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Exhibit 10.39
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SECOND AMENDMENT TO
AMENDED AND RESTATED
CREDIT AGREEMENT
BY AND AMONG
CLEARVIEW CINEMA GROUP, ET AL.
AND
THE PROVIDENT BANK,
Agent and Lender
dated as of
February 13, 1998
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JOINDER AGREEMENT AND SECOND AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (as hereinafter
defined) ("Second Amendment") dated as of February 13, 1998, by and among
CLEARVIEW CINEMA GROUP, INC., a Delaware corporation, ("Holdings"), CLEARVIEW
THEATRE GROUP, INC., a New Jersey corporation, CCC XXXXXXX CINEMA CORP., a
Delaware corporation, CCC B.C. REALTY CORP., a Delaware corporation, CCC BAYONNE
CINEMA CORP., a Delaware corporation, CCC BEDFORD CINEMA CORP., a Delaware
corporation, CCC BELLEVUE CINEMA CORP., a Delaware corporation, CCC BERGENFIELD
CINEMA CORP., a Delaware corporation, CCC BRONXVILLE CINEMA CORP., a Delaware
corporation, CCC CEDAR GROVE CINEMA CORP., a Delaware corporation, CCC XXXXXXX
TWIN CINEMA CORPORATION, a New Jersey corporation, CCC CINEMA 304 CORP., a
Delaware corporation, CCC CLOSTER CINEMA CORP., a Delaware corporation, CCC
EDISON CINEMA CORP., a Delaware corporation, CCC XXXXXXX CINEMA CORP., a
Delaware corporation, CCC GRAND AVENUE CINEMA CORP., a Delaware corporation, CCC
HERRICKS CINEMA CORP., a Delaware corporation, CCC KIN MALL CINEMA CORP., a
Delaware corporation, CCC KISCO CINEMA CORP., a Delaware corporation, CCC
LARCHMONT CINEMA CORP., a Delaware corporation, CCC MADISON TRIPLE CINEMA CORP.,
a New Jersey corporation, CCC MAMARONECK CINEMA CORP., a Delaware corporation,
CCC MANASQUAN CINEMA CORPORATION, a New Jersey corporation, CCC MANSFIELD CINEMA
CORP., a Delaware corporation, CCC MARBORO CINEMA CORP., a Delaware corporation,
CCC XXXXXXXXXXX CINEMA CORP., a Delaware corporation, CCC NEW CITY CINEMA CORP.,
a Delaware corporation, CCC PARSIPPANY CINEMA CORP., a Delaware corporation, CCC
PORT WASHINGTON CINEMA CORP., a Delaware corporation, CCC XXXXXX CINEMA CORP., a
Delaware corporation, CCC SUCCASUNNA CINEMA CORP., a Delaware corporation, CCC
SUMMIT CINEMA CORP. (formerly known as 000-000 Xxxxxxxxxxx Xxxxxx Corp.), a New
Jersey corporation, CCC TENAFLY CINEMA CORP., a Delaware corporation, CCC
WASHINGTON CINEMA CORP., a Delaware corporation, CCC XXXXX CINEMA CORP., a
Delaware corporation, CCC WOODBRIDGE CINEMA CORP., a Delaware corporation, CCC
BABYLON CINEMA CORP., a Delaware corporation, CCC BALA CYNWYD CINEMA CORP., a
Delaware corporation, CCC CARMEL CINEMA CORP., a Delaware corporation, CCC
CLARIDGE CINEMA CORP., a Delaware corporation, CCC FRANKLIN SQUARE CINEMA CORP.,
a Delaware corporation, CCC GREAT NECK CINEMA CORP., a Delaware corporation, CCC
MANHASSET CINEMA CORP., a Delaware corporation, CCC MORRISTOWN CINEMA CORP., a
Delaware corporation, CCC NARBERTH CINEMA CORP., a Delaware corporation, CCC
SCREENING ZONE CINEMA CORP., a Delaware corporation, and MILLBURN TWIN CINEMA
CORP., formerly known as CCC CRANFORD CINEMA CORP., a Delaware corporation,
(hereinafter, together with their successors in title and assigns called
"Borrowers" and each of which is a "Borrower") and THE PROVIDENT BANK, an Ohio
banking corporation, as Agent ("Agent") for various Lenders as set forth in the
Credit Agreement.
