuant to subsection 2.2(b), in substantially the form of Exhibit F.
"Revolving Termination Date": the earlier to occur of:
(a) the Maturity Date; and
(b) the date on which all of the Commitments terminate in accordance
with the provisions of this Agreement.
"Sale and Leaseback Transaction": any arrangement, directly or
indirectly, with any Person whereby a seller or transferor shall sell or
otherwise transfer any real or personal property and then or thereafter lease,
or repurchase under an extended purchase contract, conditional sales or other
title retention agreement, the same or similar property.
"SEC": the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Security Agreement": the Amended and Restated Security Agreement to
be executed and delivered by the Company, substantially in the form of Exhibit
J, as the same may be amended, supplemented or otherwise modified from time to
time.
"Senior Debt": at any date, all Indebtedness of the Hollywood
Entities outstanding on such date other than in respect of the Senior
Subordinated Notes and the Senior Subordinated Indenture.
"Senior Subordinated Indenture": the Indenture dated August 7, 1997
between the Company, the Parent and Crown as guarantors, and U.S. Trust Company
of Texas. N.A., as the same may be amended, supplemented or otherwise modified
from time to time in accordance with Section 7.20 and any other indenture which
governs the Senior Subordinated Notes which is substantially identical to such
original Indenture which replaces such Indenture in connection with the
exchange of the Senior Subordinated Notes.
"Senior Subordinated Notes": the Company's $110,000,000 of 10 5/8%
Senior Subordinated Notes due August 1, 2007 issued pursuant to the Senior
Subordinated Indenture, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with Section 7.20 and all senior
subordinated notes issued in exchange for such Senior Subordinated Notes on
terms substantially identical thereto.
"Solvent": as to any Person at any time, that (a) the fair value of
the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for purposes of the
applicable state law; (b)
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the present fair saleable value of the property of such Person is not less than
the amount that will be required to pay the probable liability of such Person
on its debts as they become absolute and matured; (c) such Person is able to
realize upon its property and pay its debts and other liabilities (including
disputed, contingent and unliquidated liabilities) as they mature in the normal
course of business; (d) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature; and (e) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital. For purposes of this definition, unliquidated, contingent,
disputed and unmatured claims shall be valued at the amount that can, in light
of all the facts and circumstances existing at such time, be reasonably
expected to be an actual or matured liability.
"Specified Swap Amount": at any time, in respect of any Specified
Swap Contract, the Swap Termination Value relating thereto; provided that for
purposes of this definition, any Swap Termination Value that is negative as to
(i.e., owing by) any Swap Provider shall be deemed equal to zero (0).
"Specified Swap Contract": any Swap Contract made or entered into at
any time, or in effect at any time (whether heretofore or hereafter), whether
directly or indirectly, and whether as a result of assignment or transfer or
otherwise, between the Parent or the Company and any Swap Provider, which Swap
Contract is or was intended by the Parent or the Company, as applicable, to
have been entered into, in part or entirely, for purposes of mitigating
interest rate or currency exchange risk relating to any Loan (which intent
shall conclusively be deemed to exist if the Parent or the Company, as
applicable, so represents to the Swap Provider in writing), and as to which the
final scheduled payment by the Parent or the Company, as applicable, is not
later than the Revolving Termination Date.
"Xxxxxxxxxx": Xxxxxx X. Xxxxxxxxxx, Xx., an individual resident of
the State of Texas.
"Subsidiaries Guaranty": that Amended and Restated Subsidiaries
Guaranty, dated as of the Effective Date, made by each Subsidiary Guarantor in
favor of the Administrative Agent for the ratable benefit of the Banks in
substantially the form of Exhibit K and any other guaranty or amendment to
supplement to guaranty executed and delivered by a Subsidiary pursuant to
Section 6.16, as each of the same may be amended, restated or otherwise
modified from time to time.
"Subsidiary": with respect to any Person, any corporation,
association, partnership, limited liability company, joint venture or other
business entity of which more than 50% of the Capital Stock is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refers to a
Subsidiary of the Parent or the Company.
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"Subsidiary Guarantor": the collective reference to Crown and each
other Subsidiary that executes and delivers a Subsidiaries Guaranty pursuant to
Section 6.16.
"Substantial Delay": in respect of any Construction Project, a delay
of more than 90 days beyond the scheduled completion time for such Construction
Project.
"Surety Instruments": all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds and similar
instruments.
"Swap Contract": any agreement, whether or not in writing, relating
to any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or xxxx option, interest rate option, forward foreign exchange
transaction, cap, collar or floor transaction, currency swap, cross-currency
rate swap, swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or any combination of
the foregoing, and, unless the context otherwise clearly requires, any master
agreement relating to or governing any or all of the foregoing.
"Swap Provider": any Bank, or any Affiliate of any Bank, that is at
the time of determination party to a Swap Contract with the Parent or the
Company and which Swap Contract is related to or entered into in connection
with any Loan.
"Swap Termination Value": in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one
or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include any Bank.)
"Taxes": any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Administrative Agent, respectively, taxes imposed on or measured by its net
income, franchise taxes imposed in lieu of income taxes, doing business taxes
and bank share taxes by the jurisdiction (or any political subdivision thereof)
under the laws of which such Bank or the Administrative Agent, as the case may
be, is organized or maintains a lending office (such exclusions, "Excluded
Taxes").
"Test Period": as defined in Section 1.3.
"Theater": any building and related improvements or complex of
buildings and related improvements containing one or more movie screens and
operated as a movie theater, including any New Theater.
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"Theater Exchange Letter of Intent": the nonbinding letter of intent
for the exchange by the Company of certain Theaters operated in Kansas and
Missouri for certain Theaters in Kansas and Missouri, all as referenced on p.4
of the Offering Circular for the Senior Subordinated Notes dated July 15, 1997.
"Type": as defined in the definition of "Loan."
"UA Agreement": that certain Agreement of Purchase and Sale dated as
of July 22, 1996, by and between United Artists Theater Circuit, Inc., United
Artists Properties I Corp. and Resort Amusement Corporation, and the Company,
and all amendments thereto.
"UA Assets": the assets acquired by the Company pursuant to the UA
Agreement.
"UA Guaranty": the collective reference to all guaranties made by
the Company or the Parent for the benefit of United Artists Theatre Circuit,
Inc. given in connection with the acquisition of the UA Assets by the Company,
and as each of the same may be amended, restated or otherwise modified from
time to time.
"UCC": the Uniform Commercial Code as in effect in the State of New
York.
"Undistributed Restricted Payments": as defined in Section 7.12.
"Unfunded Pension Liability": the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
"United States" and "U.S.": the United States of America.
"United States Person": as defined in Section 9.10(a).
"Wholly-Owned Subsidiary": any entity in which (other than
directors' qualifying shares required by law) 100% of the issued and
outstanding Capital Stock of each such entity at the time as of which any
determination is being made, is owned, beneficially and of record, by the
Parent, Company, or by one or more of the other Wholly-Owned Subsidiaries, or
any combination thereof.
1.2 Other Interpretive Provisions. (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof, "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
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(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means: "including
without limitation. "
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including."
(iv) The term "property" includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any
statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Parent, the Company and the other parties, and are the products of
all parties. Accordingly, they shall not be construed against the Banks or the
Administrative Agent merely because of the Administrative Agent's or Banks'
involvement in their preparation.
(g) Reference in this Agreement or any other Loan Document to
knowledge of events or circumstances shall be deemed to refer to events or
circumstances of which any individual holding the title of regional manager of
the Company or any Subsidiary (or its functional equivalent) or any title or
position senior to a regional manager of the Company or any Subsidiary, has
knowledge.
1.3 Accounting Principles. (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall
be made, in accordance with GAAP, applied on a basis consistent (except for
changes concurred in by the independent certified public accountants reporting
on the financial statements required by subsection 6.l(a)) with the most recent
audited financial statements delivered to the Administrative Agent pursuant to
subsection 6.1(a).
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(b) For the purposes of calculating Consolidated Operating Cash Flow
and Consolidated Interest Expense for any fiscal quarter (a "Test Period"), (i)
if at any time from the period commencing on the first day of such Test Period
and ending on the last date of such Test Period, the Parent, the Company or any
Subsidiary shall have made any Disposition involving one or more Theaters, the
Consolidated Operating Cash Flow for such Test Period shall be reduced by an
amount equal to the Consolidated Operating Cash Flow (if positive) attributable
to the property which is the subject of such Disposition for such Test Period
or increased by an amount equal to the Consolidated Operating Cash Flow (if
negative) attributable thereto for such Test Period, and Consolidated Interest
Expense for such Test Period shall be reduced by an amount equal to the
Consolidated Interest Expense for such Test Period attributable to any
Indebtedness of the Parent, the Company or any Subsidiary repaid, repurchased,
defeased or otherwise discharged in connection with such Disposition (or, if
the Capital Stock of any Subsidiary is sold, the Consolidated Interest Expense
for such Test Period directly attributable to the Indebtedness of such
Subsidiary to the extent the Parent, the Company and their continuing
Subsidiaries are no longer liable for such Indebtedness after such
Disposition); and (ii) if during such Test Period the Parent, the Company or
any Subsidiary shall have made any acquisition involving one or more Theaters,
Consolidated Operating Cash Flow and Consolidated Interest Expense for such
Test Period shall be calculated after giving pro forma effect thereto
(including the incurrence or assumption of any Indebtedness in connection
therewith) as if such acquisition (and the incurrence or assumption of any such
Indebtedness) occurred on the first day of such Test Period. For the purposes
of this subsection, whenever pro forma effect is to be given to an applicable
Disposition or acquisition, the amount of income or earnings relating thereto
and the amount of Consolidated Interest Expense associated with any
Indebtedness discharged or incurred in connection therewith, the pro forma
calculations shall be determined in good faith by the chief financial officer
of the Company and shall be reasonably satisfactory in all respects to the
Administrative Agent. If any Indebtedness bears a floating rate of interest
and the incurrence or assumption thereof is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in
effect on the last day of the relevant Test Period had been the applicable rate
for the entire relevant Test Period.
(c) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Parent.
ARTICLE II
THE CREDITS; THE LETTERS OF CREDIT
2.1 The Revolving Credit. Each Bank severally agrees, on the terms
and conditions set forth herein, to make loans to the Company (each such loan,
a "Revolving Loan") from time to time on any Business Day during the period
from the Effective Date to the Business Day immediately preceding the Revolving
Termination Date, in an aggregate amount not to exceed at any time outstanding
the Revolving Loan Commitment of such Bank; provided, however, that, after
giving effect to any Borrowing, (i) the aggregate amount of Revolving Loans
outstanding in respect of each Bank, together with the aggregate principal
amount of all L/C Obligations outstanding at
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such time in respect of such Bank, shall not exceed such Bank's Pro Rata Share
of the Revolving Loan Commitments and (ii) the aggregate principal amount of
all outstanding Loans, together with the aggregate principal amount of all L/C
Obligations outstanding at such time, shall not at any time exceed the combined
Commitments of the Banks. Within the limits of each Bank's Commitment, and
subject to the other terms and conditions hereof, the Company may borrow under
this Section 2.1, prepay under Section 2.6 and reborrow under this Section 2.1.
2.2 Loan Accounts. (a) The Loans made by each Bank and the Letters
of Credit Issued by the Issuing Bank shall be evidenced by one or more loan
accounts or records maintained by such Bank in the ordinary course of business.
The loan accounts or records maintained by the Administrative Agent and each
Bank shall be conclusive absent manifest error of the Loans made by the Banks
to the Company and the Letters of Credit Issued by the Issuing Bank and the
interest and payments thereon. Any failure so to record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Loans or any Letter of
Credit.
(b) Upon the request of any Bank made through the Administrative
Agent, the Revolving Loans made by such Bank may be evidenced by one or more
Revolving Notes, in each case instead of or in addition to loan accounts. Each
such Bank shall endorse on the schedules annexed to its Note(s) the date,
amount and maturity of each Loan made by it and the amount of each payment of
principal made by the Company with respect thereto. Each such Bank is
irrevocably authorized by the Company to endorse its Note(s) and each Bank's
record shall be conclusive absent manifest error; provided, however, that the
failure of a Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Company hereunder or under any such Note to such Bank.
2.3 Procedure for Borrowing. (a) Each Borrowing shall be made upon
the Company's irrevocable written notice delivered to the Administrative Agent
in the form of a Notice of Borrowing (which notice must be received by the
Administrative Agent prior to 11:00 a.m. (New York City time) (i) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Rate Loans; and (ii) on the requested Borrowing Date, in the case of Base Rate
Loans, specifying:
(i) the amount of the Borrowing, which shall be in an aggregate
minimum amount of $1,000,000 or any multiple of $100,000 in excess thereof;
(ii) the requested Borrowing Date, which shall be a Business Day;
(iii) the Type of Loans comprising the Borrowing; and
(iv) subject to clause (e) of the definition of Interest Period,
if the Borrowing consists of Eurodollar Rate Loans, the duration of the
Interest Period applicable to such Loans, provided that if the Notice of
Borrowing fails to specify the duration of any such Interest
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Period, subject to clause (e) of the definition of Interest Period, such
Interest Period shall be three months;
provided, however, that with respect to any Borrowing to be made on the
Effective Date, the Notice of Borrowing shall be delivered to the
Administrative Agent not later than 11:00 a.m. (New York City time) (A) one
Business Day before the Effective Date in the event, at the Company's election,
such Borrowing will consist of Base Rate Loans only and (B) three Business Days
before the Effective Date in the event, at the Company's election, such
Borrowing will consist of any Eurodollar Rate Loans.
(b) The Administrative Agent will promptly notify each Bank of its
receipt of any Notice of Borrowing and of the amount of such Bank's Pro Rata
Share of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Borrowing available to the Administrative Agent for the account of the Company
at the Administrative Agent's Payment Office by 12:00 p.m. (New York City time)
on the Borrowing Date requested by the Company in funds immediately available
to the Administrative Agent. The proceeds of all such Loans will then be made
available to the Company by the Administrative Agent by wire transfer in
accordance with written instructions provided to the Administrative Agent by
the Company of like funds as received by the Administrative Agent.
(d) After giving effect to any Borrowing, unless the Administrative
Agent shall otherwise consent, there may not be more than six different
Interest Periods in effect with respect to outstanding Eurodollar Rate Loans.
2.4 Conversion and Continuation Elections. (a) The Company may,
upon irrevocable written notice to the Administrative Agent in accordance with
subsection 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate
Loans, or as of the last day of the applicable Interest Period, in the case of
Eurodollar Rate Loans, to convert any such Loans (or any part thereof in an
amount not less than $1,000,000, or that is in an integral multiple of $100,000
in excess thereof) into Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Loans having Interest Periods expiring on such day (or
any part thereof in an amount not less than $1,000,000, or that is in an
integral multiple of $100,000 in excess thereof);
provided, that if at any time the aggregate amount of Eurodollar Rate Loans
having the same Interest Period is reduced, by payment, prepayment, or
conversion of part thereof to be less than $1,000,000, such Eurodollar Rate
Loans shall automatically convert into Base Rate Loans.
(b) The Company shall deliver a Notice of Conversion/Continuation to
be received by the Administrative Agent not later than 11:00 a.m. (New York
City time) (i) at least three
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Business Days in advance of the Conversion/Continuation Date, if the Loans are
to be converted into or continued as Eurodollar Rate Loans; (ii) on the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or continued;
(C) the Type of Loans resulting from any proposed conversion or
continuation; and
(D) other than in the case of conversions into Base Rate Loans, the
duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Eurodollar Rate Loans or, subject to subsection
(e) of this Section 2.4, if any Default or Event of Default then exists, the
Company shall be deemed to have elected to convert such Eurodollar Rate Loans
into Base Rate Loans effective as of the expiration date of such Interest
Period.
(d) The Administrative Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Company, the Administrative Agent will promptly notify each
Bank of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans held by the Banks with respect to which the
notice was given.
(e) Unless the Required Banks otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to have a
Loan converted into or continued as an Eurodollar Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
unless the Administrative Agent shall otherwise consent, there may not be more
than six different Interest Periods in effect with respect to outstanding
Eurodollar Rate Loans.
2.5 Termination or Reduction of Commitments. (a) The Company may,
upon not fewer than three Business Days' prior notice to the Administrative
Agent, terminate the Commitments, or permanently reduce the Commitments by an
aggregate minimum amount of $1,000,000 or any multiple of $100,000 in excess
thereof; unless, after giving effect thereto and to any prepayments of Loans
made on the effective date thereof, (i) the then-outstanding principal amount
of the Loans and the L/C Obligations together would exceed the amount of the
combined Commitments then in effect or (ii) the amount of all L/C Obligations
then outstanding would exceed the L/C Commitment.
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(b) The Revolving Loan Commitments shall automatically be reduced on
each date as follows (each a "Revolving Loan Commitment Reduction Date") in the
amount set forth below corresponding to each such date (each a "Revolving Loan
Commitment Reduction Amount"):
Revolving Loan Commitment Revolving Loan Commitment
Reduction Date Reduction Amount
----------------------- ----------------------------------
March 31, 1999 $1,250,000
June 30, 1999 $1,250,000
September 30, 1999 $1,250,000
December 31, 1999 $1,250,000
March 31, 2000 $2,500,000 plus 6.25% of the
Revolving Loan Commitment Increase
Amount (if any)
June 30, 2000 $2,500,000 plus 6.25% of the
Revolving Loan Commitment Increase
Amount (if any)
September 30, 2000 $2,500,000 plus 6.25% of the
Revolving Loan Commitment Increase
Amount (if any)
December 31, 2000 $2,500,000 plus 6.25% of the
Revolving Loan Commitment Increase
Amount (if any)
March 31, 2001 $2,500,000 plus 6.25% of the
Revolving Loan Commitment Increase
Amount (if any)
June 30, 2001 $2,500,000 plus 6.25% of the
Revolving Loan Commitment Increase
Amount (if any)
September 30, 2001 $2,500,000 plus 6.25% of the
Revolving Loan Commitment Increase
Amount (if any)
December 31, 2001 $2,500,000 plus 6.25% of the
Revolving Loan Commitment Increase
Amount (if any)
(c) The Company shall repay on each Revolving Loan Commitment
Reduction Date in respect of the outstanding Revolving Loans a principal amount
equal to the difference, if negative, between (i) the amount of the Revolving
Loan Commitments (after giving effect to the reduction of the Revolving Loan
Commitments occurring on such date), minus (ii) the sum of the aggregate
principal amount of all outstanding Revolving Loans and the aggregate amount of
all L/C Obligations then outstanding.
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(d) Subject to the provisions of Section 2.16, once reduced in
accordance with this Section or subsection 2.7(g), the Commitments may not be
increased. Any reduction of the Commitments shall be applied to each Bank
according to its Pro Rata Share. All accrued commitment fees to, but not
including the effective date of any reduction or termination of the
Commitments, shall be paid on the effective date of such reduction or
termination.
2.6 Optional Prepayments. Subject to Section 3.4, the Company may,
at any time or from time to time, upon not less than three Business Days'
irrevocable written notice to the Administrative Agent in the case of
Eurodollar Loans and one Business Day irrevocable notice to the Administrative
Agent in the case of Base Rate Loans, ratably prepay Loans in whole or in part,
in minimum amounts of $1,000,000 or any multiple of $100,000 in excess thereof.
Such notice of prepayment shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid. The Administrative Agent will promptly
notify each Bank of its receipt of any such notice, and of such Bank's Pro Rata
Share of such prepayment. If such notice is given by the Company, the Company
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein, together with accrued
interest to each such date on the amount prepaid. All repayments of the Loans
under this Section 2.6 shall be applied in the reverse order of maturity.
2.7 Mandatory Prepayments of Loans; Mandatory Commitment Reductions.
(a) Asset Dispositions. If the Parent, the Company or any Subsidiary shall at
any time or from time to time make or agree to make a Disposition other than as
permitted under subsections (a) through (f) of Section 7.3, or shall suffer an
Event of Loss, then (i) the Company shall promptly notify the Administrative
Agent of such proposed Disposition or Event of Loss (including the amount of
the estimated Net Proceeds to be received by the Parent, the Company or such
Subsidiary in respect thereof) if the aggregate Net Proceeds of such proposed
Disposition or Event of Loss exceeds $1,000,000 and (ii) to the extent such
Hollywood Entity does not reinvest all or any portion of such Net Proceeds in
one or more Acquisitions otherwise permitted hereunder within 180 days of
receipt of such Net Proceeds and the amount of such Net Proceeds (or remaining
portion thereof) exceeds $1,000,000 (the "Excess Proceeds"), the Company shall
promptly, and in no event later than five days after such 180 day period, apply
toward prepayment of the Loans and reduction of the Revolving Loan Commitments
an amount equal to the amount of such unused Excess Proceeds. Notwithstanding
the foregoing, the provisions of this subsection (a) shall not be applicable
with respect to (A) the Net Proceeds of any Sale and Leaseback Transactions
including, without limitation, the proposed Sale and Leaseback Transaction in
respect of the Xxxxxxxx Property and (B) the Net Proceeds resulting from the
consummation of the transactions contemplated in the Theater Exchange Letter of
Intent.
(b) Excess Cash Flow. If for any fiscal year, beginning with the
fiscal year ending December 31, 1998, there shall be Excess Cash Flow, the
Company shall, on the relevant Excess Cash Flow Application Date, apply toward
prepayment of the Loans and reduction of the Revolving Loan Commitments an
amount equal to (i) if the Consolidated Total Leverage Ratio as set forth in
the Compliance Certificate for the fourth fiscal quarter of such fiscal year is
equal to or greater than
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4.0 to 1, 50% of Excess Cash Flow for such fiscal year, or (ii) if the
Consolidated Total Leverage Ratio as set forth in the Compliance Certificate
for the fourth fiscal quarter of such fiscal year is less than 4.0 to 1, 25% of
Excess Cash Flow for such fiscal year. Each such prepayment and commitment
reduction shall be made on a date (an "Excess Cash Flow Application Date") no
later than five days after the earlier of (A) the date on which the audited
financial statements referred to in subsection 6.1(a) for the fiscal year with
respect to which such prepayment and/or commitment reduction is made, are
required to be delivered to the Banks and (B) the date such financial
statements are actually delivered.
(c) Loans in Excess of Commitments; L/C Obligations in Excess of L/C
Commitment. If at any time the sum of the aggregate unpaid principal amount of
Revolving Credit Loans and the aggregate Amount of all L/C Obligations then
outstanding exceed the Revolving Loan Commitments, the Company shall
immediately repay the amount of such excess. If on any date the L/C
Obligations exceed the L/C Commitment, the Company shall Cash Collateralize on
such date the outstanding Letters of Credit in an amount equal to the excess of
the amount of the aggregate L/C Obligations over the aggregate L/C Commitment.
(d) Equity Issuance. If, after the Effective Date any Hollywood
Entity shall issue and sell any of its Capital Stock to any Person other than
another Hollywood Entity, the Company shall promptly notify the Administrative
Agent of the estimated Net Issuance Proceeds of such issuance and sale to be
received by the issuer of such Capital Stock in respect thereof. Promptly
upon, and in no event later than five (5) days after, receipt by the applicable
issuer of Net Issuance Proceeds in respect of such issuance, the Company shall
apply toward prepayment of the Loans and reduction of the Revolving Loan
Commitments an amount equal to 75% of such Net Issuance Proceeds.
Notwithstanding the foregoing, (i) no such notice to the Administrative Agent
and no such prepayment of the Loans or reduction of the Revolving Loan
Commitments shall be required in connection with the issuance of Capital Stock
of the Parent to fund Land Acquisition/Construction Costs in connection with
permitted Acquisitions, any issuance of Capital Stock constituting a Permitted
Restricted Payment, any issuance of Capital stock in connection with a
permitted Acquisition, any issuance of Capital stock of the Parent to
directors, officers and employees of any Hollywood Entity in connection with
employee compensation and incentive arrangements (subject to the applicable
limits set forth in the Parent's Organization Documents) or any issuance of
Capital Stock constituting director qualifying shares and (ii) with respect to
Net Issuance Proceeds received in connection with a public equity offering of
the Capital Stock of the Parent, such notice and prepayment of the Loans shall
be made in accordance with the foregoing provisions but no corresponding
reduction of the Revolving Loan Commitments shall occur.
(e) Debt Issuance. If the Parent, the Company or any Subsidiary
shall incur or permit the incurrence of any Indebtedness (other than
Indebtedness permitted under Section 7.6), the Company shall promptly notify
the Administrative Agent of the estimated Net Issuance Proceeds of such
Indebtedness to be received by the applicable borrower in respect thereof.
Promptly upon, and in no event later than five days after, receipt by the
applicable borrower of Net Issuance Proceeds in respect of such Indebtedness,
the Company shall apply toward prepayment of the Loans
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and reduction of the Revolving Loan Commitments an amount equal to the amount
of such Net Issuance Proceeds.
(f) General. All prepayments of principal under this Section 2.7
shall be applied to repay the Revolving Loans and, except with respect to
subsection 2.7(c), in connection with such prepayments, and subject to and in
accordance with subsection (g) of this Section 2.7, the Revolving Loan
Commitments shall be permanently reduced by an amount equal to the Revolving
Loans so repaid. Any prepayments pursuant to this Section 2.7 shall be applied
first to any Base Rate Loans then outstanding and then to Eurodollar Rate Loans
with the shortest Interest Periods remaining; provided, however, that if the
amount of Base Rate Loans then outstanding is not sufficient to satisfy the
entire prepayment requirement, the Company may, at its option, place any
amounts which it would otherwise be required to use to prepay Eurodollar Rate
Loans on a day other than the last day of the Interest Period therefor in an
interest-bearing account pledged to the Administrative Agent for the benefit of
the Banks until the end of such Interest Period at which time such pledged
amounts will be applied to prepay such Eurodollar Rate Loans. The Company
shall pay, together with each prepayment under this Section 2.7, accrued
interest on the amount prepaid and any amounts required pursuant to Section
3.4.
