Exhibit 10.21
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
CLEARVIEW CINEMA GROUP, INC.
Borrower,
THE PROVIDENT BANK,
Agent
AND
VARIOUS LENDERS DESCRIBED ON SCHEDULE 1 HERETO
June 12, 1998
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TABLE OF CONTENTS
Page
ARTICLE 1. INTERPRETATION..................................................................................1
Section 1.1 Provisions Pertaining to Definitions...................................................1
Section 1.2 Definitions............................................................................2
ARTICLE 2. THE LOANS......................................................................................19
Section 2.1 Commitments...........................................................................19
Section 2.2 Revolving Credit Loan.................................................................19
Section 2.3 Draws, Advances and Settlement of Payments and Advances...............................19
Section 2.4 The Notes.............................................................................20
Section 2.5 Interest Payable on the Loans.........................................................20
(a) Determination of Interest Rate........................................................20
(b) Monthly Installments..................................................................20
(c) Interest on Overdue Payments; Default Interest Rate...................................21
Section 2.6 Repayments and Prepayments of Principal...............................................21
(a) Commitment Reduction..................................................................21
(b) Revolving Credit Loan Overadvance.....................................................21
(c) Prepayments from Extraordinary Dispositions...........................................21
(d) Prepayment from Key Man Insurance.....................................................22
(e) Maturity..............................................................................22
Section 2.7 Payments and Computations.............................................................22
Section 2.8 Payments to be Free of Deductions.....................................................24
Section 2.9 Use of Proceeds.......................................................................24
Section 2.10 Additional Costs, Etc.................................................................24
Section 2.11 Agent and Lender Statements...........................................................25
Section 2.12 Letters of Credit.....................................................................25
ARTICLE 3. SECURITY AGREEMENT.............................................................................27
Section 3.1 Security Interest.....................................................................27
Section 3.2 Mortgages and Liens on Real Property..................................................27
Section 3.3 Pledge of Stock.......................................................................27
Section 3.4 Financing Statements Additional Documents.............................................28
Section 3.5 Accounts; Chattel Paper; Lease Agreements.............................................28
Section 3.6 Release of Collateral.................................................................29
ARTICLE 4. CONDITIONS PRECEDENT TO DISBURSEMENTS..........................................................29
Section 4.1 Conditions Precedent to Initial Closing...............................................29
Section 4.2 Conditions Precedent to Subsequent Loans..............................................32
ARTICLE 5. GENERAL REPRESENTATIONS AND WARRANTIES.........................................................32
Section 5.1 Existence, Etc........................................................................32
Section 5.2 Authority, Etc........................................................................33
Section 5.3 Binding Effect of Documents, Etc......................................................34
Section 5.4 No Events of Default, Etc.............................................................35
Section 5.5 Financial Statements..................................................................35
Section 5.6 Changes; None Adverse................................................................35
Section 5.7 Title to Assets; Material Leases......................................................35
Section 5.8 Intellectual Property.................................................................35
Section 5.9 Indebtedness for Borrowed Money.......................................................36
Section 5.10 Litigation............................................................................36
Section 5.11 No Materially Adverse Contracts.......................................................36
Section 5.12 Taxes and Tax Returns, Etc............................................................36
Section 5.13 Contracts with Affiliates, Etc........................................................37
Section 5.14 Employee Benefit Plans................................................................37
Section 5.15 Governmental Regulation...............................................................38
Section 5.16 Securities Activities.................................................................38
Section 5.17 Disclosure............................................................................38
Section 5.18 No Material Default...................................................................38
Section 5.19 Environmental Conditions..............................................................38
Section 5.20 Licenses and Permits..................................................................39
Section 5.21 General Collateral Representation.....................................................40
ARTICLE 6. AFFIRMATIVE COVENANTS OF BORROWER..............................................................41
Section 6.1 Reports and Other Information.........................................................41
Section 6.2 Maintenance of Property; Authorization; Insurance.....................................44
Section 6.3 Key Man Life Insurance................................................................45
Section 6.4 Corporate Existence...................................................................46
Section 6.5 Inspection Rights.....................................................................46
Section 6.6 Payment of Taxes and Claims...........................................................46
Section 6.7 Compliance with Laws..................................................................46
Section 6.8 Notice of Other Events................................................................47
Section 6.9 Communication with Accountants........................................................47
Section 6.10 Payment of Indebtedness...............................................................47
Section 6.11 Performance of Obligations Under Certain Documents....................................47
Section 6.12 Governmental Consents and Approvals...................................................47
Section 6.13 Employee Benefit Plans and Guaranteed Pension Plans...................................48
Section 6.14 Further Assurances....................................................................48
Section 6.15 Borrower's Depository Accounts........................................................48
Section 6.16 Use of Proceeds.......................................................................49
Section 6.17 Subsidiaries..........................................................................49
Section 6.18 Acquired Real Property Interests......................................................49
ARTICLE 7. FINANCIAL COVENANTS............................................................................49
Section 7.1 Interest Coverage Ratio...............................................................49
Section 7.2 Credit Agreement Debt to EBITDA.......................................................49
ARTICLE 8. NEGATIVE COVENANTS OF BORROWER.................................................................50
Section 8.1 Limitation on Nature of Business......................................................50
Section 8.2 Limitation on Fundamental Changes.....................................................50
Section 8.3 Restricted Payments...................................................................50
Section 8.4 Management Compensation...............................................................50
Section 8.5 Limitation on Disposition of Assets...................................................51
Section 8.6 Limitation on Investments.............................................................52
Section 8.7 Acquisition of Margin Securities......................................................52
Section 8.8 Limitation on Mortgages, Liens and Encumbrances.......................................52
Section 8.9 No Additional Negative Pledges........................................................53
Section 8.10 No Restrictions on Subsidiary Distributions to Borrower...............................53
Section 8.11 Limitation on Indebtedness............................................................54
Section 8.12 Limitation on Sales and Leasebacks....................................................54
Section 8.13 Transactions with Affiliates..........................................................54
Section 8.14 No Additional Bank Accounts...........................................................54
ARTICLE 9. EVENTS OF DEFAULT AND REMEDIES.................................................................55
Section 9.1 Events of Default.....................................................................55
(a) Principal and Interest................................................................55
(b) Representation and Warranties.........................................................55
(c) Certain Covenants.....................................................................55
(d) Other Covenants.......................................................................55
(e) Loan Documents........................................................................55
(f) Litigation............................................................................55
(g) Default by Borrower under other Agreements............................................56
(h) Insolvency............................................................................56
(i) Judgment..............................................................................56
(j) ERISA.................................................................................56
(k) Change of Control.....................................................................57
(l) Material Adverse Change...............................................................57
Section 9.2 Termination of Commitments and Acceleration of Obligations............................57
Section 9.3 Remedies..............................................................................57
Section 9.4 No Implied Waiver; Rights Cumulative..................................................59
Section 9.5 Set-Off; Pro Rata Sharing.............................................................60
ARTICLE 10. CONCERNING THE AGENT AND THE LENDERS...........................................................60
Section 10.1 Appointment of the Agent..............................................................60
Section 10.2 Authority.............................................................................60
Section 10.3 Acceptance of Appointment.............................................................61
Section 10.4 Collateral Matters....................................................................61
Section 10.5 Agency for Perfection.................................................................62
Section 10.6 Application of Moneys.................................................................63
Section 10.7 Reliance by the Agent.................................................................63
Section 10.8 Exculpatory Provisions................................................................63
Section 10.9 Action by the Agent...................................................................64
Section 10.10 Amendments, Waivers and Consents......................................................64
Section 10.11 Indemnification.......................................................................64
Section 10.12 Reimbursement of the Agent............................................................65
Section 10.13 Sharing of Funds Received.............................................................65
Section 10.14 Dealing with Lenders..................................................................65
Section 10.15 Agent as Lender.......................................................................65
Section 10.16 Duties Not to be Increased............................................................66
Section 10.17 Lender Credit Decisions...............................................................66
Section 10.18 Resignation of Agent..................................................................66
Section 10.19 Assignment of Notes; Participation....................................................66
ARTICLE 11. PROVISIONS OF GENERAL APPLICATION..............................................................67
Section 11.1 Term of Agreement.....................................................................67
Section 11.2 Notices...............................................................................67
Section 11.3 Survival of Representations...........................................................69
Section 11.4 Amendments............................................................................69
Section 11.5 Costs, Expenses, Taxes and Indemnification............................................69
Section 11.6 Language..............................................................................70
Section 11.7 Binding Effect; Assignment............................................................70
Section 11.8 Governing Law; Jurisdiction and Venue.................................................70
Section 11.9 WAIVER OF JURY TRIAL..................................................................71
Section 11.10 Waivers...............................................................................71
Section 11.11 Interpretation and Proof of Loan Documents............................................71
Section 11.12 Integration of Schedules and Exhibits.................................................71
Section 11.13 Headings..............................................................................71
Section 11.14 Counterparts..........................................................................71
Section 11.15 Severability..........................................................................72
Section 11.16 One General Obligation................................................................72
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 12,
1998 ("Credit Agreement") is by and among CLEARVIEW CINEMA GROUP, INC., a
Delaware corporation, (hereinafter, together with its successors in title and
assigns called "Borrower"), the banks and lending institutions set forth on
Schedule 1 hereto (the "Lenders") and THE PROVIDENT BANK, an Ohio banking
corporation, ("Provident") executing this Agreement in its capacity of Agent for
the Lenders under this Agreement (hereinafter called "Provident" or "Agent").
BACKGROUND
This Second Amended and Restated Agreement amends and restates in its
entirety the Amended and Restated Credit Agreement dated as of September 12,
1997, as amended by the First Amendment to the Amended and Restated Credit
Agreement dated December 12, 1997, by the Second Amendment to the Amended and
Restated Credit agreement and by the Third Amendment to the Amended and Restated
Credit Agreement dated April 20, 1998 ("Original Credit Agreement"), which
amended and restated in its entirety the Credit Agreement dated as of May 29,
1996 as amended, by and among the borrowers thereto, the banks and lending
institutions set forth on Schedule 1 thereto and Agent.
Certain Subsidiaries of Borrower which were co-borrowers under the
Amended and Restated Credit Agreement are consenting to this Second Amended and
Restated Credit Agreement solely for the purpose of withdrawing as co-borrowers.
Borrower and Lender now wish to amend and restate the Original Credit
Agreement and some of the related documents in accordance with the terms and
provisions hereof.
NOW, THEREFORE, the parties hereto agree to amend and restate the
Original Credit Agreement as follows:
ARTICLE 1.
INTERPRETATION
Section 1.1 Provisions Pertaining to Definitions. For all purposes of
this Credit Agreement (except where such interpretations would be inconsistent
with the context or the subject matter):
(a) The expression "this Agreement" shall mean this Second Amended and
Restated Credit Agreement (including all of the Schedules and Exhibits annexed
hereto) as originally executed, or, if supplemented, amended or restated from
time to time, as so supplemented, amended or restated;
(b) Where appropriate, words importing the singular only shall include
the plural and vice versa, and all references to dollars shall be United States
Dollars; and
(c) Accounting terms not otherwise defined herein shall have the
meanings customarily given in accordance with Generally Accepted Accounting
Principles (as hereinafter defined) and all financial computations or
determinations to be made under this Agreement shall, unless otherwise
specifically provided herein, be made in accordance with the financial
statements delivered pursuant to Section 5.5 and shall be made on a Consolidated
basis.
Section 1.2 Definitions. In addition to terms defined elsewhere in this
Agreement, the following terms shall have the following meanings in this
Agreement:
"Accountants" mean Price Waterhouse, LLP, or any nationally recognized
firm of certified public accountants selected by Borrower and acceptable to
Agent and Lenders.
"Account Debtor" means any Person obligated for the payment of an
Account.
"Accounts" mean, with respect to any person, such Person's accounts,
rental agreements and other contract rights, rights to payment and other forms
of obligation for the payment of money, whether now existing or existing in the
future, including, without limitation, all (i) accounts receivable (whether or
not specifically listed on schedules furnished to the Agent), all accounts
created by or arising from all of such Person's sales of goods, financial
instruments, documents, permits or other items, or rendition of services,
including funds transfer services, made under any of such Person's trade names
or styles, or through any of such Person's Subsidiaries or divisions, and all
accounts acquired by assignment in the ordinary course of business; (ii) unpaid
seller's rights (including rescission, replevin, reclamation and stopping in
transit) relating to the foregoing or arising therefrom; (iii) rights to any
goods represented by any of the foregoing, including returned or repossessed
goods; (iv) reserves and credit balances held by such Person with respect to any
such accounts receivable or account debtors; (v) guarantees or collateral for
any of the foregoing; and (vi) insurance policies or rights relating to any of
the foregoing.
"Affiliate" means, in relation to any Person (in this definition called
"Affiliated Person"), any Person (i) which (directly or indirectly) controls or
is controlled by or is under common control with such Affiliated Person; or (ii)
which (directly or indirectly) owns or holds five percent (5%) or more of any
equity interest in Borrower; or (iii) five percent (5%) or more of whose voting
stock or other equity interest is directly or indirectly owned or held by such
Borrower. For the purposes of this definition, the term "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession (directly
or indirectly) of the power to direct or to cause the direction of the
management or the policies of such Person, whether through the ownership of
shares of any class in the capital or any other voting securities of such Person
or by contract or otherwise.
"Agent" means Provident acting in the capacity as Agent for the Lenders
under the Loan Documents and includes (where the context so admits) any other
Person or Persons succeeding to the functions of Agent under such documents.
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"Agent Deposit Account" has the meaning set forth in Section 2.3(c)
hereof.
"Agent Disbursement Account" has the meaning set forth in Section
2.3(a) hereof.
"Agreement" or "Credit Agreement" or "Second Amended and Restated
Credit Agreement" means this Agreement and any amendments, extensions, riders,
supplements, schedules, or modifications to or in connection with this
Agreement.
"Assignments of Option and Operating Agreements" means the (i)
Assignment of Option and Operating Agreement from Borrower, CCC Grand Avenue
Cinema Corp. and CCC Port Washington Cinema Corp. to Agent relating to a certain
Agreement among Borrower, CCC Grand Avenue Cinema Corp. and CCC Port Washington
Cinema Corp. and Cinema Grand Avenue, Inc. and Triplex Movies at Port
Washington, Inc. in connection with the operation of and option to purchase
certain theaters located in Long Island, New York and known as the Grand Avenue
Theater and the Post Washington Theater, and (ii) the Assignment of Option and
Operating Agreement from Borrower and CCC Herricks Cinema Corp. to Agent
relating to a certain Agreement among Borrower and CCC Herricks Cinema Corp. and
Cinema Herricks, Inc. in connection with the operation of and option to purchase
a certain theater located in Long Island, New York and known as the Herricks
Theater, each in the form of Exhibit A hereto.
"Assignment of Trademarks" means the Assignment of Trademarks from
Borrower to Agent in the form of Exhibit C hereto.
"Average Daily Loan Balance" means the sum of the unpaid balances of
the Revolving Credit Loan owing by Borrower to Lenders at the end of each day
for the immediately preceding four (4) fiscal quarters ending on the relevant
Computation Date, divided by 365 or 366, as applicable; provided, however, that
during the first Loan Year, such amount shall be calculated from the Closing
Date through the date of such calculation as the sum of the unpaid balances of
the Revolving Credit Loans owing by Borrower to Lender for each day since the
Closing Date divided by the actual number of days elapsed since the Closing
Date.
"Blocked Account Agreement" shall mean the Blocked Account Agreement
between Borrower and Agent, acknowledged by each depository institution,
pursuant to which such financial institutions shall agree not to permit funds in
such bank accounts to be disbursed except to the Agent Disbursement Account, or
any other account maintained at or controlled by the Agent, in the form of
Exhibit D hereto.
"Business Day" means any day other than a Saturday or Sunday on which
commercial banking institutions are open for business in Cincinnati, Ohio.
"Capital Lease" means any lease of Property which has been or is
required to be classified and accounted for as a capital lease obligation on
Borrower's Consolidated financial statements in accordance with GAAP.
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"Capital Lease Obligation" means any obligation to pay rent or other
amounts under a Capital Lease and, for the purpose of this Agreement, the amount
of such obligation at any date shall be the capitalized amount thereof at such
date, determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) or corporate stock, whether
common or preferred, including, without limitation, partnership interests.
"Cash Equivalents" means: (i) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within three (3) months from the date of acquisition thereof;
(ii) investments in certificates of deposit or bankers' acceptances maturing
within three (3) months from the date of acquisition issued by any Lender or any
other commercial bank organized under the laws of the United States or any state
thereof having capital surplus and undivided profits aggregating at least Two
Hundred Fifty Million Dollars ($250,000,000); (iii) investments in commercial
paper of any Lender or of any other Person which, at the time of issuance, have
a rating of at least A-1 from Standard & Poor's Corporation or at least P-1 from
Xxxxx'x Investors Service, Inc. and maturing not more than six (6) months from
the date of acquisition thereof; (iv) obligations of the type described in (i),
(ii) or (iii) above purchased pursuant to a repurchase agreement obligating the
counterparty to repurchase such obligations not later than thirty (30) days
after the purchase thereof, secured by a fully perfected security interest in
any such obligation, and having a market value at the time such repurchase
agreement is entered into of not less than 100% of the repurchase obligation of
the issuing bank; and (v) time deposits or Eurodollar time deposits maturing no
more than thirty (30) days from the date of creation with commercial banks
having membership in the Federal Deposit Insurance Corporation in amounts not
exceeding the lesser of One Hundred Thousand Dollars ($100,000) or the maximum
insurance applicable to the aggregate amount of such Person's deposits in such
institution.
"Casualty Loss" means any occurrence or event pursuant to which any
asset or property owned or used by Borrower is (i) damaged or destroyed, or
suffers any other loss, or (ii) condemned, confiscated or otherwise taken, in
whole or in part, or the use thereof is otherwise diminished so as to render
impracticable or unreasonable the use of such asset or property for the purposes
to which such asset or property were used immediately prior to such
condemnation, confiscation or taking, by exercise of the powers of condemnation
or eminent domain or otherwise, and in either case the amount of the damage,
destruction, loss or diminution in value is in excess of One Hundred Thousand
Dollars ($100,000).
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Borrower and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act) other than the Principal (as defined below) or a Related Party (as defined
below) or the Principal, (ii) the adoption of a plan relating to the liquidation
or dissolution of the Borrower, (iii)
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the consummation of any transaction (including, without limitation, any merger
or consolidation) the result of which is that (A) any "person" (as defined
above), other than the Principal and its Related Parties, becomes the
"beneficial owner" (as such terms is defined in Rule 13d-3 and Rule 13d-5) under
the Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire, whether
such right is currently exercisable or is exercisable only upon the occurrence
of a subsequent condition), directly or indirectly, of more than 40% of the
Voting Stock of the Borrower (measured by voting power rather than number of
shares) and (B) the Principal and its Related Parties "beneficially own" (as
defined above), directly or indirectly, in the aggregate a lesser percentage of
the Voting Stock of the Borrower (measured by voting power rather than number of
shares) than any such "person" (as defined above), (iv) the first day on which a
majority of the members of the Board of Directors of the Borrower are not
Continuing Directors (as defined below) or (v) the Borrower consolidates with,
or merges with or into, any Person, or any Person consolidates with, or merges
with or into, the Borrower, in any such event pursuant to a transaction in which
any of the outstanding Voting Stock of the Borrower is converted into or
exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of the Borrower outstanding immediately prior
to such transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance).
"Chattel Paper" means any "chattel paper" as such term is defined in
Section 9-105(1)(b) of the UCC, now owned or hereafter acquired.
"Closing Date" means the date the loans are made pursuant to the
Amended and Restated Credit Agreement.
"Code" means the United States Internal Revenue Code of 1986, as
amended from time to time, or any successor federal tax code, and any reference
to any statutory provision shall be deemed to be a reference to any successor
provision or provisions.
"Collateral" means all Accounts, Inventory, Equipment, General
Intangibles, fixtures, goods, motor vehicles, leasehold improvements, Documents,
Instruments, Chattel Paper, Intellectual Property, inventory subject to leases
and rights under lease agreements for the leasing of inventory, money, deposit
accounts, rights to draw on letters of credit, permits, licenses and the cash or
noncash Proceeds (including insurance or other rights to receive payment with
respect thereto) of any of the foregoing and all accessions and additions to and
replacements of the foregoing, and all books and records (including, without
limitation, customer lists, credit files, computer programs, printouts and other
computer materials and records of Borrower and its Subsidiaries) pertaining to
any of the foregoing or any of the Premises (herein, together with the real
property, buildings and fixtures described in the Mortgages, and all other
property and rights assigned by Borrower or any Subsidiary to Agent, on behalf
of the Lenders, to secure Borrower's obligations under the Loan Documents).
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"Compliance Certificate" means a certificate, substantially in the form
of Exhibit E hereto, pursuant to which Borrower shall certify its compliance
with the covenants of this Agreement.
"Computation Date" means the last day of each March, June, September
and December.
"Consolidated" means, with respect to any accounting matter or amount,
such matter or amount computed on a consolidated basis for Borrower, as the case
may be, and any Subsidiaries in accordance with GAAP.
"Consolidated Cash Interest Expense" means, for any period, the total
amount of all charges for the use of funds (whether characterized as interest or
otherwise) payable in cash during such period with respect to all Consolidated
Credit Agreement Indebtedness for Borrowed Money of Borrower and its
Subsidiaries for such period.
"Consolidated Credit Agreement Indebtedness for Borrowed Money" means
the aggregate amount of Indebtedness for Borrowed Money outstanding under the
Credit Agreement.
"Contingent Obligation" means any direct or indirect liability,
contingent or otherwise, with respect to any Indebtedness, lease, dividend,
letter of credit, banker's acceptance or other obligation of another Person if
the primary purpose or intent thereof in incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another Person that
such obligation of another Person will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof. Contingent Obligations shall include, without limitation, (i) the
direct or indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another
Person; (ii) any liability for the obligations of another Person through any
agreement (contingent or otherwise) (A) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), (B) to maintain the
solvency of any balance sheet item, level of income or financial condition of
another, or (C) to make take-or-pay, pay-or-play or similar payments if required
regardless of nonperformance by any other party or parties to an agreement, if
in the case of any agreement described under subclauses (A), (B) or (C) of this
sentence the primary purpose or intent thereof is as described in the preceding
sentence. The dollar amount of any Contingent Obligation shall be equal to the
lesser of the dollar amount of the obligation or portion of the obligation so
guaranteed or otherwise supported.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Borrower who (i) was a member of such
Board of Directors on the Closing Date, (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election or (iii) is a designee of the Principal or was nominated
by the Principal.
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"Credit Commitment" means, in relation to any particular Lender, the
maximum amount with respect to the Revolving Credit Loan to be loaned by such
Lender to Borrower as set forth on Schedule 1 hereto.
"Current Assets" and "Current Liabilities" mean at any time, all assets
or liabilities, respectively, that, in accordance with GAAP should be classified
as current assets or current liabilities, respectively, on Borrower's
Consolidated balance sheet.
"Default" means any event or occurrence which, with the giving of
notice or the passage of time, or both, would constitute an Event of Default.
"Default Interest Rate" means an annual rate of interest which shall
(to the extent permitted by applicable law) at all times be equal to two percent
(2%) above the applicable Interest Rate for a Loan.
"Disqualified Stock" shall have the meaning set forth in the Indenture.
"Documents" mean any "documents," as such term is defined in Section
9-105(1)(f) of the UCC, now owned or existing or hereafter arising or acquired.
"Draw Date" means in relation to any Revolving Credit Loan, the day on
which such Loan is made or to be made to Borrower pursuant to this Agreement.