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC.
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PRELIMINARY STATEMENT
WHEREAS, Borrowers (as originally executed or joined thereafter), Agent
and Lenders have entered into an Amended and Restated Credit Agreement dated as
of September 12, 1997 as amended by First Amendment to Amended and Restated
Credit Agreement dated as of December 12, 1997 (collectively, "Credit
Agreement"); and
WHEREAS, Borrowers have requested that Provident make available to
Borrowers an additional Five Million Eight Hundred Thousand and 00/100 Dollars
($5,800,000.00) to finance a portion of the purchase price relative to various
Permitted Acquisitions (as defined in the Credit Agreement); and
WHEREAS, in connection with various Permitted Acquisitions, Holdings
wishes to create and capitalize CCC Claridge Cinema Corp., a Delaware
corporation, CCC Babylon Cinema Corp., a Delaware corporation, CCC Bala Cynwyd
Cinema Corp., a Delaware corporation, CCC Carmel Cinema Corp., a Delaware
corporation, CCC Franklin Square Cinema Corp., a Delaware corporation, CCC Great
Neck Cinema Corp., a Delaware corporation, CCC Manhasset Cinema Corp., a
Delaware corporation, CCC Morristown Cinema Corp., a Delaware corporation, CCC
Narberth Cinema Corp., a Delaware corporation, CCC Screening Zone Cinema Corp.,
a Delaware corporation, Millburn Twin Cinema Corp., formerly known as CCC
Cranford Cinema Corp., a Delaware corporation, (collectively the "New
Subsidiaries" and each individually a "New Subsidiary"); and
WHEREAS, pursuant to Section 8.1 of the Credit Agreement, each New
Subsidiary must execute and deliver a Joinder Agreement and such other documents
as Agent shall reasonably require to obligate such New Subsidiaries under the
Credit Agreement and other Loan Documents and to cause such New Subsidiaries to
grant Agent a security interest and lien in all of their respective Property;
and
WHEREAS, Borrowers and Lenders now wish to amend the Credit Agreement
and related documents in accordance with the terms and provisions hereof.
NOW, THEREFORE, the parties hereto agree to supplement and amend the
Credit Agreement upon such terms and conditions as follows:
1. Capitalized Terms. All capitalized terms used herein shall have the
meanings assigned to them in the Credit Agreement unless the context hereof
requires otherwise. Any definitions as capitalized terms set forth herein shall
be deemed incorporated into the Credit Agreement as amended by this Second
Amendment.
2. Definitions; Exhibits. (a) The following definitions contained in
Section 1.2 of the Credit Agreement are hereby amended in their entirety to read
as follows:
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"Applicable Margin" shall mean the Margin Adjustment Rate plus
the amount set forth below, as a percentage, to be added to the Prime
Rate, as the case may be, and used in calculating the rate of interest
for the applicable Loan at any time (the "Base Margin"):
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MARGIN RATIO APPLICABLE MARGIN
Revolving Credit Loan,
Term Loan A, Term Loan B and
Term Loan C
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Greater than or equal to 3.25 to 1.00 1.50%
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Greater than or equal to 3.00 to 1.00 1.25%
but less than 3.25 to 1.00
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Greater than or equal to 2.75 to 1.00 1.00%
but less than 3.00 to 1.00
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Greater than or equal to 2.50 to 1.00 .75%
but less than 2.75 to 1.00
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Less than 2.50 to 1.00 .50%
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The determination of Base Margin hereunder as of any Interest Adjustment Date
shall be based on unaudited quarterly Compliance Certificates required to be
delivered pursuant to Section 6.1(b) hereof, provided that in the event of any
discrepancy between computations based upon any compliance certificate and the
related audited financial statements furnished pursuant to Section 6.1(b), the
computation based upon the audited financial statements shall govern
(retroactive to the Interest Adjustment Date as to which such adjustment
applies). In the event of a retroactive correction of the determinations of the
Base Margin in favor of the Lenders, the amount of interest thereby overdue and
payable by the Borrowers shall be paid to the Lenders within five (5) days after
the date of such retroactive correction. In the event of a retroactive
correction of the determinations of the Base Margin in favor of the Borrowers,
the amount of interest overpaid by the Borrowers shall be applied by the Lender
as a credit against any fees, charges and interest or principal payments then
due hereunder or to become due hereunder to Lenders. No downward adjustment of
the Base Margin shall occur if, at the time such downward adjustment would
otherwise be made, there shall exist any Default or Event of Default, provided
that such downward adjustment shall be made on the first day of the first month
after the date on which any Default or Event of Default shall have been waived
or cease to exist.