(g) Reduction of Commitment. Upon the making of any mandatory
prepayment of any Revolving Credit Loans pursuant to subsection (a), (b), (d)
or (e) of this Section 2.7, the Revolving Loan Commitment of each Bank shall
automatically be reduced by an amount equal to such Bank's ratable share of the
aggregate of principal of such Loans repaid, effective as of the earlier of the
date that such prepayment is made or the date by which such prepayment is due
and payable hereunder. All accrued commitment fees to, but not including the
effective date of any such reduction, shall be paid on the effective date of
such reduction. If the Revolving Loan Commitments are reduced on any date
pursuant to subsection 2.5(a) or Section 2.7, the amount of each such reduction
shall be applied to the Revolving Loan Commitments in the reverse order of the
respective reduction dates.
2.8 Repayment. (a) The Company shall repay to the Banks on the
Revolving Termination Date the aggregate principal amount of Revolving Loans
outstanding on such date. The Company shall also repay to the Banks in respect
of the Revolving Loans on each Revolving Loan Commitment Reduction Date such
amounts as may be required under subsection 2.5(b).
(b) All repayments of the Loans under this Section 2.8 shall be
applied in the reverse order of maturity.
2.9 Interest. (a) Each Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date until such Loan is
paid in full at a rate per annum selected by the Company or otherwise
applicable from time to time in accordance with this Agreement equal to the
Eurodollar Rate or the Base Rate, as the case may be, plus the Applicable
Margin.
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(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Loans under Sections 2.6, 2.7 or 2.8 for the principal portion of the Loans so
prepaid and upon payment (including prepayment) in full thereof and, during the
existence of any Event of Default, interest shall be paid on demand of the
Administrative Agent at the request or with the consent of the Required Banks.
(c) Notwithstanding subsection (a) of this Section, while any Event
of Default exists or after acceleration, the Company shall pay interest (after
as well as before entry of judgment thereon to the extent permitted by law) on
the principal amount of all outstanding Obligations, at a rate per annum which
is determined by adding 2% per annum to the Applicable Margin then in effect
for such Obligations; provided, however, that, on and after the expiration of
any Interest Period applicable to any Eurodollar Rate Loan outstanding on the
date of occurrence of such Event of Default or acceleration, the principal
amount of such Loan shall, during the continuation of such Event of Default or
after acceleration, bear interest at a rate per annum equal to the Base Rate
plus 2%.
(d) Notwithstanding the foregoing provisions of this Section 2.9,
the amount of interest payable by the Company to any Bank in respect of the
Obligations shall not exceed the Maximum Lawful Rate, and if at any time the
interest payable to any Bank hereunder or under any Loan Document would exceed
the Maximum Lawful Rate, but for this subsection 2.9(d), the interest payable
by the Company to such Bank shall be limited to the Maximum Lawful Rate.
2.10 Fees. (a) Arrangement, Agency Fee. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall pay
an Agency Fee to the Administrative Agent for the Administrative Agent's
account, as required by the letter agreement (the "Fee Letter") between the
Company, the Arranger and the Administrative Agent dated July 15, 1997.
(b) Commitment Fees. The Company shall pay to the Administrative
Agent for the account of each Bank (i) if the Consolidated Total Leverage Ratio
as set forth in the Compliance Certificate for the most recently completed
fiscal quarter is equal to or greater than 4.0 to 1, a commitment fee on the
average daily unused portion of such Bank's Pro Rata Share of the Commitments
equal to .50 percent per annum and (ii) if the Consolidated Total Leverage
Ratio as set forth in the Compliance Certificate for the most recently
completed fiscal quarter is less than 4.0 to 1, a commitment fee on the average
daily amount of such Bank's Pro Rata Share of the Commitments equal to .375
percent per annum, in each such case computed on a quarterly basis in arrears
on the last Business Day of each calendar quarter based upon the daily
utilization for that quarter as calculated by the Administrative Agent. For
purposes of calculating utilization under this subsection, the Commitments
shall be deemed used to the extent of the amount of the Loans outstanding, plus
the L/C Obligations then outstanding. Such commitment fees shall accrue from
the Effective Date to the earlier of (i) the Revolving Termination Date and
(ii) the date the Commitments are terminated pursuant to the terms of this
Agreement, and such fees shall be due and payable quarterly in arrears on the
last Business Day of each calendar year quarter commencing on
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September 30, 1997 to the Revolving Termination Date, or such earlier date as
the case may be, with the final payment to be made on the Revolving Termination
Date, or such earlier date as the case may be; provided that, in connection
with any reduction of Commitments under Section 2.5 or 2.7, the accrued
commitment fee calculated for the period ending on the date of such reduction
shall also be paid on the date of such reduction, with the following quarterly
payment being calculated on the basis of the period from such reduction date to
such quarterly payment date. The commitment fees provided in this subsection
shall accrue at all times during the above described period, including at any
time during which one or more conditions in Article IV are not met.
2.11 Computation of Fees and Interest. (a) All computations of
fees and interest for Base Rate Loans when the Base Rate is determined by
BofA's "reference rate" shall be made on the basis of a year of 365 or 366
days, as the case may be, for the actual days elapsed. All other computations
of interest shall be made on the basis of a 360-day year for the actual days
elapsed (which results in more interest being paid than if computed on the
basis of a 365-day year). Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day thereof to
the last day thereof.
(b) Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Company and the Banks in the
absence of manifest error.
2.12 Payments by the Company. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall be made
to the Administrative Agent for the account of the Banks at the Administrative
Agent's Payment Office, and shall be made in dollars and in immediately
available funds, no later than 11:00 a.m. (New York City time) on the date
specified herein. The Administrative Agent will promptly distribute to each
Bank its Pro Rata Share (or other applicable share as expressly provided
herein) of such payment in like funds as received. Any payment received by the
Administrative Agent later than 11:00 a.m. (New York City time) shall be deemed
to have been received on the following Business Day and any applicable interest
or fee shall continue to accrue to such following Business Day.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and
such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the Company
prior to the date on which any payment is due to the Banks that the Company
will not make such payment in full as and when required, the Administrative
Agent may assume that the Company has made such payment in full to the
Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Company has not made such
payment in full to the Administrative Agent, each Bank shall
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repay to the Administrative Agent on demand such amount distributed to such
Bank, together with interest thereon at the Federal Funds Rate for each day
from the date such amount is distributed to such Bank until the date repaid.
2.13 Payments by the Banks to the Administrative Agent. (a) Unless
the Administrative Agent receives notice from a Bank on or prior to the
Effective Date or, with respect to any Borrowing after the Effective Date, on
the applicable Borrowing Date, that such Bank will not make available as and
when required hereunder to the Administrative Agent for the account of the
Company the amount of that Bank's Pro Rata Share of the Borrowing, the
Administrative Agent may assume that each Bank has made such amount available
to the Administrative Agent in immediately available funds on the Borrowing
Date and the Administrative Agent may (but shall not be so required), in
reliance upon such assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Bank shall not have made its
full amount available to the Administrative Agent in immediately available
funds and the Administrative Agent in such circumstances has made available to
the Company such amount, that Bank shall on the Business Day following such
Borrowing Date make such amount available to the Administrative Agent, together
with interest at the Federal Funds Rate for each day during such period. A
notice of the Administrative Agent submitted to any Bank with respect to
amounts owing under this subsection (a) shall be conclusive, absent manifest
error. If such amount is so made available, such payment to the Administrative
Agent shall constitute such Bank's Loan on the date of Borrowing for all
purposes of this Agreement. If such amount is not made available to the
Administrative Agent on the Business Day following the Borrowing Date, the
Administrative Agent will notify the Company of such failure to fund and, upon
demand by the Administrative Agent, the Company shall pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing Date
shall not relieve any other Bank of any obligation hereunder to make a Loan on
such Borrowing Date, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on any Borrowing
Date.
2.14 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause such
purchasing Bank to share the excess payment pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank)
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of any interest or other amount paid or payable by the purchasing Bank in
respect of the total amount so recovered. The Company agrees that any Bank so
purchasing a participation from another Bank may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 11.10) with respect to such participation as
fully as if such Bank were the direct creditor of the Company in the amount of
such participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Banks following
any such purchases or repayments.
2.15 Security. (a) All obligations of the Parent and the Company
under this Agreement, the Notes and all other Loan Documents shall be secured
in accordance with the Collateral Documents.
(b) All obligations of the Company under this Agreement, each of the
Notes and all other Loan Documents shall be unconditionally guaranteed by the
Parent pursuant to Article X of this Agreement.
2.16 Increases to Revolving Loan Commitments. (a) Notwithstanding
the foregoing, the Company may from time to time prior to June 30, 1999, at the
Company's sole cost and expense, request that the Banks increase the amount of
their Revolving Loan Commitments, which increases (collectively, the "Revolving
Loan Commitment Increases"; the aggregate amount, if any, of the Revolving Loan
Commitment Increases, the "Revolving Loan Commitment Increase Amount") shall be
made in the sole discretion of the Bank so agreeing to such increase, subject
to the following conditions:
(i) after giving effect to such Revolving Loan Commitment
Increases, the aggregate amount of all Revolving Loan Commitments hereunder
shall not exceed $75,000,000;
(ii) each request by the Company for a Revolving Loan
Commitment Increase shall be in a minimum amount of $5,000,000 or any multiple
of $1,000,000 in excess thereof;
(iii) at the time of such request by the Company and at the
time such Revolving Loan Commitment Increase is made effective, no Default or
Event of Default shall have occurred and be continuing;
(iv) no such Revolving Loan Commitment Increase shall be
effective until (A) the Company, the Parent, the Administrative Agent and the
Banks enter into one or more written agreements in form and substance
reasonably satisfactory to the Administrative Agent setting forth the terms and
amount of such Revolving Loan Commitment Increase, (B) Administrative Agent
shall have received such certificates, legal opinions and other documents as it
shall reasonably
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request in connection with such increase and (C) any fees and expenses payable
by the Hollywood Entities in respect of such increase shall be paid; and
(v) all such Revolving Loan Commitment Increases shall be
made effective prior to June 30, 1999.
(b) In the event that the Company desires to request a Revolving
Loan Commitment Increase, the Company shall give notice thereof to
Administrative Agent, which notice shall set forth the requested amount of such
Revolving Loan Commitment Increase. Within 10 days of receipt of such notice
by Administrative Agent, Administrative Agent shall notify the Banks of such
request. Any Bank that desires to participate in such increase to the
Revolving Loan Commitments shall notify Administrative Agent thereof within 30
days of receipt of such notice from Administrative Agent, which notice shall
also set forth the maximum amount and terms by which such Bank desires to
participate in such Revolving Loan Commitment Increase. If more than one Bank
desires to participate in any requested Revolving Loan Commitment Increase such
that the aggregate amount by which all Banks agree to participate therein
exceeds the amount of such increase so requested by the Company, such Banks
shall participate in such Revolving Loan Commitment Increase on an equitable
basis (as determined by Administrative Agent in its sole discretion and
considering the pro rata share of each such Bank's Commitment compared to the
Commitments of all such participating Banks). In the event the aggregate
maximum amount by which the Banks agree to participate in any requested
Revolving Loan Commitment Increase is less than the amount of such increase as
requested by the Company, such Revolving Loan Commitment Increase shall be
capped at such lesser amount.
2.17 The Letters of Credit
(a) The Letter of Credit Subfacility.
(i) On the terms and conditions set forth herein (A) the
Issuing Bank agrees, (I) from time to time on any Business Day during the
period from the Effective Date to the Maturity Date to Issue Letters of Credit
for the account of the Company, and to amend or renew Letters of Credit
previously issued by it, in accordance with subsections 2.17(b)(iii) and
2.17(b)(iv), and (II) to honor drafts under the Letters of Credit; and (B) the
Banks severally agree to participate in Letters of Credit Issued for the
account of the Company; provided, that the Issuing Bank shall not be obligated
to Issue, and no Bank shall be obligated to participate in, any Letter of
Credit if as of the date of Issuance of such Letter of Credit (the "Issuance
Date") (1) the aggregate amount of all L/C Obligations plus the aggregate
amount of outstanding Loans exceeds the aggregate amount of the Commitments as
of such date, (2) the participation of any Bank in the aggregate amount of all
L/C Obligations plus the aggregate amount of the Loans of such Bank exceeds
such Bank's Commitment as of such date, or (3) the aggregate amount of L/C
Obligations exceeds the L/C Commitment as of such date. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Company's
ability to obtain Letters of Credit shall be fully revolving, and, accordingly,
the Company
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may, during the foregoing period, obtain Letters of Credit to replace Letters
of Credit which have expired or which have been drawn upon and reimbursed.
(ii) The Issuing Bank is under no obligation to Issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank
from Issuing such Letter of Credit, or any Requirement of Law applicable to the
Issuing Bank or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the Issuing Bank
shall prohibit, or request that the Issuing Bank refrain from, the Issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing Bank is not
otherwise compensated hereunder) not in effect on the Effective Date, or shall
impose upon the Issuing Bank any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the Issuing Bank in good xxxxx
xxxxx material to it;
(B) the Issuing Bank has received written notice from any Bank,
the Administrative Agent or the Company, on or prior to the Business Day prior
to the requested date of Issuance of such Letter of Credit, that one or more of
the applicable conditions contained in Article IV is not then satisfied;
(C) the expiry date of any requested Letter of Credit is more
than one calendar year after the date of Issuance, unless the Required Banks
have approved such expiry date in writing;
(D) the expiry date of any requested Letter of Credit is later
than the maturity date of any financial obligation to be supported by the
requested Letter of Credit;
(E) any requested Letter of Credit does not provide for drafts,
or is not otherwise in form and substance acceptable to the Issuing Bank, or
the Issuance of a Letter of Credit shall violate any applicable policies of the
Issuing Bank;
(F) any standby Letter of Credit is for the purpose of supporting
the issuance of any letter of credit by any other Person; or
(G) such Letter of Credit is in a face amount of less than
$25,000 or denominated in a currency other than Dollars.
(b) Issuance, Amendment and Renewal of Letters of Credit.
(i) Each Letter of Credit shall be issued upon the irrevocable
written request of the Company received by the Issuing Bank (with a copy sent
by the Company to the Administrative Agent) at least four Business Days (or
such shorter time as the Issuing Bank may
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agree in a particular instance in its sole discretion) prior to the proposed
date of issuance. Each such request for issuance of a Letter of Credit shall
be by facsimile, confirmed immediately in an original writing, in the form of
an L/C Application or L/C Amendment Application, and shall specify in form and
detail satisfactory to the Issuing Bank: (A) the proposed date of issuance of
the Letter of Credit (which shall be a Business Day); (B) the face amount of
the Letter of Credit; (C) the expiry date of the Letter of Credit; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by
the beneficiary of the Letter of Credit in case of any drawing thereunder; (F)
the full text of any certificate to be presented by the beneficiary in case of
any drawing thereunder; and (G) such other matters as the Issuing Bank may
require.
(ii) At least two Business Days prior to the Issuance of any
Letter of Credit, the Issuing Bank will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a copy
of the L/C Application or L/C Amendment Application from the Company and, if
not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice on or before the Business
Day immediately preceding the date the Issuing Bank is to issue a requested
Letter of Credit from the Administrative Agent (A) directing the Issuing Bank
not to issue such Letter of Credit because such issuance is not then permitted
under subsection 2.17(a)(i) as a result of the limitations set forth in clauses
(1) through (3) thereof or subsection 2.17(a)(ii)(B); or (B) that one or more
conditions specified in Article IV are not then satisfied; then, subject to the
terms and conditions hereof, the Issuing Bank shall, on the requested date,
issue a Letter of Credit for the account of the Company in accordance with the
Issuing Bank's usual and customary business practices.
(iii) From time to time while a Letter of Credit is
outstanding and prior to the Revolving Termination Date, the Issuing Bank will,
upon the written request of the Company received by the Issuing Bank (with a
copy sent by the Company to the Administrative Agent) at least four Business
Days (or such shorter time as the Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed date of amendment, amend
any Letter of Credit issued by it. Each such request for amendment of a Letter
of Credit shall be made by facsimile, confirmed immediately in an original
writing, made in the form of an L/C Amendment Application and shall specify in
form and detail satisfactory to the Issuing Bank: (A) the Letter of Credit to
be amended; (B) the proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (C) the nature of the proposed amendment; and (D)
such other matters as the Issuing Bank may require. The Issuing Bank shall be
under no obligation to amend any Letter of Credit if: (I) the Issuing Bank
would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms of this Agreement; or (II) the beneficiary of any
such Letter of Credit does not accept the proposed amendment to the Letter of
Credit. The Administrative Agent will promptly notify the Banks of the receipt
by it of any L/C Application or L/C Amendment Application.
(iv) The Issuing Bank and the Banks agree that, while a
Letter of Credit is outstanding and prior to the Revolving Termination Date, at
the option of the Company and upon the written request of the Company received
by the Issuing Bank (with a copy sent by the Company to the Administrative
Agent) at least four Business Days (or such shorter time as the Issuing Bank
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may agree in a particular instance in its sole discretion) prior to the
proposed date of notification of renewal, the Issuing Bank shall be entitled to
authorize the renewal of any Letter of Credit issued by it. Each such request
for renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment
Application, and shall specify in form and detail satisfactory to the Issuing
Bank: (A) the Letter of Credit to be renewed; (B) the proposed date of
notification of renewal of the Letter of Credit (which shall be a Business
Day); (C) the revised expiry date of the Letter of Credit; and (D) such other
matters as the Issuing Bank may require. The Issuing Bank shall be under no
obligation so to renew any Letter of Credit if: (I) the Issuing Bank would have
no obligation at such time to issue or amend such Letter of Credit in its
renewed form under the terms of this Agreement; or (II) the beneficiary of any
such Letter of Credit does not accept the proposed renewal of the Letter of
Credit. If any outstanding Letter of Credit shall provide that it shall be
automatically renewed unless the beneficiary thereof receives notice from the
Issuing Bank that such Letter of Credit shall not be renewed, and if at the
time of renewal the Issuing Bank would be entitled to authorize the automatic
renewal of such Letter of Credit in accordance with this paragraph (iv) upon
the request of the Company but the Issuing Bank shall not have received any L/C
Amendment Application from the Company with respect to such renewal or other
written direction by the Company with respect thereto, the Issuing Bank shall
nonetheless be permitted to allow such Letter of Credit to renew, and the
Company and the Banks hereby authorize such renewal, and, accordingly, the
Issuing Bank shall be deemed to have received an L/C Amendment Application from
the Company requesting such renewal.
(v) The Issuing Bank may, at its election (or as required by
the Administrative Agent at the direction of the Required Banks), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the Revolving
Termination Date.
(vi) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of Credit).
(vii) The Issuing Bank will also deliver to the
Administrative Agent, concurrently or promptly following its delivery of a
Letter of Credit, or amendment to or renewal of a Letter of Credit, to an
advising bank or a beneficiary, a true and complete copy of each such Letter of
Credit or amendment to or renewal of a Letter of Credit.
(c) Existing BofA Letter of Credit; Risk Participations, Drawings
and Reimbursements.
(i) On and after the Effective Date, the Existing BofA Letter
of Credit shall be deemed for all purposes, including for purposes of the fees
to be collected pursuant to subsections 2.17(h)(i) and 2.17(h)(iii), and
reimbursement of costs and expenses to the extent provided herein, Letters of
Credit outstanding under this Agreement and entitled to the benefits of this
Agreement and the other Loan Documents, and shall be governed by the
applications and
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agreements pertaining thereto and by this Agreement. Each Bank shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
Issuing Bank on the Closing Date a participation in each such Letter of Credit
and each drawing thereunder in an amount equal to the product of (A) such
Bank's Pro Rata Share times (B) the maximum amount available to be drawn under
such Letter of Credit and the amount of such drawing, respectively. For
purposes of Section 2.1, the Existing BofA Letter of Credit shall be deemed to
utilize pro rata the Commitment of each Bank.
(ii) Immediately upon the Issuance of each Letter of Credit
in addition to those described in subsection 2.17((c)(i), each Bank shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the Issuing Bank a participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (A) the Pro Rata Share of such
Bank, times (B) the maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, respectively. For purposes of Section
2.1, each Issuance of a Letter of Credit shall be deemed to utilize the
Commitment of each Bank by an amount equal to the amount of such participation.
(iii) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the Issuing Bank will
promptly notify the Company. The Company shall reimburse the Issuing Bank on
the same date that any amount is paid by the Issuing Bank under any Letter of
Credit (each such date, an "Honor Date"), in an amount equal to the amount so
paid by the Issuing Bank. In the event the Company fails to reimburse the
Issuing Bank for the full amount of any drawing under any Letter of Credit by
2:00 p.m. (New York City time) on the Honor Date, the Issuing Bank will
promptly notify the Administrative Agent and the Administrative Agent will
promptly notify each Bank thereof, and the Company shall be deemed to have
requested that Base Rate Loans be made by the Banks to be disbursed on the
Honor Date under such Letter of Credit, subject to the amount of the unutilized
portion of the Revolving Loan Commitment and subject to the conditions set
forth in Section 4.2. Any notice given by the Issuing Bank or the
Administrative Agent pursuant to this paragraph (iii) may be oral if
immediately confirmed in writing (including by facsimile); provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(iv) Each Bank shall upon any notice from the Administrative
Agent pursuant to subsection 2.17(c)(iii) make available to the Administrative
Agent for the account of the relevant Issuing Bank an amount in Dollars and in
immediately available funds equal to its Pro Rata Share of the amount of the
drawing, whereupon the participating Banks shall (subject to subsection
2.17(c)(v)) each be deemed to have made a Loan consisting of a Base Rate Loan
to the Company in that amount. If any Bank so notified fails to make available
to the Administrative Agent for the account of the Issuing Bank the amount of
such Bank's Pro Rata Share of the amount of the drawing by no later than 4:00
p.m. (New York City time) on the Honor Date, then interest shall accrue on such
Bank's obligation to make such payment, from the Honor Date to the date such
Bank makes such payment, at a rate per annum equal to the Federal Funds Rate in
effect from time to time during such period. The Administrative Agent will
promptly give notice of the occurrence of the Honor
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Date, but failure of the Administrative Agent to give any such notice on the
Honor Date or in sufficient time to enable any Bank to effect such payment on
such date shall not relieve such Bank from its obligations under this
subsection 2.17(c).
(v) With respect to any unreimbursed drawing that is not
converted into Loans consisting of Base Rate Loans to the Company in whole or
in part, because of the Company's failure to satisfy the conditions set forth
in Section 4.2 or for any other reason, the Company shall be deemed to have
incurred from the Issuing Bank an L/C Borrowing in the amount of such drawing,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at a rate per annum equal to the Base Rate plus 2% per
annum, and each Bank's payment to the Issuing Bank pursuant to subsection
2.17(c)(iv) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Bank in satisfaction of
its participation obligation under this subsection 2.17(c).
(vi) Each Bank's obligation in accordance with this
Agreement to make the Loans or L/C Advances, as contemplated by this subsection
2.17(c), as a result of a drawing under a Letter of Credit, shall be absolute
and unconditional and without recourse to the Issuing Bank and shall not be
affected by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against the Issuing
Bank, the Company or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, an Event of Default or a Material
Adverse Effect; or (C) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided, however, that each
Bank's obligation to make Revolving Loans under this subsection 2.17(c) is
subject to the conditions set forth in Section 4.2.
(d) Repayment of Participations.
(i) Upon (and only upon) receipt by the Administrative Agent
for the account of the Issuing Bank of immediately available funds from the
Company (A) in reimbursement of any payment made by the Issuing Bank under the
Letter of Credit with respect to which any Bank has paid the Administrative
Agent for the account of the Issuing Bank for such Bank's participation in the
Letter of Credit pursuant to subsection 2.17(c) or (B) in payment of interest
thereon, the Administrative Agent will pay to each Bank, in the same funds as
those received by the Administrative Agent for the account of the Issuing Bank,
the amount of such Bank's Pro Rata Share of such funds, and the Issuing Bank
shall receive the amount of the Pro Rata Share of such funds of any Bank that
did not so pay the Administrative Agent for the account of the Issuing Bank.
(ii) If the Administrative Agent or the Issuing Bank is
required at any time to return to the Company, or to a trustee, receiver,
liquidator, custodian, or any official in any Insolvency Proceeding, any
portion of the payments made by the Company to the Administrative Agent for the
account of the Issuing Bank pursuant to subsection 2.17(d)(i) in reimbursement
of a payment made under the Letter of Credit or interest or fee thereon, each
Bank shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or the Issuing Bank the
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amount of its Pro Rata Share of any amounts so returned by the Administrative
Agent or the Issuing Bank plus interest thereon from the date such demand is
made to the date such amounts are returned by such Bank to the Administrative
Agent or the Issuing Bank, at a rate per annum equal to the Federal Funds Rate
in effect from time to time.
(e) Role of the Issuing Bank.
(i) Each Bank and the Company agree that, in paying any drawing
under a Letter of Credit, the Issuing Bank shall not have any responsibility to
obtain any document (other than any sight draft and certificates expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document.
(ii) No Administrative Agent-Related Person nor any of the
respective correspondents, participants or assignees of the Issuing Bank shall
be liable to any Bank for: (A) any action taken or omitted in connection
herewith at the request or with the approval of the Banks (including the
Required Banks, as applicable); (B) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (C) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.