"EBITDA" for any period shall mean, on a Consolidated basis and without
duplication, (i) Net Income; plus (ii) for such period any Interest Expense
deducted in the determination of Net Income; plus (iii) any income and franchise
taxes paid in cash and included in the determination of Net Income; plus (iv)
amortization and depreciation and other non-cash charges deducted in determining
Net Income for such period; plus (v) extraordinary losses, losses on sales of
assets (other than sales of inventory in the ordinary course of business) and
unrealized gains from changes in currency; minus (vi) the sum for such period of
interest income, extraordinary gains, gains from sales of assets (other than
sales of inventory in the ordinary course of business) and unrealized losses
from changes in currency; plus (vii) premiums on life insurance purchased
pursuant to Section 6.3 of this Agreement; plus (viii) options payments approved
by Agent made with respect to acquisitions of theater locations; plus (ix)
advisory fees paid to MidMark not in violation of this Agreement; provided, that
in calculating EBITDA with respect to newly-acquired or developed theaters,
actual historical financial data of newly-acquired theaters prior to their
acquisition by Borrower shall be included in the determination of EBITDA and pro
forma financial projections for developed theaters, determined in a manner
approved by Agent, shall be included in the determination of EBITDA for periods
in which calculations of actual financial data are not available.
"Employee Benefit Plan" means an "employee benefit plan" as defined in
Section 3(3) of ERISA.
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"Environmental Indemnity Agreement" means the Environmental Indemnity
Agreement among Agent and Borrower relating to the Premises, substantially in
the form of Exhibit F hereto, and any amendments, modifications, supplements or
restatements thereto.
"Environmental Laws" means individually or collectively any local,
state or federal law, statute, rule, regulation, order, ordinance, common law,
permit or license term or condition, or state superlien or environmental
clean-up or disclosure statutes pertaining to the environment or to
environmental contamination, regulation, management, control, treatment,
storage, disposal, containment, removal, clean-up, reporting, or disclosure,
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), as now or hereafter amended
(including, but not limited to, the Superfund Amendments and Reauthorization Act
("XXXX")); the Resource Conservation and Recovery Act ("RCRA"), as now or
hereafter amended (including, but not limited to, the Hazardous and Solid Waste
Amendments of 1984); the Toxic Substances Control Act ("TSCA"), as now or
hereafter amended; the Clean Water Act, as now or hereafter amended; the Safe
Drinking Water Act, as now or hereafter amended; or the Clean Air Act, as now or
hereafter amended.
"Equipment" means any "equipment," as such term is defined in Section
9-109(2) of the UCC, now owned or hereafter acquired and shall include, without
limitation, any and all additions, substitutions, and replacements of any of the
foregoing, wherever located, together with all attachments, components, parts
and accessories installed thereon or affixed thereto.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock or that are measured by the value of
Capital Stock (but excluding any debt security that is convertible into, or
exchangeable for Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974 and
regulations issued thereunder, as amended from time to time and any successor
statute.
"ERISA Affiliate" means, in relation to any Person, any trade or
business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is considered under common control within the
meaning of the regulations promulgated under Section 414 of the Code.
"ERISA Liabilities" means the aggregate of all unfunded vested benefits
under any employee pension benefit plan, within the meaning of Section 3(2) of
ERISA, of Borrower or any ERISA Affiliate of Borrower under any Plan covered by
ERISA that is not a Multiemployer Plan and all potential withdrawal liabilities
of any thereof under all Multiemployer Plans.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition described in Section
9.1 of this Agreement.
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"Extraordinary Disposition" means, with respect to Borrower and any
Subsidiary, the sale, lease, transfer or other disposition of assets, other than
assets transferred or disposed in the ordinary course of business, whether by
way of the sale of assets or the sale of stock or other rights in which Borrower
or such Subsidiary has any ownership interest, and whether in one transaction or
a series of related or unrelated transactions.
"General Intangibles" means any "general intangibles" as such term is
defined in Section 9-106 of the UCC, now owned or hereafter acquired and, in any
event, shall include, without limitation, all right, title and interest now in
existence or hereafter arising in or to all customer lists, trademarks, patents,
rights in intellectual property, trade names, copyrights, trade secrets,
proprietary or confidential information, inventions and technical information,
procedures, designs, knowledge, know-how, software, data bases, data, processes,
models, drawings, materials, and records now owned or hereafter acquired, and
any and all goodwill and rights of indemnification.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States of America in effect from
time to time, consistently applied.
"Guaranteed Pension Plan" means any pension plan maintained by Borrower
or an ERISA Affiliate of Borrower, or to which Borrower or an ERISA Affiliate
contributes, some or all of the benefits, under which benefits are guaranteed by
the United States Pension Benefit Guaranty Corporation ("PBGC").
"Hazardous Substances" means any and all hazardous and toxic
substances, wastes or materials, any pollutants, contaminants, or dangerous
materials (including, but not limited to, polychlorinated biphenyls, friable
asbestos, volatile and semi-volatile organic compounds, oils, petroleum products
and fractions, and any materials which include hazardous constituents or become
hazardous, toxic, or dangerous when their composition or state is changed), or
any other similar substances or materials which are included under or regulated
by any Environmental Law.
"Head Office" means, in relation to the Agent, the head office of The
Provident Bank located at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 or such
office designated in writing to Borrower and Lenders by The Provident Bank or
any successor Agent.
"Indebtedness" means, subject to the provisions stated hereinafter, in
relation to any Person, at any particular time, all of the obligations of such
Person which, in accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet including any footnote thereto of such Person
prepared at such time, and in any event shall include, without limitation, and
without duplication:
(i) all indebtedness of such Person arising or
incurred under or in respect of (A) any guaranties (whether direct or
indirect) by such Person of the indebtedness, obligations or
liabilities of any other Person, or (B) any endorsement by such Person
of any of the indebtedness, obligations or liabilities of any other
Person (otherwise than as an endorser of negotiable instruments
received in the ordinary course of business and presented to commercial
banks for collection of deposit), or (C) the discount by such Person,
with recourse to such Person, of any of the indebtedness, obligations
or liabilities of any other Person;
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(ii) all indebtedness of such Person arising or
incurred under or in respect of any agreement, contingent or otherwise
made by such Person (A) to purchase any indebtedness of any other
Person or to advance or supply funds to the payment or purchase of any
indebtedness of any other Person, or (B) to purchase, sell or lease (as
lessee or lessor) Property, products, materials or supplies or to
purchase or sell transportation or services, primarily for the purpose
of enabling any other Person to make payment of any indebtedness of
such other Person or to assure the owner of such other Person's
indebtedness against loss, regardless of the delivery or non-delivery
of the Property, products, materials or supplies or the furnishing or
non-furnishing of the transportation or services, or (C) to make any
loan, advance, capital contribution or other investment in any other
Person for the purpose of assuring a minimum equity, asset base,
working capital or other balance sheet condition for or as at any date,
or to provide funds for the payment of any liability, dividend or stock
liquidation payment, or otherwise to supply funds to or in any manner
invest in any other Person;
(iii) all indebtedness, obligations and liabilities
secured by or arising under or in respect of any Lien, upon or in
Property owned by such Person, even though such Person has not assumed
or become liable for the payment of such indebtedness, obligations and
liabilities;
(iv) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
Property acquired by such Person, even though the rights and remedies
of the seller or lender (or lessor) under such agreement in the event
of default are limited to repossession or sale of such Property; and
(v) all indebtedness arising or incurred under or in
respect of any Contingent Obligation.
provided, however, that the foregoing definition of
Indebtedness shall not include any guaranties by Borrower with respect
to obligations of a Subsidiary Guarantor.
Notwithstanding anything herein to the contrary, the definition of
"Indebtedness" shall exclude any and all amounts payable with respect to Class B
Nonvoting Cumulative Redeemable Preferred Stock issued by Borrower (as described
in Exhibit N hereto) (the "Class B Stock") or the Class C Convertible Preferred
Stock issued by Borrower (as described in Exhibit O hereto) (the "Class C
Stock"), whether by way of dividend, redemption or repurchase obligations or
payments or other obligations or payments related to Class B Stock or Class C
Stock or contracts and agreements related to the issuance of such stock.
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"Indebtedness for Borrowed Money" means at any particular time, all
Indebtedness (i) in respect of any money borrowed; (ii) under or in respect of
any Contingent Obligation (whether direct or indirect) of any money borrowed;
(iii) evidenced by any loan or credit agreement, promissory note, debenture,
bond, guaranty or other similar written obligation to pay money; or (iv) Capital
Lease Obligations.
"Indenture" means that certain Indenture between Borrower, certain
Subsidiaries of Borrower and the Bank of New York, as trustee, with respect to
those certain 10.875% Senior Notes due 2008 in the aggregate principal amount of
$80,000,000.
"Instruments" mean any "instrument," as such term is defined in Section
9-105(1)(i) of the UCC, now owned or hereafter acquired.
"Intellectual Property" shall mean all Patents and all Trademarks,
together with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets; (b) all licenses or user or other
agreements granted to any obligor with respect to any of the foregoing, in each
case whether now or thereafter owned or used including, without limitation, the
licenses or other agreements with respect to the Trademarks, set forth on
Schedule 5.8 hereto; (c) all information, customer lists, identification of
suppliers, data, plans, blueprints, specifications, designs, drawings, recorded
knowledge, surveys, engineering reports, test reports, manuals, materials
standards, processing standards, performance standards, catalogs, computer and
automatic machinery software and programs; (d) all field repair data, sales data
and other information relating to sales or service of products now or hereafter
manufactured; (e) all accounting information and all media on which or in which
any information or knowledge or data or records may be recorded or stored and
all computer programs used for the compilation or printout of such information,
knowledge, records or data; (f) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or hereafter held by
Borrower; and (g) all causes of action, claims and warranties now or hereafter
owned or acquired by Borrower in respect of any of the items listed above.
"Interest Expense" means, for any period, the total amount of all
charges for the use of funds (whether characterized as interest or otherwise)
payable during such period with respect to all Indebtedness for Borrowed Money
of Borrower for such period, including the amortization of debt discounts and
the amortization of all fees payable in connection with the incurrence of such
Indebtedness.
"Interest Rate" means the rate of interest per annum equal to the Prime
Rate.
"Inventory" means, with respect to any Person, such Person's inventory,
including without limitation: (i) all raw materials, work in process, parts,
components, assemblies, supplies and materials used or consumed in such Person's
business, wherever located and whether in the possession of such Person or any
other Person; (ii) all goods, wares and merchandise, finished or unfinished,
held for sale or lease or leased or furnished or to be furnished under contracts
of service, wherever located and whether in the possession of such Person or any
other Person; and (iii) all goods returned to or repossessed by such Person.
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"Investment" means all investments in any other Person by stock
purchase, capital contribution, loan, advance, guaranty of any Indebtedness or
creation or assumption of any other liability in respect of any Indebtedness of
such other Person (including, without limitation, any liability of any kind
described in clause (i) or (ii) of the definition of the term "Indebtedness" set
forth in this Section), or the transfer or sale of Property (otherwise than in
the ordinary course of the business) to any other Person for less than payment
in full in cash of the transfer or sale price or the fair value thereof
(whichever of such price or value is higher).
"Issuing Bank" means Provident or such other Lender as shall issue any
Letter of Credit hereunder.
"Leasehold Mortgages" means the Leasehold Mortgages existing on the
date of this Agreement granted by Borrower or any Subsidiary to Agent to secure
the Loans in the form of Exhibit H hereto and as they may be amended or
supplemented from time to time.
"Legal Requirements" means all applicable laws, rules, regulations,
ordinances, judgments, orders, decrees, injunctions, arbitral awards, permits,
licenses, authorizations, directions and requirements of all governments,
departments, commissions, boards, courts, authorities, agencies, and officials
and officers thereof, that are now or at any time in the future in effect.
"Lenders" mean collectively each of the banks or lending institutions
set forth on Schedule 1 hereto and their respective successors and assigns; and
"Lender" means any one of the Lenders.
"Liabilities" means all indebtedness, obligations and other liabilities
of Borrower and its Subsidiaries on a Consolidated basis whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, joint or several, secured or unsecured arising by contract,
operation of law or otherwise, classified as liabilities in accordance with GAAP
on a Consolidated balance sheet of Borrower.
"Licenses and Permits" means all licenses, permits, registrations and
recordings thereof and all applications incorporated into for such licenses,
permits and registrations now owned or hereafter acquired by Borrower and
required from time to time for the business operations of Borrower.
"Lien" means any lien, mortgage, pledge, security interest, charge or
other encumbrance of any kind including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest.
"Litigation" has the meaning set forth in Section 5.10 hereof.
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"Letter of Credit Fee" means the fee charged by the Lender for the
issuance of a Letter of Credit pursuant to Section 2.12(g) hereof.
"Letters of Credit" means the letters of credit issued by Lender at any
time pursuant to Section 2.4 hereof.
"Loan Documents" mean this Agreement, the Notes, the Letters of Credit,
the Security Documents, and any other agreement, instrument, certificate or
document executed in connection with or pursuant to this Credit Agreement, as
amended whether concurrently herewith or subsequent hereto, and as they may
hereafter from time to time be amended, modified, supplemented, restated, and/or
renewed.
"Loans" mean, collectively, the Revolving Credit Loan, each singly a
"Loan" made or to be made to Borrower by the Lenders pursuant to this Agreement.
"Loan Year" means each period of twelve (12) consecutive months,
commencing on the Closing Date and on each anniversary thereof.
"Material Adverse Effect" means any event which will, or is reasonably
likely to, have a material adverse effect upon the Collateral or upon the
financial condition, operations, assets or prospects in the aggregate of the
Borrower and its Subsidiaries taken as a whole.
"Material Lease" means any lease under which Borrower shall lease (as
lessee) or acquire the right to possess and/or use any Real Estate or other
Property or any other similar agreement (whether written or oral) pursuant to
which Borrower pays an annual lease payment or rental payment equal to or
greater than One Hundred Thousand Dollars ($100,000) or which otherwise is
material to the operation of the business of Borrower.
"Maximum Revolving Commitment" means Fifteen Million and 00/100 Dollars
($15,000,000.00).
"MidMark" means MidMark Capital, L.P., a Delaware limited partnership,
whose general partner is MidMark Associates, Inc., a New Jersey corporation.
"Mortgages" means the real estate mortgages or deeds of trust granted
from time to time by Borrower and any Subsidiary to Agent to secure the Loans,
substantially in the form of Exhibit I hereto, and as they may be amended or
supplemented from time to time.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is maintained for employees of Borrower, or any ERISA
Affiliate of Borrower.
"Net Income" means, for any period, the aggregate of the net income (or
net loss) of Borrower and is Subsidiaries on a Consolidated basis for such
period, determined in accordance with
-14-
GAAP, but excluding, without duplication: (i) the income of any Person in which
Borrower has an ownership interest (other than a Subsidiary), unless received by
such Borrower in a cash distribution; (ii) any net after-tax gains or losses
attributable to dispositions of assets; (iii) the income of any Subsidiary of
Borrower to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at that time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary; and (iv) any after-tax extraordinary non-cash gains or extraordinary
non-cash losses.
"Net Proceeds" means the aggregate proceeds paid in cash or Cash
Equivalents received by Borrower in excess of One Hundred Thousand Dollars
($100,000) in respect of any Extraordinary Disposition, net of direct costs
relating to such Extraordinary Disposition (including without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred or existing as a result thereof, taxes paid or
payable as a result thereof (after taking into account any available tax credits
or deductions in any tax sharing arrangements), amounts required to be applied
in payment of Indebtedness secured by a Lien incurred in accordance with this
Agreement on the assets or assets that are subject of such Extraordinary
Disposition and which Indebtedness is required pursuant to the terms of the
instrument governing such Indebtedness or Lien or in order to obtain the
necessary consent to such sale to be repaid in connection with such
Extraordinary Disposition and any reserve for adjustment in respect of the sale
price of or other liability in respect of such asset or assets.
"Notes" mean, collectively, the Revolving Credit Notes. "Note" shall
mean any one of the Notes, unless specifically identified.
"Obligations" means, collectively, all of the indebtedness,
obligations, covenants, promises, agreements, and liabilities existing on the
date hereof or arising from time to time hereafter, whether direct, indirect,
absolute, contingent, joint or several, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, of Borrower or any of its Subsidiaries to the Agent or any Lenders
(i) in respect of the Loans made pursuant to this Agreement; or (ii) under or in
respect of any one or more of the Loan Documents. Obligations shall also include
all interest, charges and other fees chargeable hereunder to Borrower or due
hereunder from Borrower to Lenders from time to time and all costs and expenses
referred to in Section 11.5 hereof.
"Original Closing Date" means the day on which the original Loan were
made pursuant to the Original Credit Agreement.
"Participation Percentage" means, in relation to each Lender, the
percentage set forth with respect to such Lender set forth on Schedule 1 hereto
with respect to each Loan.
"Permitted First Liens" means those Liens identified in Sections
8.8(a), 8.8(d), and those Liens set forth on Schedule 8.8(g).
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"Permitted Liens" means those Liens and encumbrances permitted
hereunder pursuant to Section 8.8.
"Person" shall include an individual, a company, a corporation, an
association, a partnership, a joint venture, an unincorporated trade or business
enterprise, a trust, an estate, or other legal entity or a government (national,
regional or local), court, arbitrator or any agency, instrumentality or official
of the foregoing.
"Pledge Agreement" means a stock pledge agreement or agreements
substantially in the form of Exhibit J hereto.
"Pledged Stock" means all of the Capital Stock of each Subsidiary of
Borrower whether now existing or hereafter formed or acquired.
"Premises" means collectively, all real property and leasehold
interests now or hereafter acquired by Borrower or any Subsidiary or Borrower,
including, without limitation, all the Premises as defined in the Mortgages and
the Leasehold Mortgages.
"Prime Rate" means the rate of interest announced from time to time by
Agent as its prime rate at its Head Office, whether or not Agent shall at times
lend to other borrowers at lower rates of interest, or, if there is no such
prime rate, then such other rate as may be substituted by Agent for its Prime
Rate.
"Principal" means A. Xxxx Xxxx.
"Proceeds" means "proceeds," as such term is defined in Section
9-306(1) of the UCC and, in any event, shall include, without limitation, (i)
any and all proceeds of any insurance, indemnity, warranty, or guaranty payable
from time to time with respect to any of the Collateral, and (ii) any and all
payments (in any form whatsoever) made or due and payable from time to time in
connection with any requisition, confiscation, condemnation, seizure, or
forfeiture of all or any part of the Collateral by any governmental body,
authority, bureau, or agency (or any Person acting under color of governmental
authority).
"Projections" means Borrower's forecasted Consolidated and
consolidating: (a) balance sheets, (b) profit and loss statements, and (c) cash
flow statements, all prepared on a division by division and Subsidiary by
Subsidiary basis and otherwise consistent with Borrower's historical financial
statements, together with, if requested by Agent, appropriate supporting details
and statements of underlying assumptions.
"Property" means all types of real, personal, tangible, intangible or
mixed property whether owned or leased by Borrower or a Subsidiary of Borrower.
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"Pro Rata Share" means, in relation to any particular item, the share
of any Lender in such item, which shall be in the same proportion which the
aggregate amount of all of the obligations owing to such Lender with respect to
such item at such time shall bear to the aggregate amount of all of the
obligations owing to all of the Lenders with respect to such item at such time
net of any and all charges or fees due and payable to Agent under the Loan
Documents.
"Real Estate" means all real property owned or leased by Borrower or
any Subsidiary and all real property hereafter acquired or leased by Borrower or
any Subsidiary of Borrower, together with all fixtures, rights of way,
privileges, liberties, tenements, hereditaments, and appurtenances belonging or
in any way appertaining thereto, all easements now or hereafter benefiting such
real property and all royalties and rights appertaining to the use and enjoyment
of such real property, together with all of the buildings, structures, and other
improvements thereto.
"Reference Period" means, with respect to a particular Computation
Date, the period of twelve (12) calendar months ending on such Computation Date.
"Reimbursement Obligations" means any amounts owing by Borrower to the
Lender on account of draws or disbursements under or with respect to the Letters
of Credit.
"Related Party" with respect to the Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Requisite Lenders" means at such times as there are any Loans
outstanding, the Lenders whose aggregate Pro Rata Shares of the outstanding
Loans are greater than or equal to sixty-six and two-thirds percent (66 2/3%) of
the aggregate amount of the outstanding Loans, and at all other times, the
Lenders whose aggregate Credit Commitments are greater than or equal to
sixty-six and two-thirds percent (66 2/3%) of the aggregate Credit Commitments
of all the Lenders; provided, however, that so long as there are less than three
Lenders, Requisite Lenders shall mean all of the Lenders.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Borrower
or any of its Subsidiaries now or hereafter outstanding, except a dividend
payable solely in shares of that class of stock to the holders of that class;
(b) any redemption, conversion, exchange, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares of any class of stock of Borrower or any of its Subsidiaries now or
hereafter outstanding; (c) any payment or prepayment of principal of, premium,
if any, or interest on, redemption, conversion, exchange, purchase, retirement,
defeasance, sinking fund or similar payment with respect to, any subordinated
indebtedness; and (d) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other
-17-
rights to acquire shares of any class of stock of Borrower or any of its
Subsidiaries now or hereafter outstanding. Notwithstanding anything herein to
the contrary, the definition of "Restricted Payment" shall exclude any amounts
paid or payable with respect to the Class B Stock (including amounts escrowed
with respect to contingent issuance of 750 shares of Class B Stock) or the Class
C Stock, whether by way of dividends, redemption or repurchase obligations or
payments or other obligations or payments related to Class B Stock or Class C
Stock or contracts and agreements related to the issuance of such stock.
"Revolving Credit Loan" means all Loans outstanding from time to time
made pursuant to Sections 2.2 and 2.3 hereof and any amounts added to the
principal balance of the Revolving Credit Loan pursuant to this Agreement.
"Revolving Credit Notes" means, collectively, with respect to the
Revolving Credit Loan the promissory notes of Borrower, in the face amounts of
the Revolving Credit Commitment of the respective Lenders in or substantially in
the form of Exhibit K hereto. "Revolving Credit Note" shall mean any one of the
Revolving Credit Notes.
"SEC" means the Securities and Exchange Commission or any successor
agency.
"Senior Notes" means the 10.875% Senior Notes due June 1, 2008, in
original principal amount of $80,000,000 issued pursuant to the Indenture."
"Securities" means any stock, shares, voting trust certificates, bonds,
debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities" or any certificates of interest, shares or participation
in temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Security Documents" shall mean, collectively, this Agreement, the
Subsidiary Guaranty Agreements, the Subsidiary Security Agreements, the
Subsidiary Guaranty Agreements, the Leasehold Mortgages, the Mortgages, the
Environmental Indemnity Agreement, the Assignments of Option and Operating
Agreements, the Pledge Agreements, the Assignments of Trademarks, each other
agreement, assignment or instrument creating or purporting to create a lien in
favor of Agent for the ratable benefit of the Lenders, and each individually a
"Security Document."
"Subordinated Debt" or "Subordinated Indebtedness" means Indebtedness
of the Borrower the payment of which is subordinate to Borrower's Obligations to
the Agent and the Lenders.
"Subordination Agreement" shall mean an agreement among Agent on behalf
of Lenders, the Borrower, and the holder of Subordinated Indebtedness pursuant
to which such holder subordinates such Indebtedness to the Obligations under
terms and conditions reasonably acceptable to the Agent.
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"Subsidiary" means, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of Borrower (including Borrower).
"Subsidiary Guaranty Agreements" means each of the Guaranty Agreements,
substantially in the form of Exhibit P hereto, executed by each of the
Subsidiaries of Borrower including, without limitation, those Subsidiaries
listed on Schedule 5.1(c) attached hereto, as the same may be amended, modified,
supplemented as restated from time to time.