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC.
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"Notes" mean, collectively, the Revolving Credit Notes, the
Term Loan A Notes, the Term Loan B Notes and the Term Loan C Notes.
"Note" shall mean any one of the Notes, unless specifically identified.
"Term Notes" mean collectively, the Term Loan A Notes, the
Term Loan B Notes and the Term Loan C Notes. "Term Note" shall mean any
one of the Notes, unless specifically identified.
(b) Section 1.2 of the Credit Amendment is hereby amended to
add the following definitions to read in their entirety as follows:
"Margin Adjustment Rate" shall initially mean zero percent
(0.0%); provided, however, that as of November 10, 1998, the Margin
Adjustment Rate shall adjust to two percent (2.0%) and shall increase
by one-half percent (0.5%) every one hundred eighty (180) days
thereafter.
"Term Loan C" means the loan made pursuant to Section 2.2(d).
"Term Loan C Notes" mean, collectively, with respect to the
Term Loan C, the promissory notes of Borrowers in the aggregate amount
not to exceed the Term Loan C in or substantially in the form of
Exhibit K-4 hereto.
(c) Exhibit K-4 to this Agreement is hereby added in its
entirety as Exhibit K-4 to the Credit Agreement.
3. Schedules. (a) The following Schedules to the Credit Agreement are
amended in their entirety by the corresponding Schedules to this Second
Amendment:
i. Schedule 1 - Lenders
ii. Schedule 5.9 - Indebtedness for Borrowed Money
(b) The following Schedules to the Credit Agreement are
amended to add the information contained in the corresponding Schedules to this
Second Amendment:
i. Schedule 3.1 - Mortgaged Property and Leasehold Interests
ii. Schedule 5.1(a) - Jurisdictions where qualified to do business
iii. Schedule 5.1(b) - Capital Stock
iv. Schedule 5.1(c) - Subsidiaries
v. Schedule 5.9 - Indebtedness for Borrowed Money
vi. Schedule 5.21 - UCC Filing Offices
4. Commitments. Section 2.1 of the Credit Agreement is hereby
amended to read in its entirety as follows:
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Section 2.1 Commitments. Each Lender, severally and not
jointly, agrees, upon the terms and subject to the conditions contained
in this Agreement, (i) to make the Revolving Credit Loans to Borrowers
from time to time prior to the Termination Date, in a principal amount
equal to such Lender's Participation Percentage of the aggregate
principal amount of such Loan requested by Borrowers on each occasion;
(ii) to make the Term Loan B upon satisfaction of the conditions
contained in Section 4.3 of this Agreement; and Provident agrees upon
the terms and subject to the conditions contained in this Agreement, to
make the Term Loan C upon satisfaction of the conditions contained in
Sections 4.3 and of this Agreement; and
5. Making the Loans. Section 2.2 of the Credit Agreement is hereby
amended to add a new Section 2.2(d) to read in its entirety as follows:
Section 2.2(d) Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of
each Borrower herein set forth, Provident agrees to lend to Borrowers
the Term Loan C in the aggregate amount of Five Million Eight Hundred
Thousand and 00/100 Dollars ($5,800,000.00). Amounts borrowed under
this subsection 2.2(d) and repaid or prepaid may not be reborrowed.