(iii) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the Company's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. No Administrative Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Bank, shall be liable
or responsible for any of the matters described in paragraphs (i) through (vii)
of subsection 2.17(f); provided, however, anything in such clauses to the
contrary notwithstanding, that the Company may have a claim against the Issuing
Bank, and the Issuing Bank may be liable to the Company, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Company which the Company proves were caused by the
Issuing Bank's willful misconduct or gross negligence or the Issuing Bank's
willful failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing: (A) the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary; and (B)
the Issuing Bank shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(f) Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Bank for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any
drawing under a Letter of Credit converted into Revolving
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Loans, shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and each such other L/C-Related
Document under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or
any L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Company in respect
of any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or by the L/C-Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any Letter
of Credit;
(v) any payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate that does not strictly comply
with the terms of any Letter of Credit; or any payment made by the Issuing Bank
under any Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of any Letter of Credit, including any arising in connection
with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to departure
from any other guarantee, for all or any of the obligations of the Company in
respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Company or a guarantor.
(g) Cash Collateral Pledge. Upon the request of the Administrative
Agent, (i) if the Issuing Bank has honored any full or partial drawing request
on any Letter of Credit and such drawing has resulted in an L/C Borrowing
hereunder, or (ii) if, as of the Maturity Date, any Letters of Credit may for
any reason remain outstanding and partially or wholly undrawn, the Company
shall immediately Cash Collateralize the L/C Obligations in an amount equal to
the L/C Obligations. The Company hereby grants the Administrative Agent, for
the benefit of the Administrative Agent,
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the Issuing Bank and the Banks, a security interest in all such cash and
deposit account balances deposited with BofA from time to time pursuant to the
Company's obligations hereunder to Cash Collateralize L/C Obligations. All
such cash collateral shall be maintained in blocked, non-interest bearing
deposit accounts at BofA.
(h) Letter of Credit Fees.
(i) The Company shall pay to the Administrative Agent for the
account of each of the Banks a letter of credit fee with respect to the Letters
of Credit computed on the average daily maximum amount available to be drawn on
the outstanding Letters of Credit, on each Interest Payment Date for Base Rate
Loans based upon Letters of Credit outstanding for the previous calendar
quarter and such letter of credit fees shall be due and payable in arrears on
each such Interest Payment Date for Base Rate Loans. The letter of credit fee
shall be equal to the Applicable Margin for Eurodollar Loans as in effect from
time to time during the periods of calculation thereof.
(ii) The Company shall pay to the Issuing Bank a letter of
credit fronting fee for each Letter of Credit Issued by the Issuing Bank equal
to .0125% of the face amount (or increased face amount, as the case may be) of
such Letter of Credit. Such Letter of Credit fronting fee shall be due and
payable in arrears on each Interest Payment Date for Base Rate Loans.
(iii) The Company shall pay to the Issuing Bank from time to
time on demand the normal presentation, amendment and other processing fees,
and other standard costs and charges, of the Issuing Bank relating to letters
of credit as from time to time in effect.
(i) Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber of
Commerce ("UCP") most recently at the time of issuance of any Letter of Credit
shall (unless otherwise expressly provided in the Letters of Credit) apply to
the Letters of Credit.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 Taxes. (a) Any and all payments by the Company to each Bank or
the Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any Taxes,
except to the extent required by applicable law. In addition, the Company
shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Bank or the Administrative Agent, then:
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(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section
(collectively, "Further Taxes")), such Bank or the Administrative Agent, as the
case may be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings; and
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance with
applicable law.
(c) To the extent not duplicative of amounts paid pursuant to
subsections (a) and (b) of this Section 3.1 or pursuant to Section 3.3, the
Company agrees to indemnify and hold harmless each Bank and the Administrative
Agent for the full amount (without duplication) of (i) Taxes, (ii) Other Taxes,
and (iii) Further Taxes in the amount that the respective Bank specifies as
necessary to preserve the after-tax yield the Bank would have received if such
Taxes, Other Taxes or Further Taxes had not been imposed, and any liability
(including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes, Other Taxes or
Further Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date the Bank or the
Administrative Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by the Company of
Taxes, Other Taxes or Further Taxes, the Company shall furnish to each Bank or
the Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to such
Bank or the Administrative Agent.
(e) Subject to Section 3.7, if the Company is required to pay any
amount to any Bank or the Administrative Agent pursuant to subsection (b) or
(c) of this Section, then such Bank shall use reasonable efforts (consistent
with legal and regulatory restrictions) to change the jurisdiction of its
Lending Office so as to eliminate any such additional payment by the Company
which may thereafter accrue, if such change in the sole judgment of such Bank
is not otherwise disadvantageous to such Bank.
(f) Notwithstanding the foregoing provisions of this Section 3.1,
the Company shall have no obligation to any Bank under subsection (b) or (c) of
this Section 3.1 if such Bank fails to comply with the requirements of Section
9.10 unless such failure is as a result of a change in law (including a change
in treaty or regulation) occurring after the date of this Agreement or, in the
case of an Eligible Assignee, after the date such Eligible Assignee becomes a
Bank under this Agreement.
3.2 Illegality. (a) If any Bank determines that the introduction
of any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, in each case after
the date of this Agreement, has made it unlawful, or that any central bank or
other Governmental Authority has asserted after the date of this Agreement that
it
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is unlawful, for any Bank or its applicable Lending Office to make Eurodollar
Rate Loans, then, on notice thereof by the Bank to the Company through the
Administrative Agent, any obligation of that Bank to make Eurodollar Rate Loans
shall be suspended until the Bank notifies the Administrative Agent and the
Company that the circumstances giving rise to such determination no longer
exist.
(b) If a Bank determines that it is unlawful to maintain any
Eurodollar Rate Loan, the Company shall, upon its receipt of notice of such
fact and demand from such Bank (with a copy to the Administrative Agent),
convert in full such Eurodollar Rate Loans of that Bank then outstanding to
Base Rate Loans, and pay to such Bank interest accrued thereon and amounts
required under Section 3.4, either on the last day of the Interest Period
thereof, if the Bank may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if the Bank may not lawfully continue to
maintain such Eurodollar Rate Loan.
(c) If the obligation of any Bank to make or maintain Eurodollar
Rate Loans has been so terminated or suspended, the Company may elect, by
giving notice to the Bank through the Administrative Agent that all Loans which
would otherwise be made by the Bank as Eurodollar Rate Loans shall be instead
Base Rate Loans.
(d) Before giving any notice to the Administrative Agent under this
Section, the affected Bank shall designate a different Lending Office with
respect to its Eurodollar Rate Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the judgment of
the Bank, be illegal or otherwise disadvantageous to the Bank.
3.3 Increased Costs and Reduction of Return. To the extent not
duplicative of amounts payable pursuant to Section 3.1,
(a) if any Bank determines that, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation after the
date of this Agreement or (ii) the compliance by that Bank with any guideline
or request from any central bank or other Governmental Authority issued or made
after the date of this Agreement (whether or not having the force of law),
there shall be any increase in the cost to such Bank (other than pursuant to
Excluded Taxes) of agreeing to make or making, funding or maintaining any
Eurodollar Rate Loans or participating in any Letters of Credit, or, in the
case of the Issuing Bank, any increase in the cost to the Issuing Bank of
agreeing to issue, issuing or maintaining any unpaid drawing under any Letter
of Credit, then the Company shall be liable for, and shall from time to time,
upon demand (with a copy of such demand to be sent to the Administrative
Agent), pay to the Administrative Agent for the account of such Bank,
additional amounts as are sufficient to compensate such Bank for such increased
costs.
(b) If any Bank shall have determined that (i) the introduction
after the date of this Agreement of any Capital Adequacy Regulation, (ii) any
change after the date of this Agreement in any Capital Adequacy Regulation,
(iii) any change after the date of this Agreement in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (iv) compliance
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by the Bank (or its Lending Office) or any corporation controlling the Bank
required after the date of this Agreement with any Capital Adequacy Regulation,
affects or would affect the amount of capital required or expected to be
maintained by the Bank or any corporation controlling the Bank and (taking into
consideration such Bank's or such corporation's policies with respect to
capital adequacy and such Bank's desired return on capital) determines that the
amount of such capital is increased as a consequence of its Commitment, loans,
credits or obligations under this Agreement, then, upon demand of such Bank to
the Company through the Administrative Agent, the Company shall pay to the
Bank, from time to time as specified by the Bank, additional amounts sufficient
to compensate the Bank for such increase.
3.4 Funding Losses. The Company shall reimburse each Bank and hold
each Bank harmless from any loss or expense which the Bank may sustain or incur
as a consequence of:
(a) the failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/ Continuation, other than pursuant to Section 3.5;
(b) the prepayment (including pursuant to Section 2.5 or 2.7) or
other payment (including after acceleration thereof) of an Eurodollar Rate Loan
on a day that is not the last day of the relevant Interest Period;
(c) the automatic conversion under Section 2.4 of any Eurodollar
Rate Loan to a Base Rate Loan on a day that is not the last day of the relevant
Interest Period; or
(d) the prepayment of a Eurodollar Rate Loan having an Interest
Period in excess of 7 days in connection with an assignment of all or any part
of the Revolving Loans and the Revolving Loan Commitments pursuant to
subsection 11.8(a) occurring during the period described in clause (e) of the
definition of "Interest Period";
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Rate Loans or from fees
payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by the Company to the Banks under this
Section and under subsection 3.3(a), each Eurodollar Rate Loan made by a Bank
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the IBOR used in determining the
Eurodollar Rate for such Eurodollar Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan is in fact so
funded.
3.5 Inability to Determine Rates. If the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan, or that the Eurodollar Rate applicable
pursuant to subsection 2.9(a) for any requested Interest Period with respect to
a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to the Banks of
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funding such Loan, the Administrative Agent will promptly so notify the Company
and each Bank. Thereafter, the obligation of the Banks to make or maintain
Eurodollar Rate Loans, as the case may be, hereunder shall be suspended until
the Administrative Agent revokes such notice in writing. Upon receipt of such
notice, the Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not revoke
such Notice, the Banks shall make, convert or continue the Loans, as proposed
by the Company, in the amount specified in the applicable notice submitted by
the Company, but such Loans shall be made, converted or continued as Base Rate
Loans instead of Eurodollar Rate Loans.
3.6 Certificates of Banks. Any Bank claiming reimbursement or
compensation under this Article III shall deliver to the Company (with a copy
to the Administrative Agent) a certificate setting forth in reasonable detail
the amount payable to the Bank hereunder and such certificate shall be
conclusive and binding on the Company in the absence of manifest error.
3.7 Substitution of Banks. Upon the receipt by the Company from any
Bank (an "Affected Bank") of a claim for compensation under Section 3.1 or 3.3
or it becomes unlawful for any Bank to make or maintain Eurodollar Rate Loans
as contemplated by Section 3.2 or a Bank is no longer exempt from U.S. federal
withholding tax and back-up withholding, the Company may: (i) request the
Affected Bank to use its best efforts to obtain a replacement bank or financial
institution satisfactory to the Company and to the Administrative Agent (a
"Replacement Bank") to acquire and assume all or a ratable part of all of such
Affected Bank's Loans and Commitment, and if such Affected Bank or any
Affiliate thereof is a Swap Provider, all Specified Swap Contracts of such
Affected Bank and Affiliate; (ii) request one more of the other Banks to
acquire and assume all or part of such Affected Bank's Loans and Commitment; or
(iii) designate a Replacement Bank. Any such designation of a Replacement Bank
under clause (i) or (iii) shall be subject to the prior written consent of the
Administrative Agent (which consent shall not be unreasonably withheld).
3.8 Survival. The agreements and obligations of the Company in this
Article III shall survive the payment of all other Obligations, provided
however, that except after the occurrence and continuance of an Event of
Default described in subsection 8.1(f) or (g), any Bank making a request or
demand for compensation or indemnity under this Article III shall make such
demand within 180 days after the occurrence of the event or circumstances
giving rise to such claim.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions of Effectiveness of this Agreement. The
effectiveness of this Agreement is subject to the condition that the
Administrative Agent shall have received on or before the Effective Date all of
the following, in form and substance satisfactory to the Administrative Agent
and each Bank, and in sufficient copies for each Bank:
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(a) Credit Agreement. This Agreement executed by each party thereto;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of the
Parent, the Company and each Subsidiary that is a party to a Loan Document
authorizing the transactions contemplated hereby or thereby, certified as of
the Effective Date by the Secretary or an Assistant Secretary of such Person;
and
(ii) A certificate of the Secretary or Assistant Secretary
of the Parent, the Company and each Subsidiary that is a party to a Loan
Document certifying the names and true signatures of the officers of the
Parent, the Company or such Subsidiary, as applicable, authorized to execute,
deliver and perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder or thereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation and the
bylaws of each of the Parent, the Company and each Subsidiary that is a party
to any Loan Document as in effect on the Effective Date, certified by the
Secretary or Assistant Secretary of the Parent, the Company or such Subsidiary,
as applicable, as of the Effective Date; and
(ii) a good standing certificate for each of the Parent,
the Company and each Subsidiary that is a party to any Loan Document from the
Secretary of State (or similar, applicable Governmental Authority) of its state
of incorporation and each state where such Person is qualified to do business
as a foreign corporation as of a recent date, together with a bring-down
certificate by facsimile, dated the Effective Date (except as otherwise
provided on Schedule 5.1(c));
(d) Legal Opinions. A legal opinion of Xxxxx & Xxxxx, L.L.P., counsel
to the Parent, and the Company and addressed to the Administrative Agent and
the Banks, substantially in the form of Exhibit D;
(e) Payment of Fees. Evidence of payment by the Company of
(i) all accrued and unpaid fees, costs and expenses to the extent then
due and payable on the Effective Date to the Administrative Agent, Arranger or
any Bank, together with Attorney Costs of BofA to the extent invoiced prior to
or on the Effective Date, plus such additional amounts of Attorney Costs as
shall constitute BofA's reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude final settling of accounts between the Company
and BofA); including any such costs, fees and expenses arising under or
referenced in Sections 2.10 and 11.4; and
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(ii) all commitment fees, costs and expenses of the Administrative
Agent or any Bank, all Attorney Fees of BofA and all such other fees and
expenses accrued but unpaid under the Existing Credit Agreement through the
Effective Date;
(f) Financial Statements.
(i) Copies of the consolidated audited balance sheet and
related consolidated statements of income and cash flow, including the
footnotes thereto, of the Parent and its Subsidiaries as at December 31, 1996
and for the fiscal years then ended duly reported on by Xxxxxx Xxxxxxxx LLP;
and
(ii) Copies of the consolidated unaudited balance sheet and
related consolidated statements of income and cash flow of the Parent and its
Subsidiaries as at June 30, 1996 and for the period then ended duly certified
by a Responsible Officer of the Parent;
(g) Collateral Documents. The Collateral Documents, executed by the
Parent, the Company and each Subsidiary, as applicable, in appropriate form for
recording, where necessary, together with:
(i) all certificates and instruments representing the Pledged
Collateral, stock transfer powers executed in blank;
(ii) funds sufficient to pay any filing or recording tax or
fee in connection with any and all Mortgage Amendments;
(iii) with respect to each of the Fee Mortgaged Properties
pursuant to which a Fee Mortgage (as defined in the Existing Credit Agreement)
was previously recorded, an amendment to mortgage in the form attached hereto
as Exhibit L (with such changes thereto as shall be advisable under the law of
the jurisdiction where such Fee Mortgage was recorded) reflecting the amendment
and restatement of the Existing Credit Agreement pursuant to this Agreement;
(iv) with respect to each of the Fee Mortgaged Properties
pursuant to which a mortgagee policy of title insurance was previously
delivered to Administrative Agent pursuant to the Existing Credit Agreement, an
endorsement to such title policy satisfactory to the Administrative Agent and
the Banks insuring that the applicable Mortgage encumbering such parcel of
Mortgaged Property, as amended by the Mortgage Amendment referred to in clause
(iii) above, continues to constitute a valid first Lien against the applicable
portion of the Mortgaged Property in favor of the Administrative Agent
notwithstanding such Mortgage Amendment and the amendment and restatement of
the Existing Credit Agreement, subject only to exceptions acceptable to the
Administrative Agent and the Banks, with such endorsements and affirmative
insurance as the Administrative Agent may reasonably request;
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(v) to the extent required by law, flood insurance and
earthquake insurance on terms satisfactory to the Administrative Agent;
(vi) proof of payment of all title insurance premiums,
documentary stamp or intangible taxes, recording fees and mortgage taxes
payable in connection with the recording of any Mortgage Amendment or the
issuance of the title insurance endorsements in connection therewith; and
(vii) evidence that all other actions necessary or, in the
opinion of the Administrative Agent or the Banks, desirable to perfect and
protect the first priority Lien created by the Collateral Documents, and to
enhance the Administrative Agent's ability to preserve and protect its
interests in and access to the Collateral, have been taken;
(h) Insurance Policies. Standard lenders' payable endorsements with
respect to the insurance policies or other instruments or documents evidencing
insurance coverage on the properties of the Company in accordance with Section
6.6 and in accordance with the terms of the Mortgages (including without
limitation, the Mortgaged Properties);
(i) Certificate. A certificate of the Parent and the Company executed
by a Responsible Officer of each such Person, dated as of the Effective Date,
stating that:
(i) the representations and warranties contained in Article V
are true and correct in all material respects on and as of such date, as though
made on and as of such date except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct in all material respects as of such earlier date;
(ii) no Default or Event of Default exists; and
(iii) no event or circumstance has occurred since December
31, 1996 that has resulted or could reasonably be expected to result in a
Material Adverse Effect;
(j) Issuance of Senior Subordinated Notes.
(i) The Company shall have received aggregate net proceeds of
not less than $75,000,000 (including amounts escrowed for the Acquisition of
the GC Assets) in connection with the issuance by the Company of the Senior
Subordinated Notes;
(ii) After giving effect to the transactions described in
clause (i) above, the capital structure of the Parent and the Company shall be
satisfactory in all respects to the Administrative Agent;
(k) Repayment of Existing Loans. The outstanding balance of the
Existing Term Loans and the Existing Revolving Loans shall not exceed
$50,000,000 in the aggregate.
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(l) Other Documents. Such other approvals, opinions, documents or
materials as the Administrative Agent may reasonably request.
4.2 Conditions to All Credit Extensions. The obligation of each Bank
to make any Loan to be made by it (including its initial Loan) or to continue
or convert any Loan under Section 2.4 and the obligation of the Issuing Bank to
issue any Letter of Credit is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Conversion/Continuation
Date:
(a) Notice of Borrowing or Conversion/Continuation. The Administrative
Agent shall have received a Notice of Borrowing or a Notice of
Conversion/Continuation, as applicable or in the case of any Issuance of any
Letter of Credit, the Issuing Bank and the Administrative Agent shall have
received an L/C Application or L/C Amendment Application, as required under
subsection 2.17(b);
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct in all
material respects on and as of such Borrowing Date or Conversion/Continuation
Date or date of issuance with the same effect as if made on and as of such
Borrowing Date or Conversion/ Continuation Date or date of issuance (except to
the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct in all material respects as
of such earlier date);
(c) No Existing Default. No Default or Event of Default shall exist or
shall result from such Borrowing or continuation or conversion or issuance; and
(d) No Material Adverse Effect. Since the most recent Borrowing Date
or Conversion/Continuation Date or date of issuance, no event or circumstance
shall have occurred that has resulted or could reasonably be expected to result
in a Material Adverse Effect. Each Notice of Borrowing and Notice of
Conversion/Continuation and L/C Application or L/C Amendment Application
submitted by the Company hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of each such notice or
application and as of each Borrowing Date or Conversion/Continuation Date or
date of issuance, as applicable, that the conditions in this Section 4.2 are
satisfied.
4.3 Conditions to all Construction Advances. The obligation of each
Bank to make any Construction Advance is subject to the satisfaction of the
following conditions:
(a) Land Acquisition Diligence; Permits; Construction Project.
(i) if the Construction Advance is to be used to fund a Land
Acquisition,
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(A) the Hollywood Entity making such Land Acquisition shall have
entered into a binding agreement to consummate a Land Acquisition for the
purpose of constructing (or causing to be constructed) a New Theater;
(B) the Hollywood Entity making such Land Acquisition shall have
prepared (or cause to have been prepared) schematic plans for the construction
of a New Theater on the real property to be acquired (which plans shall include
the number of screens to be contained therein) and shall, upon request of the
Administrative Agent, provide Administrative Agent with reasonable information
regarding such plans; and
(C) the Hollywood Entity making such Land Acquisition shall have
performed or caused to be performed such reasonable and prudent diligence as
may be necessary or desirable under the circumstances for such Hollywood Entity
to conclude, in its reasonable business judgment, that the proposed New Theater
may be constructed on the real property to be so acquired; and/or
(ii) if such Construction Advance is to be used for any
costs of construction in connection with a Construction Project, all permits
and/or other approvals of Governmental Authorities as may be necessary to
undertake the portion of the Construction Project to be funded by such
Construction Advance have been obtained.
(b) Delivery of Mortgage. If a Land Acquisition is to be consummated,
and subject to the provisions of subsection 6.16(b), the Hollywood Entity
acquiring such real property or leasehold interest shall have executed and
delivered to the Administrative Agent for the benefit of the Banks a Fee
Mortgage or a Leasehold Mortgage, as applicable, in accordance with all of the
terms and conditions of this Agreement relating to the delivery of Mortgages
and the granting of a Lien on real property;
(c) Limitation on New Screens. On the date such Construction Advance
is to be made, the sum of
(i) the aggregate number of Theater screens under construction
on such date by all Hollywood Entities (including the screens to be contained
in the applicable New Theater) and
(ii) the aggregate number of Theater screens in operation by
all Hollywood Entities on such date for less than six calendar months (other
than Theater screens constituting part of the GC Assets and any Theater screens
acquired or leased by any Hollywood Entity prior to the date of such
Construction Advance which, in each such case, were in operation by any Person
for at least six months prior to the date of such Construction Advance),
shall (A) for the period beginning on the Effective Date and ending on June 30,
1998, be less than 30% of the aggregate number of all Theater screens operated
or under construction by all Hollywood
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Entities (including all screens to be contained in the applicable New Theater)
on the date of such Construction Advance, and (B) at any time thereafter, be
less than 20% of the aggregate number of all movie screens operated or under
construction by all Hollywood Entities (including all screens to be contained
in the applicable New Theater) on the date of such Construction Advance;
(d) The purpose of the requested Construction Advance is to fund Land
Acquisition/Construction Costs actually incurred in connection with such Land
Acquisition and/or Construction Project.
(e) Construction Advance Compliance Certificate. The Parent and the
Company shall deliver to the Administrative Agent, with sufficient copies for
each Bank, a Construction Advance Compliance Certificate in the form attached
hereto as Exhibit N regarding such Construction Project.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Banks to enter into this
Agreement and to make the Loans, the Parent and the Company hereby jointly and
severally represent and warrant to the Administrative Agent and each Bank that:
5.1 Corporate Existence and Power. Each Hollywood Entity:
(a) is duly organized, validly existing and, where applicable, in good
standing under the laws of the jurisdiction of its formation or organization;
(b) has the requisite power and authority under the statute under
which it is formed or organized and all governmental licenses, authorizations,
consents and approvals to own its assets, carry on its business as presently
conducted and to execute, deliver and perform its obligations under the Loan
Documents, except where the failure to possess such governmental licenses,
authorizations, consents and approvals either individually or collectively
could not reasonably be expected to have a Material Adverse Effect;
(c) except as otherwise set forth on Schedule 5.1(c), is duly
qualified as a foreign corporation and is licensed and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification or license,
except where the failure to be so qualified or licensed could not reasonably be
expected to have a Material Adverse Effect; and
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(d) is in compliance with all Requirements of Law, except where the
failure to so comply (either individually or collectively) could not reasonably
be expected to have a Material Adverse Effect.
5.2 Corporate Authorization; No Contravention. The execution,
delivery and performance by each Loan Party of this Agreement and each other
Loan Document to which such Person is party, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which such Person is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is subject; or
(c) violate any Requirement of Law.
5.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority (except for recordings or filings in connection with the
Liens granted to the Administrative Agent under the Collateral Documents) is
necessary or required in connection with the execution, delivery or performance
by any Loan Party of this Agreement or any other Loan Document.
5.4 Binding Effect. This Agreement and each other Loan Document to
which any Loan Party is a party constitute the legal, valid and binding
obligations of such Loan Party to the extent it is a party thereto, enforceable
against such Person in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
5.5 Litigation. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of the Parent or the Company,
threatened at law, in equity, in arbitration or before any Governmental
Authority, against any Loan Party or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to any Loan Party, would reasonably be
expected to have a Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the execution,
delivery or performance of this Agreement or any other Loan Document, or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
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5.6 No Default. No Default or Event of Default exists or would result
from the incurring of any Obligations by the Parent or the Company or from the
grant or perfection of the Liens of the Administrative Agent and the Banks on
the Collateral. As of the Effective Date, no Loan Party is in default under or
with respect to any Contractual Obligation in any respect which, individually
or together with all such defaults, could reasonably be expected to have a
Material Adverse Effect, or that would, if such default had occurred after the
Effective Date, create an Event of Default under subsection 8.1(e).
5.7 ERISA Compliance. Other than exceptions to any of the following
that could not (either individually or collectively) reasonably be expected to
have a Material Adverse Effect:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best knowledge of the
Parent and the Company, nothing has occurred which would cause the loss of such
qualification. Each Loan Party and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Parent and
the Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There has been
no prohibited transaction or violation of the fiduciary responsibility rules
with respect to any Plan.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) none of the
Company or any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) none of
the Loan Parties or any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
none of the Loan Parties or any ERISA Affiliate has engaged in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
5.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans
and Letters of Credit are to be used solely for the purposes set forth in and
permitted by Section 6.14 and 7.8. None of the Loan Parties is generally
engaged in the business of purchasing or selling Margin Stock or extending
credit for the purpose of purchasing or carrying Margin Stock.