"Subsidiary Security Agreements" mean each of the Security Agreements
in the form of Exhibit Q hereto, executed by each of the Subsidiaries of
Borrower including, without limitation, those Subsidiaries listed on Schedule
5.1(c) attached hereto, as the same may be amended, modified, supplemented as
restated from time to time.
"Termination Date" means the earlier of (i) June 30, 2003; (ii) the
date upon which the entire principal of and accrued and unpaid interest on the
Notes shall become due pursuant to the provisions hereof (whether as a result of
acceleration by Agent or the Requisite Lenders or otherwise); or (iii) the date
upon which the Credit Commitments terminate pursuant to Section 9.2 hereof.
"Termination Event" means (i) a "Reportable Event" described in Section
4043 of ERISA and the regulations issued thereunder, but not including any such
event for which the 30 day notice requirement has been waived by applicable PBGC
regulation; or (ii) the withdrawal of Borrower or an ERISA Affiliate of Borrower
from a Guaranteed Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA; or (iii) the filing of a
notice of intent to terminate a Guaranteed Pension Plan or the treatment of a
Guaranteed Pension Plan amendment as a termination under Section 4041 of ERISA;
or (iv) the institution of proceedings to terminate a Guaranteed Pension Plan by
the Pension Benefit Guaranty Corporation; or (v) the withdrawal or partial
withdrawal of Borrower or an ERISA Affiliate of Borrower from a Multiemployer
Plan; or (vi) any other event or condition which might reasonably be expected to
constitute grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Guaranteed Pension Plan.
"Trademarks" shall mean all of the following in which Borrower now
holds or hereafter acquires any interest: (i) all trademarks, trade names,
corporate names, business names, trade styles, service marks, logos, other
source or business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and general intangibles of like nature, all
registrations and recordings thereof, and all applications in connection
therewith, including registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any state or territory thereof or any other country, and (ii) all
reissues, extensions or renewals thereof.
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"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of Ohio; provided, however, that in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection, or priority of Lender's security interest in any of the Collateral
is governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of Ohio, the term "UCC" shall mean the Uniform Commercial Code as
in effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection, or priority and for purposes of
definitions related to such provisions.
"UCC Financing Statements" mean the UCC financing statements naming the
Borrower, as debtor, and Agent, for the ratable benefit of Lenders, as creditor,
which UCC financing statements describe all or some portion of the Collateral
and which together perfect Agent's security interest in the Collateral, which
security interests can be perfected by the filing of such financing statement.
"Voting Stock" means of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
ARTICLE 20
THE LOANS
Section 2.1 Commitments. Each Lender, severally and not jointly,
agrees, upon the terms and subject to the conditions contained in this
Agreement, to make the Revolving Credit Loans to Borrower 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 Borrower on each occasion upon satisfaction of the conditions
contained in Article 4 of this Agreement.
Section 2.2 Revolving Credit Loan. Each Lender will, subject to all of
the applicable terms and conditions of this Agreement, make an amount equal to
its Participation Percentage in each Revolving Credit Loan available to Borrower
at such times and in such amount as shall be requested by Borrower in compliance
with Section 2.3, and Borrower may borrow on a revolving basis from Lenders on
the Closing Date and from time to time thereafter, sums not to exceed the
Maximum Revolving Commitment. Borrower may borrow, repay and reborrow hereunder
on and after the date hereof until the Termination Date, subject to the terms,
provisions and limitations set forth herein. Amounts repaid hereunder after the
Termination Date may not be reborrowed.
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Section 2.3 Draws, Advances and Settlement of Payments and Advances.
(a) All advances or disbursements of the Revolving Credit Loan proceeds
shall be effectuated at Borrower's request either through wire transfer or by
receipt by Agent of a check drawn on a central disbursement account (the "Agent
Disbursement Account") of Borrower maintained with Agent. Any request for
advance by wire transfer may be transmitted to Agent at its Head Office via
facsimile provided Borrower immediately notifies Agent by telephone of such
transmission. All such requests for wire transfer advances shall be made to and
received by Agent not later than 10:00 a.m. Cincinnati, Ohio time on the Draw
Date specified on such request and each such check or wire transfer request
shall be deemed to be a request for an advance on the Revolving Credit Loan on
the date when received and processed by Agent. Borrower hereby designates its
President, Treasurer or Chief Financial Officer (or any other officer authorized
by Borrower and designated as such to Agent) acting individually or jointly to
make all requests for draws and advances.
(b) The Agent shall promptly notify each Lender of its Participation
Percentage of each requested Revolving Credit Loan and the date of such
borrowing. On the borrowing date specified in such notice, each Lender shall
make its share of the borrowing available at the Head Office of the Agent for
deposit to such account as the Agent shall designate, no later than 1:00 p.m.
Cincinnati time in Federal or other immediately available funds. Upon receipt of
the funds to be made available by Lenders to fund any Revolving Credit Loan
hereunder, the Agent shall disburse such funds by depositing them into the Agent
Disbursement Account.
(c) Each bank or other financial institution, other than Provident,
with which Borrower maintains an account for the deposit of funds shall execute
a Blocked Account Agreement pursuant to which such bank or other financial
institution shall agree to direct all funds to an account at Agent's Head Office
(the "Agent Deposit Account"). All deposits to the Agent Deposit Account shall
be the property of Agent for the benefit of Lenders and shall not be commingled
with Borrower's other funds or be deposited in any bank account of Borrower, or
used in any manner except to pay the Obligations. Agent shall, at the close of
business on each Business Day, automatically debit the Agent Deposit Account and
apply the proceeds against the Loans and other Obligations pursuant to the
provisions of Section 2.7(b). So long as no Event of Default shall have occurred
and be continuing, if funds remain in the Agent Deposit Account following the
application provided for in the preceding sentence, the balance will be promptly
transferred to the Agent Disbursement Account. The crediting of items deposited
in the Agent Deposit Account to the reduction of the Loans shall be conditioned
upon final payment of the item and if any item is not so paid, the amount of any
credit given for it may be charged to the Loans or to any other deposit account
of Borrower, whether or not the item is returned.
Section 2.4 The Notes. The absolute and unconditional obligation of
Borrower to repay to each Lender its respective Pro Rata Share of the principal
of each Loan and the interest thereon shall be evidenced by a separate Revolving
Credit Note for each Lender in the amount of its respective Credit Commitment
for each Loan.
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All payments under the Notes shall be made to Agent at its Head Office,
for the account of Lenders, and Agent shall allocate all payments on each Loan
received from Borrower among all Lenders in accordance with each Lender's Pro
Rata Share of such Loan in accordance with Section 2.7(b).
Section 2.5 Interest Payable on the Loans.
(a) Determination of Interest Rate. Agent shall determine the Interest
Rate in effect from time to time in accordance with the terms of this Agreement.
Any change in the Interest Rate shall, for all purposes of this Agreement and
any of the other Loan Documents, become effective on the effective date of such
change as announced by Agent in accordance with Agent's customary practices.
(b) Monthly Installments. Borrower shall pay to Agent, for the account
of Lenders in accordance with their respective Pro Rata Share of such Loan,
monthly in arrears on the first Business Day of each month commencing with the
month following the month in which the Closing Date falls, interest on the
outstanding principal amount of the Loans at the annual rate equal to the
Interest Rate applicable to each such Loan.
(c) Interest on Overdue Payments; Default Interest Rate. Upon the
occurrence and during the continuance of any Event of Default, or if the Agent
exercises its rights hereunder to accelerate any of the Notes pursuant to
Section 9.2(b), the outstanding principal and all accrued and unpaid interest,
as well as any other Obligations due Lenders or Agent hereunder or under any
Loan Document, shall bear interest at the Default Interest Rate, from the date
on which such amount shall have first become due and payable to Lenders or Agent
or the date on which such Event of Default shall have occurred, to the date on
which such amount shall be paid to Lenders or Agent (whether before or after
judgment) or such Event of Default shall have been otherwise waived or cured.
Interest will continue to accrue until the Obligations in respect of the payment
are discharged (whether before or after judgment).
Section 2.6 Repayments and Prepayments of Principal.
(a) Commitment Reduction. Borrower may, upon written notice to Agent,
reduce in part or in whole the Credit Commitment hereunder (and the Unused Fee
with respect to such reductions for periods following the effective date of such
reductions), provided, however, that (a) each such reduction shall be not less
than $500,000 and integral multiples of $100,000 in excess thereof, (b) if the
effective date of any such reduction is prior to the first anniversary of the
Closing Date, Borrower shall pay a Credit Commitment reduction fee to Agent
equal to One percent (1%) of the amount of such Credit Commitment reduction, and
(c) if the effective date of any such reduction is on or after the first
anniversary of the Closing Date and prior to the second anniversary of the
Closing Date, Borrower shall pay a Credit Commitment reduction fee to Agent
equal to one-half of one percent (0.5%) of the amount of such Credit Commitment
reduction. No Credit Commitment reduction fee shall be payable with respect to
Credit Commitment reductions where the effective date of such reduction is on or
after the second anniversary of the Closing Date.
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(b) Revolving Credit Loan Overadvance. If at any time the aggregate
amount of the Revolving Credit Loan outstanding to Borrower exceeds the Maximum
Revolving Commitment, Borrower shall be obligated to immediately prepay the
amount that exceeds the Maximum Revolving Commitment.
(c) Prepayments from Extraordinary Dispositions. Immediately upon
receipt by Borrower of Net Proceeds, resulting from an Extraordinary Disposition
other than the issuance of Equity Interests, Borrower shall prepay the Loans in
an amount equal to the total Net Proceeds then subject to this subsection in
accordance with subsection 2.6(k). Notwithstanding the foregoing, in the event
that Borrower (1) has an accrued tax liability with respect to such an
Extraordinary Disposition or (2) reasonably expects the proceeds of such
Extraordinary Disposition to be (i0 reinvested within 270 days of the receipt
thereof in productive assets of a kind then used or useable in the business of
Borrower and its Subsidiaries, or (ii) in the case of insurance and condemnation
proceeds, utilized within 270 days of the receipt thereof (or such longer period
as the Agent may agree to, such agreement not to be unreasonably withheld if
Borrower has timely begun and is diligently pursuing the rebuilding or repair in
question but reasonably expects that such rebuilding or repair will not be
completed within such 270 day period) to repair the loss or damage to or
otherwise rebuild the assets in respect of which the proceeds were paid, then
Borrower shall deliver such proceeds or portion thereof to Agent to be held by
Agent in a cash collateral account. Upon Borrower's request, Agent and Lenders
shall release such proceeds to Borrower for payment of the accrued tax liability
or for reinvestment, repair or rebuilding. In the event Borrower (1) is not
required to pay all or any portion of the accrued tax liability or (2) fails to
reinvest such proceeds or utilize them for repair or rebuilding within 270 days
of the receipt thereof (or such longer period that may be agreed to pursuant to
this subsection 2.6(c)). Any such proceeds of Extraordinary Dispositions which
are not disbursed by the Agent for the purpose of purchasing replacement
properties shall reduce the Credit Commitment on a dollar for dollar basis.
(d) Prepayment from Key Man Insurance. In the event that Borrower or
any of its subsidiaries receives proceeds from payment of the key man life
insurance maintained pursuant to Section 6.3, Borrower shall prepay the Loans in
an amount equal to the lesser of such insurance proceeds or the amount of the
Obligations then outstanding.
(e) Maturity. Subject to the terms and conditions of this Agreement,
Borrower 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 shall, if not sooner paid, be in any event absolutely and
unconditionally due and payable in full by Borrower on June 30, 2003, the date
of the final maturity of such Notes.
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Section 2.7 Payments and Computations.
(a) Time and Place of Payments. Notwithstanding anything in this
Agreement or any of the other Loan Documents to the contrary, each payment
payable by Borrower to the Agent or any Lender under this Agreement or any of
the other Loan Documents other than payments pursuant to Section 2.3(c) made as
a result of the application of funds in the Agent Deposit Account, shall be made
directly to the Agent, at Agent's Head Office, not later than 12:00 noon Eastern
Standard or Eastern Daylight Time, as applicable in Cincinnati, Ohio, on the due
date of each such payment in immediately available and freely transferrable
funds. The Agent will promptly cause to be distributed to each Lender in
immediately available and freely transferrable funds such Lender's Pro Rata
Share of each such payment received by the Agent. In order to cause timely
payment to be made to Agent of all Obligations as and when due, Borrower hereby
authorizes and directs Agent, at Agent's option to debit the Agent's
Disbursement Account (by increasing the principal balance of the Revolving
Credit Loan) when such Obligations become due.
(b) Application of Funds. Notwithstanding anything herein to the
contrary, the funds received by Agent with respect to the Obligations shall be
applied as follows:
(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 principal of the Revolving Credit Loan Notes
in accordance with each Lender's Pro Rata Share; and (d) fourth, to Borrower.
(ii) Default. If the Notes have been accelerated pursuant to Section
9.2(b), or if a Default or Event of Default hereunder shall have occurred and be
continuing hereunder or under the Notes or any of the other Loan Documents at
the time Agent receives such funds, in the following manner: (a) first, to the
payment or reimbursement of Lenders and Agent for all costs, expenses,
disbursements and losses which shall have been incurred or sustained by Lenders
or Agent in or incidental to the collection of the Obligations owed by Borrower
hereunder or the exercise, protection, or enforcement by Lenders and Agent of
all or any of the rights, remedies, powers and privileges of Lenders and Agent
under this Agreement, the Notes, or any of the other Loan Documents and in and
towards the provision of adequate indemnity to the Agent and any of the Lenders
against all taxes or Liens which by law shall have, or may have priority over
the rights of the Agent or Lenders in and to such funds and (b) second, to the
payment of all of the Obligations in accordance with Section 2.7(b)(i) above.
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(c) Payments on Business Days. If any sum would (but for the provisions
of this paragraph (c)) become due and payable to Agent or any Lender by Borrower
under any of the Loan Documents on any day which is not a Business Day, then
such sum shall become due and payable on the Business Day next succeeding the
day on which such sum would otherwise have become due and payable hereunder or
thereunder, and interest payable to Agent or any Lender under this Agreement or
any of the other Loan Documents shall continue to accrue and shall be adjusted
by the Agent accordingly.
(d) Computation of Interest. All computations of interest payable under
this Agreement, the Notes, or any of the other Loan Documents shall be computed
by Agent on the basis of the actual principal amount outstanding on each day
during the payment period and shall be calculated on the basis of the actual
number of days elapsed during such period for which interest is being charged,
predicated on a year consisting of three hundred and sixty (360) days. The daily
interest charge shall be one three-hundred-sixtieth (1/360th) of the annual
interest amount. Each determination of any interest rate by Agent pursuant to
this Agreement, any Note, or any of the other Loan Documents shall be conclusive
and binding on Borrower in the absence of demonstrable error. Absent
demonstrable error, a certificate or statement signed by an authorized officer
of Agent shall be conclusive evidence of the amount of the Obligations due and
unpaid as of the date of such certificate or statement.
Section 2.8 Payments to be Free of Deductions. Each payment payable by
Borrower to Agent or any Lender under this Agreement, any Note, or any of the
other Loan Documents shall be made in accordance with Section 2.7 hereof,
without set-off or counterclaim and free and clear of and without any deduction
of any kind for any taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any political subdivision or any taxing or other
authority therein, unless Borrower is compelled by law to make any such
deduction or withholding. In the event that any such obligation to deduct or
withhold is imposed upon Borrower with respect to any such payment payable by
Borrower to Agent or any Lender, (a) Borrower shall be permitted to make the
deduction or withholding required by law in respect of the said payment, and (b)
there shall become and be absolutely due and payable by Borrower to Agent or
such Lender on the date on which the said payment shall become due and payable
and Borrower hereby promises to pay to Agent or such Lender on such date, such
additional amount as shall be necessary to enable Agent or such Lender to
receive the same net amount which Agent or such Lender would have received on
such due date had no such obligation been imposed by law. Anything in this
Section 2.8 to the contrary notwithstanding, the foregoing provisions of this
Section 2.8 shall not apply in the case of any deductions or withholdings made
in respect of taxes charged upon or by reference to the overall net income,
profits or gains of Agent or any Lender. Borrower shall have no obligation to
make any payment pursuant to this Section 2.8 with respect to any Lender who is
not a party hereto on the Closing Date unless (i) no such payments would be
payable to any such Lender on the date it becomes a party hereto and no such
payments could be reasonably expected to be payable to such Lender and (ii) if
such Lender is organized under the laws of a foreign jurisdiction, such
jurisdiction is exempt from United States withholding tax and such Lender has
provided Borrower with an Internal Revenue Form 4224 or Form 1001 or other
certificate of document required under United States law to establish
entitlement to such exemption.
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Section 2.9 Use of Proceeds.
(a) Permitted Uses of Loan Proceeds. Borrower represents, warrants and
covenants to Agent and each Lender that all proceeds of the Loans shall be used
by Borrower solely for the purpose of financing working capital, acquisitions
and for general corporate purposes.
(b) Prohibited Uses. Borrower represents, warrants and covenants to
Agent and each Lender that no part of the proceeds of the Loans will be used
(directly or indirectly) so as to result in a violation under Regulations G, T,
U or X of the Board of Governors of the Federal Reserve System or for any other
purpose violative of any rule or regulation of such Board.
Section 2.10 Additional Costs, Etc. If any Lender shall reasonably
determine that any future applicable law, rule or regulation, or any change in
any present law or in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's capital, as a
consequence of its obligations hereunder, to a level below that which such
Lender could have achieved but for such adoption, change or compliance by any
amount deemed by such Lender to be material and is not otherwise reflected in
the interest and other charges payable by Borrower hereunder, then Borrower
shall pay to such Lender upon demand such amount or amounts, in addition to the
amounts payable under the other provisions of this Agreement, or the Notes, as
will compensate such Lender for such reduction. Determinations by any Lender of
the additional amount or amounts required to compensate such Lender in respect
of the foregoing shall be conclusive in the absence of demonstrable error. In
determining such amount or amounts, Lender may use any reasonable averaging and
attribution methods.
Section 2.11 Agent and Lender Statements. A statement signed by an
officer of any Lender (as the case may be) setting forth any additional amount
required to be paid by Borrower to Agent or such Lender under Sections 2.8 and
2.10 hereof, and the computations made by Agent or such Lender to determine such
additional amount or amounts, shall be submitted by Agent or such Lender to
Borrower in connection with each demand made at any time by Agent (and copies
thereof delivered to each other Lender) or such Lender under either of such
Sections. A claim by Agent or any Lender for all or any part of any additional
amounts required to be paid by Borrower under Sections 2.8 and 2.10 hereof may
be made before or after any payment to which such claim relates. Each such
statement shall, in the absence of demonstrable error, constitute conclusive
evidence of the additional amount required to be paid to Agent or such Lender,
provided it sets out in reasonable detail the reasons for such notice and the
averaging and attribution methods used by Agent or such Lender to determine the
amounts set forth in such notice.
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Section 2.12 Letters of Credit.
(a) Obligation to Issue Letters of Credit. Subject to the terms and
conditions of this Agreement, prior to the maturity of the Loans (whether by
acceleration or otherwise) and so long as no Default has occurred and is
continuing, Issuing Bank agrees to issue, in accordance with Issuing Bank's
usual and customary business practices, one or more Letters of Credit at the
request of Borrower for the benefit of Borrower or any of its Subsidiaries,
provided that Issuing Bank shall not issue any Letter of Credit if: (i) any
order, judgment or decree of any governmental authority or arbitrator shall
purport by its terms to enjoin or restrain Issuing Bank from issuing such Letter
of Credit or any rule, regulation or law applicable to Issuing Bank or any
request or directive from any governmental authority with jurisdiction over
Issuing Bank shall prohibit or request that Issuing Bank refrain from the
issuance of letters of credit generally or such Letters of Credit in particular
or shall impose upon Issuing Bank with respect to such Letters of Credit any
restriction or reserve or capital requirement (for which Issuing Bank is not
otherwise compensated) not in effect on the date hereof, or any unreimbursed
loss, cost or expense which was not applicable, in effect or known to Issuing
Bank as of the date hereof in which Issuing Bank in good xxxxx xxxxx material to
it; or (ii0 any of the conditions precedent for the issuance of such Letter of
Credit or other terms and provisions of this Loan or any subsequent loans hereof
are not satisfied.
(b) Expiration Date of Letters of Credit. The expiration date of any
Letter of Credit shall not be later than the earlier of thirty (30) days after
the date of the issuance thereof or the Termination Date.
(c) Letters of Credit Deemed to be Loans. All Letters of Credit issued
by Issuing Bank shall be issued in connection with this Agreement and Borrower's
obligation to pay any amount drawn under any Letter of Credit shall constitute
an Obligation hereunder and shall be bound by and shall benefit from all the
terms, provisions and conditions hereunder, including without limitation,
Issuing Bank's rights to recover costs and expenses relating thereto as provided
in this Agreement and Issuing Bank's remedies upon the occurrence of an Event of
Default. Each Letter of Credit issued hereunder shall reduce the amount of
Maximum Revolving Commitment an amount equal to the face amount of each such
Letter of Credit. No interest shall accrue on the amount of undisbursed Loan
proceeds representing the aggregate amount of the Letters of Credit until such
time as such Letters of Credit are drawn upon.
(d) Procedure for Issuance of Letters of Credit. Borrower shall give
Issuing Bank two (2) business days' prior written notice, or telephonic or
electronically transmitted notice confirmed promptly thereafter in writing, of
any requested issuance of a Letter of Credit under this Agreement. Such notice
shall specify the stated amount of the Letter of Credit requested, the effective
date (which day shall be a business day) of issuance of such requested Letter of
Credit, the date on which such requested Letter of Credit is to expire (which
date shall be a business day and shall in no event be later than the third
anniversary of the Closing Date), the proposed beneficiaries of such Letter of
Credit, the conditions for draws under such Letter of Credit, and any other
information relevant thereto as Issuing Bank may request. Unless there is a
Default or Event of Default hereunder, or unless the amount of the Letter of
Credit exceeds the limitations set forth by Section 2.12(f) hereof, then,
subject to the terms and conditions of this Agreement, Issuing Bank shall issue,
on the requested date, a Letter of Credit for the account of Borrower in
accordance with Issuing Bank's usual and customary business practices.
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(e) Reimbursement Obligations. Borrower agrees that all Reimbursement
Obligations owing to Issuing Bank under or with respect to each such Letter of
Credit issued by Issuing Bank shall be deemed to be a request for a draw or
advance hereunder and shall be deemed to have been disbursed to Borrower as a
Revolving Credit Loan under Maximum Revolving Commitment. Borrower hereby
promises to pay to Agent any and all Reimbursement Obligations hereunder.
Interest shall begin to accrue on the Reimbursement Obligations on the day such
Reimbursement Obligations are incurred by Borrower as a result of disbursement
under the Letter of Credit.
(f) Amount of Letters of Credit. At no time shall the aggregate amount
of all of the issued and outstanding Letters of Credit exceed the Maximum
Revolving Commitment.
(g) Fees. A fee in the amount of two percent (2.0%) per annum (computed
on the basis of a 360-day year for the days elapsed) of the daily average
undrawn face amount of each of the Letters of Credit shall be payable by
Borrower ("Letter of Credit Fee") together with a fronting fee in an amount
equal to one-quarter percent (0.25%) of the face amount of each of the Letters
of Credit. The Letter of Credit fee shall be paid in arrears on the last day of
each month and on the Termination Date or if such day is not a Business Day on
the next succeeding Business Day commencing on the first such date following the
issuance of any Letter of Credit.