6. Draws, Advances and Settlement of Payments and Advances. Section
2.3(c) of the Credit Agreement is hereby amended to read in its entirety as
follows:
Section 2.3(c) All advances or disbursements of the Term Loan
B proceeds and the Term Loan C proceeds shall be effectuated at
Borrowers' request and shall be subject to the conditions set forth in
Section 4.3 hereof.
7. The Notes. The first paragraph of Section 2.4 of the Credit
Agreement is hereby amended to read in its entirety as follows, the second
paragraph remains unchanged:
Section 2.4 The Notes. The absolute and unconditional
obligation of Borrowers to (i) repay to each Lender its respective Pro
Rata Share of the principal of the Revolving Credit Loan, the Term Loan
A and the Term Loan B, and the interest thereon; and (ii) to repay to
Provident the Term Loan C and the interest thereon, shall be evidenced
by a separate Revolving Credit Note, Term Loan A Note, Term Loan B
Note, as and to the extent supplemented by each Term B Note Supplement,
and Term Loan C Note for each Lender, as applicable, in the amount of
its respective Credit Commitment for each Loan.
8. Repayments and Prepayments of Principal.
(a) Section 2.6(c) of the Credit Agreement is hereby amended
in its entirety to read as follows:
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Section 2.6(c) Repayments on the Term Loan C.
Borrowers shall pay to Agent, and Borrowers hereby authorize
Agent to charge the respective accounts of Borrowers
maintained with Agent, commencing on October 1, 1998 and on
each Principal Payment Date thereafter, quarterly installments
of principal in the amount of one-twentieth (1/20th) of the
aggregate face amounts of the Term Loan C Notes (or such
lesser principal amount of the Term Loan C as shall then be
outstanding), plus accrued interest thereon at the Interest
Rate applicable to the Term Loan C; provided that in any event
the last installment of principal on the Term Loan C shall be
due and payable on the Termination Date (if not earlier
prepaid) and shall be in an amount sufficient to pay in full
the entire unpaid principal amount, plus accrued interest
thereon, of the Term Loan C. Borrowers shall have the right to
repay the principal of the Term Loan C in full or in part at
any time and from time to time without any penalty or premium,
unless such payment is made in connection with the prepayment
of the Term Loans under conditions described in Sections
2.2(a) and 2.6(l) and the termination of the Lenders'
Commitments hereunder.
(b) Section 2.6(d) of the Credit Agreement is hereby amended
in its entirety to read as follows:
Section 2.6(d) Repayments on the Revolving Credit
Loan; Revolving Credit Loan Overadvance. (i) Borrowers shall
have the right to repay the principal of the Revolving Credit
Loan in full or in part at any time and from time to time
without any penalty or premium, unless such payment is made in
connection with the prepayment of the Term Loans under
conditions described in Sections 2.2(a) and 2.6(l) and the
termination of the Lenders' Commitments hereunder.
(ii) If at any time the aggregate amount of
the Revolving Credit Loan outstanding to Borrowers exceeds the
Maximum Revolving Commitment, Borrowers shall be obligated to
immediately prepay the amount that exceeds the Maximum
Revolving Commitment.
(c) Section 2.6(j) of the Credit Agreement is hereby amended
in its entirety to read as follows:
Section 2.6(j) Maturity. Subject to the terms and
conditions of this Agreement, Borrowers will be entitled to
reborrow all or any part of the principal of the Revolving
Credit Notes repaid or prepaid prior to the Termination Date.
The Credit Commitments shall terminate and all of the
indebtedness evidenced by the Revolving Credit Notes and the
Term Notes, shall, if not sooner paid, be in any
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CLEARVIEW CINEMA GROUP, INC.
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event absolutely and unconditionally due and payable in full
by Borrower on September 12, 2002, the date of the final
maturity of such Notes.