5.9 Title to Properties. (a) Each of the Loan Parties has good title
in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of their respective businesses, except for (i)
failure of the seller under the Crown Agreement to have obtained
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any required consent to the assignment to the Company of the leasehold interest
in the Theaters known as Cinema East 6 located in Wichita, Kansas and Joplin 6
located in Joplin, Missouri and (ii) such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Effective Date, the property of the Parent, the Company and the Subsidiaries is
subject to no Liens, other than Permitted Liens.
(b) As of the Effective Date, all real properties owned in fee by any
Hollywood Entity are listed on Schedule 5.9(a) and all real properties leased
by any Hollywood Entity for the purpose of operating or constructing a Theater
are listed on part B of Schedule 5.9(b).
5.10 Taxes. Each of the Loan Parties has filed all Federal and other
material tax returns and reports required to be filed by it, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided
in accordance with GAAP. There is no proposed tax assessment against the
Parent, the Company or any Subsidiary that would, if made, have a Material
Adverse Effect.
5.11 Financial Condition. (a) The audited consolidated financial
statements of the Hollywood Entities for the fiscal year ended December 31,
1996, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal year ended on that date:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein;
(ii) fairly present in all material respects the financial
condition of the Hollywood Entities on a consolidated basis as of the date
thereof and results of operations for the period covered thereby; and
(iii) reflect as required by GAAP all material indebtedness
and other liabilities, direct or contingent, of the Hollywood Entities on a
consolidated basis as of the date thereof, including liabilities for taxes,
material commitments and Contingent Obligations.
(b) Since December 31, 1996, there has been no development or event
which has had or could reasonably be expected to have a Material Adverse
Effect.
5.12 Environmental Matters. Other than exceptions to any of the
following that could not (either individually or collectively) reasonably be
expected to have a Material Adverse Effect:
(a) The on-going operations of each of the Parent, the Company and
each of their Subsidiaries comply in all respects with all Environmental Laws;
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(b) Each of the Parent, the Company and their Subsidiaries has
obtained all licenses, permits, authorizations and registrations required under
any Environmental Law ("Environmental Permits") and necessary for its
respective ordinary course operations, all such Environmental Permits are in
good standing, and the Parent, the Company and each of its Subsidiaries are in
compliance with all terms and conditions of such Environmental Permits;
(c) None of the Parent, the Company, any Subsidiary or, to the
knowledge of any such Person, any of their respective present property or
operations, is subject to (i) any outstanding written order from or agreement
with any Governmental Authority, or (ii) any judicial or docketed
administrative proceeding, respecting any Environmental Law, Environmental
Claim or Hazardous Material;
(d) To the knowledge of the Parent, the Company or any Subsidiary,
there are no Hazardous Materials or other conditions or circumstances existing
with respect to any property of the Parent, the Company or any of their
Subsidiaries, or arising from operations prior to the Effective Date, of any of
the Parent, the Company or any of the Subsidiaries that would reasonably be
expected to give rise to Environmental Claims. In addition, to the knowledge
of the Parent, the Company or any Subsidiary, (i) none of the Parent, the
Company or any of the Subsidiaries has any underground storage tanks (x) that
are not properly registered or permitted under applicable Environmental Laws,
or (y) that are leaking or disposing of Hazardous Materials off-site.
(e) References in subsections (c) and (d) above to knowledge of the
Parent, the Company or any Subsidiary of conditions or circumstances shall be
deemed to refer to events or circumstances of which a Responsible Officer has
knowledge.
5.13 Collateral Documents. (a) The provisions of each of the
Collateral Documents are effective to create in favor of the Administrative
Agent for the benefit of the Banks, a legal, valid and enforceable first
priority security interest in all right, title and interest of the Loan Parties
who are parties thereto in the collateral described therein, subject only to
Permitted Liens.
(b) Each Mortgage when delivered will be effective to grant to the
Administrative Agent for the benefit of the Banks a legal, valid and
enforceable deed of trust or mortgage lien (as applicable) on all the right,
title and interest of the mortgagor under such Mortgage in the mortgaged
property described therein. When each such Mortgage is duly recorded in the
offices of real property register applicable to the Mortgaged Property
encumbered by such Mortgage and the mortgage recording fees and taxes in
respect thereof are paid and compliance is otherwise had with the formal
requirements of state law applicable to the recording of real estate mortgages
generally, each such mortgaged property, subject to the Permitted Liens and
encumbrances and exceptions to title set forth therein, is subject to a legal,
valid, enforceable and perfected first priority mortgage or deed of trust, as
applicable; and when financing statements have been filed in the offices
specified in such Mortgage, such Mortgage also creates a legal, valid,
enforceable and perfected first lien on, and security interest in, all right,
title and interest of the mortgagor under such Mortgage in all personal
property and fixtures covered by such Mortgage, subject to no other Liens,
except the Permitted
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Liens and encumbrances and exceptions to title set forth therein. The
foregoing representation is also applicable with respect to each Mortgage as
amended by the Mortgage Amendments to be delivered pursuant to subsection
4.1(g) hereof.
(c) All representations and warranties of the Loan Parties contained
in the Collateral Documents are true and correct in all material respects.
5.14 Regulated Entities. None of the Parent, the Company, any Person
controlling the Parent or the Company or any Subsidiary, is an "Investment
Company" within the meaning of the Investment Company Act of 1940. The Company
is not subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation limiting
its ability to incur Indebtedness under this Agreement.
5.15 No Burdensome Restrictions. None of the Loan Parties is a party
to or bound by any Contractual Obligation, or subject to any restriction in any
Organization Document, or any Requirement of Law, which could reasonably be
expected to have a Material Adverse Effect.
5.16 Copyrights, Patents, Trademarks and Licenses, etc. Each of the
Loan Parties owns or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without known conflict with the
rights of any other Person except where failure to have such item (either
individually or collectively) and except for such claims (either individually
or collectively), in each case, could not reasonably be expected to have a
Material Adverse Effect. To the best knowledge of the Parent and the Company,
no slogan or other advertising device, product, process, method, substance,
part or other material now employed, or now contemplated to be employed, by any
Loan Party infringes upon any rights held by any other Person, except for such
infringements (either individually or collectively) that could not be
reasonably be expected to have a Material Adverse Effect. No claim or
litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending which in any such case could reasonably
be expected to have a Material Adverse Effect.
5.17 Subsidiaries. As of the Effective Date after giving effect to
the transactions contemplated hereby on such date, (a) the Parent has no direct
Subsidiaries other than the Company, (b) the Company has no Subsidiaries other
than Crown and (c) neither the Parent nor the Company has any equity
investments in any other corporation or entity.
5.18 Insurance. The properties of each Loan Party are insured with
financially sound and reputable insurance companies not Affiliates of any
Hollywood Entity, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where such Loan Party operates.
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5.19 Solvency. The Hollywood Entities, on a consolidated basis, are
Solvent.
5.20 Swap Obligations. None of the Loan Parties has incurred any
outstanding obligations under any Swap Contracts, other than Permitted Swap
Obligations.
5.21 Full Disclosure. (a) As of the Effective Date, all Information
that has been made available to the Administrative Agent or any Bank by or on
behalf of the Company prior to the date of this Agreement in connection with
the transactions contemplated by this Agreement is, taken together, true and
correct in all material respects (other than financial budgets and projections)
and does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements maintained therein not
materially misleading in light of the circumstances under which such statements
were made.
(b) All information that is made available after the date of this
Agreement from time to time to the Administrative Agent or any Bank by or on
behalf of the Company in connection with or pursuant to this Agreement, any
other Loan Document or the transactions contemplated hereby or thereby will be,
when made available and taken together, true and correct in all material
respects (other than financial budgets and projections) and will not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not materially
misleading in light of the circumstances under which such statements are made.
(c) All financial budgets and projections that have been or are
hereafter from time to time prepared by or on behalf of the Company and made
available to the Administrative Agent or any Bank pursuant to or in connection
with this Agreement, any other Loan Document or the transactions contemplated
hereby or thereby have been and will be prepared and furnished to the
Administrative Agent and the Bank in good faith and were and will be based on
facts and assumptions that are believed by the management of the Company to be
reasonable in light of the then current and foreseeable business conditions of
the Hollywood Entities and represented and will represent the Company's
management's good faith estimate of the consolidated projected financial
performance of the Hollywood Entities based on the information available to the
Responsible Officers at the time so furnished.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Parent and the Company hereby jointly and severally agree that, so
long as any Bank shall have any Commitment hereunder, or any Loan or other
Obligation which has become due and payable shall remain unpaid or unsatisfied,
unless the Required Banks waive compliance in writing:
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6.1 Financial Statements. The Parent shall furnish to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Banks, with sufficient copies for each Bank:
(a) as soon as available, but not later than 90 days after the end of
each fiscal year (commencing with the fiscal year ending December 31, 1997), a
copy of the audited consolidated balance sheets of the Hollywood Entities as at
the end of such year and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
accompanied by the report of Xxxxxx Xxxxxxxx LLP or another
nationally-recognized independent public accounting firm ("Independent
Auditor") which report shall state that such consolidated financial statements
present fairly in all material respects the financial position of the Hollywood
Entities on a consolidated basis for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years except as disclosed in the
footnotes thereto. Such report shall not be qualified or limited because of a
restricted or limited examination by the Independent Auditor of any material
portion of any Hollywood Entity's records;
(b) as soon as available, but not later than 60 days after the end of
each of the first three fiscal quarters of each fiscal year (commencing with
the fiscal quarter ending June 30, 1997), either (i) a copy of the unaudited
consolidated balance sheets of the Hollywood Entities as of the end of such
quarter and the related consolidated statements of income, shareholders' equity
and cash flows for the period commencing on the first day and ending on the
last day of such quarter, certified by a Responsible Officer of the Parent as
fairly presenting in all material respects, in accordance with GAAP (subject to
good faith year-end audit adjustments and the absence of complete footnotes),
the financial position and the results of operations of the Hollywood Entities
on a consolidated basis for the period then ended or (ii) (available) the Form
10Q that the Parent or the Company filed with the SEC for such fiscal quarter;
(c) as soon as available, but not later than 30 days after the end of
each month, a report in a form satisfactory to the Administrative Agent
containing monthly revenues and cash flow information for the previous month,
reported by each Theater owned or operated by any of the Hollywood Entities;
and
(d) as soon as available, but not later than 30 days after the end of
each month, an attendance report in a form satisfactory to the Administrative
Agent for the previous month, reported by each Theater owned or operated by any
of the Hollywood Entities.
6.2 Construction Reports. The Company shall furnish to the
Administrative Agent at the end of each fiscal quarter, or more frequently (but
not more than once per month) upon request of Administrative Agent, with
sufficient copies for each Bank, progress reports in a form satisfactory to the
Administrative Agent with respect to each Construction Project under
construction during such fiscal quarter by any of the Hollywood Entities
(including any projects undertaken to repair, restore or replace any Theater or
any material part thereof after the occurrence of a casualty at such
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Theater), which report shall include, among other things, the status of
Construction Projects planned in connection with consummated Land Acquisitions
where construction has not yet commenced (such as the status of permits and
other approvals of Governmental Authorities required to be obtained in
connection therewith).
6.3 Certificates; Other Information. The Company shall furnish to the
Administrative Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the Independent Auditor
stating that in making the examination necessary for such audit no knowledge
was obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a Compliance Certificate executed by
a Responsible Officer of the Company;
(c) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a report of the Company in a form
satisfactory to Administrative Agent regarding the number of new screens under
construction by any Hollywood Entity during the applicable fiscal quarter and
verifying compliance with Section 7.18 hereof;
(d) promptly, copies of all financial statements and reports that the
Parent sends to its shareholders generally, and copies of all financial
statements and regular, periodical or special reports (including Forms 10K, 10Q
and 8K) that the Parent, the Company or any Subsidiary may make to, or file
with, the SEC (to the extent not previously delivered pursuant to subsection
6.1(b)); and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Parent, the Company or any Subsidiary as
the Administrative Agent, at the request of any Bank, may from time to time
reasonably request.
6.4 Notices. After obtaining knowledge thereof, the Company shall
promptly notify the Administrative Agent and each Bank:
(a) of the occurrence of any Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default under, any
Contractual Obligation of the Parent, the Company or any Subsidiary which could
reasonably be expected to result in a Material Adverse Effect; and (ii) any
material dispute, litigation, investigation, proceeding or suspension which may
exist at any time between any of the Parent, the Company or any Subsidiary and
any Governmental Authority;
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(c) of the commencement of, or any material adverse development in,
any litigation or proceeding affecting the Parent, the Company or any
Subsidiary (i) in which the amount of damages claimed is $2,000,000 (or its
equivalent in another currency or currencies) or more, (ii) in which injunctive
or similar relief is sought and which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect, or (iii) in which the
relief sought is an injunction or other stay of the performance of this
Agreement or any Loan Document;
(d) upon (i) any enforcement, cleanup, removal or other actions
instituted, or threatened by any Governmental Authority against the Parent, the
Company or any Subsidiary or any of their respective properties pursuant to any
applicable Environmental Laws and (ii) the occurrence of any environmental or
similar condition on any real property adjoining or in the vicinity of any
property of the Parent, the Company or any Subsidiary that could reasonably be
expected to cause such property of such Hollywood Entity or any part thereof to
be subject to any material restrictions on the ownership, occupancy,
transferability or use of such property under any applicable Environmental
Laws;
(e) of any other litigation or proceeding affecting the Parent, the
Company or any Subsidiary which such Person would be required to report to the
SEC pursuant to the Exchange Act, within four days after reporting the same to
the SEC;
(f) of the occurrence of any of the following events affecting the
Parent, the Company or any Subsidiary or any ERISA Affiliate, and deliver to
the Administrative Agent and each Bank a copy of any notice with respect to
such event that is filed with a Governmental Authority and any notice delivered
by a Governmental Authority to the Company or any ERISA Affiliate with respect
to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability
of any Pension Plan;
(iii) the adoption of, or the commencement of contributions
to, any Plan subject to Section 412 of the Code by the Parent or the Company or
any ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan subject to
Section 412 of the Code, if such amendment results in a material increase in
contributions or Unfunded Pension Liability.
(g) of any material change in accounting policies or financial
reporting practices by the Parent, the Company or any Subsidiary;
(h) of the entry by the Parent, the Company or any Subsidiary into any
Specified Swap Contract, together with the details thereof;
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(i) upon the request from time to time of the Administrative Agent,
the Swap Termination Values, together with a description of the method by which
such amounts were determined, relating to any then-outstanding Swap Contracts
to which any Hollywood Entity is party.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer of the Parent or the Company setting forth
details of the occurrence referred to therein, and stating what action the
Parent, the Company or any affected Subsidiary, as applicable, proposes to take
with respect thereto and when. Each notice under subsection 6.4(a) shall
describe with particularity any and all clauses or provisions of this Agreement
or other Loan Document that have been breached or violated, if any.
6.5 Preservation of Corporate Existence, Etc. Each of the Parent and
the Company shall, and shall cause each Subsidiary to:
(a) except as permitted by Sections 7.3 and 7.4, preserve and maintain
in full force and effect its existence and, where applicable, good standing
under the laws of its state or jurisdiction of formation or organization;
(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises necessary
or desirable in the normal conduct of its business except in connection with
transactions permitted by Section 7.4 and sales of assets permitted by Section
7.3 and except where the failure to so preserve or maintain could not
reasonably be expected to have a Material Adverse Effect; and
(c) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.6 Conduct of Business and Maintenance of Existence, etc. Each of
the Parent and the Company shall, and shall cause each Subsidiary to (a)
continue to engage in business of the same general type as now conducted by it,
(b) comply with all Contractual Obligations except to the extent that failure
to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
6.7 Maintenance of Property. Except as permitted by Sections 6.5, 7.3
and 7.4, each of the Parent and the Company shall maintain, and shall cause
each Subsidiary to maintain, and preserve all its property which is used or
useful in its business in good working order and condition, ordinary wear and
tear excepted and make all necessary repairs thereto and renewals and
replacements thereof. Each of the Parent, the Company and any Subsidiary shall
use the standard of care typical in the industry in the operation and
maintenance of its facilities.
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6.8 Insurance. In addition to insurance requirements set forth in the
Collateral Documents, each of the Parent and the Company shall maintain, and
shall cause each Subsidiary to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons;
including workers' compensation insurance, public liability and property and
casualty insurance. All casualty insurance maintained by the Parent, the
Company or any Subsidiary shall name the Administrative Agent as loss payee and
all liability insurance shall name the Administrative Agent as additional
insured for the benefit of the Banks, as their interests may appear. Upon
request of the Administrative Agent or any Bank, each of the Parent and the
Company shall furnish the Administrative Agent, with sufficient copies for each
Bank, at reasonable intervals (but not more than once per calendar year) a
certificate of a Responsible Officer thereof (and, if requested by the
Administrative Agent, any insurance broker of the Company) setting forth the
nature and extent of all insurance maintained by such Person and its
Subsidiaries in accordance with this Section or any Collateral Documents (and
which, in the case of a certificate of a broker, were placed through such
broker).
6.9 Payment of Obligations. Each of the Parent and the Company shall,
and shall cause each Subsidiary to, pay and discharge as the same shall become
due and payable:
(a) all Federal taxes and all other material tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, and all other lawful claims which, if unpaid, would by law become a
Lien upon its property, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Parent, the Company or such Subsidiary, as applicable;
(b) all Indebtedness, as and when due and payable or within any
applicable grace period and the failure of which to pay would constitute an
Event of Default pursuant to subsection 8.1(a), but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness; and
(c) all other obligations and liabilities of the Hollywood Entities,
the failure to pay which could reasonably be expected to have a Material
Adverse Effect.
6.10 Compliance with Laws. Each of the Parent and the Company shall
comply, and shall cause each Subsidiary to comply, in all material respects
with all Requirements of Law of any Governmental Authority having jurisdiction
over it or its business (including the Federal Fair Labor Standards Act),
except such as may be contested in good faith or as to which a bona fide
dispute may exist except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
6.11 Compliance with ERISA. Each of the Parent and the Company shall,
and shall cause each of its ERISA Affiliates to: (a) maintain each Plan in
compliance in all material respects
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with the applicable provisions of ERISA, the Code and other federal or state
law; (b) cause each Plan which is qualified under Section 401(a) of the Code to
maintain such qualification; and (c) make all required contributions to any
Plan subject to Section 412 of the Code.
6.12 Inspection of Property and Books and Records. Each of the Parent
and the Company shall maintain and shall cause each Subsidiary to keep and
maintain a system of accounting established and administered in accordance with
sound business practices and keep and maintain proper books of record and
accounts. Each of the Parent and the Company shall permit, and shall cause
each Subsidiary to permit, representatives and independent contractors of the
Administrative Agent or any Bank to visit and inspect any of their respective
properties, to examine their respective corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective directors,
officers, and independent public accountants, all at the expense of the
Administrative Agent and/or the Banks and at such reasonable times during
normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company; provided, however that, (a) the
Administrative Agent may make one such visit, inspection and examination of the
Hollywood Entities in any calendar year at the expense of the Company, and (b)
when an Event of Default exists and is continuing the Administrative Agent may
do any of the foregoing at the expense of the Company at any time during normal
business hours.
6.13 Environmental Laws. (a) Each of the Parent and the Company
shall, and shall cause each Subsidiary to comply with, and require compliance
by all tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply with and maintain, and require that all tenants and
subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required
by applicable Environmental Laws, except, in each case with respect to the
foregoing, where the failure to so comply or to require such compliance or the
failure to so obtain or to so require the obtaining thereof could not
reasonably be expected to have a Material Adverse Effect;
(b) Each of the Parent and the Company shall, and shall cause each
Subsidiary to conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, except, in each case with respect to the foregoing, such as may be
contested in good faith by appropriate proceedings; and
(c) The Parent and the Company shall not, and shall not permit any
Subsidiary to, install or permit to be installed in any real property owned in
fee or leased by any Hollywood Entity any asbestos containing material, or any
other building material, prohibited under applicable Environmental Laws. With
respect to any such material currently present in any real property owned in
fee or leased by any Hollywood Entity, the Parent and the Company shall, and
shall promptly cause each Subsidiary to (subject, however, in the case of
leased real property to the terms of the underlying lease) promptly either (a)
remove or xxxxx any such material which applicable
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Environmental Laws require to be removed or abated or (b) otherwise comply in
all material respects with applicable Environmental Laws regulating the
presence of such materials in such real property, at such Hollywood Entity's
expense. In the event any Hollywood Entity shall fail to comply with this
subsection (c), then, upon ten days' prior written notice, the Parent and the
Company shall give, or shall cause the applicable Hollywood Entity to give, the
Administrative Agent and its agents and employees access to the applicable real
property to remove or xxxxx such material.
6.14 Use of Proceeds. Subject in each case to the applicable terms
and conditions of this Agreement, the Company may use the proceeds of the
Revolving Loans and Letters of Credit for general corporate purposes, including
Capital Expenditures, Construction Projects and Acquisitions and for no other
purpose.
6.15 Interest Rate Protection. At all times, not less than 50% of
the principal amount of the Funded Debt outstanding from time to time shall
either carry fixed interest rates and/or the Hollywood Entities shall maintain
Swap Contracts for fixed interest rates in respect of such Funded Debt. Any
such Swap Contracts shall have terms and provisions as shall be reasonably
satisfactory to the Administrative Agent.
6.16 Additional Collateral, etc. (a) With respect to any assets
acquired after the Effective Date by the Parent, the Company or any Subsidiary
(other than (x) any assets described in subsection (b) or (c) below, (y)
immaterial assets a security interest with respect to which cannot be perfected
by filing UCC-1 financing statements and (z) any assets subject to a Lien
permitted by Section 7.2) as to which the Administrative Agent, for the benefit
of the Banks, does not have a perfected Lien (including, without limitation,
the interests of the Company and/or any Subsidiary in any Indebtedness
permitted under subsection 7.6(f) and all notes or other instruments evidencing
such Indebtedness), promptly (i) execute and deliver to the Administrative
Agent such amendments to this Agreement or the Security Agreement or such other
documents as the Administrative Agent or the Required Banks deem necessary or
advisable in order to grant to the Administrative Agent, for the benefit of the
Banks, a security interest in such assets, (ii) take all actions necessary or
advisable to grant to the Administrative Agent, for the benefit of the Banks, a
perfected first priority security interest in such assets, subject only to
Permitted Liens, including without limitation, the filing of Uniform Commercial
Code financing statements in such jurisdictions as may be required by the
appropriate Security Agreement or by law or as may be requested by the
Administrative Agent and (iii) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described in the preceding clauses (i) and (ii), which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(b) With respect to (i) any fee interest in any real estate and (ii)
at the election of Administrative Agent, in Administrative Agent's sole
discretion, any leasehold interest in any real estate, in each case acquired
before or after the Effective Date by the Parent, the Company or any
Subsidiary, promptly (A) execute and deliver a first priority Fee Mortgage or
Leasehold Mortgage (as applicable) subject only to exceptions acceptable to the
Administrative Agent and the Banks and to Permitted Liens, as the case may be,
in favor of the Administrative Agent, for the benefit of the
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Banks, covering such real estate or, in the case of a leasehold interest, such
Person's leasehold interest in such real estate, (B) if requested by the
Administrative Agent, provide the Banks with (x) with respect to fee interests
in real estate only, an ALTA Form B (or other form acceptable to the
Administrative Agent and the Banks) mortgagee policy of title insurance or a
binder issued by a title insurance company satisfactory to the Administrative
Agent and the Banks in an amount at least equal to the purchase price of such
real estate (or such lesser amount as shall be reasonably specified by the
Administrative Agent) insuring (or undertaking to insure, in the case of a
binder) that the Fee Mortgage encumbering such real estate creates and
constitutes a valid first Lien against the applicable real estate in favor of
the Administrative Agent, subject only to exceptions acceptable to the
Administrative Agent and the Banks, with such endorsements and affirmative
insurance as the Administrative Agent may reasonably request, as well as a
current ALTA survey thereof, together with a surveyor's certificate; and (y)
any consents or estoppels deemed necessary or advisable by the Administrative
Agent in connection with such any mortgage or deed of trust, each of the
foregoing in form and substance reasonably satisfactory to the Administrative
Agent; (C) proof of payment of all title insurance premiums (to the extent
required in clause (B) above), documentary stamp or intangible taxes, recording
fees and mortgage taxes payable in connection with the recording of any
Mortgage in respect of such real estate or the issuance of the required title
policies, including sums necessary to insure the Lien of any Mortgage in
respect of future advances; (D) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described in the preceding clause (A), which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent, (E) with respect to fee interests in real estate and, upon reasonable
request of Administrative Agent, with respect to leasehold interests in real
estate, deliver to the Administrative Agent an environmental site assessment
with respect to such property, dated as of a recent date prior to acquisition
of such property, prepared by a qualified firm acceptable to the Administrative
Agent in form and substance reasonably satisfactory to the Administrative
Agent; and (F) to the extent such insurance is required by law, obtain flood
insurance and earthquake insurance on terms satisfactory to the Administrative
Agent. The foregoing covenant regarding delivery of a mortgage or deed of
trust and other related documents shall also be applicable in connection with
any amendment, extension, replacement, renewal or other modification of a lease
encumbered by a Leasehold Mortgage (any of the foregoing, a "Replacement
Lease") if, in the reasonable judgment of Administrative Agent, such Leasehold
Mortgage does not adequately encumber such Replacement Lease for the benefit of
the Administrative Agent and the Banks. Except as otherwise provided in
subsection 4.3(b), all requirements of this subsection (b) shall be satisfied
promptly upon acquisition of the applicable real estate by a Hollywood Entity,
or within such other time frame as Administrative Agent shall reasonably
request. Notwithstanding the foregoing, (x) the obligation of any Hollywood
Entity to satisfy the requirements of clauses (A) and (B) above in respect of
leasehold interests in real property or requirements relating to Replacement
Leases shall be subject to the best efforts of the Hollywood Entities to obtain
the requisite consents and/or estoppels necessary to satisfy such requirements,
but in no event shall any Hollywood Entity be required to pay any fees or
expenses to a third party landlord or mortgagee in order to obtain such
consents or estoppels other than, if required, to compensate such third party
for its out of pocket costs (including legal fees and disbursements) in
connection with the review, execution and delivery of such consents and/or
estoppels by such third party landlord or mortgagee and (y) with respect to
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the GC Assets and such fee and/or leasehold interests in real property acquired
by any Hollywood Entity prior to the Effective Date for which the requirements
of this subsection (b) have not been fully satisfied or waived by the
Administrative Agent, the Company shall cause all such requirements to be
satisfied within (I) in the case of the GC Assets, 60 days of the Effective
Date and (II) in the case of all other fee or leasehold interests in real
property, within 30 days of the Effective Date.