(h) Letter of Credit Participations. By issuance of a Letter of Credit
and without any further action on the part of Issuing Bank or Lenders in respect
thereof, Issuing Bank hereby grants to each Lender, and each Lender hereby
agrees to acquire from Issuing Bank, a participation in such Letter of Credit
equal to such Lender's Pro Rata Share of the face amount of such Letter of
Credit, effective upon the issuance of such Letter of Credit. In consideration
and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to Agent on behalf of Issuing Bank, such Lender's
Pro Rata Share of any Reimbursement Obligation. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this Section
2.12(h) in respect of Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including without limitation the
occurrence and continuance of a default or an event of default hereunder, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
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. ARTICLE 3.
SECURITY AGREEMENT
Section 3.1 Security Interest. To secure the prompt repayment of the
Notes and the Obligations, Borrower hereby grants, and hereby pledges and
collaterally assigns, to Agent, on behalf of the Lenders, a lien and security
interest in and to all of Borrower's personal property and fixtures, wherever
located, whether now or hereafter owned, existing or acquired or hereafter
arising, including, without limitation, the Collateral of Borrower; further,
Borrower has executed and delivered to Agent, on behalf of the Lenders,
certificates of title and the like as necessary from time to time to secure the
Obligations hereunder; and shall deliver to Agent, on behalf of the Lenders, to
the extent required herein or upon Agent's request in accordance with the terms
of this Agreement, all instruments, documents and chattel paper in which
Borrower from time to time has an interest and such other documents as Agent may
request to perfect a security interest in the Collateral.
Section 3.2 Mortgages and Liens on Real Property. To secure further
such liabilities and obligations, each of the Subsidiaries have granted or
Borrower shall cause such Subsidiaries to grant to Agent, on behalf of the
Lenders, a first lien, subject to the Permitted First Liens, upon all real
property owned by such Subsidiary and a first lien, subject to the Permitted
First Liens, on all leasehold interests of Subsidiary existing on the date of
this Agreement, each of which are identified on Schedule 3.2, and such
Subsidiary has executed or Borrower shall cause such Subsidiary to execute and
deliver to Agent, on behalf of the Lenders, the Mortgages on newly acquired fee
properties and valid assignments of all other property rights (including,
without limitation, rights to receive rents and rights with respect to operating
agreements, options, judgments and claims) which now exist or which may exist or
arise hereafter from time to time including without limitation, the Assignments
of Option and Operating Agreements and any consents relating thereto reasonably
required by Agent.
Section 3.3 Pledge of Stock. As additional collateral for the Loans to
be made hereunder, Borrower and each Subsidiary that has Subsidiaries shall
execute and deliver to Agent, for the ratable benefit of the Lenders, a Pledge
Agreement with respect to all Capital Stock of all Subsidiaries now owned or
hereafter acquired by Borrower or a Subsidiary.
Section 3.4 Financing Statements; Additional Documents. Borrower shall
take all necessary action or as requested by Agent or any Lender to continue as
perfected the first lien (subject only to the Permitted First Liens) and
security interest in the Collateral of Lenders and Agent, except for such
Collateral in which a first lien can be perfected only by possession and such
possession is not required by Agent at such time. Such filings shall be in form
and substance required by Agent, and Borrower shall pay all costs of recording
and filing the financing statements (and any continuation or termination
statements with respect thereto), the Mortgages, Leasehold Mortgages, the
Assignment of Trademarks, and any other documents, titles, statements,
assignments or the like reasonably required to create, maintain, preserve or
perfect the liens or security interests granted under the Loan Documents,
together with costs and expenses of any lien or UCC searches
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required by Agent in connection with the making of the Loans. At Agent's
request, Borrower shall execute and deliver to Agent, on behalf of the Lenders,
at any time and from time to time hereafter, all supplemental documentation that
Agent may reasonably request to perfect, maintain, preserve or continue the
security interest and liens granted Lenders and Agent hereby and under any of
the other Loan Documents, in form and substance acceptable to Agent, and pay the
costs of preparing and recording or filing of the same. Borrower agrees that a
carbon, photographic, or other reproduction of this Agreement or of a financing
statement is sufficient as a financing statement. Except as otherwise provided
in this Agreement, Borrower, immediately on acquiring fee title to Real Estate,
Inventory, or Accounts or Proceeds thereof for which separate perfection is
necessary or reasonably considered desirable by Agent, shall deliver to Agent,
on behalf of the Lenders, any and all evidence of ownership of any such property
and shall take all such action as may be reasonably necessary to perfect Agent's
security interest in such Property, including without limitation, the execution
and recording or filing of additional Mortgages, Leasehold Mortgages and UCC
financing statements. Each Lender (by any of its officers, employees or agents,
but only upon authorization of an officer of such Lender) shall have the right,
at any time or times during Borrower's usual business hours, to inspect the
Collateral, all records related thereto (and to make extracts from such records)
and the premises upon which any of the Collateral is located, to discuss
Borrower's affairs and finances with any accountant, account debtor or creditor
of Borrower and to verify the amount, quality, quantity, value and condition of,
or any other matter relating to, the Collateral. Borrower shall perform all
reasonable acts and execute or cause to be executed all documents, including,
without limitation, the Assignments of Option and Operating Agreements, and the
Assignment of Trademarks for filing with the United States Patent and Trademark
Office, state offices and corresponding foreign registries as Agent reasonably
deems necessary or desirable, to establish, perfect, record and maintain the
security interest in the Intellectual Property and the goodwill symbolized
thereby (whether now existing or hereafter acquired).
Section 3.5 Accounts; Chattel Paper; Lease Agreements. After the
occurrence of an Event of Default and during the continuance thereof, Agent
shall have the right at any time to notify any Person obligated to make payments
to Borrower with respect to Accounts, Chattel Paper and lease agreements to make
such payments directly to Agent, on behalf of the Lenders.
Section 3.6 Release of Collateral. Upon Borrower's full performance of
its Obligations in respect of the Loans, including, without limitation, payment
in full of the Notes, and termination of Borrower's right to borrow under this
Agreement, Agent and Lenders shall release their interest in all Collateral.
Upon any sale of Collateral permitted pursuant to Section 8.5, Agent shall
release its interest in the portion of the Collateral being sold, without
prejudice to the continuation of its lien on any other Collateral.
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ARTICLE 4.
CONDITIONS PRECEDENT TO DISBURSEMENTS
Section 4.1 Conditions Precedent to Initial Closing. On or prior to the
Closing Date, each of the following conditions precedent shall have been
satisfied:
(a) Certified Copies of Charter Documents and Bylaws. Agent and each
Lender shall have received from Borrower and each Subsidiary: (i) a copy,
certified by the Secretary or an Assistant Secretary of Borrower to be true and
complete on and as of the Closing Date, of the charter or other organization
documents and by-laws of Borrower as in effect on the Closing Date (together
with all, if any, amendments thereto); and (ii) the charter or other
organization documents of Borrower certified by the applicable Secretary of
State.
(b) Proof of Corporate Authority. Agent and each Lender shall have
received from Borrower and each Subsidiary copies, certified by the Secretary or
an Assistant Secretary of Borrower to be true and complete on and as of the
Closing Date, of records of all action taken by Borrower and each Subsidiary to
authorize (i) the execution and delivery of this Agreement and the other Loan
Documents to which such Person is or is to become a party as contemplated or
required by this Agreement; (ii) such Person's performance of all of its
obligations under each of such documents; and (iii) the making by Borrower of
the borrowings contemplated hereby. Agent shall have received from the
applicable Secretary of State a Certificate of Good Standing of recent date
certifying the existence and good standing of Borrower and each Subsidiary under
the laws of the state where such Person is incorporated and certificates
evidencing such Person's good standing in each state where such Person is
required to qualify to conduct business.
(c) Incumbency Certificate. Agent and each Lender shall have received
from Borrower and each Subsidiary, an incumbency certificate, dated as of the
Closing Date, signed by the Secretary or an Assistant Secretary of such Person
and giving the name and bearing a specimen signature of each individual who
shall be authorized (i) to sign, in the name and on behalf of such Person, each
of the Loan Documents to which such Person is or is to become a party on the
Closing Date; and (ii) to give notices and to take other action on behalf of
such Person under the Loan Documents.
(d) Officers' Certificates. Agent and each Lender shall have received
from Borrower a certificate dated as of the Closing Date, signed by a duly
authorized officer of Borrower and certifying that each of the representations
and warranties made by and on behalf of Borrower to Agent and each Lender in
this Agreement and in the other Loan Documents was true and correct when made,
and is true and correct on and as of the Closing Date.
(e) Loan Documents, etc. (i) Each of the Loan Documents shall have been
duly and properly authorized, executed and delivered by Borrower or Subsidiary,
as case may be, and shall be in full force and effect on and as of the Closing
Date; (ii) executed originals of each of the Notes shall have been delivered to
each Lender in accordance with their respective Credit Commitments, and (iii)
executed originals or (as the case may be) executed counterparts of each of the
other Loan Documents shall have been delivered to Agent and/or each Lender.
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(f) Actions to Perfect Liens. Agent shall have received from each
Subsidiary, including, without limitation, those Subsidiaries listed on Schedule
5.1(c) hereto:
(i) a Subsidiary Guaranty Agreement, substantially in the form of
Exhibit P hereto;
(ii) a Subsidiary Security Agreement, substantially in the form of
Exhibit Q hereto; and
(iii) UCC Financing Statements, Mortgages, Leasehold Mortgages, or
amendments to any of the foregoing, as Agent in its sole discretion may
require.
(g) Actions to Perfect Liens. Agent shall have received evidence in
form and substance satisfactory to it that all filings, recordings,
registrations and other actions, including without limitation, the filing of
duly executed financing statements on Form UCC-1, necessary or, in the opinion
of Agent, desirable to perfect the Liens created by the Security Documents shall
have been completed.
(h) Insurance. Agent shall have received copies of certificates of
insurance executed by each insurer or its authorized agent evidencing the
insurance required to be maintained by Borrower pursuant to Section 6.2(b), and
a certificate of a nationally recognized insurance broker reasonably
satisfactory to Agent certifying that insurance complying with such Section has
been obtained and is in full force and effect.
(i) 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 or any Lender to perform any of its agreements or
obligations under any of the Loan Documents to which it is a party on the
Original Closing Date or the Closing Date; or (ii) for Borrower to perform any
of its agreements or obligations under any of the Loan Documents to which it is
a party on the Original Closing Date or the Closing Date.
(j) Performance, Etc. Borrower shall have duly and properly performed,
complied with and observed each of its covenants, agreements and obligations
contained in each of the Loan Documents to which Borrower is a party or by which
Borrower is bound on the Original Closing Date or the Closing Date. No event
shall have occurred on or prior to the Closing Date, and no condition shall
exist on the Closing Date, which constitutes a Default or an Event of Default.
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(k) Proceedings and Documents. All corporate, governmental and other
proceedings and consents in connection with the transactions contemplated by
this Agreement, each of the other Loan Documents and all instruments and
documents incidental thereto shall be in form and substance satisfactory to
Agent and Lenders, and Agent and each Lender shall have received all such
counterpart originals or certified or other copies of all such instruments and
documents as Agent and each Lender shall have requested.
(l) Compliance with Laws. The borrowings made under this Agreement are
and shall be in compliance with the requirements of all applicable laws,
regulations, rules and orders, including without limitation, the Environmental
Laws and the requirements imposed by the Board of Governors of the Federal
Reserve System under Regulations U, G and X, and by the SEC.
(m) Legal Opinion. Agent and Lenders shall have received a written
legal opinion or opinions, addressed to Agent and each Lender and dated as of
the Closing Date, from legal counsel for Borrower, which shall be substantially
in the form of attached Exhibit M hereto and which legal opinions shall
otherwise be acceptable to Agent and each Lender.
(n) Legal Fees. Borrower shall have reimbursed Agent for all fees and
disbursements of legal counsel to Agent (in its capacity as Agent and a Lender)
which shall have been incurred by Agent through the Closing Date in connection
with the preparation, negotiation, review, execution and delivery of the Loan
Documents and the handling of any other matters incidental thereto.
(o) Post-Closing Availability. After giving effect to the consummation
of the transactions contemplated hereby, the sum of (i0 Borrower's cash on hand,
and (ii) unborrowed amounts of the Revolving Credit Loan, shall be at least
Fifteen Million Dollars ($15,000,000.00) and Borrower shall have delivered to
Agent a certificate as of the Closing Date demonstrating such excess
availability.
(p) Key Man Life Insurance. Borrower shall have secured and assigned to
Agent the key man life insurance policy required to be maintained pursuant to
Section 6.3 hereof.
(q) Changes; None Adverse. From the date of the Current Financial
Statements referred to in Section 5.5 of this Agreement to the Closing Date, no
changes shall have occurred in the assets, liabilities, financial condition,
business, operations or prospects of Borrower and its Subsidiaries which,
individually or in the aggregate, are materially adverse to Borrower and its
Subsidiaries taken as a whole
(r) Financial Statements. Each Lender shall have received the financial
statements referred to in Section 5.5, certified by an officer of Borrower and
each Lender shall have been satisfied that such financial statements accurately
reflect the financial status and condition of Borrower and its Subsidiaries in
all material respects.
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Section 4.2 Conditions Precedent to Subsequent Loans. The obligation of
the Lenders to make any Revolving Credit Loan shall be subject to the
satisfaction, prior thereto or concurrently therewith, of each of the following
conditions precedent:
(a) Legality of Transactions. It shall not be unlawful (i) for any
Lender or the Agent to perform any of its agreements or obligations under any of
the Loan Documents to which such Person is a party on the Draw Date of such Loan
or (ii) for Borrower to perform any of its material agreements or obligations
under any of the Loan Documents.
(b) Representations and Warranties. Each of the representations and
warranties made by or on behalf of Borrower to the Lenders or the Agent in this
Agreement or any other Loan Document (a) shall be true and correct in all
material respects when made and (b) shall, for all purposes of this Agreement,
be deemed to be repeated on and as of the date of Borrower's request for such
Loan, as the case may be, and shall be true and correct in all material respects
as of each of such dates (unless specifically stated to relate only to an
earlier date, in which case such representation or warranty shall be true and
correct in all material respects as of such earlier date), except, as affected
by the transactions contemplated by the Loan Documents.
(c) No Default. No event shall have occurred on or prior to such date
and be continuing on such date, and no condition shall exist on such date which
constitutes a Default or Event of Default.
(d) Maximum Credit. The making of such Revolving Credit Loan shall not
result in the sum of all outstanding Revolving Credit Loans exceeding the
Maximum Revolving Credit Commitment.
ARTICLE 5.
GENERAL REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Agent and each Lender as follows:
Section 5.1 Existence, Etc.
(a) Borrower (i) is duly organized, validly existing and in good
standing under the laws of the State of Delaware; and (ii) has full corporate
power and authority and full legal right to own or to hold under lease its
Property and to carry on its business. Borrower is qualified and licensed in
each jurisdiction wherein the character of the Property owned or held under
lease by it, or the nature of its business makes such qualification necessary or
advisable. Borrower is currently qualified in good standing as a foreign
corporation in each jurisdiction set forth on Schedule 5.1(a).
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(b) The authorized Capital Stock of Borrower and each of its
Subsidiaries is as set forth on Schedule 5.1(b). All issued and outstanding
shares of Capital Stock of Borrower and each of its Subsidiaries are duly
authorized and validly issued, fully paid and nonassessable and such shares were
issued in compliance with all applicable state and federal laws concerning the
issuance of securities. Except as set forth on Schedule 5.1(b) and except for
the Lien of the Pledge Agreements, there are no outstanding options, rights or
warrants issued by Borrower for the acquisition of shares of the Capital Stock
of Borrower, nor any outstanding securities or obligations convertible into such
shares, nor any agreements by Borrower to issue or sell such shares. Except as
set forth on Schedule 5.1(b) there are no options, sale agreements, pledges
(other than the Pledge Agreements in favor of the Agent), proxies, voting
trusts, powers of attorney or any other agreements or instruments binding upon
Borrower's shareholders with respect to beneficial or record ownership of or
voting rights with respect to shares of the Capital Stock of Borrower.
(c) Borrower has no Subsidiaries except as set forth on Schedule
5.1(c). All the Capital Stock of each Subsidiary are free and clear of all Liens
other than those in favor of Agent. Each Subsidiary: (i) is duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, and (ii) has full corporate power and authority and full legal
right to own or to hold under lease its Property and to carry on its business.
Each Subsidiary is qualified and licensed in each jurisdiction wherein the
character of the Property owned or held under lease by it, or the nature of its
business makes such qualification necessary or advisable. Each Subsidiary is
currently qualified in good standing as a foreign corporation in each
jurisdiction set forth on Schedule 5.1(c).
(d) Except for stock of Subsidiaries, Borrower owns or holds of record
(whether directly or indirectly) no shares of any class in the capital of any
corporation, nor does Borrower own or hold (whether directly or indirectly) any
legal and/or beneficial equity interest in any partnership, business trust or
joint venture or in any other unincorporated trade or business enterprise.
Section 5.2 Authority, Etc.
(a) Borrower and each of its Subsidiaries has adequate power and
authority and has full legal right to enter into this Agreement and each of the
other Loan Documents, and to perform, observe and comply with all of its
agreements and obligations under each of such documents, including, without
limitation the borrowings contemplated hereby.
(b) The execution and delivery by Borrower and each of its Subsidiaries
of each of the Loan Documents, the performance by Borrower of all of their
respective agreements and obligations under such documents, and the making by
Borrower of the borrowings contemplated by this Agreement, have been duly
authorized by all necessary corporate action on the part of Borrower and each of
its Subsidiaries and do not and will not (i) contravene any provision of
Borrower's or its Subsidiaries charter documents or by-laws (each as in effect
from time to time); (ii) conflict with, or result in a material breach of the
terms, conditions or provisions of, or constitute a default under, under any
agreement, trust deed, indenture, mortgage or other material instrument to which
Borrower
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or its Subsidiaries is a party or by which Borrower or any other Property of
Borrower or its Subsidiaries is bound or affected; (iii) violate or contravene
any provision of any law, rule or regulation (including, without limitation,
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System) or any order, ruling or interpretation thereunder or any decree, order
or judgment of any court or governmental or regulatory authority, bureau, agency
or official (all as from time to time in effect and applicable to Borrower or
its Subsidiaries) in any manner that, individually or in the aggregate (i) would
have an adverse effect on the ability of Borrower or its Subsidiaries to perform
their respective obligations under any Loan Document to which it is a party or
(ii) would have a Material Adverse Effect; (iv) require any waivers, consents or
approvals by any of the creditors or trustees for creditors of Borrower or its
Subsidiaries or any other Person; or (v) result in the certain or imposition of
any Lien on any of the property of Borrower or its Subsidiaries, except for
Liens arising under the Loan Documents.
(c) Other than filings required to perfect the security interests
granted hereunder, no approval, consent, order, authorization or license by, or
giving notice to, or taking any other action with respect to, any governmental
or regulatory authority or agency is required, under any provision of any
applicable law:
(i) for the execution and delivery by Borrower of this Agreement,
each Note, and the other Loan Documents, for the performance by
Borrower and its Subsidiaries, of any of the agreements and obligations
thereunder or for the making by Borrower and its Subsidiaries of the
borrowing contemplated by this Agreement or for the conduct by Borrower
and its Subsidiaries of their respective businesses; or
(ii) to ensure the continuing legality, validity, binding effect,
enforceability or admissibility in evidence of this Agreement, the
Notes and the other Loan Documents.
Section 5.3 Binding Effect of Documents, Etc. Each of the Loan
Documents which Borrower and its Subsidiaries has or is to have executed and
delivered as contemplated and required to be executed and delivered as of the
Closing Date has been so executed and delivered by Borrower and its
Subsidiaries, as applicable, and each such Loan Document is or will be in full
force and effect. The agreements and obligations of Borrower and its
Subsidiaries contained in each such Loan Document constitute or shall constitute
legal, valid and binding obligations of Borrower and its Subsidiaries,
enforceable against Borrower in accordance with their respective terms, except
as may be limited by applicable bankruptcy, insolvency, moratorium, fraudulent
transfer, preference and other laws and equitable principles affecting the scope
and enforcement of creditors' rights generally, and are also limited by the
Lenders' and Agent's implied covenants of good faith, fair dealing and
commercially reasonable conduct, and by the effect of judicial discretion on the
availability of remedies and realization of benefits under and enforceability of
the Loan Document in all respects as written.
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Section 5.4 No Events of Default, Etc.
(a) No event has occurred and is continuing, and no condition exists,
which constitutes a Default or an Event of Default.
(b) No default by Borrower and no accrued right of rescission,
cancellation or termination on the part of Borrower or any Subsidiary, exists
under this Agreement or any of the other Loan Documents.
Section 5.5 Financial Statements. The Consolidated and consolidating
balance sheets and other financial statements of Borrower dated March 31, 1998
previously delivered to Agent ("Current Financial Statements") have been
prepared in accordance with GAAP and subject in the case of unaudited statements
to changes resulting from year-end adjustments. The balance sheets contained in
the Current Financial Statements present fairly the financial condition of
Borrower and its Subsidiaries as of the dates thereof in accordance with GAAP.
The statements of income contained in the Current Financial Statements present
fairly the results of operations of Borrower and its Subsidiaries for the fiscal
periods then ended in accordance with GAAP. There are no material liabilities or
obligations, secured or unsecured (whether accrued, absolute or actual,
contingent or otherwise), which were not reflected in the audited balance sheets
of Borrower or that as at such date or in the footnotes thereto, and which
should, in accordance with GAAP, have been reflected in such balance sheets.
Section 5.6 Changes; None Adverse. Except as set forth on Schedule 5.6
attached hereto, as of the Closing Date, no changes have occurred in the assets,
liabilities or financial condition of Borrower and its Subsidiaries, taken as a
whole, from those reflected in the Current Financial Statements, which,
individually or in the aggregate, would have a Material Adverse Effect.
Section 5.7 Title to Assets; Material Leases. Borrower has good,
sufficient and legal title to, or leasehold interest in, all of its respective
Property and assets reflected in the Current Financial Statements. Borrower and
its Subsidiaries enjoy peaceful and undisturbed possession of all of their
respective Property subject to Material Leases and all such Material Leases are
valid and in full force and effect. All Material Leases are set forth on
Schedule 5.7.
Section 5.8 Intellectual Property.
(a) Schedule 5.8 hereto sets forth a complete and correct list of all
Patents and Trademarks owned by Borrower on the date hereof which are material
to Borrower's and its Subsidiaries, as applicable, business or financial
condition. Borrower and its Subsidiaries, as applicable, owns and possesses the
right to use, and has done nothing to authorize or enable any other Person to
use, any Patent or Trademark set forth on said Schedule 5.8 and all
registrations set forth on Schedule 5.8 are valid and in full force and effect.
Borrower and its Subsidiaries, as applicable, owns and possesses the right to
use the respective Patents and Trademarks.
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(b) Schedule 5.8 hereto sets forth a complete and correct list of all
licenses and other user agreements included in the Intellectual Property on the
date hereof.
(c) (i) There is no violation by others of any right of Borrower or its
Subsidiaries with respect to any Patent or Trademark set forth on Schedule 5.8
hereto; (ii) Borrower is not infringing in any respect upon any Patent or
Trademark of any other Person; (iii) no proceedings have been instituted or are
pending against Borrower or, to Borrower's knowledge, threatened, and no claim
against Borrower has been received by Borrower, alleging any such violation.
Section 5.9 Indebtedness for Borrowed Money. Except as set forth on
Schedule 5.9 and except for the Indebtedness incurred under this Agreement,
Borrower has no obligation with respect to Indebtedness for Borrowed Money and
no Indebtedness of Borrower is secured by or otherwise benefits from any Lien on
or with respect to the whole or any part of Borrower's properties or assets,
present or future, except for Permitted Liens. There exists no default or event
or condition which, with the giving of notice or passage of time, or both, would
constitute a default under the provisions of any instrument evidencing such
Indebtedness or of any agreement relating thereto which would interfere with the
priority of Agent's lien on the Collateral.