(d) Section 2.6(k) of the Credit Agreement is hereby amended
in its entirety to read as follows:
Section 2.6(k) Application of Proceeds. With respect
to mandatory prepayments described in paragraphs 2.6(f)
through 2.6(h) above, such prepayments shall first be applied
in the inverse order of maturity to the payment of the Loans
in accordance with each Lenders' Pro Rata Share.
9. Payments and Computations.
(a) Section 2.7(b)(i) of the Credit Agreement is hereby
amended in its entirety to read as follows:
Section 2.7(b)(i)No Default. If the Notes have not
been accelerated pursuant to Section 9.2(b) and if no Default
or Event of Default hereunder or under the Notes or any of the
other Loan Documents shall have occurred and be continuing at
the time Agent receives such funds, in the following manner:
(a) first, to the payment of all fees, charges, and other sums
(with exception of principal and interest) due and payable to
Agent or Lenders under the Notes, this Agreement or the other
Loan Documents at such time; (b) second, to the payment of all
of the interest which shall be due and payable on the
principal of the Notes at the time of such payment in
accordance with each Lender's Pro Rata Share; (c) third, to
the payment of all the principal of the Notes at the time of
such payment in accordance with each Lender's Pro Rata Share;
and (d) fourth, to Borrowers.
10. Indemnification.
(a) Section 10.11 of the Credit Agreement is hereby amended in
its entirety to read as follows:
Section 10.11 Indemnification. Each Lender agrees to
indemnify Agent (to the extent Agent is not promptly
reimbursed by Borrower), in an amount equal to its Pro Rata
Share of all Obligations from and against any and all
liabilities, obligations, losses, damages, penalties,
interests, actions, judgments and suits of any kind or nature
whatsoever which may be imposed on, incurred by or asserted
against Agent relating to or arising out of this Agreement or
any of the other Loan Documents or relating to any action
taken or omitted by such Agent under this Agreement or any of
the other Loan Documents, provided that no Lender shall be
liable for any portion of such liabilities, obligations,
losses, damages, penalties,
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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interest, actions, judgments or suits resulting from Agent's
own gross negligence or willful misconduct.
11. Conditions Precedent to Subsequent Lending under the Term Loan B
and Term Loan C.
(a) The first sentence of Section 4.3 of the Credit Agreement
is hereby amended in its entirety to read as follows:
Section 4.3 Conditions Precedent to Subsequent
Lending under the Term Loan B and Term Loan C. Advances under
the Term Loan B and Term Loan C shall be subject to the
discretion of Agent, are subject to the conditions precedent
in Sections 4.2 hereof, and the proceeds thereof shall be used
solely for such purposes as Agent may from time to time
approve and are further subject to the satisfaction, prior
thereto or concurrently therewith, of each of the following
conditions precedent:
(b) Section 4.3(a) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(a) Disbursements under the Term Loan B and the Term
Loan C shall be made only in connection with a Permitted
Acquisition.
(c) Section 4.3(b) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(b) Disbursements under the Term Loan C shall be made
prior to May 14, 1998 and disbursements under the Term Loan B
shall be made prior to October 1, 2000.
(d) Section 4.3(h) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(h) The ratio of Consolidated Senior Indebtedness for
Borrowed Money outstanding after such proposed funding to
Consolidated EBITDA, determined on a proforma basis taking
into account such transaction using historical proforma
adjustments acceptable to Agent, shall not exceed 4.5 to 1.
(e) Section 4.3(i) of the Credit Agreement is hereby amended
in its entirety to read as follows:
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CLEARVIEW CINEMA GROUP, INC.
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Section 4.3(i) Each Borrower has executed and
delivered to Agent a Term B Note Supplement, or a Term Loan C
Note , as the case may be, and such Loan Documents as Agent
requires pursuant to the Permitted Acquisition.
12. Debt to EBITDA. Section 7.4 of the Credit Agreement is hereby
amended in its entirety to read as follows:
Section 7.4 Debt to EBITDA. As of the last day of each fiscal
quarter of Holdings, the ratio of Consolidated Indebtedness for
Borrowed Money outstanding as of such date to Consolidated EBITDA for
the twelve (12) months ending on each Computation Date shall not exceed
5.0 to 1.0.