(c) With respect to any new Subsidiary, promptly (i) execute and
deliver to the Administrative Agent such amendments to the Pledge Agreement as
the Administrative Agent or the Required Banks deem necessary or advisable in
order to grant to the Administrative Agent, for the benefit of the Banks, a
perfected first priority security interest in the Capital Stock of such new
Subsidiary which is owned by the Parent, the Company or any Subsidiary, (ii)
deliver to the Administrative Agent the certificates representing such Capital
Stock, together with undated stock powers, in blank, executed and delivered by
a duly authorized officer of the Parent, the Company or such other Subsidiary,
as the case may be, (iii) cause such new Subsidiary (A) to execute and deliver
to Administrative Agent, for the benefit of the Banks, a guaranty of the
obligations of the Company hereunder and under the other Loan Documents in the
form attached hereto as Exhibit K and (B) to take such actions necessary or
advisable to grant to the Administrative Agent for the benefit of the Banks a
perfected first priority security interest in the Collateral described in the
Security Agreement with respect to such new Subsidiary, including, without
limitation, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Security Agreement or by law or as may
be requested by the Administrative Agent, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in the preceding clauses (i), (ii) and (iii),
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
6.17 Further Assurances. (a) After obtaining knowledge thereof, the
Parent and the Company shall promptly disclose to the Administrative Agent and
correct (i) any material factual error that may be discovered in any Loan
Document or in the execution, acknowledgment or recordation thereof and (ii)
any material factual error that may be discovered in any Information delivered
to the Administrative Agent or the Banks from and after the Effective Date
(unless the material factual error in such Information has been reported or
corrected in updated Information subsequently delivered to the Administrative
Agent and the Banks).
(b) Promptly upon request by the Administrative Agent or the Required
Banks, the Parent and the Company shall (and shall cause any Subsidiary to) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, security
agreements, mortgages (subject to the provisions of subsection 6.16(b)),
assignments, estoppel certificates, financing statements and continuations
thereof, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments the Administrative Agent or such
Banks, as the case may be, may reasonably require from time to time in order
(i) to carry out more effectively the purposes of this Agreement or any other
Loan Document, (ii) to subject to the Liens created by any of the Collateral
Documents any of the
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properties, rights or interests covered by any of the Collateral Documents,
(iii) to perfect and maintain the validity, effectiveness and priority of any
of the Collateral Documents and the Liens intended to be created thereby, and
(iv) to better assure, convey, grant, assign, transfer, preserve, protect and
confirm to the Administrative Agent and Banks the rights granted or now or
hereafter intended to be granted to the Banks under any Loan Document or under
any other document executed in connection therewith.
ARTICLE VII
NEGATIVE COVENANTS
The Parent and the Company hereby jointly and severally agree that, so
long as any Bank shall have any Commitment hereunder, or any Loan or other
Obligation which has become due and payable shall remain unpaid or unsatisfied,
unless the Required Banks waive compliance in writing:
7.1 Financial Condition Covenants. The Parent and the Company shall
not, and shall not permit any other Subsidiary to directly or indirectly:
(a) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio at the end of any fiscal quarter ending during any period listed
below to exceed the ratio set forth below opposite such period:
Consolidated Leverage
---------------------
Period Ratio
------ -----
Effective Date to December 30, 1998 5.50 to 1
December 31, 1998 to June 29, 1999 5.25 to 1
June 30, 1999 to December 30, 1999 5.00 to 1
December 31, 1999 to December 30, 2000 4.75 to 1
December 31, 2000 to December 30, 2001 4.50 to 1
December 31, 2001 and thereafter 4.25 to 1
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(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio at the end of any fiscal quarter ending during any
period listed below to be less than the ratio set forth below opposite such
period:
Consolidated Interest
---------------------
Period Coverage Ratio
------ --------------
Effective Date to December 31, 1997 1.50 to 1
January 1, 1998 to December 30, 1998 1.75 to 1
December 31, 1998 to June 29, 1999 2.00 to 1
June 30, 1999 to December 30, 1999 2.25 to 1
December 31, 1999 to December 30, 2000 2.50 to 1
December 31, 2000 and thereafter 2.75 to 1
(c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio at the end of any fiscal quarter to be less than
1.10 to 1.
(d) Consolidated Senior Leverage Ratio. Permit the Consolidated
Senior Leverage Ratio at the end of any fiscal quarter ending during any period
listed below to exceed the ratio set forth below opposite such period:
Period Consolidated Total Leverage Ratio
------ ---------------------------------
Effective Date to 2.50 to 1
December 30, 1998
December 31, 1998 to 2.25 to 1
June 29, 1999
June 30, 1999 2.00 to 1
and thereafter
7.2 Limitation on Liens. The Parent and the Company shall not, and
shall not suffer or permit any Subsidiary to, directly or indirectly, make,
create, incur, assume or suffer to exist any
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Lien upon or with respect to any part of its property, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on property of the Parent, the Company or any
other Hollywood Entity on the Effective Date and set forth in Schedule 7.1
securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 6.9, provided that no notice
of lien has been filed or recorded under the Code or, if filed or recorded,
foreclosure, distraint, sale or other similar proceedings have not been
commenced or, if commenced have been stayed;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
securing amounts which are not delinquent or remain payable without penalty or
which are being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges
or deposits required in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other social security
legislation or consisting of escrow arrangements or deposits in connection with
Acquisitions;
(f) Liens on the property of the Parent, the Company or any other
Subsidiary securing (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, (ii) contingent
obligations on surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in the ordinary course of
business, provided all such Liens in the aggregate would not (even if enforced)
cause a Material Adverse Effect;
(g) Liens consisting of prejudgment, judgment or judicial attachment
liens, not giving rise to an Event of Default so long as any appropriate legal
proceeding that may have been initiated for the review of such judgment or
attachment shall not have been fully terminated or the period within such
proceeding may be initiated shall not have expired and the enforcement of such
Liens is effectively stayed.
(h) Liens constituting permitted encumbrances pursuant to the terms of
the respective Mortgages and Liens constituting survey exceptions,
encumbrances, easements and reservations of, or right of others for, rights of
way, zoning and other restrictions as to the use of real properties and other
similar encumbrances incurred in the ordinary course of business which, in the
aggregate, are
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not substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the businesses of the Parent, the Company and the
Subsidiaries;
(i) to the extent the Indebtedness is permitted by subsection 7.6(c),
purchase money security interests on any property acquired or held by the
Parent, the Company or any Subsidiary in the ordinary course of business,
securing Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such property; provided that (i) any such
Lien attaches to such property concurrently with or within 20 days after the
acquisition thereof, (ii) such Lien attaches solely to the property so acquired
in such transaction and (iii) the principal amount of the debt secured thereby
does not exceed 110% of the cost of such property;
(j) Liens securing obligations in respect of Capital Leases permitted
by subsection 7.11(b) on assets subject to such leases;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Hollywood Entity owning such deposit account in excess of those
set forth by regulations promulgated by the FRB, and (ii) such deposit account
is not intended by the Parent, the Company or any Subsidiary to provide
collateral to the depository institution;
(l) any obligations or duties affecting the property of any Hollywood
Entity to any municipally or governmental, statutory or public authority with
respect to any franchise, grant, license or permit or similar authorization
obtained in the ordinary course of business, and any rights reserved to or
vested in any municipality or governmental, statutory or public authority by
the terms of any right, power, franchise, grant, license or permit or similar
authorization (i) to terminate or restrict the transfer of such right, power,
franchise, grant, license or permit or similar authorization, (ii) to control
or regulate any property of any Hollywood Entity, (iii) to use such property in
a manner which does not materially impair the use of such property for the
purposes for which it is held by any Hollywood Entity or (iv) to purchase,
condemn, expropriate or recapture any of the property of any Hollywood Entity;
(m) legal and equitable encumbrances deemed to exist by reason of
negative pledges such as those contained in this Section 7.2 and 7.17;
(n) Liens in favor of Xxxx Xxxxx Bank encumbering the Xxxxxxxx
Property and the Theater to be built thereon and securing Indebtedness
permitted by subsection 7.6(e); and
(o) Liens, if any, arising as a result of certain proceeds of the
issuance of the Senior Subordinated Notes being escrowed pending the closing of
the Acquisition of the GC Assets, but only during such escrow period.
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7.3 Disposition of Assets. The Parent and the Company shall not, and
shall not suffer or permit any Subsidiary to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of (whether in one or a
series of transactions) any property (including accounts and notes receivable,
with or without recourse) or enter into any agreement to do any of the
foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus equipment,
all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment;
(c) dispositions of assets by the Parent, the Company or any
Subsidiary to another Hollywood Entity pursuant to reasonable business
purposes, including dispositions permitted by Section 7.4;
(d) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;
(e) as permitted by Section 7.5 or 7.12;
(f) provided no Default or Event of Default exists, (i) Sale and
Leaseback Transactions in connection with the real property associated with any
Theater and in connection with which a Hollywood Entity will own or lease and
operate (and be entitled to the revenues therefrom) the improvements thereon or
to be constructed thereon, the aggregate proceeds of which do not exceed
$10,000,000 in any fiscal year, (ii) other leases and subleases on market terms
of property or space associated with any Theater other than leases or subleases
of all or substantially all of the space and property in which any Hollywood
Entity has an interest associated with any Theater except as otherwise
permitted under clause (i), and (iii) the Dispositions of Theaters described in
and made substantially in accordance with the Theater Exchange Letter of
Intent; and
(g) other Dispositions (other than those described in subsection
7.3(a) through (f) hereof and other than receivables, except to the extent
disposed of incidentally in connection with a Disposition otherwise permitted
hereby or permitted by subsection (d) of this Section 7.3), the aggregate
proceeds of which do not exceed $10,000,000 in any fiscal year, provided that
(i) the Company complies with subsection 2.7(a) and (ii) both before and after
giving effect to such Disposition, (A) the Hollywood Entities are in compliance
with all of the financial conditions set forth in Section 7.1 on a pro forma
basis after giving effect to the subject Disposition and (B) no Default or
Event of Default exists.
7.4 Consolidations and Mergers. The Parent and the Company shall not,
and shall not suffer or permit any Subsidiary to, merge, consolidate with or
into, or convey, transfer, lease or
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otherwise dispose of (whether in one transaction or in a series of transactions
all or substantially all of its assets (whether now owned or hereafter
acquired) to or in favor of any Person, except as permitted by Section 7.3 or
7.5 and;
(a) any Subsidiary may merge or consolidate with the Parent or the
Company, provided that the Parent or the Company shall be the continuing or
surviving corporation, or with any one or more Subsidiaries, provided that if
any transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary,
the Wholly-Owned Subsidiary shall be the continuing or surviving entity; and
(b) any Subsidiary may transfer all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Company or another
Wholly-Owned Subsidiary.
7.5 Loans and Investments. Neither the Parent, the Company, nor any
other Hollywood Entity shall purchase or acquire, or suffer or permit any
Hollywood Entity to purchase or acquire, or make any commitment therefor any
capital stock, equity interest, or any obligations or other securities of, or
any interest in, any Person, or make or commit to make any Acquisitions, or
make or commit to make any advance, loan, extension of credit or capital
contribution to or any other investment in, any Person including any Affiliate
of the Parent or the Company (together, "Investments"), except for:
(a) Investments in the form of cash equivalents having maturities of
one year or less and mutual funds investing solely in cash equivalents having
maturities of one year or less;
(b) extensions of trade credit in the ordinary course of business and
adjustments to account debtors with respect thereto in the ordinary course of
business;
(c) Investments by any Hollywood Entity in any other Hollywood Entity
and Investments incurred in order to consummate the Acquisition of the GC
Assets and other Acquisitions, subject to the foregoing provisions:
(i) in the case of any Acquisition of the type described in
clause (b), (c) or (d) of the definition of such term,
(A) the Person and/or division to be acquired is engaged
primarily in the business of owning and/or operating Theaters, the assets to be
acquired are used in the business of owning and/or operating Theaters and/or
the business to be acquired is one primarily involving the ownership and/or
operation of Theaters; and
(B) in the case of any Acquisition which is a merger or
consolidation with one or more other Persons, the surviving Person is a
Hollywood Entity;
(ii) in the case of any Land Acquisition,
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(A) such Land Acquisition is for the purpose of constructing a
New Theater; and
(B) the Hollywood Entity making such Land Acquisition shall have
complied with the provisions of subsection 4.3(a) whether or not the Company
requests a Construction Advance in connection with such Land Acquisition;
(iii) immediately prior to and after giving effect to such
Acquisition, no Default or Event of Default shall exist;
(iv) any such Acquisition does not involve Margin Stock;
(v) the prior, effective written consent or approval to such
Acquisition of the board of directors or equivalent governing body of the
acquirer is obtained if required by the Organization Documents of such Person;
(vi) in the case of Acquisitions other than (A) the
Acquisitions described in and made substantially in accordance with the Theater
Exchange Letter of Intent and (B) any Acquisitions made pursuant to Sale and
Leaseback Transactions, the Acquisition Costs in respect of such Acquisition,
together with the Acquisition Costs of all Acquisitions (other than those
Acquisitions described in the foregoing clauses (A) and (b)) consummated in the
twelve (12) month period immediately preceding the closing date of the subject
Acquisition, does not exceed $40,000,000 in the aggregate;
(vii) with respect to any single Acquisition or related
series of Acquisitions having Acquisition Costs exceeding $5,000,000 in the
aggregate, the Company shall deliver to the Administrative Agent on or prior to
the date of the consummation of such Acquisition, with sufficient copies for
each of the Banks,
(A) a copy of the pro forma projections for such Acquisition in a
form satisfactory to the Administrative Agent and certified by a Responsible
Officer of the Company;
(B) a certificate of the Company, certified by a Responsible
Officer of the Company, providing that, the Hollywood Entities are in
compliance with all of the financial conditions set forth in Section 7.1 on a
pro forma basis after giving effect to the subject Acquisition (including,
without limitation, accounting for any additional Indebtedness incurred in
connection with such Acquisition); and
(C) a certificate of the Company, certified by a Responsible
Officer of the Company, stating that, both before and after giving effect to
the subject Acquisition, (I) the representations and warranties in Article V
shall be true and correct in all material respects as of such date with the
same effect as if made on and as of such date (except to the extent such
representations
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and warranties expressly refer to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date) and (II) no
Default or Event of Default shall exist; and
(viii) during the 30 day period following the date on which
Administrative Agent shall have notified the Company that the primary
syndication of the Loans has commenced, no Hollywood Entity shall consummate or
enter into any agreements relating to any single Acquisition or related series
of Acquisitions having Acquisition Costs in excess of $2,000,0000 other than
the transactions contemplated in the Theater Exchange Letter of Intent;
(d) loans and advances to employees of any Hollywood Entity for
travel, entertainment and relocation expenses in the ordinary course of
business or to finance the acquisition of Capital Stock of the Parent in
connection with equity incentive plans, in an aggregate principal amount not to
exceed $500,000 at any time outstanding; and
(e) provided that no Default or Event of Default shall exist
immediately prior to and upon the consummation of any such Investment, one or
more Investments other than Acquisitions, provided that (i) such Investment
does not involve Margin Stock and (ii) the aggregate amount expanded for all
such Investments permitted under this subsection (e) does not exceed $3,000,000
at any time outstanding, which amount may be replenished and reinvested by any
cash return of principal or return of capital of any such Investment.
7.6 Limitation on Indebtedness. The Parent and the Company shall not,
and shall not suffer or permit any Subsidiary to, create, incur, assume, suffer
to exist, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 7.9;
(c) purchase money Indebtedness, whether unsecured or secured by Liens
permitted by subsection 7.2(i), in an aggregate amount not to exceed $5,000,000
at any time outstanding;
(d) Indebtedness incurred in connection with leases permitted pursuant
to Section 7.11;
(e) Indebtedness owing to Xxxx Xxxxx Bank in a principal amount not to
exceed $3,800,000 at any time outstanding for the purpose of financing
construction of a Theater on the Xxxxxxxx Property;
(f) Indebtedness owing by any Subsidiary to the Company or any other
Subsidiary ("Intercompany Indebtedness"); provided however that the aggregate
amount of all Intercompany
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Indebtedness owing by all Subsidiaries to the Company or to other Subsidiaries
shall not exceed $5,000,000 at any time outstanding;
(g) Indebtedness in an aggregate amount outstanding at any time not to
exceed $5,000,000 provided that
(i) such Indebtedness has a stated maturity date occurring not
earlier than twelve (12) months after the Maturity Date;
(ii) there are no scheduled principal repayments to be made
in respect of such Indebtedness prior to the Maturity Date and no voluntary
principal repayments are made in respect of such Indebtedness except in
accordance with Section 7.12;
(iii) the terms governing such Indebtedness are not more
restrictive on the borrower thereunder than the Loan Documents and are
otherwise acceptable to the Required Banks; and
(iv) the Hollywood Entities are in compliance with all of
the financial conditions set forth in Section 7.1 on a pro forma basis after
giving effect to the subject Indebtedness;
(h) Indebtedness of the Parent owing to The Provident Bank in an
aggregate principal amount not to exceed $136,850 at any time outstanding; and
(i) Indebtedness incurred pursuant to the Senior Subordinated Notes
and the Senior Subordinated Indenture.
7.7 Transactions with Affiliates. The Parent and the Company shall
not, and shall not suffer or permit any Subsidiary to, enter into any
transaction with any Affiliate of the Parent unless such transaction is
otherwise permitted under this Agreement or such transaction is upon fair and
reasonable terms no less favorable to the Parent, the Company or such
Subsidiary, as applicable, than would obtain in a comparable arm's-length
transaction with a Person not an Affiliate of the Parent, the Company or such
Subsidiary or on terms fair from a financial point of view to such Hollywood
Entity in the event no comparable with an unaffiliated Person is available;
provided that the foregoing restrictions shall not prohibit (a) transactions
permitted by Section 7.12, (b) the payment in accordance with sound business
practice to officers and directors of any Hollywood Entity of compensation,
including salaries, bonuses, awards, participation in any retirement, health,
welfare or other executive or employee plan, policy, practice or program, for
the performance of their services, (c) any indemnification or similar payment
or advancement of expenses by any Hollywood Entity to any director, officer or
employee of any Hollywood Entity in accordance with its Organization Documents
or under applicable law and (d) payment of reasonable director's fees to
directors of any Hollywood Entity who is not an employee of such Hollywood
Entity. For
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purposes of this Section 7.7, no Hollywood Entity shall be deemed an Affiliate
of any other Hollywood Entity.
7.8 Use of Proceeds. (a) The Parent and the Company shall not, and
shall not suffer or permit any Subsidiary to, use any portion of the Loan
proceeds or any Letter of Credit, directly or indirectly, (i) to purchase or
carry Margin Stock, (ii) to repay or otherwise refinance indebtedness of the
Company or others incurred to purchase or carry Margin Stock, (iii) to extend
credit for the purpose of purchasing or carrying any Margin Stock, or (iv) to
acquire any security in any transaction that is subject to Section 13 or 14 of
the Exchange Act.
(b) The Parent and the Company shall not, directly or indirectly, use
any portion of the Loan proceeds or any Letter of Credit (i) knowingly to
purchase Ineligible Securities from the Arranger during any period in which the
Arranger makes a market in such Ineligible Securities, (ii) knowingly to
purchase during the underwriting or placement period Ineligible Securities
being underwritten or privately placed by the Arranger, or (iii) to make
payments of principal or interest on Ineligible Securities underwritten or
privately placed by the Arranger and issued by or for the benefit of the
Parent, the Company or any Affiliate thereof. The Arranger is a registered
broker-dealer and permitted to underwrite and deal in certain Ineligible
Securities; and "Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
amended.
7.9 Contingent Obligations. The Parent and the Company shall not, and
shall not suffer or permit any Subsidiary to, create, incur, assume or suffer
to exist any Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary course of
business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Hollywood Entities (i) in respect of
Indebtedness or (ii) incurred in connection with the acquisition of the Crown
Assets, the UA Assets or the GC Assets (notwithstanding that such obligations
may be excluded from the definition of "Contingent Obligations" pursuant to the
last sentence of such definition) and, in each case, existing as of the
Effective Date and listed in Schedule 7.8;
(d) Contingent Obligations with respect to Surety Instruments (other
than pursuant to Letters of Credit issued under Section 2.17 hereof) incurred
in the ordinary course of business and not exceeding at any time $5,000,000 in
the aggregate in respect of the Parent, the Company and any Subsidiary; and
(e) (i) Contingent Obligations of the Parent evidenced by any Loan
Document, (ii) Contingent Obligations evidenced by any guaranty agreement of
any Subsidiary, guaranteeing the
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Obligations and (iii) Contingent Obligations of any Hollywood Entity in respect
of obligations of any Hollywood Entity not prohibited by this Agreement.
7.10 Joint Ventures. The Parent and the Company shall not, and shall
not suffer or permit any Subsidiary to enter into any Joint Venture.
7.11 Lease Obligations. The Parent and the Company shall not, and
shall not suffer or permit any Subsidiary to, create or suffer to exist any
obligations for the payment of rent for any property under lease or agreement
to lease, except for:
(a) leases of the Parent, the Company and of Subsidiaries in existence
on the Effective Date and any renewal, extension or refinancing thereof;
(b) Capital Leases other than those permitted under subsections (a)
and (c) of this Section, entered into by the Parent, the Company or any
Subsidiary after the Effective Date to finance the acquisition of equipment;
provided that the aggregate amounts to be paid under all such capital leases
shall not exceed $5,000,000 at any time outstanding;
(c) leases in connection with permitted Acquisitions otherwise in
compliance with Section 7.5 and any renewal or extension thereof; and
(d) leases in connection with Sale and Leaseback Transactions by any
Hollywood Entity, provided that any such Sale and Leaseback Transaction is
otherwise permitted hereunder and complies with the provisions of Section 7.3.
7.12 Restricted Payments. (a) The Parent and the Company shall not,
and shall not suffer or permit any Subsidiary to, declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital stock
or any warrants, rights or options to acquire such shares, now or hereafter
outstanding (collectively "Restricted Payments") other than the following
(collectively, "Permitted Restricted Payments"):
(i) any Subsidiary may declare and pay dividends to and make
other distributions to the Company;
(ii) the Parent may declare and distribute dividends on their
respective Capital Stock in kind by the issuance of additional shares of
Capital Stock;
(iii) the Parent may purchase or redeem shares of its Capital
Stock held by present or former officers or employees of any Hollywood Entity
upon such person's death, disability, retirement or termination of employment;
and
(iv) provided
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(A) no Default or Event of Default shall have occurred and be
continuing prior to or after giving effect to any Permitted Restricted Payment;
and
(B) prior to and after giving effect to any Permitted Restricted
Payment permitted under this subsection (iv), the Consolidated Total Leverage
Ratio is less than 4.0 to 1, and the Company shall have delivered a compliance
certificate in the form attached hereto as Exhibit M demonstrating the same;
the Parent, the Company and any Subsidiary may make other Restricted
Payments from time to time in an aggregate amount not exceeding 25% of Excess
Cash Flow for any fiscal year beginning after December 31, 1998.
(b) In the event that at any time Permitted Restricted Payments are
not made in the maximum permitted amount under subsection (a) above, the
difference, at any time, between (i) the aggregate maximum amount of Permitted
Restricted Payments which the Parent, the Company and any Subsidiary were
entitled to make under subsection (a) and (ii) an amount equal to the aggregate
amount of Permitted Restricted Payments so made (such difference,
"Undistributed Restricted Payments") may be applied from time to time, in whole
or in part (but without duplication) toward Capital Expenditures incurred by
the Parent, the Company or any Subsidiary in excess of the Capital Expenditures
Cap for any fiscal year.
7.13 ERISA. The Parent and the Company shall not, and shall not
suffer or permit any of its ERISA Affiliates to: (a) engage in a prohibited
transaction or violation of the fiduciary responsibility rules with respect to
any Plan that could reasonably be expected to have a Material Adverse Effect;
or (b) engage in a transaction that could be subject to Section 4069 or 4212(c)
of ERISA.
7.14 Change in Business. The Parent and the Company shall not, and
shall not suffer or permit any Subsidiary to, engage in any material line of
business substantially different from those lines of business carried on by the
Parent, the Company and its Subsidiaries on the date hereof.
7.15 Accounting Changes. The Parent and the Company shall not, and
shall not suffer or permit any Subsidiary to, make any significant change in
accounting treatment or reporting practices, except as required by GAAP, or
change the fiscal year of the Parent, the Company or of any Subsidiary.