Section 5.10 Litigation. Except as set forth on Schedule 5.10, there is
no pending or to Borrower's knowledge threatened action, suit, proceeding or
investigation before any court, governmental or regulatory authority, agency,
commission or official, board of arbitration or arbitrator against Borrower or
any of its Subsidiaries or in which Borrower or any of its Subsidiaries is a
participant ("Litigation"). There are no proceedings pending or threatened
against Borrower or any of its Subsidiaries which call into question the
validity or enforceability of any of the Loan Documents.
Section 5.11 No Materially Adverse Contracts. None of Borrower or any
of its Subsidiaries is a party to or bound by any forward purchase contract,
futures contract, covenant not to compete, unconditional purchase, take or pay
or other contracts, agreements or instruments (whether written or oral) which
materially restricts its ability to conduct its business or, either individually
or in the aggregate has or could reasonably be expected to have a Material
Adverse Effect.
Section 5.12 Taxes and Tax Returns, Etc.
(a) Borrower and each of its Subsidiaries has timely filed (inclusive
of any permitted extensions) or had filed on its behalf with the appropriate
taxing authorities all material returns (including without limitation, material
information returns and other material information) in respect of taxes required
to be filed through the date hereof. The information filed was complete and
accurate in all material respects at the time of filing. Neither Borrower nor
any group of which Borrower is or was the common parent has requested any
extension of time within which to file returns (including without limitation
information returns) in respect of any taxes other than routine extensions of
time for filing returns which have not involved the payment of material taxes
(other than taxes immaterial in amount) beyond the due date thereof.
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(b) All taxes and assessments in respect of periods beginning prior to
the date hereof have been timely paid, or will be timely paid, or an adequate
reserve has been established therefor, as reflected in the most recent financial
statements of Borrower. Neither Borrower nor any of its Subsidiaries has any
liability for taxes in excess of the amounts so paid or reserves so established.
(c) No deficiencies for taxes have been claimed, proposed or assessed
by any taxing authority or other governmental authority against Borrower nor any
of its Subsidiaries and no tax liens have been filed. There are no pending or
threatened audits, investigations or claims for or relating to any liability in
respect to taxes, and there are no matters under discussion with any taxing
authorities or other governmental authorities with respect to taxes which are
likely to result in an additional liability for taxes. No extension of a statute
of limitations relating to taxes or assessments is in effect with respect to
Borrower or any of its Subsidiaries.
(d) Neither Borrower nor any of its Subsidiaries has any obligation
under any tax sharing agreement or agreement regarding payments in lieu of
taxes.
Section 5.13 Contracts with Affiliates, Etc.
(a) Except as set forth on Schedule 5.13(a) and except as permitted by
Section 8.13 hereof, none of Borrower or any of its Subsidiaries is a party to
or otherwise bound by any written agreements, instruments or contracts (whether
written or oral) with any Affiliate.
(b) Except as set forth on Schedule 5.13(b), there is no Indebtedness
for Borrowed Money owing by Borrower to any Affiliate nor is there Indebtedness
for Borrowed Money owing by any Affiliate to Borrower.
Section 5.14 Employee Benefit Plans.
(a) Borrower and its ERISA Affiliates are in compliance in all material
respects with any applicable provisions of ERISA and the regulations thereunder
and of the Internal Revenue Code of 1986, as amended, with respect to all
Employee Benefit Plans.
(b) No Termination Event has occurred or is reasonably expected to
occur with respect to any Guaranteed Pension Plan.
(c) The actuarial present value of all benefit commitments under each
Guaranteed Pension Plan does not exceed the assets of that Plan.
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(d) Neither Borrower nor any of its ERISA Affiliates has incurred or
reasonably expects to incur any withdrawal liability under ERISA to
Multiemployer Plans.
As used in this Section, the terms "actuarial present value" and
"benefit commitments" shall have the meanings specified in Section 4001 of
ERISA.
Section 5.15 Governmental Regulation. None of Borrower or any of its
Subsidiaries is a "public utility company", a "holding company" or a
"subsidiary" or an "affiliate" of a "holding company," as such terms are defined
in the federal Public Utility Holding Company Act of 1935, as amended. None of
Borrower or any of its Subsidiaries is an "investment company" or a company
"controlled" by an "investment company," as such terms are defined in the
Federal Investment Company Act of 1940, as amended. Borrower or any of its
Subsidiaries is not subject to regulation under the Public Utility Holding
Company Xxx 0000, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or to any federal or state statute or regulation
limiting its ability to incur Indebtedness for Borrowed Money.
Section 5.16 Securities Activities. None of Borrower or any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such terms are
used in Regulation G, T, U and X of the Board of Governors of the Federal
Reserve System.
Section 5.17 Disclosure. Neither this Agreement, any other Loan
Document, nor any other document, certificate or written statement furnished to
Agent or any Lender by or on behalf of Borrower for use in connection with the
transactions contemplated by this Agreement, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained therein not misleading as of the date of such document,
certificate or other statement. The assumptions upon which all projected
financial statements which have been delivered to Agent and each Lender are
based as stated therein and provide reasonable estimations of future
performance. There is no fact known to Borrower which has or which could
reasonably be expected in the future to have a Material Adverse Effect.
Section 5.18 No Material Default. None of Borrower or any of its
Subsidiaries is in default under any material order, writ, judgment, injunction,
decree, statute or governmental rule, indenture, agreement, contract, lease or
other instrument or contract applicable to it, which default would have a
Material Adverse Effect or adversely effect Borrower's performance of any
covenants or conditions respecting any of its Indebtedness, and no holder of any
Indebtedness of Borrower has given notice of any asserted default thereunder,
and no liquidation or dissolution of Borrower and no receivership, insolvency,
bankruptcy, reorganization or other similar proceedings relative to Borrower or
its Property is pending or is to Borrower's knowledge threatened.
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Section 5.19 Environmental Conditions.
(a) Borrower and its Subsidiaries have obtained all material necessary
permits, licenses, variances, clearances and all other material necessary
approvals (collectively the "EPA Permits") for use of the Real Estate and the
operation and conduct of its business from all applicable federal, state, and
local governmental authorities, utility companies or development-related
entities including, but not limited to, any and all appropriate Federal or State
environmental protection agencies and other County or City departments, public
water works and public utilities in regard to the use of the Real Estate and the
operation and conduct of its business, and the handling, transporting, treating,
storage, disposal, discharge, or Release of Hazardous Substances, if any, into,
on or from the environment (including, but not limited to, any air, water, or
soil).
Each issued EPA Permit is in full force and effect, has not expired or
been suspended, denied or revoked, and is not under challenge by any Person.
Borrower and each of its Subsidiaries is in compliance with each issued EPA
Permit.
(b) Neither Borrower, the Real Estate, nor any other Property owned or
leased by Borrower or its Subsidiaries is subject to any material private or
governmental litigation, threatened litigation, Lien or judicial or
administrative notice, order or action relating to Hazardous Substances or
environmental problems, impairments or liabilities with respect to the Real
Estate or such other Property.
(c) There has been no "Release" (as defined in Section 101(22) of
CERCLA) into, on or from any Real Estate and no Hazardous Substances (except
"Household Waste" as that term is defined at 40 C.F.R. 261.4(b)(1) (1990)) are
located on or have been treated, stored, processed, disposed of, handled,
transported to or from, disposed of upon the Real Estate during Borrower's or
its Subsidiaries ownership or into, upon or from the environment including, but
not limited to, any air, water, or soil. Borrower and each of its Subsidiaries
has not allowed any Hazardous Substance to exist or be treated, stored,
disposed, Released, located, discharged, possessed, managed, processed, or
otherwise handled on the Real Estate or in the operation or conduct of its
respective businesses in material violation of Environmental Laws, and complied
with all Environmental Laws affecting the Real Estate.
(d) Borrower and its Subsidiaries do not transport, in any manner, any
Hazardous Substances except in the ordinary course of business in material
compliance with Environmental laws.
(e) Neither Borrower nor any of its Subsidiaries have received written
notice of any circumstances which would result in any material obligation under
any Environmental Law to investigate or remediate any Hazardous Substances in,
on or under the Real Estate.
Section 5.20 Licenses and Permits. Other than Licenses and Permits, the
lack of which individually or in the aggregate would not have a Material Adverse
Effect, Borrower and each of its Subsidiaries owns or possesses all material
Licenses and Permits and rights with respect thereto, necessary for the conduct
of its business as presently conducted and proposed to be conducted,
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without any known conflict with the rights of others and, in each case, free of
any Lien not permitted by Section 8.8 of this Agreement. All of the foregoing
Licenses and Permits are in full force and effect, and Borrower and each of its
Subsidiaries is in material compliance with the foregoing without any known
conflict with the valid rights of others except where the failure so to comply
would not have a Material Adverse Effect. No event has occurred which permits,
or after notice or lapse of time or both would permit, the revocation or
termination of any such License or Permit, or affect the rights of Borrower or
any of its Subsidiaries thereunder, except where such revocation, termination or
effect upon Borrower would not individually or in the aggregate have a Material
Adverse Effect.
Section 5.21 General Collateral Representation.
(a) Borrower or the respective Subsidiary, as applicable, is the sole
owner of and has good and marketable title to the Collateral, free from all
Liens, in favor of any Person other than the Agent and except Permitted Liens,
and has full right and power to grant the Agent a security interest therein. All
information furnished to the Agent concerning the Collateral is and will be
complete, accurate and correct in all respects when furnished.
(b) No security agreement, UCC Financing Statement, equivalent security
or Lien instrument or continuation statement covering all or any part of the
Collateral is on file or of record in any public office, except such as may have
been filed (i) by Borrower and its Subsidiaries in favor of Agent pursuant to
this Agreement or the Security Documents, or (ii) in respect of the items of
Collateral subject to the Permitted Liens.
(c) The provisions of this Agreement and the Subsidiary Security
Agreements are sufficient to create in favor of the Agent, a valid and
continuing lien on, and first security interest in (subject to the Permitted
Liens), the types of the Collateral hereunder in which a security interest may
be created under Article 9 of the UCC. UCC Financing Statements have been duly
executed on behalf of Borrower and its Subsidiaries and the description of such
Collateral set forth therein is sufficient to perfect first priority security
interests in such Collateral in which a security interest may be perfected by
the filing of UCC Financing Statements. When such UCC Financing Statements are
duly filed in the filing offices set forth on Schedule 5.21 hereto, and the
requisite filing fees are paid, such filings will be sufficient to perfect
security interests in such of the Collateral described in the UCC Financing
Statements as can be perfected by filing (other than Equipment affixed to real
property so as to become fixtures), which perfected security interests will be
prior to all other Liens in favor of others and rights of others, enforceable as
such as against creditors of and purchasers from Borrower and its Subsidiaries
(other than purchasers of Inventory in the ordinary course) and as against any
owner of the Real Estate where any of the Equipment is located and as against
any purchaser of such Real Estate and any present or future creditor obtaining a
Lien on such real property.
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(d) Upon delivery to and possession by Agent of the Pledged Stock
pursuant to the terms of the Pledge Agreement, Agent shall possess a valid,
first priority security interest in such Pledged Stock in accordance with
Article 9 of the UCC; and
(e) No person now having possession or control of any of the Collateral
consisting of Inventory or Equipment has issued, in receipt therefor, a
negotiable xxxx of lading, warehouse receipt or other document of title.
ARTICLE 6.
AFFIRMATIVE COVENANTS OF BORROWER
Borrower covenants with and warrants to Agent and each Lender that,
from and after the Closing Date and until all of the Obligations are paid and
satisfied in full except as otherwise expressly consented to in writing by the
Requisite Lenders (unless the context otherwise requires):
Section 6.1 Reports and Other Information.
(a) Borrower shall provide to the Agent as soon as available, and in
any event within forty-five (45) Business Days after the close of each quarter
of each fiscal year of Borrower, balance sheets of Borrower as of the end of
such quarter and consolidated and consolidating statements of income and
statements of cash flow of Borrower and its divisions and Subsidiaries for such
quarter and for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, certified by the chief financial officer,
principal accounting officer or chief executive officer of Borrower to the
effect that such financial statements, while not examined by independent public
accountants, reflect in his opinion and in the opinion of senior management of
Borrower, all adjustments necessary to present fairly the financial position of
Borrower (except for the absence of footnotes) as at the end of such quarter and
the results of its operations for the quarter then ended in conformity with GAAP
consistently applied, subject only to year-end and audit adjustments, together
with a certificate of such officer stating that as of the date of such
certificate that, to the best of his knowledge, after reasonable inquiry, no
event has occurred which constitutes a Default or an Event of Default or would
constitute a Default or an Event of Default with the giving of notice or the
lapse of time or both, or, if a Default or an Event of Default or such an event
has occurred and is continuing, a statement as to the nature thereof and the
action which Borrower has taken or proposes to take with respect thereto, and
further setting out in such detail as is reasonably required by the Lenders
Borrower's compliance with the requirements of Article 7 and Sections 8.8 and
8.11 hereof; provided, however, that delivery of Form 10-Q to Agent shall
satisfy the requirements of this Section, so long as Borrower is a reporting
company under the Securities Exchange Act of 1934, as amended. Together with the
delivery of such financial statements of Borrower, Borrower will deliver to the
Agent a Compliance Certificate and statements of income and attendance prepared
on a theater by theater basis for such period, together with a statement of
Capital Expenditures (reasonably identified by theater and project) and
corporate overhead expenses for the period then ending for which such reports
are being delivered.
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(b) Borrower shall provide to the Agent as soon as available and in any
event within one hundred twenty (120) calendar days after the end of each fiscal
year of Borrower a copy of the annual financial statements for such year for
Borrower, including therein a copy of the balance sheets of Borrower as of the
end of such fiscal year and consolidated and consolidating statements of income
and statements of cash flow and statements of shareholders' equity of Borrower
and its divisions and Subsidiaries, certified without qualification by the
Accountants, together with a certificate of the chief financial officer,
principal accounting officer or chief executive officer of Borrower stating
that, as of the date of such certificate, to the best of his knowledge and after
reasonable inquiry, no event has occurred which constitutes a Default or an
Event of Default or, if a Default or an Event of Default or such an event has
occurred and is continuing, a statement as to the nature thereof and the action
which Borrower has taken or proposes to take with respect thereto and further
setting out in such detail as is reasonably required by the Lenders Borrower's
compliance with the requirements of Article 7 and Sections 8.8 and 8.11 hereof;
provided, however, that delivery of Form 10-K to Agent shall satisfy the
requirements of this Section, so long as Borrower is a reporting company under
the Securities Exchange Act of 1934, as amended. Together with the delivery of
such financial statements of Borrower, Borrower will deliver to the Agent a
Compliance Certificate and statements of income and attendance prepared on a
theater by theater basis for such period, together with a statement of Capital
Expenditures (reasonably identified by theater and project) and corporate
overhead expenses for the period then ending for which such reports are being
delivered.
(c) Together with each delivery of financial statements of Borrower
pursuant to paragraphs 6.1(a), or 6.1(b), Borrower will deliver a management
report: (1) describing the operations and financial condition of Borrower for
the period then ended and the portion of the current fiscal year then elapsed
(or for the fiscal year then ended in the case of year-end financials); (2)
setting forth in comparative form the corresponding figures for the
corresponding periods of the previous fiscal year and the corresponding figures
from the most recent Projections for the current fiscal year delivered to the
Agent pursuant to Section 6.1(d); and (3) discussing the reasons for any
significant variations. The information above shall be presented in reasonable
detail and shall be certified by the chief financial officer or controller of
Borrower to the effect that such information fairly presents the results of
operations and financial condition of Borrower as at the dates and for the
periods indicated.
(d) As soon as available and in any event not later than thirty (30)
days prior to the end of each fiscal year, Borrower will deliver Projections of
Borrower for the forthcoming three (3) fiscal years, year by year, and for the
forthcoming fiscal year, month by month on a consolidated and theater by theater
basis.
(e) Borrower shall provide to the Agent, promptly after sending or
filing thereof, copies of all reports and communications which Borrower or its
Subsidiaries sends to its security holders, and copies of all reports and
registration statements which Borrower files with the Securities and Exchange
Commission.
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(f) Borrower shall provide to the Agent as soon as possible, and in any
event within fifteen (15) days after Borrower knows or has reason to know that
any Termination Event with respect to any Plan has occurred, a statement of the
chief financial officer or treasurer of each entity comprising Borrower
describing such Termination Event and the action which Borrower propose to take
with respect thereto.
(g) Borrower shall provide to the Agent as soon as possible, and in any
event within five (5) days after the occurrence of a Default or an Event of
Default, continuing on the date of such statement, a statement of the chief
financial officer or treasurer of Borrower setting forth the details of such
Default or Event of Default, and the action which Borrower proposes to take with
respect thereto.
(h) If (and on each occasion that) any of the following events shall
occur:
(i) any Loan Document shall at any time be terminated, canceled or
rescinded for any reason whatever; or
(ii) any action at law, suit in equity or other legal proceeding
shall at any time be commenced or threatened in writing by any person
(1) to terminate, cancel or rescind any Loan Document, or (2) to
enforce any other Person's performance or observance of or compliance
with any covenants, agreements or obligations under any Loan Document;
or
(iii) any Person which is a party to or otherwise bound by any
Loan Document shall fail or refuse to perform, comply with or observe
or shall otherwise breach any one or more of the material covenants,
agreements or obligations under such Loan Document;
then Borrower will promptly (and, in any event, within five (5) Business Days)
after Borrower shall have first become aware of the occurrence of any such
event, furnish to Agent written notice setting forth brief particulars thereof.
(i) Borrower shall provide the Agent with the following additional
reports:
(i) as soon as available and in any event within a reasonable time
after the close of each fiscal year of Borrower copies of the portions
of any and all management letters from the Accountants, if any, to the
board of directors of Borrower or to any other entity comprising
Borrower regarding the various accounting practices and control
procedures used by Borrower;
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(ii) promptly after Borrower becomes aware of the commencement
thereof, notice of all actions, suits and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which may adversely affect
Borrower or a Subsidiary of Borrower and which are not fully covered by
insurance without the applicability of any co-insurance provisions or
which have not been bonded and in which either (A) the amount in
controversy exceeds One Hundred Thousand Dollars ($100,000) for any
single proceeding or Five Hundred Thousand Dollars ($500,000) in the
aggregate or (B) would cause a Material Adverse Effect;
(iii) as soon as practicable after becoming aware of a claim by
any Person that Borrower or a Subsidiary of Borrower is in default
under any agreement entered into in connection with Indebtedness for
Borrowed Money in excess of Five Hundred Thousand Dollars ($500,000),
notice of any such claim or default;
(iv) notice of any change in the conduct of the business or
financial condition of Borrower promptly upon Borrower becoming aware
of any such change which would have a Material Adverse Effect;
(v) notice of any release of Hazardous Substances on the Real
Estate that is in material violation of Environmental Laws which would
have a Material Adverse Effect or would require remediation pursuant to
applicable federal or state law or of any notification having been
filed with regard to a release of Hazardous Substances on or into Real
Estate under the Federal Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, et seq., or the
Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901
et seq., or any other applicable environmental law. Such notice shall
indicate the steps Borrower has or will take to remediate all hazardous
environmental conditions if any such steps are required of it by
applicable Environmental Law and the estimated costs of such
remediation; and
(vi) if (and on each occasion that) any event shall at any time
occur or any condition shall at any time develop which constitutes a
Default or an Event of Default, then, promptly (and, in any event,
within five (5) Business Days) after Borrower shall have first become
aware of the occurrence or development of any such event or condition,
Borrower will furnish or cause to be furnished to Agent a written
notice specifying the nature and the date of the occurrence of such
event or (as the case may be), the nature and the period of existence
of such condition and what action Borrower is taking or proposes to
take with respect thereto.
(j) Borrower shall also provide the Agent with such other information
relating to Borrower or any of its Subsidiaries (including, without limitation,
any Employee Benefit Plan) as the Agent may from time to time reasonably
request. To the extent the Agent is obligated to do so by applicable law, rule
or regulation, it may deliver to any regulatory body having jurisdiction over
it, copies of the reports and other information provided by Borrower to the
Agent pursuant to this Section 6.1.
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(k) Borrower shall provide the Agent reasonable prior notice of each
meeting of its board of directors (and in any event not less than ten (10) days
prior to such meetings) and Agent shall attend any such meetings as it may, in
its discretion desire.
Section 6.2 Maintenance of Property; Authorization; Insurance.
(a) Borrower covenants to, and cause each of its Subsidiaries to, keep
and maintain all of their respective Property in good repair, working order and
condition, reasonable wear and tear excepted, and from time to time to make, or
use all reasonable legal remedies to cause to be made, all proper repairs,
renewals or replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
(b) At its own cost and expense, Borrower shall, and shall cause each
of its Subsidiaries to, obtain and maintain during the term of this Agreement
(i) insurance against loss, destruction or damage to its properties as Agent may
require from time to time to fully protect the Agent's and Lenders' interests in
the Collateral, (ii) insurance against public liability and third party property
damage, with such insurance companies, in such amounts and covering such risks
as are at all times satisfactory to Agent and naming Agent for the benefit of
Lenders as mortgagee, loss payee and additional insured as its interests may
appear, and (iii) insurance as required by the terms of the Mortgages and
Leasehold Mortgages. Borrower agrees to deliver to Agent upon request insurance
certificates or policies evidencing compliance with the above requirements.
Borrower covenants, warrants and represents that it will not, and will not cause
any of its Subsidiaries to, do any act or voluntarily suffer or permit any act
to be done whereby any insurance required hereunder shall or may be suspended,
impaired or defeated. In the event that any item of Collateral shall be lost,
destroyed or irreparably damaged from any cause whatsoever during the term
hereof, Borrower agrees to proceed diligently and cooperate fully with Agent and
Lenders in the recovery of any and all proceeds of insurance applicable thereto,
and the carriers named therein are hereby directed by Borrower to make payment
for such loss to Agent, on behalf of the Lenders, and not to Borrower, or its
Subsidiaries, and Lenders jointly. If any insurance losses are paid by check,
draft or other instrument payable to Borrower, or its Subsidiaries, and Agent
and Lenders jointly, Agent may endorse the name of Borrower, or its
Subsidiaries, thereon and do such other things as it may deem advisable to
reduce the same to cash. Subject to the terms of the Mortgages and Leasehold
Mortgages and provided Borrower is not in Default in any of their Obligations
under any of the Loan Documents, all loss recoveries received by Agent and
Lenders upon any such insurance shall be paid by Agent and Lenders to Borrower
so long as such proceeds promptly are reinvested in Borrower's business. Should
Borrower then be in default in any of its Obligations to Agent or Lenders under
any of the Loan Documents, such cash resources may be applied and credited by
Agent and Lenders to any obligation, subject to Section 2.7(b). Borrower further
covenants that it shall, and shall cause each of its Subsidiaries to, require
that the insurer with respect to each such insurance policy provide for thirty
(30) days' advance written notice to Agent of any cancellation or termination
of, or other change of any nature whatsoever in, the coverage provided under any
such policy.
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Section 6.3 Key Man Life Insurance. Borrower shall obtain and maintain
a key man life insurance policy covering A. Xxxx Xxxx in an amount not less than
$2,500,000 and Borrower shall maintain such insurance in full force and effect
until the Loans have been paid in full and all financing agreements among
Borrower, Agent and the Lenders related thereto have been terminated. Borrower
shall assign such policy to the Agent for the benefit of itself and the Lenders
pursuant to an assignment in form and substance satisfactory to the Agent with
respect to such policy.