13. Senior Debt to EBITDA. Section 7.5 of the Credit Agreement is
hereby amended in its entirety to read as follows:
Section 7.5 Senior Debt to EBITDA. As of the last day of each
fiscal quarter of Holdings, the ratio of Consolidated Senior
Indebtedness for Borrowed Money outstanding as of such date to
Consolidated EBITDA for the twelve (12) months ending on each
Computation Date shall not exceed 4.5 to 1.0.
14. Joinder Agreement. Each New Subsidiary hereby covenants and
agrees as follows:
(a) Each new Subsidiary hereby enters into this Second
Amendment in order to comply with Sections 6.14 and 8.1 of the Credit
Agreement.
(b) Each New Subsidiary hereby adopts the Credit Agreement, as
amended, agrees to be bound by all of the terms, conditions and
provisions thereof and of each of the Notes as if it was an original
party thereto, including without limitation the affirmative and
negative covenants in Articles 6 and 7 of the Credit Agreement, assumes
all of the duties and obligations of a Borrower to the Credit
Agreement, and reconfirms the representations and warranties set forth
in Article 5 of the Credit Agreement on and as of the date hereof as if
fully set forth herein.
(c) Each New Subsidiary shall be considered, and deemed to be,
for all purposes, a "Borrower" under the Credit Agreement and a maker
on the Notes as if each New Subsidiary had signed the Notes at the time
originally issued under the Credit Agreement and hereby, jointly and
severally, promises to pay or prepay when due all principal and
interest on the Notes whether at stated maturity or otherwise and to
pay or perform all of the Obligations of a Borrower under the Credit
Agreement in accordance with their respective terms, and each New
Subsidiary further agrees to execute and deliver to the Lenders the
Notes, upon the request of the Lenders, and if the Notes are reissued,
amended or restated for any reason after the date hereof to execute and
deliver such reissued, amended or restated Notes; provided, however,
that the liability of each New
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Subsidiary shall not exceed the liability limitation applicable to New
Subsidiary in accordance with Section 2.12 of the Credit Agreement.
(d) To secure the prompt repayment of the Notes and the
Obligations, each New Subsidiary hereby grants, pledges and
collaterally assigns to Agent, on behalf of the Lenders, a lien and
security interest in and to all of each New Subsidiary's respective
personal property and fixtures, wherever located, whether now or
hereafter owned, existing or acquired or hereafter arising, including,
without limitation, the Collateral of each new subsidiary. Each New
Subsidiary shall execute UCC Financing Statements and such other
security documents as reasonably required by Agent to perfect the first
Lien (subject only to the Permitted First Liens) and security interest
in the Collateral.
(e) Each New Subsidiary shall be considered and deemed to be,
for all purposes a Borrower and Indemnitee under the Environmental
Indemnity Agreement dated May 29, 1996, as amended by the Amended and
Restated Environmental Indemnity Agreement dated September 12, 1997,
and agrees to be bound by the terms thereby as the same relates to any
Property.
(f) To secure further such liabilities and obligations, each
New Subsidiary shall grant to Agent, on behalf of the Lenders, a first
Lien, subject to the Permitted First Liens, upon all real property
owned or hereinafter acquired by such New Subsidiary and a first Lien,
subject to Permitted First Liens, on all leasehold interests of such
New Subsidiary now owed or hereinafter acquired, each of which are
identified on Schedule 3.1 attached hereto, and each such New
Subsidiary shall execute and deliver to Agent, on behalf of the
Lenders, the Leasehold Mortgages, Mortgages and valid assignments of
all other Property rights which now exist or arise hereafter from time
to time.
15. Reaffirmation of Covenants, Warranties and Representations.
Borrowers hereby agree and covenant that all representations and warranties in
the Credit Agreement, including without limitation all of those warranties and
representations set forth in Article 5, are true and accurate as of the date
hereof. Each Borrower further reaffirms all covenants in the Credit Agreement,
and reaffirm each of the affirmative covenants set forth in Article 6 and
financial covenants set forth in Article 7 and negative covenants set forth in
Article 8 thereof, as if fully set forth herein, except to the extent modified
by this Agreement.