7.16 Capital Expenditures Cap. Except as otherwise permitted under
subsection 7.12(b), aggregate amount of Capital Expenditures incurred by the
Parent, the Company or any Subsidiary in any fiscal year shall not exceed the
amount set forth below for the applicable fiscal year (the "Capital
Expenditures Cap"):
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Fiscal Year Ending Capital Expenditures Cap
------------------ ------------------------
December 31, 1997 $3,000,000
December 31, 1998 $3,250,000
December 31, 1999 $3,500,000
December 31, 2000 $3,750,000
December 31, 2001 $4,000,000
December 31, 2002 $4,250,000
; provided, however, if any amounts so permitted to be expended for Capital
Expenditures during any fiscal year are not expended during such fiscal year
(the "CapEx Shortfall"), the Hollywood Entities may make additional Capital
Expenditures in excess of the foregoing limitation in the next succeeding
fiscal year in an aggregate amount not to exceed the lesser of (a) the CapEx
Shortfall and (b) $500,000; and, provided further, that no CapEx Shortfall for
any fiscal year may be carried over beyond the next succeeding fiscal year.
7.17 Limitation on Negative Pledge Clauses. The Parent and the
Company will not, and will not permit any Subsidiary to, enter into any
contractual obligation (a "Lien Restriction") in connection with the incurrence
of Indebtedness which, with respect to any material asset of such Person, would
prohibit the Parent, the Company or any Subsidiary from granting a Lien on such
asset as collateral security for the obligations of the Parent and the Company
hereunder or, as applicable, a guaranty of such obligations by the Parent, the
Company or any Subsidiary (collectively, "Credit Obligations"), except Lien
Restrictions with respect to any asset encumbered by a Lien permitted by
Section 7.2). It is understood that an "equal and ratable" clause shall not be
deemed to constitute a Lien Restriction so long as such clause would permit the
obligations entitled to the benefit of such clause and the applicable Credit
Obligations to be secured by Liens on the relevant assets on a pari passu
basis.
7.18 Limitation on Construction of New Screens. At no time shall the
sum of (a) the aggregate number of movie theater screens under construction by
all Hollywood Entities on any date and (b) the aggregate number of movie
theater screens in operation by all Hollywood Entities for less than six
calendar months as of such date (other than movie theater screens acquired or
leased by any Hollywood Entity from time to time which has been in operation by
any Person for at least six months prior to such date), be greater than (i) for
the period beginning on the Effective Date and ending on June 30, 1998, 30% of
the aggregate number of all movie screens operated or under construction by all
Hollywood Entities (including all screens to be contained in the applicable New
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Theater) on such date and (ii) at any time thereafter, 20% of the aggregate
number of all movie screens operated or under construction by all Hollywood
Entities (including all screens to be contained in the applicable New Theater)
on such date.
7.19 Subsidiaries. The Parent shall not, directly or indirectly (a)
own or acquire any Subsidiary which is not a Wholly-Owned Subsidiary or (b)
sell, transfer or otherwise dispose of less than all its Capital Stock in any
Subsidiary or (c) permit any Wholly-Owned Subsidiary to issue any Capital Stock
to any Person other than to the Parent or another Wholly-Owned Subsidiary,
except that, with the prior consent of the Administrative Agent (which consent
shall not be unreasonably withheld) the Parent may, directly or indirectly, (i)
own and acquire a Subsidiary which is not a Wholly-Owned Subsidiary and (ii)
sell, transfer or otherwise dispose of less than all of its Capital Stock in
any Subsidiary and (iii) permit any Wholly-Owned Subsidiary to issue Capital
Stock to any other Person, provided, that in each such case, after giving
effect to any such acquisition, disposition or issuance, the Parent shall own,
directly or indirectly, beneficially and of record, not less than 80% of all
Capital Stock in such Subsidiary.
7.20 Senior Subordinated Indenture; Senior Subordinated Notes. Except
as otherwise provided for in the Senior Subordinated Notes and the Senior
Subordinated Indenture, the Company shall not amend or modify, nor permit the
amendment or modification of, the Senior Subordinated Notes or the Senior
Subordinated Indenture in any manner which would be materially adverse to the
interests of the Administrative Agent and the Banks without the prior written
consent of the Administrative Agent, which consent shall not be unreasonably
withheld or delayed.
ARTICLE VIII
EVENTS OF DEFAULT
8.1 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company fails to make, (i) when and as required
to be made herein, payments of any amount of principal of any Loan or any L/C
Obligation, or (ii) when and as required to be paid under any Specified Swap
Contract (including within any applicable grace period), any payment or
transfer under such Specified Swap Contract, or (iii) within 3 days after the
same becomes due, payment of any interest, fee or any other amount payable
hereunder or under any other Loan Document (other than a Specified Swap
Contract); or
(b) Representation or Warranty. Any representation or warranty by the
Parent or the Company or any Subsidiary made or deemed made herein, in any
other Loan Document (other than a Specified Swap Contract) or which is
contained in any certificate or in any other Information furnished by the
Parent, the Company, any Subsidiary or any Responsible Officer thereof at any
time under this Agreement, or in or under any other Loan Document (other than a
Specified Swap Contract) is incorrect in any material respect on or as of the
date made or deemed made except to
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the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct in all material respects as
of such earlier date; provided however, that notwithstanding the fact that
certain representations and warranties contained in Section 5.12 are limited to
the knowledge of the Parent or the Company regarding the statements made
therein, for purposes of this subsection 8.1(b), such knowledge limitation
shall be disregarded and such representations and warranties contained in
Section 5.12 shall be applied under this subsection (b) as if such knowledge
limitation did not exist; or
(c) Specific Defaults. The Parent or the Company fails to perform or
observe any term, covenant or agreement contained in Article VII; or
(d) Other Defaults. Except as otherwise provided in the Mortgages,
the Parent or the Company or any Subsidiary party thereto fails to perform or
observe any other term or covenant contained in this Agreement or any other
Loan Document other than a Specified Swap Contract, and such default shall
continue unremedied for a period of 30 days after the date upon which written
notice thereof is given to the Company by the Administrative Agent or any Bank;
or
(e) Cross-Default. (i) The Parent, the Company or any Subsidiary (A)
fails to make any payment in respect of any Indebtedness or Contingent
Obligation (other than in respect of Swap Contracts), when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) or
(B) fails to perform or observe any other condition or covenant, or any other
event shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation, and, with respect
to clauses (A) and (B) if the effect of such failure, event or condition is to
cause, or to permit the holder or holders of such Indebtedness or beneficiary
or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness
to be declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect thereof
to be demanded and the outstanding principal amount of such Indebtedness is
greater than $2,000,000, or (ii) there occurs under any Swap Contract an early
termination thereof resulting from (1) any event of default under such Swap
Contract as to which the Parent, the Company or any Subsidiary is the
defaulting party or (2) any termination event as to which the Parent, the
Company or any Subsidiary is an affected party, and, in either event, the Swap
Termination Value owed by the Company or such Subsidiary as a result thereof is
greater than $2,000,000, or (iii) there occurs any default or event of default
under the UA Guaranty by any Hollywood Entity which continues beyond any
applicable notice and/or cure period.
(f) Insolvency; Voluntary Proceedings. The Parent, the Company or any
Subsidiary (i) generally fails to pay, or admits in writing its inability to
pay, its debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business and operations; (iii) commences any Insolvency Proceeding with respect
to itself; or (iv) takes any action to effectuate or authorize any of the
foregoing; or
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(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Parent, the Company or any
Subsidiary, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of the Parent's or the
Company's or any Subsidiary's properties, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy; (ii) the Parent, the Company
or any Subsidiary admits the material allegations of a petition against it in
any Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Parent, the
Company or any Subsidiary acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected
to result in liability of the Parent or the Company under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC; or (ii) an Unfunded Pension
Liability exists; or (iii) the Parent or the Company or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan; in each case in clauses (i)
through (iii) above, such event or condition, together with all other such
events and conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Parent or the Company or any Subsidiary involving in the aggregate a liability
(to the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $2,000,000 or more, and the same
shall remain unvacated and unstayed pending appeal for a period of 10
consecutive days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against the Parent or the Company or any Subsidiary which
does or would reasonably be expected to have a Material Adverse Effect, and
there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(k) Change of Control. (i) Either of Beacon or Xxxxxxxxxx fails to
own its respective Minimum Required Ownership in the Parent of the Capital
Stock of the Parent, provided, however, the foregoing shall not prohibit the
pledge or other hypothecation of any Capital Stock of the Parent by Xxxxxxxxxx
or Beacon, and no Event of Default pursuant to this subsection (k) shall be
deemed to occur as a result of such pledge or other hypothecation until such
time as such Capital Stock has been foreclosed upon or the beneficiary of such
pledge or other hypothecation undertakes to exercise
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the voting rights attributable to such Capital Stock; or (ii) the Parent shall
cease to own and control, beneficially and of record, 100% of each class of
outstanding Capital Stock of the Company free and clear of all Liens (except
Permitted Liens); or (iii) Xxxxxxxxxx fails to be the chief executive officer
of the Company; or
(l) Guarantor Defaults. The Parent fails in any material respect to
perform or observe any term, covenant or agreement in the guaranty contained in
Article X hereof; or such guaranty is for any reason partially (including with
respect to future advances) or wholly revoked or invalidated, or otherwise
ceases to be in full force and effect, or the Parent or any other Person
contests in any manner the validity or enforceability thereof or denies that it
has any further liability or obligation thereunder; or
(m) Collateral.
(i) any provision of any Collateral Document shall for any
reason cease to be valid and binding on or enforceable against the Company or
any Subsidiary party thereto or the Parent, the Company or any Subsidiary shall
so state in writing or bring an action to limit its obligations or liabilities
thereunder; or
(ii) any Collateral Document shall for any reason (other
than pursuant to the terms thereof) cease to create a valid security interest
in the Collateral purported to be covered thereby or such security interest
shall for any reason cease to be a perfected and first priority security
interest subject only to Permitted Liens.
8.2 Remedies. If any Event of Default occurs, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Banks,
(a) declare the commitment of each Bank to make Loans and any
obligation of the Issuing Bank to issue Letters of Credit to be terminated,
whereupon such commitments shall be terminated;
(b) declare an amount equal to the maximum aggregate amount that is or
at any time thereafter may become available for drawing under any outstanding
Letters of Credit (whether or not any beneficiary shall have presented, or
shall be entitled at such time to present, the drafts or other documents
required to draw under such Letters of Credit) to be immediately due and
payable, and declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company ("Acceleration"); and
(c) exercise on behalf of itself and the Banks all rights and remedies
available to it and the Banks under the Loan Documents or applicable law;
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provided, however, that upon the occurrence of any event specified in
subsection (f) or (g) of Section 8.1 (in the case of clause (i) of subsection
(g) upon the expiration of the 60-day period mentioned therein), the obligation
of each Bank to make Loans and any obligation of the Issuing Bank to issue
Letters of Credit shall automatically terminate and the unpaid principal amount
of all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Administrative
Agent, the Issuing Bank or any Bank.
8.3 Specified Swap Contract Remedies. Notwithstanding any other
provision of this Article VIII, each Swap Provider shall have the right, with
prior notice to the Administrative Agent, but without the approval or consent
of the Administrative Agent or the other Banks, with respect to any Specified
Swap Contract of such Swap Provider, (a) to declare an event of default,
termination event or other similar event thereunder and to create an Early
Termination Date, (b) to determine net termination amounts in accordance with
the terms of such Specified Swap Contracts and to set-off amounts between
Specified Swap Contracts, and (c) to prosecute any legal action against the
Company to enforce net amounts owing to such Swap Provider.
8.4 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1 Appointment and Authorization; "Administrative Agent". (a) Each
Bank hereby irrevocably (subject to Section 9.9) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Agent have or be
deemed to have any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
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(b) The Issuing Bank shall act on behalf of the Banks with respect to
any Letters of Credit Issued by it and the documents associated therewith until
such time and except for so long as the Administrative Agent may agree at the
request of the Required Banks to act for such Issuing Bank with respect
thereto; provided, however, that the Issuing Bank shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this
Article IX with respect to any acts taken or omissions suffered by the Issuing
Bank in connection with Letters of Credit Issued by it or proposed to be Issued
by it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term "Agent", as used in this Article
IX, included the Issuing Bank with respect to such acts or omissions, and (ii)
as additionally provided in this Agreement with respect to the Issuing Bank.
9.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible to any Bank for the negligence or misconduct of
any agent or attorney-in-fact that it selects with reasonable care.
9.3 Liability of Administrative Agent. None of the Administrative
Agent-Related Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to any
of the Banks for any recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any officer thereof
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or for the value of or title to any
Collateral, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Company or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Administrative Agent-Related Person shall be under
any obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Company or any of the Company's Subsidiaries or Affiliates.
9.4 Reliance by Administrative Agent. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Banks as it deems appropriate and, if it so requests, it
shall first be indemnified
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to its satisfaction by the Banks against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Banks and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.1, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Bank
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Bank.
9.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Banks, unless the Administrative Agent shall have received written notice from
a Bank or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". The
Administrative Agent will notify the Banks of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Required Banks in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such request, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable or in
the best interest of the Banks.
9.6 Credit Decision. Each Bank acknowledges that none of the
Administrative Agent-Related Persons has made any representation or warranty to
it, and that no act by the Administrative Agent hereinafter taken, including
any review of the affairs of the Company and its Subsidiaries, shall be deemed
to constitute any representation or warranty by any Administrative
Agent-Related Person to any Bank. Each Bank represents to the Administrative
Agent that it has, independently and without reliance upon any Administrative
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries, the value of and title to
any Collateral, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly herein required to be
furnished to the Banks by the Administrative Agent, the
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Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Company which may come into the possession of any of the Administrative
Agent-Related Persons.
9.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Banks shall indemnify
upon demand the Administrative Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without limiting the obligation
of the Company to do so), pro rata, from and against any and all Indemnified
Liabilities; provided, however, that no Bank shall be liable for the payment to
the Administrative Agent-Related Persons of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Administrative
Agent.
9.8 Administrative Agent in Individual Capacity. BofA and its
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
the Company and its Subsidiaries and Affiliates as though BofA were not the
Administrative Agent or the Issuing Bank hereunder and without notice to or
consent of the Banks. The Banks acknowledge that, pursuant to such activities,
BofA or its Affiliates may receive information regarding the Company or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiary) and acknowledge that
the Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans, BofA shall have the same
rights and powers under this Agreement as any other Bank and may exercise the
same as though it were not the Administrative Agent or the Issuing Bank, and
the terms "Bank" and "Banks" include BofA in its individual capacity.
Notwithstanding the foregoing, however, BofA may not be removed as the
Administrative Agent at the request of the Required Banks unless BofA shall
also simultaneously be replaced as "Issuing Bank" hereunder pursuant to
documentation in form and substance reasonably satisfactory to BofA.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Banks. If the
Administrative Agent resigns under this Agreement, the Required Banks shall
appoint from among the Banks a successor agent for the Banks. If no successor
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Banks and
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with the approval of the Company (which approval will not be unreasonably
withheld), a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Administrative Agent and the
term "Administrative Agent" shall mean such successor agent and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article IX and
Sections 10.4 and 10.5 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor agent has accepted appointment as Administrative
Agent by the date which is 30 days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Banks appoint a successor agent as provided for above.
9.10 Withholding Tax. (a) Each Bank that is not a United States
person, within the meaning of Section 7701(a)(30) of the Code (a "United States
Person"), shall:
(i) prior to the Effective Date deliver to the Administrative
Agent and to the Company (A) a duly completed copy of United States Internal
Revenue Service Form 1001 or 4224, or successor applicable form, as the case
may be, and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, and
(ii) thereafter deliver to the Administrative Agent and to
the Company a future copy of any such form on or before the date that any such
prior form expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Administrative Agent and the Company, unless, as a result of a change in law
(including a change in treaty or regulation) occurring after the date of this
Agreement (or, with respect to an Eligible Assignee, after such Eligible
Assignee becomes a Bank under this Agreement), such Bank is legally precluded
from duly completing and delivering any such form with respect to it and such
Bank so advises the Administrative Agent and the Company.
Such Bank shall certify (i) in the case of a Form 1001 or 4224, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax. In addition, each such Bank shall, at any time, deliver to
the Administrative Agent and the Company such additional forms or other
documents as the Administrative Agent or the Company shall reasonably request,
in order to confirm the exemptions described in the immediately preceding
sentence. Each Person, other than a United States Person, that intends to
become a Bank or a Participant pursuant to Section 11.8 shall on or prior to
the effectiveness of the related transfer be required to provide, and shall
provide, the forms and certificates required above as though the "Effective
Date" were the effective date of such transfer and, thereafter, shall comply
with all the other requirements of this Section 9.10; provided in the case of a
Participant, such
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Participant shall furnish all such required forms and certificates to the Bank
from which the related participation shall have been purchased.
(b) If any Bank claiming exemption from United States withholding tax
by filing IRS Form 1001 or 4224 with the Administrative Agent and the Company
sells, assigns, grants a participation in, or otherwise transfers to a
Participant all or part of the Obligations of the Company to such Bank, such
Bank agrees to undertake sole responsibility for complying with the withholding
tax requirements imposed by Sections 1441 and 1442 of the Code.
(c) If any Bank is entitled to a reduction in the applicable
withholding tax, the Administrative Agent or the Company may withhold from any
interest payment to such Bank an amount equivalent to the applicable
withholding tax after taking into account such reduction. However, if the
forms or other documentation required by subsection (a) of this Section are not
delivered to the Administrative Agent and the Company, then the Administrative
Agent or the Company may withhold from any interest payment to such Bank not
providing such forms or other documentation an amount equivalent to the
applicable withholding tax imposed by Sections 1441 and 1442 of the Code,
without reduction.
(d) Each Bank that is a United States Person shall, upon request,
provide the Company and the Administrative Agent such forms or other documents
as are necessary to establish that such Bank is a United States Person and is
entitled to an exemption from United States backup withholding tax.
(e) If the Internal Revenue Service or any other Governmental
Authority of the United States or other jurisdiction asserts a claim that the
Administrative Agent or the Company did not properly withhold tax from amounts
paid to or for the account of any Bank (because the appropriate form was not
delivered or was not properly executed, or because such Bank failed to notify
the Administrative Agent or the Company of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax ineffective, or
for any other reason) such Bank shall indemnify the Administrative Agent and
the Company fully for all amounts paid, directly or indirectly, by the
Administrative Agent or the Company as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent or the Company under this Section,
together with all costs and expenses (including Attorney Costs). The
obligation of the Banks under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the Administrative Agent.
9.11 Collateral Matters. (a) The Administrative Agent is authorized
on behalf of all the Banks, without the necessity of any notice to or further
consent from the Banks, from time to time to take any action with respect to
any Collateral or the Collateral Documents which may be necessary to perfect
and maintain perfected the security interest in and Liens upon the Collateral
granted pursuant to the Collateral Documents.
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(b) The Banks irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the
Commitments and payment in full of all Loans and all other Obligations known to
the Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) constituting property sold or to be sold or disposed of as part
of or in connection with any disposition permitted hereunder; (iii)
constituting property in which the Company or any Subsidiary owned no interest
at the time the Lien was granted or at any time thereafter; (iv) constituting
property leased to the Company or any Subsidiary under a lease which has
expired or been terminated in a transaction permitted under this Agreement or
is about to expire and which has not been, and is not intended by the Company
or such Subsidiary to be, renewed or extended; (v) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the indebtedness evidenced
thereby has been paid in full; or (vi) if approved, authorized or ratified in
writing by the Required Banks or all the Banks, as the case may be, as provided
in subsection 11.1(f). Upon request by the Administrative Agent at any time,
the Banks will confirm in writing the Administrative Agent's authority to
release particular types or items of Collateral pursuant to this subsection
9.11(b), provided that the absence of any such confirmation for whatever reason
shall not affect the Administrative Agent's rights under this Section 9.11.
(c) Each Bank agrees with and in favor of each other (which agreement
shall not be for the benefit of the Company or any Subsidiary) that the
Company's obligation to such Bank under this Agreement and the other Loan
Documents is not and shall not be secured by any real property collateral now
or hereafter acquired by such Bank other than the real property described in
the Mortgages.
ARTICLE X
GUARANTY
10.1 Guaranty. In order to induce the Administrative Agent and the
Banks to execute and deliver this Agreement and to make or maintain the Loans
hereunder, and in consideration thereof, the Parent hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Banks, the prompt and complete payment and performance by the Company when
due (whether at stated maturity, by acceleration or otherwise) of the
Obligations, and the Parent further agrees to pay any and all expenses
(including, without limitation, all reasonable fees, charges and disbursements
of counsel) which may be paid or incurred by the Administrative Agent or by the
Banks in enforcing, or obtaining advice of counsel in respect of, any of their
rights under the guaranty contained in this Article X. The guaranty contained
in this Article X, subject to Section 10.5, shall remain in full force and
effect until the Loans are paid in full, the Commitments are terminated and the
other Obligations which have become due and payable are paid in full,
notwithstanding that from time to time prior thereto the Company may be free
from any Obligations.
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The Parent agrees that whenever, at any time, or from time to time, it
shall make any payment to the Administrative Agent or any Bank on account of
its liability under this Article X, it will notify the Administrative Agent and
such Bank in writing that such payment is made under the guaranty contained in
this Article X for such purpose. No payment or payments made by the Company or
any other Person or received or collected by the Administrative Agent or any
Bank from the Company or any other Person by virtue of any action or proceeding
or any setoff or appropriation or application, at any time or from time to
time, in reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of the Parent under
this Article X which, notwithstanding any such payment or payments, shall
remain liable for the Obligations until, subject to Section 10.5, the Loans are
paid in full, the Commitments are terminated and the other Obligations which
have become due and payable are paid in full.
10.2 No Subrogation, Contribution, Reimbursement or Indemnity.
Notwithstanding anything to the contrary in this Article X, the Parent hereby
irrevocably waives all rights which may have arisen in connection with the
guaranty contained in this Article X to be subrogated to any of the rights
(whether contractual, under the United States Bankruptcy Code (or similar
action under any successor law or under any comparable law), including Section
509 thereof, under common law or otherwise) of the Administrative Agent or any
Bank against the Company or against the Administrative Agent or any Bank for
the payment of the Obligations. The Parent hereby further irrevocably waives
all contractual, common law, statutory and other rights of reimbursement,
contribution, exoneration or indemnity (or any similar right) from or against
the Company or any other Person which may have arisen in connection with the
guaranty contained in this Article X. So long as the Obligations remain
outstanding, if any amount shall be paid by or on behalf of the Company to the
Parent on account of any of the rights waived in this Section 10.2, such amount
shall be held by the Parent in trust, segregated from other funds of the
Parent, and shall, forthwith upon receipt by the Parent, be turned over to the
Administrative Agent in the exact form received by the Parent (duly indorsed by
the Parent to the Administrative Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
10.3 Amendments, etc. with respect to the Obligations. To the maximum
extent permitted by applicable law:
(a) the Parent shall remain obligated under this Article X
notwithstanding that, without any reservation of rights against the Parent, and
without notice to or further assent by the Parent, any demand for payment of or
reduction in the principal amount of any of the Obligations made by the
Administrative Agent or any Bank may be rescinded by the Administrative Agent
or such Bank, and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guaranty therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by the
Administrative Agent or any Bank, any such requirement being hereby waived by
the Parent; and
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(b) this Agreement, any other Loan Document, and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Banks (or the Required
Banks, as the case may be) may deem advisable from time to time, and any
collateral security, guaranty or right of offset at any time held by the
Administrative Agent or any Bank for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. Neither the Administrative
Agent nor any Bank shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
the guaranty contained in this Article X or any property subject thereto, any
such requirement being hereby waived by the Parent.
10.4 Guaranty Absolute and Unconditional. The Parent waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Bank upon the guaranty contained in this Article X or acceptance of the
guaranty contained in this Article X; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon the guaranty contained
in this Article X; and all dealings between the Company or the Parent, on the
one hand, and the Administrative Agent and the Banks, on the other, shall
likewise be conclusively presumed to have been had or consummated in reliance
upon the guaranty contained in this Article X. The Parent waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Company or the Parent with respect to the Obligations. To the
maximum extent permitted by applicable law, the guaranty contained in this
Article X shall be construed as a continuing, absolute and unconditional
guaranty of payment without regard to (a) the validity or enforceability of
this Agreement or any other Loan Document, any of the Obligations or any
collateral security therefor or guaranty or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or
any Bank, (b) any defense, setoff or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Company against the Administrative Agent or any Bank, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Company
or the Parent) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Company for the Obligations, or of the
Parent under the guaranty contained in this Article X, in bankruptcy or in any
other instance. When the Administrative Agent or any Bank is pursuing its
rights and remedies under this Article X against the Parent, the Administrative
Agent or any Bank may, but shall be under no obligation to, pursue such rights
and remedies as it may have against the Company or any other Person or against
any collateral security or guaranty for the Obligations or any right of offset
with respect thereto, and any failure by the Administrative Agent or any Bank
to pursue such other rights or remedies or to collect any payments from the
Company or any such other Person or to realize upon any such collateral
security or guaranty or to exercise any such right of offset, or any release of
the Company or any such other Person or of any such collateral security,
guaranty or right of offset, shall not relieve the Parent of any liability
under this Article X, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent and the Banks against the Parent all rights of the Parent to require
otherwise being hereby waived by the Parent.
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10.5 Reinstatement. The guaranty contained in this Article X shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any Bank upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Company or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
10.6 Payments. The Parent hereby agrees that any payments in respect
of the Obligations pursuant to this Article X will be paid to the
Administrative Agent without setoff or counterclaim in Dollars at the office of
the Administrative Agent specified in Section 11.2.
ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to
any departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Banks
(or by the Administrative Agent at the written request of the Required Banks)
and the Company and acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such waiver,
amendment, or consent shall, unless in writing and signed by all the Banks and
the Company and acknowledged by the Administrative Agent, do any of the
following:
(a) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 8.2);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts due
to the Banks (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or (subject to clause (ii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any of
them to take any action hereunder; or
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(e) amend this Section, or Section 2.14, or any provision herein
providing for consent or other action by all Banks; or
(f) discharge the guaranty contained in Article X hereof, or release
all or substantially all of the Collateral except as otherwise may be provided
in the Collateral Document or except where the consent of the Required Banks
only is specifically provided for;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Issuing Bank in addition to the Required Banks or
all the Banks, as the case may be, affect the rights or duties of the Issuing
Bank under this Agreement or any L/C-Related Document relating to any Letter of
Credit Issued or to be Issued by it, (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to
the Required Banks or all the Banks, as the case may be, affect the rights or
duties of the Administrative Agent under this Agreement or any other Loan
Document, and (ii) the Fee Letter and documents evidencing Specified Swap
Contracts may be amended, or rights or privileges thereunder waived, in a
writing executed by the parties thereto.