Section 6.4 Corporate Existence. Borrower shall preserve and maintain
its existence in the state of its incorporation as of the Closing Date and all
of its rights, franchises and privileges as a corporation.
Section 6.5 Inspection Rights. At any reasonable time, upon reasonable
notice, and from time to time Borrower shall permit the Agent or any Lender, or
any of their agents, representatives or current or prospective participants in
the Loans, to inspect the Collateral, to examine and make copies of and
abstracts from the records and books of account of, to visit the properties of,
Borrower and its Subsidiaries and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any of their officers, employees, agents
or the Accountants.
Section 6.6 Payment of Taxes and Claims. Borrower shall pay or cause to
be paid all taxes, assessments and other governmental charges imposed upon its
properties or assets or the property or assets of its Subsidiaries or in respect
of any of its franchises, business, income or profits before any penalty or
interest accrues thereon, and all claims (including, without limitation, claims
for labor, services, materials and supplies) for sums which have become due and
payable and which by law have or might become due and payable and which by law
have or might become a lien or charge upon any of its properties or assets,
provided that (unless any material item of property would be lost, forfeited or
materially damaged as a result thereof) no such charge or claim need be paid if
the amount, applicability or validity thereof is currently being contested in
good faith and if such reserve or other appropriate provision, if any, as shall
be required by GAAP shall have been made therefor.
Section 6.7 Compliance with Laws.
(a) Borrower will, and shall cause its Subsidiaries to, comply in all
material respects with all applicable federal, state and local laws, rules,
regulations and orders pertaining to the operation of its business, paying
before the same become delinquent all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or its
properties, and paying all lawful claims which if unpaid might become a Lien
upon any of its properties, except to the extent contested in good faith by
proper proceedings which stay the imposition of any penalty, fine or Lien
resulting from the non-payment thereof and with respect to which adequate
reserves have been set aside for the payment thereof.
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(b) Borrower will promptly notify each Lender in the event that
Borrower or any of its Subsidiaries receive any notice, claim or demand from any
governmental agency which alleges that Borrower or any of its Subsidiaries is in
material violation of any of the terms of, or has materially failed to comply
with any applicable order issued pursuant to any federal, state or local statute
regulating its operation and business, including, but not limited to, the
Occupational Safety and Health Act, the Federal Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and Recovery
Act and the Federal Water Pollution Control Act, in each case where such event
would have a Material Adverse Effect.
Section 6.8 Notice of Other Events. Immediately upon Borrower first
becoming aware of any of the following occurrences, Borrower will furnish or
cause to be furnished to Agent written notice with full particulars of (i) the
business failure, insolvency or bankruptcy of Borrower or any of its
Subsidiaries; (ii) the rescission, cancellation or termination, or the creation
or adoption, of any material agreement or contract to which Borrower or any of
its Subsidiaries is a party; (iii) any labor dispute, any attempt by any labor
union or organization representatives to organize or represent employees of
Borrower or any of its Subsidiaries, or any unfair labor practices or
proceedings of the National Labor Relations Board with respect to Borrower or
any of its Subsidiaries; or (iv) any defaults or events of default under any
material agreement of Borrower or any of its Subsidiaries or any violations of
any laws, regulations, rules or ordinances of any governmental or regulatory
body which individually or in the aggregate would reasonably cause a Material
Adverse Effect.
Section 6.9 Communication with Accountants. Borrower authorizes Agent
or any Lender to communicate directly with the Accountants and authorizes the
Accountants to disclose to Agent or such Lender any and all financial statements
and other information of any kind, including copies of any management letter or
the substance of any oral information or conversation that such Accountants may
have with respect to the business, financial condition and other affairs of
Borrower or any of its Subsidiaries.
Section 6.10 Payment of Indebtedness. Borrower will duly and punctually
pay or cause to be paid principal and interest on the Loans and all fees and
other amounts payable hereunder or under the Loan Documents in accordance with
the terms hereunder. Borrower shall pay all other Indebtedness (whether existing
on the date hereof or arising at any time thereafter) punctually in accordance
with trade practices or within any applicable period of grace except to the
extent that any such obligation is contested in good faith by proper proceedings
or Borrower has provided Agent evidence that any Lien resulting from the
non-payment thereof has been bonded or with respect to which adequate reserves
have been set aside for the payment thereof.
Section 6.11 Performance of Obligations Under Certain Documents.
Borrower will duly and properly perform, observe and comply with all of its
agreements, covenants and obligations under this Agreement and each of the other
Loan Documents.
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Section 6.12 Governmental Consents and Approvals.
(a) Borrower will, and will cause each of its Subsidiaries to, obtain
or cause to be obtained all such approvals, consents, orders, authorizations and
licenses from, give all such notices promptly to, register, enroll or file all
such agreements, instruments or documents promptly with, and promptly take all
such other action with respect to, any governmental or regulatory authority,
agency or official, or any central bank or other fiscal or monetary authority,
agency or official, as may be required from time to time under any provision of
any applicable law:
(i) for the performance by Borrower of any of its agreements or
obligations under the Notes, this Agreement or any of the other Loan
Documents or for the payment by Borrower to the Agent at its Head
Office of any sums which shall become due and payable by Borrower to
Agent or any Lender thereunder;
(ii) to ensure the continuing legality, validity, binding effect
or enforceability of the Notes or any of the other Loan Documents or of
any of the agreements or obligations thereunder of Borrower; or
(iii) to continue the proper operation of the business and
operations of Borrower.
(b) Borrower shall, and shall cause each of its Subsidiaries to, duly
perform and comply with the terms and conditions of all such approvals,
consents, orders, authorizations and Licenses and Permits from time to time
granted to or made upon Borrower or any of its Subsidiaries.
Section 6.13 Employee Benefit Plans and Guaranteed Pension Plans.
Borrower will and will cause each of its ERISA Affiliates to (a) comply with all
requirements imposed by ERISA and the Internal Revenue Code of 1986, as amended,
applicable from time to time to any of its Guaranteed Pension Plans or Employee
Benefit Plans, (b) make full payment when due of all amounts which, under the
provisions of Employee Benefit Plans or under applicable law, are required to be
paid as contributions thereto, (c) not permit to exist any accumulated funding
deficiency, whether or not waived, (d) file on a timely basis all reports,
notices and other filings required by any governmental agency with respect to
any of its Employee Benefit Plans, (e) make any payments to Multiemployer Plans
required to be made under any agreement relating to such Multiemployer Plans, or
under any law pertaining thereto, (f) not amend or otherwise alter any
Guaranteed Pension Plan if the effect would be to cause the actuarial present
value of all benefit commitments under each Guaranteed Pension Plan to be less
than the current value of the assets of such Guaranteed Pension Plan allocable
to such benefit commitments, (g) furnish to all participants, beneficiaries and
employees under any of the Employee Benefit Plans, within the periods prescribed
by law, all reports, notices and other information to which they are entitled
under applicable law, and (h) take no action which would cause any of the
Employee Benefit Plans to fail to meet any qualification requirement imposed by
the Internal Revenue Code of 1986, as amended. As used in this Section 6.13, the
term "accumulated funding deficiency" has the meaning specified in Section 302
of ERISA and Section 412 of the Internal Revenue Code, and the terms "actuarial
present value", "benefit commitments" and "current value" have the meaning
specified in Section 4001 of ERISA.
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Section 6.14 Further Assurances. Borrower will execute, acknowledge and
deliver and, in the case of third party consents or third party agreements,
diligently seek to obtain the execution, acknowledgment and delivery or
completion, any and all such further assurances and other agreements or
instruments, and take or cause to be taken all such other action, as shall be
reasonably requested by the Agent from time to time in order to give full effect
to any of the Loan Documents.
Section 6.15 Borrower's Depository Accounts. Borrower and its
Subsidiaries shall concentrate all of their bank and depository accounts with
Agent, including without limitation, all demand deposit, time deposit,
concentration and zero balance accounts except that Borrower may maintain
operating accounts with any local financial institution, provided Borrower and
its Subsidiaries shall use their best efforts to maintain such accounts with one
or more of the Lenders.
Section 6.16 Use of Proceeds. Borrower shall use all Loan proceeds
disbursed only in accordance with the purposes set forth in Section 2.9 of this
Agreement.
Section 6.17 Subsidiaries. For any Subsidiary hereafter acquired or
created, Borrower or the respective Subsidiary, as applicable, shall: (i) pledge
to the Agent for the ratable benefit of the Lenders, the shares of Capital Stock
of such Subsidiary; and (ii) cause such Subsidiary to grant a Mortgage or
Leasehold Mortgage to Agent, as Agent may in its sole discretion require, for
the ratable benefit of Lenders, on all Real Estate hereafter owned or acquired
by such a Subsidiary.
Section 6.18 Acquired Real Property Interests. For all Real Estate
hereafter acquired by Borrower or any of its Subsidiaries, and as required by
Agent in its sole discretion, such Person shall grant a Mortgage or Leasehold
Mortgage, to Agent, the ratable benefit of Lenders, for such Real Estate.
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ARTICLE 7.
FINANCIAL COVENANTS
Borrower covenants with and warrants to Agent and each Lender that,
from and after the Closing Date and until all of the Obligations are paid and
satisfied in full except as otherwise expressly consented to in writing by the
Requisite Lenders (unless the context otherwise requires), provided, however,
that for the purposes of financial calculations under this Article 7,
calculations for any Reference Period shall be made using actual historical
financial data of any property acquired during said Reference Period to the
extent applicable for such period:
Section 7.1 Interest Coverage Ratio. Borrower shall not permit the
ratio of EBITDA to Consolidated Cash Interest Expense for the Reference Period
ending on each Computation Date set forth below to be less than 2.0 to 1.0.
Section 7.2 Credit Agreement Debt to EBITDA. As of the last day of each
fiscal quarter of Borrower, the ratio of Consolidated Credit Agreement
Indebtedness for Borrowed Money outstanding as of such date to EBITDA for the
twelve (12) months ending on each Computation Date shall not exceed 3.5 to 1.0.
ARTICLE 8.
NEGATIVE COVENANTS OF BORROWER
Borrower covenants with and warrants to Agent and each Lender that from
and after the Closing Date and until all of the Obligations are paid and
satisfied in full except as otherwise expressly consented to in writing by the
Requisite Lenders:
Section 8.1 Limitation on Nature of Business. Borrower will not, and
will cause its Subsidiaries not to, at any time make any material change in the
nature of its business as carried on at the date hereto or undertake, conduct or
transact any business in a manner prohibited by applicable law. Borrower shall
not create, capitalize or acquire any Subsidiary after the Closing Date without
the prior written consent of Lender. Lender's consent to the creation or
capitalization of a Subsidiary shall be conditioned upon such New Subsidiary
executing (a) a Subsidiary Guaranty Agreement, (b) a Subsidiary Security
Agreement, and (c) such additional Security Documents as Agent shall require.
Section 8.2 Limitation on Fundamental Changes. Neither Borrower nor any
of its Subsidiaries shall at any time consolidate with or merge into or with any
Person or Persons or enter into or undertake any plan or agreement of
consolidation or merger with any Person, except that any Subsidiary may be
merged with and into Borrower or another Subsidiary. Neither Borrower nor any of
its Subsidiaries shall liquidate, wind-up or dissolve (or suffer any liquidation
or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in
one transaction or series of transactions, all or substantially all of such
Borrower's or any such Subsidiary's business or property whether now or
hereafter acquired except to Borrower. Neither Borrower nor any Subsidiary shall
make or permit any amendment or modification to its charter documents or by-laws
without ten days prior notice to Agent.
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Section 8.3 Restricted Payments. Borrower will not, and will not
permit any of its Subsidiaries to directly or indirectly declare, order, pay,
make or set apart any sum for any Restricted Payments except that:
(a) Subsidiaries may make Restricted Payments with respect to their
common stock to Borrower or to other Subsidiaries of Borrower;
(b) Borrower may make interest payments to the holders of Subordinated
Debt but only to the extent set forth in and permitted by the terms of the
respective Subordination Agreement of such debt;
(c) Borrower or any Subsidiary may make any such payments not
prohibited by the Indenture as in effect on the date hereof.
Section 8.4 Management Compensation. Neither Borrower nor any
Subsidiary shall pay or enter into an agreement to pay any Management
Shareholder yearly Compensation in excess of the amounts set forth in the
Employment Agreement dated as of May 29, 1996 between A. Xxxx Xxxx and Borrower
(as such Employment Agreement is in effect on the Closing Date) and the Managing
and Monitoring Fee Agreement dated as of May 29, 1996 between Borrower and
MidMark (as such Managing and Monitoring Fee Agreement is in effect on the
Closing Date); provided, however, that upon a Default or Event of Default
hereunder or under any other Loan Document, Borrower shall not be permitted to
make any payments under the Managing and Monitoring Fee Agreement until such
time as such Default or Event of Default has either been waived by Agent or
cured by Borrower. As used herein, "Compensation" shall mean all forms of direct
and indirect remuneration and include, without limitation, salaries,
commissions, bonuses, securities, property, insurance benefits, personal
benefits and contingent forms of remuneration.
Section 8.5 Limitation on Disposition of Assets.
(a) Neither Borrower nor any of its Subsidiaries will sell, lease,
transfer or otherwise dispose of any of its property, business or assets ("Asset
Dispositions"), or grant any Person an option to acquire any such property,
business or assets except for:
(i) bona fide sales of Inventory to customers in the ordinary
course of business and dispositions of obsolete equipment not used or
useful in the business;
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(ii) transfers of assets among Subsidiaries who have executed a
Subsidiary Guaranty and a Subsidiary Security Agreement and transfers
of assets between Borrower and any of such Subsidiaries;
(iii) Asset Dispositions which satisfy the following conditions:
(1) Borrower shall promptly notify Agent in writing of the
terms of such Asset Disposition, including within such notice the
assets sold and the consideration received;
(2) the consideration received is at least equal to the fair
market value of such assets;
(3) if the consideration received is not solely in cash, all
non-cash consideration is pledged to the Agent pursuant to documents
satisfactory to the Agent so that the Agent has received a first
priority perfected security interest in such non-cash consideration to
secure the Obligations;
(4) the Net Proceeds of such Asset Disposition are applied as
required by subsection 2.6(c);
(5) no Default or Event of Default shall result from such
sale or other disposition.
(b) Except as permitted elsewhere in this Agreement and except for
agreements or contracts in existence as of the date of this Agreement and
disclosed to Lenders in the schedules hereto, Borrower will not and will not
permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock or other equity
securities in Borrower or any such Subsidiary including warrants, rights or
options to acquire shares or other equity securities of any of its Subsidiaries,
except to Borrower or another Subsidiary of Borrower.
Section 8.6 Limitation on Investments. Borrower shall not, and shall
not allow any of its Subsidiaries to, at any time make any Investments of any
kind whatever in any Person or Persons; excluding, however, from the operation
of the foregoing provisions of this Section:
(a) Property to be used in the ordinary course of business of Borrower;
(b) Assets arising from the sale of goods and services in the ordinary
course of business of Borrower;
(c) Investments in cash and Cash Equivalents; and
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(d) Investments in any wholly-owned Subsidiary as long as its Capital
Interest is pledged to the Agent and all of the assets of such Subsidiary are
pledged to Agent upon terms and conditions satisfactory to Agent.
Section 8.7 Acquisition of Margin Securities. Borrower shall not, and
shall not allow any of its Subsidiaries to, own, purchase or acquire (or enter
into any contract to purchase or acquire) any "margin security" as defined by
any regulation of the Federal Reserve Board as now in effect or as the same may
hereafter be in effect unless, prior to any such purchase or acquisition or
entering into any such contract, Agent and each Lender shall have received an
opinion of counsel satisfactory to Agent and each Lender to the effect that such
purchase or acquisition will not cause this Agreement or the Notes to be in
violation of Regulation G, T, U, X or any other regulation of the Federal
Reserve Board then in effect.
Section 8.8 Limitation on Mortgages, Liens and Encumbrances. Borrower
shall not, and shall not allow any of its Subsidiaries to, at any time create,
assume, incur or permit to exist, any mortgage, Lien or other encumbrance in
respect of any of their respective Property, assets, income or revenues of any
character, whether heretofore or hereafter acquired by it; excluding, however,
from the operation of the foregoing provisions of this Section (each a
"Permitted Lien"):
(a) Any Liens for taxes, assessments or governmental charges or claims
the payment of which is not at the time required by Section 6.6 of this
Agreement;
(b) Any statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law incurred in
the ordinary course of business for sums not yet delinquent;
(c) Any Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security;
(d) Any easements, rights-of-way, encroachments, leases, royalties,
restrictions and other similar title exceptions or encumbrances provided such do
not, in the aggregate, materially interfere with the ordinary conduct of the
business of Borrower or any of Subsidiary or materially reduce or impair the
value of the Real Estate so encumbered;
(e) Any interest or title of a lessor under any Material Lease set
forth on Schedule 5.7 annexed to this Agreement;
(f) Liens created in connection with the incurrence of purchase money
Indebtedness not prohibited hereby, so long as such Lien encumbers only the
asset purchased, is in favor only of the Seller thereof, and does not secure any
other Indebtedness of Borrower or any Subsidiary
(g) Liens granted to Agent for the benefit of Lenders;
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(h) The additional existing mortgages, Liens and encumbrances of
Borrower and its Subsidiaries, listed and described, but only to the extent
indicated on Schedule 8.8(h) annexed to this Agreement; and
(i) The Liens with respect to Indebtedness of Borrower under or in
respect to any conditional sales agreements, security agreements, equipment
leases in the nature of title retention agreements or security agreements or
other similar title retention agreements entered into by Borrower or any
Subsidiary on, prior to or after the date of this Agreement in order to secure
the payment of the purchase price of any equipment purchased, leased or
otherwise acquired by Borrower or any Subsidiary for use in the ordinary course
of its business; provided, however, that Borrower or any Subsidiary is, by the
terms of each of Sections 8.12 or 8.13 hereof, expressly permitted to enter into
such agreement or lease.
Section 8.9 No Additional Negative Pledges. Borrower will not create or
otherwise cause or suffer to exist or become effective, directly or indirectly,
any contractual obligation which may restrict or inhibit the Agent's rights or
ability to sell or otherwise dispose of the Collateral or any part thereof after
the occurrence of an Event of Default unless such contract fully recognizes the
rights of Agent and Lenders under this Agreement.
Section 8.10 No Restrictions on Subsidiary Distributions to Borrower.
Except as provided herein or in Section 4.7 of the Indenture, Borrower will not
and will not permit any of their Subsidiaries directly or indirectly to create
or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Subsidiary to:
(1) pay dividends or make any other distribution on any of such Subsidiary's
Capital Stock owned by Borrower or any Subsidiary of Borrower; (2) subject to
subordination provisions, pay any indebtedness owed to Borrower or any other
Subsidiary; or (3) make loans or advances to Borrower or any other Subsidiary
prohibited by the Indenture as in effect on the date hereof.
Section 8.11 Limitation on Indebtedness. Borrower shall not at any time
create, incur or assume, or become or be liable (directly or indirectly) in
respect of, any Indebtedness for Borrowed Money, other than:
(a) Indebtedness arising under this Agreement and the other Loan
Documents;
(b) Indebtedness described on Schedule 5.9;
(c) Additional Indebtedness so long as after giving effect to such
Indebtedness (and the proforma application of the proceeds thereof) the Borrower
would not on a proforma basis be in violation of the covenants set forth in
Sections 7.1 or 7.2 hereof, treating such Indebtedness and the application of
the proceeds thereof as if they had been incurred at the start of the four
quarter period prior to the incurrence of such Indebtedness; and
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(d) Indebtedness evidenced by Subordinated Debt;
(e) Indebtedness representing the refinancing of Subordinated Debt or
any part thereof ("Refinanced Subordinated Debt") provided such Refinanced
Subordinated Debt is on terms that are in Agent's discretion, at least as
favorable to Borrower, Agent and Lenders as the Subordinated Debt to be redeemed
or refinanced thereby, provided (i) that no covenant contained in this Agreement
or any other Loan Document would be violated on the proposed issue date of the
Refinanced Subordinated Debt after giving effect to (1) the issuance of notes
and or debentures in connection therewith, (2) the payment of all insurance
costs, commissions, discounts, redemption premiums, and other fees and charges
associated therewith, (3) the use of proceeds thereof and (4) the redemption,
repayment, or retirement of all Indebtedness of the Borrower to be redeemed,
repaid, or retired in connection therewith; and (ii) Borrower, Agent and the
holders of the Refinanced Subordinated Debt execute a subordination agreement
upon terms reasonably satisfactory to Agent.
Section 8.12 Limitation on Sales and Leasebacks. Borrower shall not at
any time, directly or indirectly, sell and thereafter lease back any of its
respective assets or Property unless the terms of such transaction provide
commercially reasonable sale prices and lease rates.
Section 8.13 Transactions with Affiliates. Borrower shall not at any
time enter into or participate in any agreements or transactions of any kind
with any Affiliates of Borrower, except agreements or transactions entered into
in the ordinary course of business upon fair and terms determined by Agent to be
no less favorable to Borrower than could be obtained in a comparable arms-length
transaction with an unaffiliated Person.
Section 8.14 No Additional Bank Accounts. Except as provided in Section
6.15, Borrower shall not open, maintain or otherwise have any bank accounts.
ARTICLE 9.
EVENTS OF DEFAULT AND REMEDIES
Section 9.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default":
(a) Principal and Interest. Any principal shall not be paid when due,
or any interest or any other sum payable under this Agreement or the Notes shall
not be paid within three (3) days after the same is due and payable;
(b) Representation and Warranties. Any representation or warranty at
any time made by or on behalf of Borrower in this Agreement, any Loan Document
or in any certificate, written report or statement furnished to Agent or any
Lender pursuant hereto or thereto shall prove to have been untrue, incorrect or
breached in any material respect on or as of the date on which such
representation or warranty was made or deemed to have been made or repeated;
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(c) Certain Covenants. Borrower shall fail to comply with the covenants
set forth in Sections 6.2(b), 6.4, 6.8, 6.10 or 2.9, Article 7 or Article 8 and
such failure or breach shall continue for more than thirty (30) days from the
date Borrower learns of such failure to comply;
(d) Other Covenants. Borrower shall fail to perform, comply with or
observe or shall otherwise breach any other covenant or agreement contained in
this Agreement and such failure or breach shall continue for more than thirty
(30) days after the earlier of the date on which Borrower shall have first
become aware of such failure or breach or Agent or any Lender shall have first
notified Borrower of such failure or breach unless Borrower is continuing to
undertake reasonable efforts to cure such default or breach and for a period of
sixty (60) days thereafter, it such default is capable of cure within such
additional period.