16. Conditions Precedent to Closing of Second Amendment . On or prior
to the closing of the Second Amendment to Amended and Restated Credit Agreement
(hereinafter the "Second Amendment Closing Date"), each of the following
conditions precedent shall have been satisfied:
(a) Proof of Corporate Authority. Agent shall have received
from each Borrower (i) copies, certified by a duly authorized officer
to be true and complete on and as of the Second Amendment Closing Date,
of records of all action taken by such
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Borrower to authorize the execution and delivery of this Agreement and
all other certificates, documents and instruments to which it is or is
to become a party as contemplated or required by this Second Amendment,
and its performance of all of its obligations under each of such
documents; (ii) certificates of good standing under the laws of the
state of such Borrower's incorporation and its good standing in each
state where such Borrower is required to qualify to conduct business;
and (iii) such other certificates as Agent in its sole discretion shall
require.
(b) Organizational Documents. Agent shall have received (i)
copies, certified by the Secretary or Assistant Secretary of such New
Subsidiary to be true and complete on and as of the Second Amendment
Closing Date, of the charter or other organizational documents and
by-laws of such New Subsidiary as in effect on the Second Amendment
Closing Date (together with all, if any, amendments thereto); and (ii)
the charter or other organizational documents of such New Subsidiary
certified by the applicable Secretary of State from each New
Subsidiary.
(c) Documents. Each of the documents to be executed and
delivered at the closing of the Second Amendment and all other
certificates, documents and instruments to be executed in connection
herewith shall have been duly and properly authorized, executed and
delivered by Borrower and shall be in full force and effect on and as
of the Second Amendment Closing Date.
(d) Legality of Transactions. No change in applicable law
shall have occurred as a consequence of which it shall have become and
continue to be unlawful (i) for Agent and each Lender to perform any of
its agreements or obligations under any of the Loan Documents, or (ii)
for any Borrower to perform any of its agreements or obligations under
any of the Loan Documents.
(e) Performance, Etc. Except as set forth herein, each
Borrower shall have duly and properly performed, complied with and
observed each of its covenants, agreements and obligations contained in
each of the Loan Documents. Except as set forth herein, no event shall
have occurred on or prior to the Second Amendment Closing Date, and no
condition shall exist on the Second Amendment Closing Date, which
constitutes a Default or an Event of Default.
(f) Payment of Closing Fees. Borrowers shall have paid to
Agent and each Lender the closing fees separately agreed to between
Agent, each Lender and Borrowers.
(g) Proceedings and Documents. All corporate, governmental and
other proceedings in connection with the transactions contemplated on
the Second Amendment Closing Date, each of the other Loan Documents and
all instruments and documents incidental thereto shall be in form and
substance reasonably satisfactory to Provident.
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(h) Changes; None Adverse. Since the date of the most recent
balance sheets of Borrowers delivered to Provident, no changes shall
have occurred in the assets, liabilities, financial condition,
business, operations or prospects of Borrowers which, individually or
in the aggregate, are material to a Borrower, and Provident shall have
completed such review of the status of all current and pending legal
issues as Agent shall deem necessary or appropriate.
17. Miscellaneous. (a) Borrowers shall reimburse Agent for all
fees and disbursements of legal counsel to Agent which shall have been
incurred by Agent in connection with the preparation, negotiation, review,
execution and delivery of this Second Amendment and the handling of any other
matters incidental hereto.
(b) All of the terms, conditions and provisions of the
Agreement not herein modified shall remain in full force and effect. In
the event a term, condition or provision of the Agreement conflicts
with a term, condition or provision of this Second Amendment, the
latter shall govern.
(c) This Second Amendment shall be governed by and shall be
construed and interpreted in accordance with the laws of the State of
Ohio.
(d) This Second Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
(e) This Second Amendment may be executed in several
counterparts, each of which shall constitute an original, but all which
together shall constitute one and the same agreement.