11.2 Notices. (a) All notices, requests, consents, approvals,
waivers and other communications shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission, provided that
any matter transmitted by the Company by facsimile shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 11.2), and mailed, faxed or delivered, to the address or facsimile
number specified for notices on Schedule 11.2; or, as directed to the Company
or the Administrative Agent, to such other address as shall be designated by
such party in a written notice to the other parties, and as directed to any
other party, at such other address as shall be designated by such party in a
written notice to the Company and the Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II or IX to the Administrative Agent shall not be
effective until actually received by the Administrative Agent and notices
pursuant to Section 2.17 to the Issuing Bank shall not be effective until
actually received by the Issuing Bank at the address specified for "Issuing
Bank" on Schedule 11.2 hereof.
(c) Any agreement of the Administrative Agent and the Banks herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Company. The Administrative Agent and the Banks
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Company to give such notice and the Administrative
Agent and the Banks shall not have any liability to the Company or other Person
on account of any action taken or not taken by the Administrative Agent or the
Banks in reliance upon such telephonic or facsimile notice. The obligation of
the Company to repay the Loans shall not be
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affected in any way or to any extent by any failure by the Administrative Agent
and the Banks to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agent and the Banks of a
confirmation which is at variance with the terms understood by the
Administrative Agent and the Banks to be contained in the telephonic or
facsimile notice.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
11.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Administrative
Agent and Issuing Bank) within five Business Days after demand (subject to
subsection 4.1(e)) for all costs and expenses incurred by BofA (including in
its capacity as Administrative Agent) in connection with the development,
preparation, delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including reasonable Attorney
Costs incurred by BofA (including in its capacity as Administrative Agent and
Issuing Bank) with respect thereto; and
(b) pay or reimburse the Administrative Agent and each Bank within
five Business Days after demand (subject to subsection 4.1(e)) for all costs
and expenses (including Attorney Costs) incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or any other Loan Document during the existence of an
Event of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding); and
(c) pay or reimburse BofA (including in its capacity as Administrative
Agent) within five Business Days after demand (subject to subsection 4.1(e))
for all appraisal (including the allocated cost of internal appraisal
services), audit, environmental inspection and review (including the allocated
cost of such internal services), search and filing costs, fees and expenses,
incurred or sustained by BofA (including in its capacity as Administrative
Agent) in connection with the matters referred to under subsections (a) and (b)
of this Section.
11.5 Company Indemnification. (a) Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Administrative Agent-Related Persons, and each Bank and each of its
respective officers, employees, directors, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against any
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and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Loans, termination of the
Letters of Credit and the termination, resignation or replacement of the
Administrative Agent or replacement of any Bank) be imposed on, incurred by or
asserted against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this Agreement
or the Loans or the Letters of Credit or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the Company shall
have no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities resulting from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this Section shall
survive payment of all other Obligations.
(b) (i) The Company shall indemnify, defend and hold harmless each
Indemnified Person, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges, expenses
or disbursements (including Attorney Costs and the allocated cost of internal
environmental audit or review services), which may be incurred by or asserted
against such Indemnified Person in connection with or arising out of any
pending or threatened investigation, litigation or proceeding, or any action
taken by any Person, with respect to any Environmental Claim arising out of or
related to any property subject to a Mortgage in favor of the Administrative
Agent or any Bank ("Indemnified Environmental Liabilities"). No action taken
by legal counsel chosen by the Administrative Agent or any Bank in defending
against any such investigation, litigation or proceeding or requested remedial,
removal or response action shall vitiate or any way impair the Company's
obligation and duty hereunder to indemnify and hold harmless the Administrative
Agent and each Bank. Notwithstanding the foregoing, the Company shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified
Environmental Liabilities to the extent resulting from the gross negligence or
willful misconduct of the Indemnified Person.
(ii) In no event shall any site visit, observation, or testing by the
Administrative Agent or any Bank (or any contractee of the Administrative Agent
or any Bank) be deemed a representation or warranty that Hazardous Materials
are or are not present in, on, or under, the site, or that there has been or
shall be compliance with any Environmental Law. Neither the Company nor any
other Person is entitled to rely on any site visit, observation, or testing by
the Administrative Agent or any Bank. Neither the Administrative Agent nor any
Bank owes any duty of care to protect the Company or any other Person against,
or to inform the Company or any other party of, any Hazardous Materials or any
other adverse condition affecting any site or property.
(c) Survival; Defense. The obligations in this Section shall survive
payment of all other Obligations. At the election of any Indemnified Person,
the Company shall defend such
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Indemnified Person using legal counsel satisfactory to such Indemnified Person
in such Person's sole discretion, at the sole cost and expense of the Company.
All amounts owing under this Section shall be paid within 30 days after demand.
11.6 Marshalling; Payments Set Aside. Neither the Administrative
Agent nor the Banks shall be under any obligation to Xxxxxxxx any assets in
favor of the Company or any other Person or against or in payment of any or all
of the Obligations. To the extent that the Company makes a payment to the
Administrative Agent or the Banks, or the Administrative Agent or the Banks
exercise their right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Bank in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Bank
severally agrees to pay to the Administrative Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Administrative Agent.
11.7 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of the Administrative Agent and each Bank.
11.8 Assignments, Participations, etc. (a) Any Bank may, with the
written consent of the Administrative Agent, and subject to clause (iv) below,
the Company, which consents shall not be unreasonably withheld, at any time
assign and delegate to one or more Eligible Assignees (provided that no written
consent of the Administrative Agent or the Company shall be required in
connection with any assignment and delegation by a Bank to an Eligible Assignee
that is an Affiliate of such Bank or that is already a Bank) (each an
"Assignee") all, or any part of all, of the Revolving Loans and the Revolving
Loan Commitments; and the other rights and obligations of such Bank hereunder
in respect thereof, in (A) a minimum amount of $5,000,000 with respect to any
Assignee which is not a current Bank immediately prior to such assignment and
(B) any amount with respect to an Assignee which is a Bank immediately prior to
such assignment; provided, however, that
(i) no Bank may make any such assignment if, after giving
effect thereto, the sum of such Bank's remaining amount of the outstanding
Revolving Loans and available Revolving Loan Commitment shall be less than
$5,000,000;
(ii) the Company and the Administrative Agent may continue
to deal solely and directly with such Bank in connection with the interest so
assigned to an Assignee until (A) written notice of such assignment, together
with payment instructions, addresses and related information with respect to
the Assignee, shall have been given to the Company and the Administrative Agent
by such Bank and the Assignee; (B) such Bank and its Assignee shall have
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delivered to the Company and the Administrative Agent an Assignment and
Acceptance in the form of Exhibit E ("Assignment and Acceptance") together with
any Note or Notes subject to such assignment, and (C) the assignor Bank or
Assignee has paid to the Administrative Agent a processing fee in the amount of
(I) $3,000 with respect to an assignment to an Assignee which is not a current
Bank immediately prior to such assignment or (II) $1,500 with respect to an
assignment to an Assignee which is a Bank immediately prior to such assignment;
(iii) if the assignor Bank or any of its Affiliates is a Swap
Provider with respect to any Specified Swap Contract, such Bank shall not
assign all of its interest in the Loans and the Commitments to an Assignee
unless such Assignee, or an Affiliate of such Assignee, shall also assume all
obligations of such assignor Bank or Affiliate with respect to such Specified
Swap Contracts; and
(iv) notwithstanding the foregoing, no consent of the
Company shall be required in connection with any assignment by a Bank of any
part of its interests in the Loans or the Commitments until the earlier of (A)
the first anniversary of the Effective Date and (B) the date on which the
Administrative Agent notifies the Company that the primary syndication of the
Loans has been completed.
(b) From and after the date that the Administrative Agent notifies the
assignor Bank that it and, if required, the Company, have received (and
provided their respective consents with respect to) an executed Assignment and
Acceptance and payment of the above-referenced processing fee, (i) the Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Bank under the Loan
Documents, and (ii) the assignor Bank shall, to the extent that rights and
obligations hereunder and under the other Loan Documents have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the
Administrative Agent that it has received an executed Assignment and Acceptance
and payment of the processing fee, the Company shall execute and deliver to the
Administrative Agent new Notes evidencing such Assignee's assigned Loans and
Commitment and, if the assignor Bank has retained a portion of its Loans and
its Commitment, replacement Notes in the principal amount of the Loans retained
by the assignor Bank (such Notes to be in exchange for, but not in payment of,
the Notes held by such Bank). Immediately upon each Assignee's making its
processing fee payment under the Assignment and Acceptance, this Agreement
shall be deemed to be amended to the extent, but only to the extent, necessary
to reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee shall
reduce such Commitments of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Company (a "Participant") participating
interests in any Loans, the Commitment
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of that Bank and the other interests of that Bank (the "originating Bank")
hereunder and under the other Loan Documents; provided, however, that (i) the
originating Bank's obligations under this Agreement shall remain unchanged,
(ii) the originating Bank shall remain solely responsible for the performance
of such obligations, (iii) the Company, the Administrative Agent and the
Issuing Bank shall continue to deal solely and directly with the originating
Bank in connection with the originating Bank's rights and obligations under
this Agreement and the other Loan Documents, and (iv) no Bank shall transfer or
grant any participating interest under which the Participant has rights to
approve any amendment to, or any consent or waiver with respect to, this
Agreement or any other Loan Document, except to the extent such amendment,
consent or waiver would require unanimous consent of the Banks as described in
the first proviso to Section 11.1. In the case of any such participation, the
Participant shall not have any rights under this Agreement, or any of the other
Loan Documents, and all amounts payable by the Company hereunder shall be
determined as if such Bank had not sold such participation.
(e) Notwithstanding any other provision in this Agreement, any Bank
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Note held by it in
favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or
U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted under
applicable law.
11.9 Confidentiality. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information provided to it by or on behalf
of the Parent, the Company or any Subsidiary, or by the Administrative Agent on
the Parent's, the Company's or such Subsidiary's behalf, under this Agreement
or any other Loan Document, and neither it nor any of its Affiliates shall use
any such information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other business now
or hereafter existing or contemplated with the Company or any Subsidiary;
except to the extent such information (a) was or becomes generally available to
the public other than as a result of disclosure by the Bank, or (b) was or
becomes available on a non-confidential basis from a source other than the
Parent, the Company or any Subsidiary, provided that such source is not bound
by a confidentiality agreement known to the Bank; provided, however, that any
Bank may disclose such information (i) pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in connection with an
examination of such Bank by any such authority; (ii) pursuant to subpoena or
other court process; (iii) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (iv) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative Agent, any Bank or their respective Affiliates may be party; (x)
to the extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (vi) to such Bank's independent
auditors and other professional advisors; (vii) to any Participant or Assignee,
actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Banks hereunder;
(viii) as to any Bank or its Affiliate, as expressly permitted under the terms
of any other document or agreement
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regarding confidentiality to which the Company or any Subsidiary is party with
such Bank or such Affiliate; and (ix) to its Affiliates.
11.10 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, to the extent permitted by applicable law, each Bank is authorized
at any time and from time to time, with prior notice to the Company, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and other indebtedness at any time owing by,
such Bank to or for the credit or the account of the Company against any and
all Obligations owing to such Bank, now or hereafter existing, irrespective of
whether or not the Administrative Agent or such Bank shall have made demand
under this Agreement or any Loan Document and although such Obligations may be
contingent or unmatured. Each Bank agrees promptly to notify the Company and
the Administrative Agent after any such set-off and application made by such
Bank; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
11.11 Notification of Addresses, Lending Offices, Etc. Each Bank
shall notify the Administrative Agent in writing of any changes in the address
to which notices to the Bank should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
11.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.13 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
11.14 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Hollywood Entities, the
Banks, the Administrative Agent and the Administrative Agent-Related Persons,
and their permitted successors and assigns, and no other Person shall be a
direct or indirect legal beneficiary of, or have any direct or indirect cause
of action or claim in connection with, this Agreement or any of the other Loan
Documents.
11.15 GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK, WITHOUT CONSIDERATION OF ITS CONFLICT OF LAWS PRINCIPLES,
AND APPLICABLE FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS
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OF THE XXXXX XX XXX XXXX XX XX XXX XXXXXX XXXXXX FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
(c) NOTHING CONTAINED IN THIS SECTION SHALL OVERRIDE ANY CONTRARY
PROVISION CONTAINED IN ANY SPECIFIED SWAP CONTRACT.
11.16 WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY Administrative Agent-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS AND THE ADMINISTRATIVE AGENT EACH
AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FUROR AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.17 Release of Collateral. If any of the Collateral shall be sold,
transferred or otherwise disposed of in a transaction permitted by this
Agreement, then the Administrative Agent, at the request (with reasonable prior
notice) and sole expense of the Company, shall execute and deliver to the
Company all releases or other documents reasonably necessary or desirable for
the release of the Liens granted to Administrative Agent in respect of such
Collateral.
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11.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Banks and the Administrative Agent relating to the subject matter hereof
and thereof, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
HOLLYWOOD THEATER HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxxxxxxx, Vice President
HOLLYWOOD THEATERS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxxxxxxx, Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent
By: /s/ Xxxx X. Xxxxx
-----------------------------------------------
Xxxx X. Xxxxx, Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Issuing Bank
By: /s/ Xxxx X. Xxxxx
-----------------------------------------------
Xxxx X. Xxxxx, Vice President
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Bank
By: /s/ Xxxx X. Xxxxx
-----------------------------------------------
Xxxx X. Xxxxx, Vice President
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SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
Revolving Pro Rata
Loan Share of
Bank Commitment Revolving Loan
---- ---------- --------------
Bank of America $50,000,000 100%
National Trust and
Savings Association
TOTAL $50,000,000 100%
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SCHEDULE 2.17
THE EXISTING BofA LETTER OF CREDIT
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SCHEDULE 5.1(c)
Corporate Existence
As of the Effective Date, the Company is not qualified to do business as a
foreign corporation in the State of Missouri. The Company hereby represents
to the Administrative Agent and the Banks that it is diligently pursuing such
qualification. The Company hereby covenants that it shall obtain the
appropriate qualification to do business as a foreign corporation in the State
of Missouri no later than 60 days after the Effective Date and shall deliver to
Administrative Agent within such 60 day period a current good standing
certificate from the Secretary of State of Missouri (or similar applicable
Governmental Authority) evidencing such qualification.
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SCHEDULE 5.9(a)
FEE PROPERTIES OF THE HOLLYWOOD ENTITIES
Fee Theater Properties (includes land on which Theaters are to be constructed)
Tall City 10
0000 Xxxx Xxxx 000 X.
Xxxxxxx, Xxxxx
Hollywood Rose 10
1250 Loop 000 Xxxxx X.X.
Xxxxx, Xxxxx
South of West Xxxx Street and East of WSW Loop 323 in the Tyler Industrial Park
in Tyler, Xxxxx County, Texas.
Texas I & II
000 Xxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx, Xxxxx
North Park 6
0000 00xx Xxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxxxx
Ben Bolt Theater
828 Washington
Chillicothe, Missouri
Uptown Theater
000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx
Varsity Theater
1015 Massachusetts
Lawrence, Kansas
Westridge 8 Theater
0000 XX Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxx
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Campus Theater
0000 Xxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxx
State Theater
000 Xxxxx Xxxx
Xxxxxx Xxxx, Xxxxxx
Sequoyah Theater
0000 Xxxxxxx
Xxxxxx Xxxx, Xxxxxx
Forum Theater
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx
Northside 10
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxx
Parcel located at
Xxxxxxx Xxxx. & Xxx 00
Xxxxxxxx, Xxxxxxxx (under construction)
Parcel located at
Xxxxxxxx Xxxx Xxxxx & Xxxxxxxxx Xxxx.
Xxxxxx, Xxxxxxxx
Southwind 12
0000 Xxxx Xxxxxx
Lawrence, Kansas
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SCHEDULE 5.9(b)
LEASED PROPERTIES OF THE HOLLYWOOD ENTITIES
A. Leasehold Theater Properties
The real estate located at:
Overland Park Triplex
0000 Xxxxxxxx Xxxx Xxxx
Xxxxx, XX 00000
Agreement and Lease dated December 8, 1976, by and between Xxxx X. Xxxxx, Xxxxx
Stucckle and The Xxxxxxxxxxx Companies, Inc. (collectively, "Original
Landlord") and Xxxxxx-Xxxxxx, Inc. ("Original Tenant"), as amended by Lease
Amendment dated February 22, 1977, by Original Landlord and Original Tenant, as
amended by letter dated July 28, 1977, from Original Landlord to Original
Tenant, as amended by Modification to Agreement and Lease dated November 22,
1978, between Original Landlord and Commonwealth Theatres, Inc.
(successor-in-interest to Original Tenant).
Landlord: Xxxx X. Xxxxx and N. Xxxxxx Xxxxx, Xxxxx Xxxxxxxx and Xxxxxxxx
Xxxxxxxx and The Xxxxxxxxxxx Companies, Inc. (successor-in-interest to
Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to United Artists
Theatre Circuit, Inc., successor-in-interest to United Artists Realty Company,
successor-in-interest to Commonwealth Theatres Realty, Inc.,
successor-in-interest to Commonwealth Highland Theatres, Inc.,
successor-in-interest to Commonwealth Theatres, Inc., successor-in-interest to
Original Tenant)
The real estate located at:
Plaza Twin
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000-0000
Shop Lease dated as of January 1, 1994, by and between Hillcrest Plaza
Partnership ("Original Landlord") and United Artists Theatre Circuit, Inc.
("Original Tenant"), as amended by letter dated September 16, 1996, from
Original Tenant to Xxxx-Xxxxxxxxx Properties (successor-in-interest to Original
Landlord)
Landlord: Xxxx-Xxxxxxxxx Properties (successor-in-interest to Original
Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
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The real estate located at:
Cinema 4
Country Club Shopping Center
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Lease dated June 22, 1970, between Xxxx Industries, Inc. ("Original Landlord")
and Carrols Equities Corp. ("Original Tenant"), as amended by Modification of
Lease dated September 27, 1971, by Makad, Inc. (successor-in-interest to
Original Landlord) and Original Tenant, as amended by Amendment to Lease dated
January 7, 1977, by Consolidated Capital Realty Investors ("CCRI",
successor-in-interest to Xxxx Industries, Inc. and Double "D" Land, Inc.,
successors-in-interest to Makad, Inc.) and United Artists Theatre Circuit, Inc.
("UATC", successor-in-interest to Carrols Idaho Falls Cinema, Inc.,
successor-in-interest to Original Tenant), as amended by letter dated November
29, 1994, from UATC to Country Club Mall Associates Limited Partnership
("CCMALP", successor-in-interest to Intermountain Associates,
successor-in-interest to CCRI), as amended by letter dated February 7, 1995,
from CCMALP
Landlord: CCMALP (successor-in-interest to Intermountain Associates,
successor-in-interest to CCRI, successor-in-interest to Xxxx Industries, Inc.
and Double "D" Land, Inc., successors-in-interest to Makad, Inc.,
successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to UATC,
successor-in-interest to Carrols Idaho Falls Cinema, Inc.,
successor-in-interest to Original Tenant)
The real estate located at:
The North One Hundred Feet (N 100') of Lot One (1) of Palace Addition No. 2
Garden City, Xxxxxx County, Kansas
Lease dated June 9, 1994 between Xxxxx X. Xxxxxxxx and Xxxxxxx Xxxxxxxx
(collectively, the "Landlord") and Crown Cinema Corporation ("Tenant")
Landlord: Xxxxx X. Xxxxxxxx and Xxxxxxx Xxxxxxxx
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Crown Cinema
Corporation)
The real estate located at:
Village 3 Theatres
0000 00xx Xxxxxx
Xxxxx Xxxx, XX 00000
120
121
Lease dated April 15, 1976, between Mall Development, Inc. ("Original
Landlord") and Commonwealth Theatres of Kansas, Inc. ("Original Tenant"), as
amended by letter dated May 19, 1976, from Original Tenant to Original
Landlord, as amended by letter dated June 24, 1985, from Commonwealth Theatres
Realty, Inc. ("CTRI", successor-in-interest to Original Tenant) to Village Mall
(successor-in-interest to Original Landlord), as amended by letter dated July
31, 1985, from CTRI to Village Mall, as amended by Lease Modification Agreement
dated September 19, 1985, between Village Mall and CTRI, as amended by letter
dated November 6, 1990, from Crown Cinema Corporation ("CCC",
successor-in-interest to United Artists Theatre Circuit, Inc.,
successor-in-interest to CTRI) to CPI86-2 General Partnership,
successor-in-interest to Xxxxx Properties, Inc., successor-in-interest to
Village Mall
Landlord: CPI86-2 General Partnership (successor-in-interest to Xxxxx
Properties, Inc., successor-in-interest to Village Mall, successor-in-interest
to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to CCC,
successor-in-interest to United Artists Theatre Circuit, Inc.,
successor-in-interest to CTRI, successor-in-interest to Original Tenant)
The real estate located at:
Cinema Twin Theatre
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Lease dated August 25, 1976, between Xxxxx Construction Company ("Original
Landlord") and The Commonwealth Lawrence Theatre Corporation ("Original
Tenant"), as amended by letter dated October 6, 1977, between Original Landlord
and Commonwealth Theatres, Inc. ("CTI", successor by merger to the Original
Tenant), as amended by letter dated December 31, 1986, between the Original
Landlord and CTI advising CTI that the property had been sold to Kangross
Partners and Company, Limited, a Quebec Limited Partnership ("Kangross"), as
amended by an Agreement of Assignment and Assumption of Lease dated December
21, 1988 between CTI and United Artists Realty Company ("UARC"), as amended by
an Assignment of Lease dated November 5, 1990 between UARC and Crown Cinema
Corporation
Landlord: Kangross (successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Crown Cinema
Corporation, successor-in-interest to UARC, successor-in-interest to CTI,
successor-in-interest to Original Tenant)
The real estate located at:
Hillcrest 5 Theatres
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
121
122
Lease dated August 17, 1967, between Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx, his
wife (collectively, "Original Landlord") and The Commonwealth Lawrence Theatre
Corporation ("Original Tenant"), as amended by Modification of Lease dated
November 14, 1967, between Original Landlord and Original Tenant, as amended by
Modification of Lease dated September 24, 1968, between Original Landlord and
Original Tenant, as amended by letter dated November 19, 1968, from Original
Landlord to Original Tenant, as amended by letter dated September 23, 1982,
from Commonwealth Theatres, Inc. ("CTI", successor-in-interest to Original
Tenant) to Original Landlord, as amended by Lease Modification and Extension
Agreement dated January 31, 1983, from CTI to Xxxxx Enterprises
(successor-in-interest to Original Landlord), as amended by Lease Modification
Agreement dated January 22, 1986, between Xxxxx Enterprises and Commonwealth
Theatres Realty, Inc. ("CTRI", successor-in-interest to CTI), as amended by
Agreement of Modification of Lease dated November 7, 1990, between Xxxxxxx X.
Xxxxx (successor-in-interest to Xxxxx Enterprises) and United Artists Theatre
Circuit, Inc. ("UATC", successor-in-interest to CTRI)
Landlord: Xxxxxxx X. Xxxxx (successor-in-interest to Xxxxx Enterprises,
successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Crown Cinema
Corporation, successor-in-interest to UATC, successor-in-interest to CTRI,
successor-in-interest to CTI, successor-in-interest to Original Tenant)
The real estate located at:
Westside 4 Theatres
0000 Xxxx 0xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Lease dated August 23, 1993, between Xxx Xxxxxxxx ("Original Landlord") and
Crown Cinema Corporation ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Mall 4 Theatres
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Hutchinson Mall Lease dated May 18, 1995, between Simon Property Group, L.P.
("Original Landlord") and Crown Cinema Corporation ("Original Tenant")
122
123
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Mall 8 Theatres
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxxxxx Mall Lease dated September 19, 1994, between Simon Property Group,
L.P. ("Original Landlord") and Crown Cinema Corporation ("Original Tenant").
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Cinema East Theatres
000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Lease dated October 8, 1973, between Xxxxx Xxxxxx and Xxxxx Xxxxxx
(collectively, "Original Landlord") and American Entertainment, Inc. ("Original
Tenant"), as amended by Addendum to Lease dated November 30, 1973, between
Original Landlord and Original Tenant, as amended by Lease Agreement dated
November 19, 1974, between Original Landlord and Original Tenant, as amended by
Amendment to Lease dated December 19, 1975, between Original Landlord and
Original Tenant, as amended by Lease Modification Agreement dated December 3,
1986, between Xxxxx X. Xxxxxx ("Xxxxxx", successor-in-interest to Original
Landlord) and Commonwealth Theatres Realty, Inc. ("CTRI", successor-in-interest
to Commonwealth Theatres of Kansas, Inc., successor-in-interest to Original
Landlord), as amended by Amendment to Lease Modification Agreement dated
December 2, 1986, between Xxxxxx and CTRI, as amended by Second Amendment to
Lease Modification Agreement dated July 31, 1987, between Xxxxxx and CTRI, as
amended by letter dated June 21, 1988, from CTRI to Xxxxxx, as Unended by
letter dated July 8, 1988, from Xxxxxx to CTRI
Landlord: Xxxx X. Xxxx and Xxxxxxx X. Xxxx (successor-in-interest to Xxxxxx,
successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Crown Cinema
Corporation, successor-in-interest to United Artists Realty Company,
successor-in-interest to CTRI,
123
124
successor-in-interest to Commonwealth Theatres of Kansas, Inc.,
successor-in-interest to Original Landlord)
The real estate located at:
Cinema West 4 Theatres
0000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Lease dated March 26, 1976, between J. Xxxxxx Xxxxxx ("Original Landlord") and
American Entertainment, Inc. ("Original Tenant").