(e) Loan Documents. The breach or a failure of Borrower to perform,
comply with or observe any Loan Document or any other agreement, document,
instrument or certificate executed or delivered in connection with this
Agreement and if such failure shall continue for more than fifteen (15) days
after the earlier of the date on which Borrower shall have first become aware of
such failure or breach or Agent or any Lender shall have first notified Borrower
of such failure or breach, or any Loan Document shall cease to be legal, valid,
binding or enforceable in accordance with the terms thereof;
(f) Litigation. Any action at law, suit in equity or other legal
proceeding to amend, cancel, revoke or rescind any Loan Document shall be
commenced by or on behalf of Borrower or any other Person bound thereby, or by
any court or any other governmental or regulatory authority or agency of
competent jurisdiction; or any court or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a determination that,
or shall issue a judgment, order, decree or ruling to the effect that, any one
or more of the covenants, agreements or obligations of Borrower under any one or
more of the Loan Documents are illegal, invalid or unenforceable in accordance
with the terms thereof;
(g) Default by Borrower under other Agreements. Any default by Borrower
or any event of default shall occur under any agreement, instrument or contract
relating to Indebtedness individually or in the aggregate in excess of Five
Million Dollars ($5,000,000) to which Borrower is at any time a party or by
which Borrower is at any time bound or affected, or Borrower shall fail to
perform or observe any of its agreements or covenants thereunder, and such
default, event of default or failure shall continue for such period of time as
would permit, or as would have permitted (assuming the giving of appropriate
notice), holders of Indebtedness of Borrower to accelerate the maturity of all
or any part of such Indebtedness under any such document;
(h) Insolvency. Any action shall be taken by or on behalf of Borrower
or any of its Subsidiaries for the termination, winding up, liquidation or
dissolution of Borrower or any of its Subsidiaries; or Borrower or any of its
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Subsidiaries shall make an assignment for the benefit of creditors, become
insolvent or be unable to pay its debts as they mature; or Borrower or any of
its Subsidiaries shall file a petition in voluntary liquidation or bankruptcy;
or Borrower shall file a petition or answer or consent seeking the
reorganization of Borrower or any of its Subsidiaries, or the readjustment of
any of the Indebtedness of Borrower; or Borrower or any of its Subsidiaries
shall commence any case or proceeding under applicable insolvency or bankruptcy
laws now or hereafter existing; or Borrower or any of its Subsidiaries shall
consent to the appointment of any receiver, administrator, custodian, liquidator
or trustee of all or any part of the Property or assets of Borrower or any of
its Subsidiaries; or any corporate action shall be taken by Borrower or any of
its Subsidiaries for the purpose of effecting any of the foregoing; or by order
or decree of any court of competent jurisdiction, Borrower or any of its
Subsidiaries shall be adjudicated as bankrupt or insolvent; or any petition for
any proceedings in bankruptcy or liquidation or for the reorganization or
readjustment of Indebtedness of Borrower or any of its Subsidiaries shall be
filed, or any case or proceeding shall be commenced, under any applicable
bankruptcy or insolvency laws now or hereafter existing, against Borrower or any
of its Subsidiaries, or any receiver, administrator, custodian, liquidator or
trustee shall be appointed for Borrower or any of its Subsidiaries or for all or
any part of the Property of Borrower or any of its Subsidiaries and such case or
proceeding shall remain undismissed for a period of sixty (60) days, or any
order for relief shall be entered in a proceeding with respect to Borrower or
any of its Subsidiaries under the provisions of the United States Bankruptcy
Code, as amended;
(i) Judgment. Any judgment, order or decree for the payment of money in
excess of Five Hundred Thousand Dollars ($500,000) shall be rendered against
Borrower or any of its Subsidiaries, and Borrower or its Subsidiaries shall not
discharge the same or provide for its discharge in accordance with its terms, or
procure a stay of execution thereof, within Thirty (30) days after the date of
the entry thereof;
(j) ERISA. Any Termination Event shall occur and as of the date thereof
or any subsequent date, the sum of the various liabilities of Borrower and their
ERISA Affiliates (such liabilities to include, without limitation, any liability
to the Pension Benefit Guaranty Corporation (or any successor thereto) or to any
other party under Sections 4062, 4063, or 4064 of ERISA or any other provision
of law and to be calculated after giving effect to the tax consequences thereof)
resulting from or otherwise associated with such event exceeds Five Hundred
Thousand Dollars ($500,000) or Borrower of any of its ERISA Affiliates as an
employer under any Multiemployer Plan shall have made a complete or partial
withdrawal from such Multiemployer Plans and the plan sponsors of such
Multiemployer Plans shall have notified such withdrawing employer that such
employer has incurred a withdrawal liability requiring a payment in an amount
exceeding Five Hundred Thousand Dollars ($500,000).
(k) Change of Control. Any Change of Control shall occur; or
(l) Material Adverse Change. Any event or occurrence which has a
Material Adverse Effect.
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Section 9.2 Termination of Commitments and Acceleration of Obligations.
If any one or more of the Events of Default shall at any time occur:
(a) The Agent may, and upon the request of the Requisite Lenders,
shall, by giving notice to Borrower, immediately terminate the Credit
Commitments of all of the Lenders in full and each Lender shall thereupon be
relieved of all of its obligations to make any Loans thereunder; except that if
there shall be an Event of Default under Section 9.1(h) hereof, the Credit
Commitments of all of the Lenders shall automatically terminate in full, and
each Lender shall thereupon be relieved of all of its obligations to make any
Loans hereunder.
(b) The Agent may, and upon the request of the Requisite Lenders,
shall, by giving notice to Borrower (in this Agreement and in the other Loan
Documents called a "Notice of Acceleration"), declare all of the Obligations,
including the entire unpaid principal of the Notes, all of the unpaid interest
accrued thereon, and all other sums (if any) payable by Borrower under this
Agreement, the Notes, or any of the other Loan Documents, to be immediately due
and payable; except that if there shall be an Event of Default under Section
9.1(h), all of the Obligations, including the entire unpaid balance of all of
the Notes, all of the unpaid interest accrued thereon and all other sums (if
any) payable by Borrower under this Agreement, the Notes or any of the other
Loan Documents shall automatically and immediately be due and payable without
notice to Borrower. Thereupon, all of such Obligations which are not already due
and payable shall forthwith become and be absolutely and unconditionally due and
payable, without any further notice or any other formalities of any kind, all of
which are hereby expressly and irrevocably waived.
Section 9.3 Remedies. From and after the occurrence of an Event of
Default which is continuing and which has not been waived by the Agent at the
direction of the Requisite Lenders, the Agent may, and upon the request of the
Requisite Lenders, shall:
(a) subject always to the provisions of Section 10.9 hereof, proceed to
protect and enforce all or any of its or the Lenders' rights, remedies, powers
and privileges under this Agreement, the Notes or any of the other Loan
Documents by action at law, suit in equity or other appropriate proceedings,
whether for specific performance of any covenant contained in this Agreement,
any Note or any of the other Loan Documents, or in aid of the exercise of any
power granted to Agent herein or therein. In the event the Agent shall fail or
refuse to so proceed, the Requisite Lenders shall be entitled to take such
action as they shall deem appropriate to enforce their rights hereunder and
under the other Loan Documents;
(b) remove from any premises where same may be located any and all
Inventory or any and all documents, instruments, files and records (including
the copying of any computer records), and any receptacles or cabinets containing
same, relating to the Accounts of Borrower, or the Agent may use (at the expense
of Borrower) such of the supplies or space of Borrower, at Borrower's place or
places of business or otherwise, as may be necessary to properly administer and
control the Accounts of Borrower or the handling of collections and realizations
thereon;
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(c) bring suit, in the name of Borrower or the Lenders, and generally
shall have all other rights respecting said Accounts, including without
limitation the right to accelerate or extend the time of payment, settle,
compromise, release in whole or in part any amounts owing on any such Accounts
and issue credits in the name of Borrower or the Lenders;
(d) sell, assign and deliver such Inventory and Accounts and any
returned, reclaimed or repossessed merchandise, with or without advertisement,
at public or private sale, for cash, on credit or otherwise, at the Agent's sole
discretion, and any Lender may bid-or become a purchaser at any such sale, free
from any right of redemption, which right is hereby expressly waived by
Borrower;
(e) (i) notify the Account Debtor on any Account or chattel paper of
Lenders' security interest therein; (ii) demand that monies due or to become due
be paid directly to Agent for the account of Lenders; (iii) open Borrower's mail
and collect any and all amounts due Borrower from account debtors; (iv) enforce
payment of the accounts receivable or chattel paper by legal proceedings or
otherwise; (v) exercise all of Borrower's rights and remedies with respect to
the collection of the accounts receivable or chattel paper; (vi) settle, adjust,
compromise, modify, extend or renew the accounts receivable or chattel paper;
(vii) settle, adjust or compromise any legal proceedings brought to collect the
accounts receivable or chattel paper; (viii) to the extent permitted by
applicable law, sell or assign the accounts receivable or chattel paper upon
such terms, for such amounts and at such time or times as Agent deems advisable;
(ix) grant waivers or indulgences with respect to, accept partial payments from,
discharge, release, surrender, substitute any customer security for, make
compromise with or release, any other party liable on, any account receivable or
chattel paper; (x) take control, in any manner, of any item of payment or
proceeds from any account debtor; (xi) prepare, file, and sign Borrower's name
on any proof of claim in Bankruptcy or similar document against any account
debtor; (xii) prepare, file, and sign Borrower's name on any notice of lien,
assignment or satisfaction of lien or similar document in connection with the
accounts receivable or chattel paper; (xiii) endorse the name of Borrower upon
any chattel paper, document, instrument, invoice, freight xxxx, xxxx of lading
or similar document or agreement relating to the accounts receivable or chattel
paper or inventory; (xiv) use Borrower's stationery and sign Borrower's name to
verifications of the accounts receivable or chattel paper and notices thereof to
account debtors; and (xv) use the information recorded on or contained in any
data processing equipment or computer hardware or software relating to the
accounts receivable, chattel paper, inventory, or proceeds thereof to which
Borrower has access; and
(f) foreclose the security interests created pursuant to the Loan
Documents by any available judicial procedure, or take possession of any or all
of the Inventory and equipment of Borrower without judicial process and enter
any premises where any such Inventory and equipment may be located for the
purpose of taking possession of or removing the same.
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The Agent shall have the right, without notice of advertisement, to
sell, lease, or otherwise dispose of all or any part of the Inventory and
Equipment of Borrower, whether in its then condition or after further
preparation or processing, in the name of Borrower, or the Lenders, or in the
name of such other party as the Agent may designate, either at public or private
sale or at any broker's board, in lots or in bulk, for cash or for credit, with
or without warranties or representations, and upon such other terms and
conditions as the Agent in its sole discretion may deem advisable, and the Agent
or any other Lender shall have the right to purchase at any such sale. If any
such Inventory and Equipment shall require rebuilding, repairing, maintenance or
preparation, the Agent shall have the right, at its option, to do such of the
aforesaid as is necessary, for the purpose of putting such Inventory and
Equipment in such saleable form as the Agent shall deem appropriate. Borrower
agrees, at the request of the Agent, to assemble such Inventory and Equipment
and to make it available to the Agent at places which the Agent shall reasonably
select, whether at the premises of Borrower or elsewhere, and to make available
to the Agent the premises and facilities of Borrower for the purpose of the
Agent's taking possession of, removing or putting such Inventory and Equipment
in saleable form. However, if notice of intended disposition of any Collateral
is required by law, it is agreed that five (5) Business Days notice shall
constitute reasonable notification and full compliance with the law. The Agent
shall be entitled to use all intangibles and computer software programs and data
bases used by Borrower in connection with its business or in connection with the
Collateral. The net cash proceeds resulting from the Agent's exercise of any of
the foregoing rights (after deducting all charges, costs and expenses including
reasonable attorneys' fees) shall be applied by the Agent to the payment of the
Obligations, whether due or to become due, in such order as the Agent may elect.
Borrower shall remain liable to the Lenders for any deficiencies, and the
Lenders in turn agree to remit to Borrower or its successors or assigns, any
surplus resulting therefrom. The enumeration of the foregoing rights is not
intended to be exhaustive and the exercise of any right shall not preclude the
exercise of any other rights, all of which shall be cumulative.
Section 9.4 No Implied Waiver; Rights Cumulative. No delay on the part
of the Agent or any Lender in exercising any right, remedy, power or privilege
under any of the Loan Documents or provided by statute or at law or in equity or
otherwise shall impair, prejudice or constitute a waiver of any such right,
remedy, power or privilege or be construed as a waiver of any Default or Event
of Default or as an acquiescence therein. No right, remedy, power or privilege
conferred on or reserved to Agent or any Lender under any of the Loan Documents
or otherwise is intended to be exclusive of any other right, remedy, power or
privilege. Each and every right, remedy, power and privilege conferred on or
reserved to Agent or any Lender under any of the Loan Documents or otherwise
shall be cumulative and in addition to each and every other right, remedy, power
or privilege so conferred on or reserved to Agent or any such Lender and may be
exercised at such time or times and in such order and manner as Agent or any
such Lender shall (in its sole and complete discretion) deem expedient.
Section 9.5 Set-Off; Pro Rata Sharing. Borrower hereby confirms to
Agent and each Lender the continuing and immediate rights of set-off of Agent
and each Lender with respect to all deposits, balances and other sums credited
by or due from Agent or such Lender or any of the offices or branches of Agent
or such Lender to Borrower, which rights are in addition to any other rights
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which Agent or such Lender may have under applicable law. If any principal,
interest or other sum payable by Borrower to Agent or any Lender under the Notes
or any of the Loan Documents is not paid to Agent or such Lender punctually when
the same shall first become due and payable, or if any Event of Default shall at
any time occur, any deposits, balances or other sums credited by or due from
Agent or such Lender or any of the offices or branches of Agent or any Lender to
Borrower, may, without any prior notice of any kind to Borrower, or compliance
with any other conditions precedent now or hereafter imposed by statute, rule or
law or otherwise (all of which are hereby expressly and irrevocably waived by
Borrower), be immediately set off, appropriated and applied by Agent or such
Lender toward the payment and satisfaction of the Obligations (but not to any
other obligations of Borrower to Agent or such Lender until all of the
Obligations have been paid in full) in such order and manner as Agent or such
Lender (in its sole and complete discretion) may determine, subject, however, to
the provisions of Section 10.13.
ARTICLE 10.
CONCERNING THE AGENT AND THE LENDERS
The Agent and the Lenders agree as follows:
Section 10.1 Appointment of the Agent. Each of the Lenders hereby
appoints Provident to serve as Agent, under this Agreement and the other Loan
Documents, and in such capacity, to administer this Agreement, and the other
Loan Documents.
Section 10.2 Authority. Each of the Lenders hereby irrevocably
authorizes the Agent (i) to take such action on such Lender's behalf under this
Agreement and the other Loan Documents and to exercise such powers and to
perform such duties hereunder and thereunder as are delegated to or required of
the Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; and (ii) to take such action on such Lender's
behalf as the Agent shall consider necessary or advisable for the protection,
collection or enforcement of any of the Obligations. The Agent will promptly
notify each of the Lenders as soon as it becomes aware of any Default or Event
of Default or any failure by Borrower to make any payment in respect of any of
the Notes, provided, however, that Agent shall not be deemed to have knowledge
of any item until such time as Agent's officers responsible for administration
of the Loans shall receive written notice thereof or have actual knowledge of
such event. If any Lender becomes aware of any Default or Event of Default by
Borrower, it shall promptly notify Agent thereof provided, however, that Lenders
shall not be deemed to have knowledge of any item until such time as Lenders'
officers responsible for administration of the Loans shall receive written
notice thereof or have actual knowledge of such event.
Section 10.3 Acceptance of Appointment. The Agent hereby accepts its
appointment as Agent for each of the Lenders under this Agreement and the other
Loan Documents, but only on the terms set forth in this Agreement, including the
following:
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(a) Agent makes no representation as to the value, validity or
enforceability of this Agreement or of any of the other Loan Documents or as to
the correctness of any statement contained in this Agreement or in any of the
other Loan Documents;
(b) Agent may exercise its powers and perform its duties under this
Agreement and the other Loan Documents either directly or through its agents or
attorneys;
(c) Agent shall be entitled to obtain from counsel selected by it with
reasonable care advice with respect to legal matters pertaining to this
Agreement, or any of the other Loan Documents and shall not be liable for any
action taken, omitted to be taken or suffered in good faith in accordance with
the advice of such counsel;
(d) Agent shall not be required to use its own funds in the performance
of any of its duties or in the exercise of any of its rights or powers, and
Agent shall not be obligated to take any action which, in its reasonable
judgment, would involve it in any expense or liability unless it shall have been
furnished security or indemnity in an amount and in form and substance
satisfactory to it; and
(e) Agent, in performing its duties and functions under this Agreement
and the other Loan Documents on behalf of the Lenders, will exercise the same
care which it normally exercises in making and handling loans in which it alone
is interested, but does not assume further responsibility.
Section 10.4 Collateral Matters.
(a) Release of Collateral. Lenders hereby irrevocably authorize Agent,
at its option and in its discretion, to release any Lien granted to or held by
Agent upon any property covered by the Security Documents (i) upon termination
of the Credit Commitments and payment and satisfaction of all Obligations; or
(ii) constituting property being sold or disposed of if Borrower certifies to
Agent that the sale or disposition is made in compliance with the provisions of
this Agreement (and Agent may rely in good faith conclusively on any such
certificate, without further inquiry); or (iii) constituting property leased to
Borrower 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 such Borrower to be, renewed or extended. Upon request by
Agent at any time, any Lender will confirm in writing Agent's authority to
release particular types or items of property covered by the Security Documents
pursuant to this subsection 10.4(a).
(b) Confirmation of Authority; Execution of Releases. Without in any
manner limiting Agent's authority to act without any specific or further
authorization or consent by Requisite Lenders (as set forth in subsection
10.4(a)), each Lender agrees to confirm in writing, upon request by Borrower,
the authority to release any property covered by the Security Documents
conferred upon Agent under clauses (i) through (iii) of subsection 10.4(a). So
long as no Event of Default is
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then continuing, upon receipt by Agent of confirmation from the Requisite
Lenders of its authority to release any particular item or types of property
covered by the Security Documents, and upon at least five (5) Business Days
prior written request by Borrower, Agent shall (and is hereby irrevocably
authorized by Lenders to) execute such documents as may be necessary to evidence
the release of the Liens granted to Agent for the benefit of Lenders herein or
pursuant hereto upon such Collateral; provided, however, that (i) Agent shall
not be required to execute any such document on terms which, in Agent's opinion,
would expose Agent to liability or create any obligation or entail any
consequence other than the release of such Liens without recourse or warranty,
and (ii) such release shall not in any manner discharge, affect or impair the
Obligations or any Liens upon (or obligations of Borrower, in respect of), all
interests retained by Borrower, including (without limitation) the proceeds of
any sale, all of which shall continue to constitute part of the property covered
by the Security Documents.
(c) Absence of Duty. Agent shall have no obligation whatsoever to any
Lender or any other Person to assure that the property covered by the Security
Documents exists or is owned by Borrower or is cared for, protected or insured
or has been encumbered or that the Liens granted to Agent herein or pursuant
hereto have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to exercise
at all or in any particular manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of the rights, authorities and powers
granted or available to Agent in this Section 10.4 or in any of the Loan
Documents, it being understood and agreed that in respect of the property
covered by the Security Documents or any act, omission or event related thereto,
Agent may act in any manner it may deem appropriate, it its discretion, given
Agent's own interest in property covered by the Security Documents as one of the
Lenders and that Agent shall have no duty or liability whatsoever to any of the
other Lenders for so acting; provided that Agent shall exercise the same care
which it would in dealing with loans for its own account.
Section 10.5 Agency for Perfection. Each Lender hereby appoints each
other Lender as agent for the purpose of perfecting Lenders' security interest
in assets which, in accordance with Article 9 of the Uniform Commercial Code in
any applicable jurisdiction, can be perfected only by possession. Should any
Lender (other than Agent) obtain possession of any such Collateral, such Lender
shall notify Agent thereof, and, promptly upon Agent's request therefor, shall
deliver such Collateral to Agent or in accordance with Agent's instructions.
Each Lender agrees that it will not have any right individually to enforce or
seek to enforce any Security Document or to realize upon any collateral security
for the Loans, it being understood and agreed that such rights and remedies may
be exercised only by Agent.
Section 10.6 Application of Moneys. All moneys realized by the Agent
under the Loan Documents shall be held by Agent to apply in accordance with
Section 2.7(b) hereof.
Section 10.7 Reliance by the Agent. Agent shall be entitled to rely on
any notice, consent, certificate, affidavit, letter, telegram, telecopy,
facsimile or teletype message, statement, order, instrument or other document
believed by it to be genuine and correct and to have been signed or sent by the
proper person or persons. Agent shall deem and treat the payee of any Note as
the absolute owner thereof for all purposes hereof until such time as it
receives actual notice of an assignment permitted hereunder of such payee's
interest, together with the written agreement of the assignee in form and
substance satisfactory to Agent that such assignee is bound by this Agreement as
a "Lender" hereunder.
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Section 10.8 Exculpatory Provisions. Neither Agent nor any of its
shareholders, directors, officers, employees or agents shall be liable in any
manner to any of the Lenders for any action taken, omitted to be taken or
suffered in good faith by it or them under any of the Loan Documents or in
connection therewith, or be responsible for the consequences of any oversight or
error of judgment, except for losses due to gross negligence or willful
misconduct of such Agent, shareholder, director, officer, employee or agent.
Without limiting the generality of the foregoing sentence of this Section 10.8,
under no circumstances shall the Agent be subject to any liability to any Lender
on account of any action taken or omitted to be taken by such Agent in
compliance with the direction of the Requisite Lenders or all of the Lenders, as
the case may be as provided for hereunder.
Agent shall not be responsible in any manner to any of the Lenders for
the due execution, effectiveness, genuineness, validity or enforceability,
perfection or recording of this Agreement, any of the Notes, any of the other
Loan Documents or for any certificate, report or other document used under or in
connection with this Agreement or any of the other Loan Documents, or for the
truth or accuracy of any recitals, statements, warranties or representations
contained herein or in any certificate, report or other document at any time
hereafter furnished or purporting to have been furnished to it by or on behalf
of Borrower, or any other Person, or be under any obligation to any of the
Lenders to ascertain or inquire as to the performance or observance by Borrower,
or any other Person of any of the covenants, agreements or conditions set forth
in this Agreement, the Notes or any of the other Loan Documents or as to the use
of any moneys lent hereunder or thereunder.
Agent shall not be obligated to take any action or refrain from taking
any action under any Loan Document that might, in its judgment, involve it in
any expense or liability until it shall have been indemnified to its
satisfaction by or received an agreement to indemnify from each Person which
such Agent reasonably believes may be an intended recipient of such
distribution. If a court of competent jurisdiction shall adjudge that any amount
received and distributed by the Agent is to be repaid, each Person to whom any
such distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court.
Section 10.9 Action by the Agent. Except as otherwise expressly
provided under this Agreement or in any other of the Loan Documents, Agent will
take such action, assert such rights and pursue such remedies under this
Agreement and the other Loan Documents as the Requisite Lenders or all of the
Lenders, as the case may be as provided for hereunder shall direct. Except as
otherwise expressly provided in any of the Loan Documents, Agent will not (and
will not be obligated to) take any action, assert any rights or pursue any
remedies under this Agreement or any of the other Loan Documents in violation or
contravention of any express direction or instruction of the Requisite Lenders
or all of the Lenders, as the case may be as provided for hereunder. Agent
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may refuse (and will not be obligated) to take any action, assert any rights or
pursue any remedies under this Agreement or any of the other Loan Documents
without the express written direction and instruction of the Requisite Lenders
or all of the Lenders, as the case may be as provided for hereunder. In the
event Agent fails, within a commercially reasonable time, to take such action,
assert such rights, or pursue such remedies as the Requisite Lenders or all of
the Lenders, as the case may be as provided for hereunder, direct, the Requisite
Lenders or all of the Lenders, as the case may be as provided for hereunder,
shall have the right to take such action, to assert such rights, or pursue such
remedies on behalf of all of the Lenders unless the terms hereof otherwise
require the consent of all the Lenders to the taking of such actions. All
notices and other material information required to be delivered by Borrower to
Agent hereunder shall be delivered within a reasonable time (and in any event
not more than five (5) days) after Agent's receipt of same by Agent to each
Lender. No Lender (other than the Agent, acting in its capacity as Agent) shall
be entitled to take any enforcement action of any kind under any of the Loan
Documents, except as expressly provided in this Agreement. Action that may be
taken by Requisite Lenders or all of the Lenders, as the case may be as provided
for hereunder may be taken pursuant to a vote at a meeting (which may be held by
telephone conference call) of all of the Lenders, or pursuant to the written
consent of such Lenders.