[Remainder of page intentionally left blank. Signature page follows.]
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC.
14
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
by or on behalf of each of the parties as of the day and in the year first above
written.
CLEARVIEW CINEMA GROUP, INC.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CLEARVIEW THEATRE GROUP, INC.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXXX CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC B.C. REALTY CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BAYONNE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC. Signature Pages/1 of 9
15
CCC BEDFORD CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BCCC BELLEVUE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BERGENFIELD CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BRONXVILLE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC CEDAR GROVE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXXX TWIN CINEMA CORPORATION
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC. Signature Pages/2 of 9
16
CCC CINEMA 304 CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC CLARIDGE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC CLOSTER CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC EDISON CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXXX CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC GRAND AVENUE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC. Signature Pages/3 of 9
17
CCC HERRICKS CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC KIN MALL CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC KISCO CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC LARCHMONT CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MADISON TRIPLE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MAMARONECK CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC. Signature Pages/4 of 9
18
CCC MANASQUAN CINEMA CORPORATION
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MANSFIELD CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MARBORO CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXXXXXXX CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC NEW CITY CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC PARSIPPANY CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC. Signature Pages/5 of 9
19
CCC PORT WASHINGTON CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC XXXXXX CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC SUCCASUNNA CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC SUMMIT CINEMA CORP.
(formerly known as 000-000
Xxxxxxxxxxx Xxxxxx Corp.)
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC TENAFLY CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC WASHINGTON CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC. Signature Pages/6 of 9
20
CCC XXXXX CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC WOODBRIDGE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BABYLON CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC BALA CYNWYD CINEMA, CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC CARMEL CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC FRANKLIN SQUARE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC. Signature Pages/7 of 9
21
CCC MANHASSET CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC GREAT NECK CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC MORRISTOWN CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC NARBERTH CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
CCC SCREENING ZONE CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
MILLBURN TWIN CINEMA CORP.
By:
--------------------------
Name: A. Xxxx Xxxx
Title: President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC. Signature Pages/8 of 9
22
THE LENDERS:
THE PROVIDENT BANK
By:
------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By:
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
AGENT:
THE PROVIDENT BANK, as Agent
By:
------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEARVIEW CINEMA GROUP, INC. Signature Pages/9 of 9
23
SCHEDULE 3.1
REAL PROPERTY INTERESTS
---------------------------------------------------------------------------- ----------------------------------------
TYPE ON INTEREST NEW SUBSIDIARY PROPERTY LOCATION
---------------------------------------------------------------------------- ----------------------------------------
Leasehold Estate CCC Claridge Cinema Corp.
-----------------------------------
-----------------------------------
-----------------------------------
---------------------------------------------------------------------------- ----------------------------------------
CCC Babylon Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
CCC Bala Cynwyd Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
CCC Franklin Square Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
CCC Great Neck Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
CCC Manhasset Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
CCC Millburn Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
CCC Morristown Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
CCC Narberth Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
CCC Screening Zone Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
Millford Twin Cinema Corp. No real property acquired at this Time
---------------------------------------------------------------------------- ----------------------------------------
24
SCHEDULE 1
PARTICIPATION
LENDER CREDIT COMMITMENT PERCENTAGE
=====================================================================================================================
THE PROVIDENT Revolving Credit Loan 72.22%
Xxx Xxxx Xxxxxx Xxxxxx
___ Floor $722,222.22 72.22%
Xxxxxxxxxx, Xxxx 00000
Term Loan A
Xxxxxxxxxxx X. Xxxxxxx
(000) 000-0000 $8,666,666.67 72.22%
Fax: (000) 000-0000
Term Loan B
$16,611,111.11 72.22%
Term Loan C
$4,188,888.89
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXX XXXX XX XXX XXXX Revolving Credit Loan 27.78%
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 $277,777.78
Xxxxxxxx X. Xxxxxx Term Loan A 27.78%
(000) 000-0000
Fax: (000) 000-0000 $3,333,333.33
Term Loan B 27.78%
$6,388,888.89
Term Loan 27.78%
$1,611,111.11