Landlord: W.A. Xxxxxxxxx, Jr. (successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Crown Cinema
Corporation, successor-in-interest to United Artists Realty Company,
successor-in-interest to Commonwealth Theatres of Kansas, Inc.,
successor-in-interest to Original Tenant)
The real estate located at:
Towne East 2 Theatres
Towne East Square Mall
0000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Indenture of Lease dated March 8, 1976, between Kellogg Mall Associates
("Original Landlord") and General Cinema Corp. of Kansas ("Original Tenant"),
as amended by Lease Amendment dated February 23, 1994, between Simon Property
Group, L.P. (successor-in-interest to Original Landlord) and Crown Cinema
Corporation ("CCC", successor-in-interest to Original Tenant)
Landlord: Simon Property Group, L.P. (successor-in-interest to Original
Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to CCC,
successor-in-interest to Original Tenant)
The real estate located at:
Towne East 4 Theatres
0000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Indenture of Lease dated May 22, 1981, between Kellogg Mall Associates
("Original Landlord") and General Cinema Corp. of Kansas ("Original Tenant"),
as amended by Amendment to Lease dated
124
125
May 22, 1981, between Original Landlord and Original Tenant, as amended by
Lease Amendment dated February 23, 1994, between Simon Property Group, L.P.
(successor-in-interest to Original Landlord) and Crown Cinema Corporation
("CCC", successor-in-interest to Original Tenant)
Landlord: Simon Property Group, L.P. (successor-in-interest to Original
Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to CCC,
successor-in-interest to Original Tenant)
The real estate located at:
Towne West 5 Theatres
Towne West Square Mall
0000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Indenture of Lease dated September 17, 0000, xxxxxxx Xxxxx Xxxx Xxxx Company
("Original Landlord") and General Cinema Corp. of Kansas ("Original Tenant"),
as amended by letter dated as of September 17, 1980, between Original Landlord
and Original Tenant
Landlord: Simon Property Group, L.P. (successor-in-interest to Original
Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Crown Cinema
Corporation successor-in-interest to Original Tenant)
The real estate located at:
Southgate 4 Theatres
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Lease dated May 24, 1977, between Liberal Management, Inc. ("Original
Landlord") and Commonwealth Theatres of Kansas, Inc. ("Original Tenant"), as
amended by Lease Modification Agreement dated March 13, 1986, between Original
Landlord and Commonwealth Theatres Realty, Inc. ("CTRI", successor-in-interest
to Original Tenant)
Landlord: Xxxxxxx-XxXxxx Lumber Co. (successor-in-interest to Original
Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Crown Cinema
Corporation, successor-in-interest to CTRI, successor-in-interest to Original
Tenant)
The real estate located at:
125
126
Gage 4 Theatres
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Lease dated December 14, 1967, between Gage Shopping Center, Inc. ("Original
Landlord") and Topeka Theatres, Inc. ("Original Tenant"), as amended by letter
dated January 30, 1968, from Original Landlord to Original Tenant, as amended
by Amendment to Lease dated April 30, 1968, between Original Landlord and
Original Tenant, as amended by Consolidating Amendment to Lease dated April 28,
1970, between Original Landlord and Original Tenant, as amended by letter dated
July 28, 1989, from Crown Cinema Corporation ("CCC", successor-in-interest to
American-Multi Cinema, Inc., successor-in-interest to Original Tenant) to
Original Landlord
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to CCC,
successor-in-interest to American-Multi Cinema, Inc., successor-in-interest to
Original Tenant)
The real estate located at:
Xxxxxxxxx 0 Xxxxxxxx
Xxxxxxxxx Xxxx
0000 XX Xxxxxxxxx Xxxx
Xxx 000, Xxxxx X-00
Xxxxxx, XX 00000
Lease dated September 24, 1987, between Topeka Mall Company, L.P. ("Original
Landlord") and Crown Cinema Corporation ("Original Tenant"), as amended by
Lease Amendment dated November 6, 1992, between Original Landlord and Original
Tenant
Landlord: Simon Property Group, L.P. (successor-in-interest to Original
Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Cinema Theatre
0000 Xxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Lease dated April 8, 1975, between M.F.A. Security Service Company ("Original
Landlord") and Commonwealth Xxxxxxx Theatre Corporation ("Original Tenant"), as
amended by Modification of Lease dated January 30, 1981, between Original
Landlord and Commonwealth Theatres of Missouri, Inc. ("CTMI",
successor-in-interest to Original Tenant), as amended by letter dated February
13,
126
127
1981, from CTMI to Original Landlord, as amended by Modification of Lease dated
April 12, 1982, between Shelter Financial Services, Inc. ("SFSI",
successor-in-interest to Original Landlord) and CTMI, as amended by letter
dated January 28, 1986, from Commonwealth Theatres Realty, Inc. ("CTRI",
successor-in-interest to CTMI) to SFSI, as amended by Lease Extension Agreement
dated July 5, 1990, between Shelter Enterprises, Inc. ("SEI",
successor-in-interest to SFSI), and United Artists Realty Company ("UARC",
successor-in-interest to CTRI)
Landlord: SEI (successor-in-interest to SFSI, successor-in-interest to
Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Crown Cinema
Corporation, successor-in-interest to UARC, successor-in-interest to CTRI,
successor-in-interest to CTMI, successor-in-interest to Original Tenant)
The real estate located at:
Xxxx 0 Xxxxxxxx
#00 Xxxxxxxx Xxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Agreement of Lease dated February 16, 1985, between Columbia Mall Limited
Partnership ("Original Landlord") and Commonwealth Theatres Realty, Inc.
("Original Tenant"), as amended by First Lease Amendment dated May 20, 1985,
between Original Landlord and Original Tenant, as amended by agreement dated
November 2, 1989, between Spring Valley Community Church and United Artists
Theatre Circuit, Inc. ("UATC", successor-in-interest to Original Tenant)
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Crown Cinema
Corporation, successor-in-interest to UATC, successor-in-interest to Original
Tenant)
The real estate located at:
Plaza 8 Theatres
0000 X. Xxxx Xxxxxxx
Xx. Xxxxxx, XX 00000
Lease dated September 9, 1996, between M&R Investment Properties, L.L.C.
("Original Landlord") and Crown Cinema Corporation ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
127
128
The real estate located at:
Capital 4 Theatres
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
Lease dated February 17, 1977, between General Growth Properties ("Original
Landlord") and Crown Cinema Corporation ("Original Tenant"), as amended by
First Amendment to Lease dated April 13, 1979, between Original Landlord and
Original Tenant, as amended by Second Amendment to Lease dated March 26, 1984,
between Original Landlord and Original Tenant, as amended by Third Amendment to
Lease dated November 26, 1984, between The Equitable Life Assurance Society of
the United States ("Equitable", successor-in-interest to Original Landlord) and
Original Tenant, as amended by Lease Extension and Amendment Agreement dated
January 17, 1995, between GGP Limited Partnership ("GGP", successor-in-interest
to Equitable) and Original Tenant
Landlord: GGP (successor-in-interest to Equitable, successor-in-interest to
Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Hillcrest 4 Theatres
000 X. Xxxx Xxxxxxx
Xx. Xxxxxx, XX 00000
Lease dated April 2, 1968, between Xxxxxx Xxxxxx ("Original Landlord") and
Hillcrest Shopping Center Theatres, Inc. ("Original Tenant"), as amended by
Addendum to Lease dated April 2, 1968, between Original Landlord and Original
Tenant, as amended by Second Lease Modification Agreement dated July 19, 1968,
between Original Landlord and Original Tenant, as amended by Agreement dated
April 10, 1969, between Original Landlord and Original Tenant, as amended by
letter dated June 2, 1989, from Crown Cinema Corporation ("CCC",
successor-in-interest to Original Tenant) to Original Landlord
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to CCC,
successor-in-interest to Original Tenant)
The real estate located at:
Capital 8 Theatres
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
128
129
Lease dated January 13, 1995, between GGP Limited Partnership ("Original
Landlord") and Crown Cinema Corporation ("Original Tenant"), as amended by
First Amendment to Lease dated August 30, 1995, between Original Landlord and
Original Tenant
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Ramada 4 Theatres
0000 Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Lease dated February 28, 1968, between Xxxxxx X. Xxxxxxxxxxxx and Xxxxx
Xxxxxxxxxxxx (collectively, "Original Landlord") and Ramada Theatres of
Jefferson City, Missouri, Incorporated ("Original Tenant"), as amended by First
Amendment of Lease dated May 20, 1969, between Breckenridge Hotels Corp.
("BHC", successor-in-interest to Original Landlord) and Original Tenant, as
amended by Second Amendment of Lease dated November 6, 1985, between Hotel
Investors Trust ("HIT", successor-in-interest to The Hotel Investors,
successor-in-interest to BHC) and Crown Cinema Corporation ("CCC",
successor-in-interest to American Multi-Cinema, Inc., successor-in-interest to
Xxxxxxx American, Inc., successor-in-interest to Original Tenant)
Landlord: HIT (successor-in-interest to The Hotel Investors,
successor-in-interest to BHC, successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to CCC,
successor-in-interest to American Multi-Cinema, Inc., successor-in-interest to
Xxxxxxx American, Inc., successor-in-interest to Original Tenant)
The real estate located at:
Joplin 6 Theatres
0000 Xxxx 0xx Xxxxxx
Xxxxxx, XX 00000
Lease dated September 30, 1986, between Missouri Centers Limited ("Original
Landlord") and Mid-America Cinema Corporation ("Original Tenant")
Landlord: Original Landlord
Tenant: Crown Theatre Corporation (successor-in-interest to Original Tenant)
129
130
The real estate located at:
Indian Mound 6 Theatres
000 Xxxxx 00xx Xxxxxx
Xxxxx, XX 00000
Lease dated April 27, 1987, between Indian Mound Associates Limited Partnership
("Original Landlord") and Mid-America Cinema Corp. ("Original Tenant"), as
amended by Addendum to Lease dated April 27, 1987, between Original Landlord
and Original Tenant, as amended by Addendum No. 2 to Lease dated October, 1987,
between Original Landlord and Original Tenant, as amended by Addendum No. 3 to
Lease dated May 3, 1988, between Original Landlord and Original Tenant, as
amended by Settlement Agreement and Mutual Release dated July 11, 1989, between
Original Landlord and Original Tenant, as amended by Addendum No. 4 to Lease
dated July 12, 1989, between Original Landlord and Original Tenant
Landlord: Original Landlord
Tenant: Crown Theatre Corporation (successor-in-interest to Original Tenant)
The real estate located at:
Newark 4 Theatres
0000 Xx. Xxxxxx Xxxx
Xxxxxx, XX 00000
Lease dated June 25, 1984, between Xxxxxxx X. Xxxxx ("Original Landlord") and
Mid-America Cinema Partnership ("Original Tenant"), as amended by letter dated
August 3, 1995, from Original Landlord to Crown Theatre Corporation
(successor-in-interest to Original Tenant)
Landlord: Original Landlord
Tenant: Crown Theatre Corporation (successor-in-interest to Original Tenant)
The real estate located at:
Cinema 0, Xxxx Xxxx Xxxxx
0000 X. Xxxxxxxx, Xxxxx 00
Xxxxxxxx, XX 00000
Retail Lease dated July 26, 1993 between West Side Plaza Partners ("Original
Landlord") and Pearland Cinema Operating Company, Inc. ("Original Tenant"), as
amended by First Addendum to Lease Agreement dated November 6, 1995 between
Original Landlord and Original Tenant
130
131
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Movies 4
Heartland Mall
000 Xxxxx Xxxx.
Xxxxx, XX 00000
Lease dated February 14, 1980 between Brownwood Associates ("Original
Landlord") and Xxxxx Theatre Investments, Inc. ("Original Tenant"), as amended
by Lease Modification Agreement No. 1 dated November 7, 1980 between Original
Tenant and Original Landlord, Supplemental Agreement dated November 8, 1980
between Original Tenant and Original Landlord, Letter Agreement dated September
17, 1985 between Original Tenant and Original Landlord, and Lease Modification
Agreement dated December 19, 1991 between Original Landlord and Trans-Texas
Amusements, Inc. ("TTAI", successor-in-interest to Original Tenant)
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to TTAI,
successor-in-interest to Original Tenant)
The real estate located at:
Medallion 5 Theatre
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Agreement of Lease dated September 30, 1995 between NCNB Texas National Bank,
Trustee of the X. X. Xxxxxx, Xx. Foundation ("Original Landlord") and Trans
Texas Theatres, Inc., a Texas Corporation ("Original Tenant"), as amended by
Addendum to Lease Agreement dated August 7, 1990 between Original Landlord and
Original Tenant and Lease Modification Agreement dated November 8, 1991 between
Original Tenant and Original Landlord
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Movies 7
131
132
Blue Grove Shopping Center
0000 X. Xxxxxxxx Xxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Lease Agreement dated February 19, 1990 between Integon Life Insurance
Corporation ("Original Landlord") and Trans Texas Theatres, Inc. ("Original
Tenant"), as amended by First Modification and Ratification of Lease dated
September 20, 1994 between Original Landlord and Original Tenant
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Cinema 7
North Permian Mall
0000 Xxxx Xxx Xxxxxxxx Xxxx.
Xxxxxx, XX 00000
Lease Agreement dated March 23, 1993 between BDC Properties/Construction, Inc.
("Original Landlord") and Cinemore Odessa, Inc. ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Permian 4
0000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxx 00000
Lease dated March 26, 1978 between Permian Mall, Inc., as Agent ("Original
Landlord") and United Artists Theatre Circuit, Inc. ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Movies 9
132
133
University Shopping Center
XX 000 Xxxxxxx 00
Xxxxxxxx, XX 00000
Lease Agreement dated September 19, 1989 between Cargill Interests, Ltd.
("Original Landlord") and Trans-Texas Amusements, Inc. ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Movies 3
University Shopping Center
0000 Xxxx Xxx
Xxxxxxxx, XX 00000
Lease dated November 11, 1988 between Xxxxxxx & Sweet ("Original Landlord") and
TransTexas Amusements, Inc. ("Original Tenant"), as amended by undated Lease
Extension between Original Landlord and Original Tenant, Lease Extension #2
dated January 1, 1993 between Original Landlord and Original Tenant, and Lease
Extension #3 dated June 26, 1995 between Original Landlord and Original Tenant
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Hollywood Two
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Retail/Industrial Lease Agreement dated February 6, 1995 between Federal
Deposit Insurance Corporation, as Manager of the FSLIC Resolution Fund
("Original Landlord") and Beaumont Cinema Ventures, L.P. ("Original Tenant"),
as amended by Letter Agreement dated July 26, 1995 between Original Landlord
and Beaumont Gateway Partners, Ltd. ("BGP", successor-in-interest to Original
Landlord)
Landlord: BGP (successor-in-interest to Original Landlord)
133
134
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Hollywood Star
0000 Xxxxxx Xx.
Xxxxxxxx, XX 00000
Indenture of Lease dated February 23, 1976 between Xxx X. Xxxxxx, Trustee
("Original Landlord") and General Cinema Corp. of Texas ("Original Tenant"),
as amended by Amendment #1 to Lease dated May 12, 1977 between Original
Landlord and Original Tenant, Second Amendment to Lease dated October 31, 1994
between Parkdale Mall Associates ("PMA", successor-in-interest to Original
Landlord) and Original Tenant, and Third Amendment to Lease dated December 31,
1994 between PMA and Original Tenant
Landlord: PMA (successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Xxxx-Lakeview Cinema 6
0000 X. X-00
Xxxx, XX 00000
Sublease dated as of October 31, 1996, between Sunwest N.O.P., Inc. ("Original
Landlord") and Cinema Operating Company of Xxxx-Lakeview, Inc. ("Original
Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Cine Four
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Lease Agreement dated July 15, 1977 between Xxxxxx X. Xxx ("Original Landlord")
and United Artists Theatre Circuit, Inc. ("Original Tenant"), as amended by
Lease Amendment dated July 15, 1977 between Original Landlord and Original
Tenant
134
135
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Mineral Xxxxx Cinema 3
0000 Xxxxxxx 000X, #00
Xxxxxxx Xxxxx, XX 00000
Shopping Center Lease dated July 15, 1977 between Brazos Shopping Center
("Original Landlord") and Resort Amusement Company ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Movies 6
0000 X. Xxxxx Xxxxxx
Xxxxx, XX 00000
Amended and Restated Lease Agreement dated May 15, 1992 between Sunwest N.O.P.,
Inc. ("Original Landlord") and Trans-Texas Amusements, Inc. ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Movies 10
000 Xxxx Xxxxxx-Xxxxxxx
Xxxxxxxx, XX 00000
Lease Agreement dated December 30, 1992 between X.X. Xxxxxxxx ("Original
Landlord") and Trans-Texas Amusements, Inc. ("Original Tenant"), as amended by
Amendment to Lease Agreement dated July 10, 1995 between Original Landlord and
Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
Landlord: Original Landlord
135
136
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Movies 8 (Grapevine)
0000 Xxxxxxx X. Xxxx
Xxxxxxxxx, XX 00000
Lease Agreement dated June 39, 1995 between X.X. Xxxxxxxx ("Original Landlord")
and Trans-Texas Amusements, Inc. ("Original Tenant"), as amended by Amendment
to Lease Agreement dated July 10, 1995 between Original Landlord and Hollywood
Theaters, Inc. (successor-in-interest to Original Tenant)
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Xxxx Xxxxxx 0
Xxxx Xxxxx Xxxx Center
0000 Xxxxx Xxxxxxx, Xxx. X-00
Xx. Xxxxx, XX 00000
Lease Agreement dated January 24, 1992 between Texas Centers Associates
("Original Landlord") and Trans Texas Theatres, Inc. ("Original Tenant"), as
amended by First Amendment of Lease dated August 27, 1993 between Fort Worth
Mall, Inc. (successor-in-interest to Original Landlord) and Original Tenant
Landlord: Fort Worth Mall, Inc. (successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Southwest 7
0000 Xxxxxxxxxxxxx
Xxx Xxxxxx, XX 00000
Shopping Center Lease Agreement dated April 20, 1987 between XxXxxx Real Estate
Fund IX, Limited ("Original Landlord") and United Artists Communications, Inc.
("Original Tenant")
136
137
Landlord: Midland Red Oak Realty, Inc. (successor-in-interest to MRO
Properties, Inc., successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Sunset 4
0000 Xxxxxx Xxxx
Xxx Xxxxxx, XX 00000
Lease Agreement dated June 5, 1978 between Sunset Mall Company ("Original
Landlord") and United Artists Theatre Circuit, Inc. ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Movies 0
Xxxxxx Xxxxx Xxxxxxxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
Lease dated April 15, 1991 between OTR ("Original Landlord") and Cinemore of
San Xxxxxx, Inc. ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Village 6 - Plex
0000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Lease dated June 21, 1983 between Thirty-Sixth and Xxxxxxxx, Inc. ("Original
Landlord") and Commonwealth Frontier Theatres, Inc. ("Original Tenant"), as
amended by First Modification of Lease dated June 21, 1983 between Original
Landlord and Original Tenant and Second Modification of Lease dated August 27,
1984 between The Village L.T.D. (successor-in-interest to Original Landlord)
and Commonwealth Theatres Realty, Inc. (successor-in-interest to Original
Tenant)
137
138
Landlord: The Village L.T.D. (successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Commonwealth
Theatres Realty, Inc., successor-in-interest to Original Tenant)
The real estate located at:
Cache 8
0000 X.X. Xxxxx Xxxx
Xxxxxx, XX 00000
Triple Net Bond Sublease Agreement Lease dated November 27, 1996 between United
Artists Theatre Circuit, Inc. ("Original Landlord") and Hollywood Theaters,
Inc. ("Original Tenant")
Landlord: Original Landlord
Tenant: Original Tenant
The real estate located at:
Xxxxxxx 6 - Plex
0000 Xxxxx Xxxx 00xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Lease dated May 15, 1980 between Goldco Operating Company ("Original Landlord")
and Oklahoma Cinema Theatres, Inc. ("Original Tenant"), as amended by Letter
Amendment to Lease dated June 6, 1980 between Original Landlord and Original
Tenant, Letter Amendment to Lease dated August 26, 1980 between Original
Landlord and Original Tenant, Letter Amendment to Lease dated October 9, 1980
between Original Landlord and Original Tenant, and Letter Agreement dated June
24, 1981 between Original Landlord and Commonwealth Frontier Theatres, Inc.
(successor-in-interest to Original Tenant)
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to United Artists
Theatre Circuit, Inc., successor-in-interest to Commonwealth Theatres Realty,
Inc., successor-in-interest to Commonwealth Theatres, Inc.,
successor-in-interest to Commonwealth Frontier Theatres, Inc.,
successor-in-interest to Original Tenant)
The real estate located at:
138
139
Heritage Park Triplex
0000 Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000
Lease dated March 21, 1980 between Heritage Mall Company ("Original Landlord")
and Oklahoma Cinema Theatres, Inc. ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Commonwealth
Theatres Realty, Inc., successor-in-interest to Commonwealth Frontier Theatres,
Inc., successor-in-interest to Commonwealth Theatres, Inc.,
successor-in-interest to Original Tenant)
The real estate located at:
Heritage Plaza 5
000 Xxxxx Xxx Xxxxx, Xxxxx XX
Xxxxxxx Xxxx, XX 00000
Lease dated December 31, 1984 between Xxxx X. Xxxxxxx and Xxxx X. Homesey
(collectively, "Original Landlord") and Commonwealth Theatres Realty, Inc.
("Original Tenant"), as amended by Lease Modification Agreement dated April 1,
1985 between Original Tenant and Original Landlord
Landlord: Heritage Plaza Shopping Center (successor-in-interest to
Homesey-Xxxxxxx Joint Venture, successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to United Artists
Theatre Circuit, Inc., successor-in-interest to United Artists Realty Company,
successor-in-interest to Original Tenant)
The real estate located at:
Movies 6
Shawnee Mall
0000 X. Xxxxxxxx
Xxxxxxx, XX 00000
Lease dated October 17, 1988 between Shawnee Mall Associates Limited
Partnership ("Original Landlord") and Trans-Texas Amusements, Inc. ("Original
Tenant"), as amended by Amendment to Lease Agreement dated December 22, 1988
between Original Tenant and Original Landlord
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
139
140
The real estate located at:
Annex 7
0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Lease dated October 25, 1983 between Annex Mall Ltd. ("Original Landlord") and
United Artists Communications, Inc. ("Original Tenant").
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Fontana 6
0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Lease dated June 20, 1984 between Xxxxxx Financial Corporation ("Original
Landlord") and United Artists Communications, Inc. ("Original Tenant")
Landlord: National Life Insurance Company (successor-in-interest to Original
Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to United Artists
Theatre Circuit, Inc., successor-in-interest to Original Tenant)
The real estate located at:
Parklane Twin
0000 Xxxxx Xxxxxxxx
Xxxxx, XX 00000
Indenture of Lease dated May 1, 1979 between Park Lane Shopping Center, Inc.
("Original Landlord") and General Theatres, Inc. ("Original Tenant"), as
amended by Amendment to Indenture of Lease dated April 22, 1980 between
Original Landlord and Xxxxxx-Xxxxxx Enterprises, Inc. (successor-in-interest to
Original Tenant)
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to United Artists
Theatre Circuit, Inc., successor-in-interest to Xxxxxx-Xxxxxx Enterprises,
Inc., successor-in-interest to Original Tenant)
140
141
The real estate located at:
Promenade 4
0000 Xxxxx Xxxx #XX000
Xxxxx, XX 00000
Lease Agreement dated August 22, 1985 between Southland Associates ("Original
Landlord") and United Artists Communications, Inc. ("Original Tenant")
Landlord: Tulsa Promenade (successor-in-interest to Original Landlord)
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
The real estate located at:
Movies 0
Xxxxxxxxxx Xxxx Xxxx
0000 XX Xxxxxxxxxx Xxxx.
Xxxxxxxxxxxx, XX 00000
Lease dated August 23, 1994 between HO Retail Properties II Limited Partnership
("Original Landlord") and Trans-Texas Amusements, Inc. ("Original Tenant")
Landlord: Original Landlord
Tenant: Hollywood Theaters, Inc. (successor-in-interest to Original Tenant)
North Park 4 Theater
Xxx Xxxxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx
Midland Cinema
Midland Park Mall
0000 X. Xxxxxxx Xxxx
Xxxxxxx, XX
Cinema Four
0000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx
Xxxxxx Six
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxx
141
142
Port Xxxxxx Theater
0000 Xxxxxxx 00
Xxxx Xxxxxx, Xxxxx
B. Other Leasehold Properties
(a) Office Lease for Parent and Company:
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 0000
Xxxxxx, XX 00000
(b) Warehouse Lease
0000 Xxxxxxxx Xxxxxx
Xxxx #X000
Xxxxxx, XX 00000
142
143
SCHEDULE 7.1
EXISTING LIENS
(Other than Permitted Liens)
Liens in favor of United Artists Theatre Circuit, Inc. and its affiliates
securing the obligations of the Company under the Assignment and Assumption
Agreement executed in connection with the UA Agreement
Liens in favor of General Cinema Corp. of Oklahoma, Inc. and its affiliates
securing the obligations of the Company under assignment and assumption
executed in connection with the GC Agreement
143
144
SCHEDULE 7.8
CONTINGENT OBLIGATIONS
UA Guaranty
Indemnity obligations under the Crown Agreement, the UA Agreement and the GC
Agreement
144