Section 10.10 Amendments, Waivers and Consents. Any provision of this
Agreement, the Notes or the other Loan Documents may be amended or waived upon
the consent of the Requisite Lenders, and after such consent, Agent, on behalf
of the Lenders, may execute and deliver to Borrower a written instrument waiving
or amending such provision; provided, however, that neither this Agreement, the
Notes, nor any of the other Loan Documents may be amended, waived or a variation
therefrom or forbearance with respect to such variation consented to without the
written consent of the Agent and all of Lenders which effect (i) a change in the
Maximum Revolving Commitment; (ii) a change in any Lender's Credit Commitment;
(iii) a reduction in the interest rates or reduction of the principal set forth
in the Notes; (iv) the extension of the maturity date on the Notes; (v) a change
in the payment schedule or scheduled date for the payment of or amount of any
interest or principal; (vi) any change in Article 7; (vii) a change in this
paragraph, the definition of Requisite Lender or any provision of this Agreement
which requires consent or action of all the Lenders for action thereunder;
(viii) a change in the obligations and liabilities of Agent; (ix) a change which
increases the obligations of any Lender; or (x) a change in any fees or charges
hereunder or in Sections 2.10 or 11.5 hereof.
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, interest, actions, judgments or suits
resulting from Agent's own gross negligence or willful misconduct.
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Section 10.12 Reimbursement of the Agent. Each Lender further agrees to
reimburse Agent, in accordance with its Participation Percentage, for any
reasonable out-of-pocket costs or expenses incurred by Agent in connection with
its duties under this Agreement (including, but not limited to, reasonable fees
and disbursements of counsel, travel and living expenses away from home of
employees or agents of the Agent and compensation of agents or of experts
employed by the Agent to render services for the Lenders hereunder), but only to
the extent such fees, disbursements, expenses and compensation have not been
promptly reimbursed to the Agent by Borrower. If any such sums are reimbursed to
the Agent by Borrower after one or more of the Lenders have reimbursed the Agent
for such sums, the Agent will refund such sums ratably to the Lenders who
contributed such sums.
Section 10.13 Sharing of Funds Received. Each Lender and Agent agrees
with Agent and each of the other Lenders that if such Lender shall receive from
Borrower or any other Person or Persons, whether by payment received otherwise
than in accordance with the terms of the Loan Documents, exercise of the right
of set-off, counterclaim, cross-claim, enforcement of any claim, or proceedings
against Borrower or any other Person or Persons, proof of claim in bankruptcy,
reorganization, liquidation, receivership or other similar proceedings, or
otherwise, and shall retain and apply to the payment of any of the Obligations
owing to such Lender any amount in excess of its Pro Rata Share of the payments
received by all of the Lenders and the Agent in respect of all of the
Obligations, such Lender will promptly make such dispositions and arrangements
with the other Lenders and the Agent with respect to such excess, either by way
of distribution, pro tanto assignment of claim, subrogation or otherwise, as
shall result in each of the Lenders receiving in respect of the Obligations
owing to it, its Pro Rata Share of such payments.
Section 10.14 Dealing with Lenders. Agent may at all times deal solely
with the several Lenders for all purposes of this Agreement and the protection,
enforcement and collection of the Notes, including without limitation the
acceptance and reliance upon any certificate, consent or other document executed
on behalf of one or more of the Lenders and the division of payments pursuant to
Sections 2.5, 2.6, 2.7, 10.6, and 10.13 hereof. The Agent shall not have a
fiduciary relationship in respect of any Lender by reason of this Agreement. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action hereunder except any action specifically provided by
this Agreement to be taken by the Agent.
Section 10.15 Agent as Lender. Provident shall have, in its capacity as
a Lender under the Loan Documents, the same obligations and the same rights,
remedies, powers and privileges under this Agreement and the other Loan
Documents as it would have were it not also an Agent.
Section 10.16 Duties Not to be Increased. The duties and liabilities of
Agent under this Agreement and the other Loan Documents shall not be increased
or otherwise changed without its express prior written consent. The Agent shall
have no duty to provide information to the Lenders except as expressly set forth
herein.
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Section 10.17 Lender Credit Decisions. Each Lender acknowledges that it
has, independently of and without reliance upon Agent or any of the other
Lenders, made its own credit analysis and decision to enter into this Agreement
and the other Loan Documents to which it is a party. Each Lender also
acknowledges that it will, independently of and without reliance upon Agent or
any of the other Lenders, continue to make its own credit decisions in taking or
not taking action under this Agreement or any of the other Loan Documents and in
determining the compliance or lack thereof by Borrower and any other Person with
any provision of any Loan Document or other document or agreement.
Section 10.18 Resignation of Agent. Provident and any successor Agent
may resign as such at any time by giving thirty (30) days' prior written notice
of resignation to each Lender and Borrower, such resignation to be effective on
the date which is specified in such notice. Upon any such resignation by
Provident as Agent, or in the event the office of Agent shall thereafter become
vacant for any other reason, the Requisite Lenders shall appoint a successor
Agent, by an instrument in writing signed by such Lenders and delivered to such
successor Agent and Borrower whereupon, such successor Agent shall succeed to
all of the rights and obligations of the retiring Agent as if originally named.
The retiring Agent shall duly assign, transfer and deliver to such successor
Agent all moneys at the time held by the retiring Agent hereunder after
deducting therefrom its expenses for which it is entitled to be reimbursed. Upon
such succession of any such successor Agent, the retiring Agent shall be
discharged from its duties and obligations hereunder, except for its gross
negligence or willful misconduct arising prior to its retirement or removal
hereunder. After any Agent's resignation, the provisions of this Section 10
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
Section 10.19 Assignment of Notes; Participation.
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(a) Each Lender may, with concurrent notice to Agent, assign to one or
more banks or other financial institutions all or a portion of its rights and
obligations under this Amended and Restated Credit Agreement and the Notes;
provided that (i) for each such assignment, the parties thereto shall execute
and deliver to Agent an assignment and assumption agreement, in form and
substance acceptable to Agent, together with any Notes subject to such
assignment, and (ii) no such assignment shall reduce the assigning Lender's
Credit Commitment to less than Fifty-One Percent (51%) of such Lender's original
Credit Commitment without the consent of Agent, unless such assignment is to a
then-current holder of a Note, provided that the number of Lenders holding
rights hereunder shall not exceed five (5) at any one time. Upon such execution
and delivery of such assignment and assumption agreement to Agent in form and
substance satisfactory to Agent and the payment by the Assigning Lender to Agent
of a processing and administration fee of $3,500, from and after the date
specified as the effective date in such Agreement (the "Acceptance Date"), (x)
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 agreement,
such assignee shall have the rights and obligations of a Lender hereunder and
(y) the assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such agreement, relinquish its
rights (other than any rights it may have pursuant to Section 11.5 which will
survive) and be released from the obligations so assigned under this Agreement
(and, in the case of an assignment covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) Each Lender may sell participations of up to forty-nine percent
(49%) of its rights and obligations under the Loan Documents to one or more
banks or other entities (including, without limitation, up to such portion of
its Credit Commitment, the Loans owing to it, and the Note held by it);
provided, however, that (i) such Lenders' obligations under the Loan Documents
(including, without limitation, its Credit Commitment to Borrower hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of the Loan Documents,
(iv) the participating banks or other entities shall be entitled to the cost
protection provisions of Sections 2.10 and 11.5 hereof, but a participant shall
not be entitled to receive pursuant to such provisions an amount larger than its
share of the amount to which the Lender granting such participation would have
been entitled, (v) Borrower, the Agent and the other Lenders shall continue to
deal solely and directly with such selling Lender in connection with such
Lender's rights and obligations under the Loan Documents, and (vi) no such
transfer shall include the transfer of any of such Lender's rights to grant
consents or waivers or approve amendments or modifications to the Loan Documents
except with respect to those items requiring the action of or consent by all of
the Lenders or affecting the rights and obligations of Agent. It is understood
and agreed that each Lender may share any and all information received by it
from or on behalf of Borrower pursuant to this Agreement or any of the other
Loan Documents with any participant or prospective participant of such Lender.
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ARTICLE 11.
PROVISIONS OF GENERAL APPLICATION
Section 11.1 Term of Agreement. This Agreement shall continue in full
force and effect and the duties, covenants, and liabilities of Borrower
hereunder and all the terms, conditions, and provisions hereof relating thereto
shall continue to be fully operative until all Obligations to Agent and each
Lender have been satisfied in full.
Section 11.2 Notices.
(a) All notices and other communications pursuant to this Agreement
shall be in writing, either delivered in hand or sent by first-class mail,
postage prepaid, or sent by telex, telecopier, facsimile transmission or
telegraph, addressed as follows:
(i) If to Borrower, at:
Clearview Cinema Group, Inc.
00 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: A. Xxxx Xxxx, President
Fax Number: (000) 000-0000
with copies to:
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax Number: (000) 000-0000
(ii) If to Agent, at:
The Provident Bank
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx
Fax Number: (000) 000-0000
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with a copy to:
Xxxxxxx, Muething & Klekamp
1800 Provident Tower
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: J. Xxxxx Xxxxxxxxx, Esq.
Fax Number: (000) 000-0000
(iii) If to a Lender, at such address set forth on
Schedule 1; or to such other addresses or by
way of such telex and other numbers as any
party hereto shall have designated in a
written notice to the other parties hereto.
(b) Except as otherwise expressly provided herein, any notice or other
communication pursuant to this Agreement or any other Loan Document shall be
deemed to have been duly given or made and to have become effective when
delivered in hand to the party to which it is directed, or, if sent by
first-class mail, postage prepaid, or by telex, telecopier, facsimile
transmission or telegraph, and properly addressed in accordance with Section
11.2(a), (i) when received by the addressee; or (ii) if sent by first class
mail, postage prepaid, on the third (3rd) Business Day following the day of the
dispatch thereof, whichever of (i) or (ii) shall be the earlier.
Section 11.3 Survival of Representations. All representations and
warranties made by or on behalf of Borrower in this Agreement, or any of the
other Loan Documents shall be deemed to have been relied upon by Agent and each
Lender notwithstanding any investigation made by Agent or any Lender and shall
survive the making of each of the Loans.
Section 11.4 Amendments. Each of the Loan Documents may be modified,
amended or supplemented in any respect whatever, only with the prior written
consent or approval of Agent and the Requisite Lenders or all of the Lenders (as
the case may be) and each other Person (other than a Lender) which is a party to
such Loan Document, all in accordance with the terms of Section 10.10 hereof.
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Section 11.5 Costs, Expenses, Taxes and Indemnification.
(a) Borrower absolutely and unconditionally agrees to pay to the Agent,
for the respective pro rata account of the Agent and each Lender, upon demand by
Agent or any Lender at any time and as often as the occasion therefor may
require, whether or not all or any of the transactions contemplated by any of
the Loan Documents are ultimately consummated (i) all reasonable out-of-pocket
costs and expenses which shall at any time be incurred or sustained by Agent or
any of its directors, officers, employees or agents as a consequence of, on
account of, in relation to or any way in connection with the preparation,
negotiation, execution and delivery of the Loan Documents and the perfection and
continuation of the rights of the Lenders and Agent in connection with the
Loans, as well as the preparation, negotiation, execution, or delivery or in
connection with the amendment or modification of any of the Loan Documents or as
a consequence of, on account of, in relation to or any way in connection with
the granting by Agent or any of the Lenders of any consents, approvals or
waivers under any of the Loan Documents including, but not limited to,
reasonable attorneys' fees and disbursements; and (ii) all reasonable
out-of-pocket costs and expenses which shall be incurred or sustained by Agent
or any of the Lenders or any of their directors, officers, employees or agents
as a consequence of, on account of, in relation to or any way in connection with
the exercise, protection or enforcement (whether or not suit is instituted) any
of its rights, remedies, powers or privileges under any of the Loan Documents or
in connection with any litigation, proceeding or dispute in any respect related
to any of the relationships under, or any of the Loan Documents (including, but
not limited to, all of the reasonable fees and disbursements of consultants,
legal advisers, accountants, experts and agents for Agent or any of the Lenders,
the reasonable travel and living expenses away from home of employees,
consultants, experts or agents of Agent or any of the Lenders, and the
reasonable fees of agents, consultants and experts not in the full-time employ
of Agent or any of the Lenders for services rendered on behalf of Agent or any
of the Lenders).
(b) Borrower shall absolutely and unconditionally indemnify and hold
harmless Agent and each Lender against any and all claims, demands, suits,
actions, causes of action, damages, losses, settlement payments, obligations,
costs, expenses and all other liabilities whatsoever except for claims arising
out of or related to the gross negligence or wilful misconduct of Agent or any
Lender which shall at any time or times be incurred or sustained by Agent or any
Lender or by any of their shareholders, directors, officers, employees,
subsidiaries, Affiliates or agents on account of, or in relation to, or in any
way in connection with, any of the arrangements or transactions contemplated by,
associated with or ancillary to this Agreement or any of the other Loan
Documents, whether or not all or any of the transactions contemplated by,
associated with or ancillary to this Agreement, or any of such Loan Documents
are ultimately consummated.
(c) Borrower hereby covenants and agrees that any sums expended by
Agent or any Lender which Agent or any Lender is entitled to be reimbursed for
pursuant to this Section 11.5, shall be immediately due and payable upon demand
by Agent or any Lender, and shall bear interest at the Default Interest Rate
from the date Agent or any such Lender incurred such expense until the date such
payment is made in full to Agent or such Lender.
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Section 11.6 Language. All notices, applications, certificates,
reports, financial statements and other financial information, correspondence
and all other communications from Borrower to Agent or any Lender pursuant to
this Agreement or any of the other Loan Documents shall be in the English
language or shall be accompanied by an English translation thereof completely
satisfactory to Agent or such Lender.
Section 11.7 Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors in title and assigns; provided, however, that (i) Borrower may not
assign or delegate any of its rights or obligations hereunder to any Person or
Persons without the express prior written consent of the Agent and all of the
Lenders; and (ii) no Lender may assign or delegate its rights or obligation
hereunder to any Person or Persons except in accordance with Section 10.19
hereof.
Section 11.8 Governing Law; Jurisdiction and Venue. The undersigned
agree that inasmuch as this Agreement, the Notes and the Loan Documents are to
be executed by Borrower and accepted by Agent and Lenders in Cincinnati, Ohio
and the funds to be disbursed under the Loans are to be disbursed in Ohio, this
instrument and the rights and obligations of all parties hereunder shall be
governed by and construed under the substantive laws of the State of Ohio,
without reference to the conflict of laws principles of such state.
The Agent, each Lender and Borrower hereby designate all courts of
record sitting in Cincinnati, Ohio, both state and federal, as forums where any
action, suit or proceeding in respect of or arising out of this Agreement, the
Notes, Loan Documents, or the transactions contemplated by this Agreement may be
prosecuted as to all parties, their successors and assigns, and by the foregoing
designations the Agent, each Lender, and Borrower consents to the jurisdiction
and venue of such courts. BORROWER WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE
LAWS OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN THE STATE OF OHIO FOR
THE PURPOSES OF LITIGATION TO ENFORCE SUCH OBLIGATIONS OF BORROWERS. In the
event such litigation is commenced, Borrower agrees that service of process may
be made and personal jurisdiction over Borrower obtained by service of a copy of
the summons, complaint and other pleadings required to commence such litigation
upon Borrower's appointed Agent for Service of Process in the State of Ohio,
which the undersigned hereof designates to be: CT Corporation Systems,
Cincinnati, Ohio. Borrower recognizes and agrees that the agency has been
created for the benefit of Borrower, and Agent and each Lender and agree that
this agency shall not be revoked, withdrawn, or modified without the consent of
the Agent.
Section 11.9 WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED
INDUCEMENT FOR THE LENDERS TO EXTEND CREDIT TO BORROWER, AND AFTER HAVING THE
OPPORTUNITY TO CONSULT COUNSEL, BORROWER HEREBY EXPRESSLY WAIVES THE RIGHT TO
TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS AGREEMENT OR ARISING
IN ANY WAY FROM THE OBLIGATIONS.
-74-
Section 11.10 Waivers. Borrower waives notice of nonpayment, demand,
notice of demand, presentment, protest and notice of protest with respect to the
Obligations, or notice of acceptance hereof, notice of the Loans made, credit
extended, or any other action taken in reliance hereon, and all other demands
and notices of any description, except such as are expressly provided for
herein.
Section 11.11 Interpretation and Proof of Loan Documents. Whenever
possible, the provisions of each Loan Document will be construed in such a
manner as to be consistent with this Agreement and each other Loan Document. If
any of the provisions of any Loan Document are inconsistent with this Agreement,
such provisions of this Agreement will supersede such provisions of such Loan
Document. This Agreement, the Loan Documents and all documents relating hereto,
including, without limitation, (a) consents, waivers and modifications which may
hereafter be executed, (b) documents received by the Agent or any Lender at the
closing or otherwise, and (c) financial statements, certificates and other
information previously or hereafter furnished to the Agent or any Lender, may be
reproduced by the Agent or such Lender by an photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process and the
Agent or such Lender may destroy any original document so reproduced. Borrower
agrees and stipulates that any such reproduction shall be admissible in evidence
as the original itself in any judicial or administrative proceeding (whether or
not the original is in existence and whether or not such reproduction was made
by the Agent of such Lender in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 11.12 Integration of Schedules and Exhibits. The Exhibits and
Schedules annexed to this Agreement are an integral part of this Agreement and
are incorporated herein by reference.
Section 11.13 Headings. The headings of the Articles, Sections and
paragraphs of this Agreement have been inserted for convenience of reference
only and shall not be deemed to be a part of this Agreement.
Section 11.14 Counterparts. This Agreement may be executed in any
number of counterparts, but all of such counterparts shall together constitute
but one agreement. In making proof of this Agreement, it shall not be necessary
to produce or account for more than one counterpart hereof signed by each of the
parties hereto.
Section 11.15 Severability. Any provision of this Agreement which is
prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.16 One General Obligation. All Loans and advances by Lenders
to Borrower under this Agreement constitute one loan, and all Obligations of
Borrower to Agent and the Lenders under this Agreement constitute one general
obligation. It is expressly understood and agreed that all of the rights of
Agent and each Lender contained in this Agreement shall likewise apply insofar
as applicable to any modification of or supplement to this Agreement.
[The rest of this page intentionally left blank. Signature pages to follow.]
IN WITNESS WHEREOF, this Agreement 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 in Cincinnati, Ohio.
SIGNED IN THE PRESENCE OF:
CLEARVIEW CINEMA GROUP, INC.
By:
---------------------------
Name: A. Xxxx Xxxx
Title: President
THE LENDERS:
THE PROVIDENT BANK
By:
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
AGENT:
THE PROVIDENT BANK, as Agent
By:
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
Withdrawal
The undersigned corporations which were co-Borrowers under the Amended
and Restated Credit Agreement (as defined above) hereby consent to the execution
of the Second Amended and Restated Credit Agreement by Clearview Cinema Group,
Inc. and hereby withdraw as co-Borrowers.
WITNESSETH:
CLEARVIEW CINEMA GROUP, INC.,
CLEARVIEW THEATRE GROUP, INC.,
CCC XXXXXXX CINEMA CORP.,
CCC B.C. REALTY CORP.,
CCC BAYONNE CINEMA CORP.,
CCC BEDFORD CINEMA CORP.,
CCC BELLEVUE CINEMA CORP.,
CCC BERGENFIELD CINEMA CORP.,
CCC BRONXVILLE CINEMA CORP.,
CCC CEDAR GROVE CINEMA CORP.,
CCC XXXXXXX TWIN CINEMA
CORPORATION,
CCC CINEMA 304 CORP.,
CCC CLARIDGE CINEMA CORP.,
CCC CLOSTER CINEMA CORP.,
CCC EDISON CINEMA CORP.,
CCC XXXXXXX CINEMA CORP.,
CCC GRAND AVENUE CINEMA CORP.,
CCC HERRICKS CINEMA CORP.,
CCC KIN MALL CINEMA CORP.,
CCC KISCO CINEMA CORP.,
CCC LARCHMONT CINEMA CORP.,
CCC MADISON TRIPLE CINEMA
CORP.,
CCC MAMARONECK CINEMA CORP.,
CCC MANASQUAN CINEMA
CORPORATION,
CCC MANSFIELD CINEMA CORP.,
CCC MARBORO CINEMA CORP.,
CCC XXXXXXXXXXX CINEMA CORP.,
CCC NEW CITY CINEMA CORP.,
CCC PARSIPPANY CINEMA CORP.,
CCC PORT WASHINGTON CINEMA
CORP.,
CCC XXXXXX CINEMA CORP.,
CCC SUCCASUNNA CINEMA CORP.,
CCC SUMMIT CINEMA CORP. (formerly
known as 000-000 Xxxxxxxxxxx
Xxxxxx CORP.),
CCC TENAFLY CINEMA CORP.,
CCC WASHINGTON CINEMA CORP.,
CCC XXXXX CINEMA CORP.,
CCC WOODBRIDGE CINEMA CORP.,
CCC COBBLE HILL CINEMA CORP.,
CCC COLONY CINEMA CORP.,
CCC WEST MILFORD CINEMA CORP.,
CCC BABYLON CINEMA CORP.,
MILLBURN TWIN CINEMA CORP.,
CCC MORRISTOWN CINEMA CORP.,
CCC NARBERTH CINEMA CORP.,
CCC BALA CYNWYD CINEMA CORP.,
CCC MANHASSET CINEMA CORP.,
CCC GREAT NECK CINEMA CORP.,
CCC FRANKLIN SQUARE CINEMA CORP.,
CCC SCREENING ZONE CINEMA
CORP., and
CCC CARMEL CINEMA CORP.
By:
------------------------------
Name: A. Xxxx Xxxx,
President,
executing this document in his
capacity as President of each
Guarantor, as individually listed
above
ANNEX I
SCHEDULES
1 Lenders
3.2 Mortgaged Property and Leasehold Interests
5.1(a) Jurisdictions where qualified to do business
5.1(b) Capital Stock
5.1(c) Subsidiaries
5.6 Material Adverse Changes
5.7 Material Leases of Property
5.8 Intellectual Property
5.9 Indebtedness for Borrowed Money
5.10 Litigation
5.13(a) Contracts with Affiliates
5.13(b) Indebtedness for Borrowed Money Owing to or by Affiliates
5.21 UCC Filing Offices
8.3(b) Obligations
8.4 Management Compensation
8.8(h) Liens
EXHIBITS
Exhibit A Form of Assignment of Option and
Operating Agreements
Exhibit B Deliberately Omitted
Exhibit C Form of Assignment of Trademarks
Exhibit D Form of Blocked Account Agreement
Exhibit E Form of Compliance Certificate
Exhibit F Form of Environmental Indemnity
Agreement
Exhibit G Deliberately Omitted
Exhibit H Form of Leasehold Mortgage
Exhibit I Form of Mortgage
Exhibit J Form of Pledge Agreement
Exhibit K Form of Revolving Promissory Note
Exhibit L Deliberately Omitted
Exhibit M Form of Borrower's Counsel Opinion
Letter
Exhibit N Class B Non-Voting Cumulative
Redeemable Preferred Stock
Exhibit O Class C Convertible Preferred Stock
Exhibit P Form of Subsidiary Guaranty
Exhibit Q Form of Subsidiary Security
Agreement
SCHEDULE 1
PARTICIPATION CREDIT
LENDER COMMITMENT PERCENTAGE
------------- ---------- ----------
THE PROVIDENT BANK Revolving Credit Loan 100.00%
Xxx Xxxx Xxxxxx Xxxxxx
0xx Xxxxx $15,000,000
Xxxxxxxxxx, Xxxx 00000
Xxxxxxxxxxx X. Xxxxxxx
(000) 000-0000
