Exhibit 10.12
JOINDER AGREEMENT AND
FIRST AMENDMENT TO
CREDIT AGREEMENT
BY AND AMONG
CLEARVIEW CINEMA GROUP, ET AL.
AND
THE PROVIDENT BANK,
Agent and Lender
dated as of
December 13, 1996
JOINDER AGREEMENT
AND
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("First Amendment") dated as of
December 13, 1996 by and among CLEARVIEW CINEMA GROUP, INC., a Delaware
corporation (hereinafter, together with its successors in title and assigns
called "Holdings"), CCC MADISON TRIPLE CINEMA CORP., a New Jersey corporation,
CCC XXXXXXX TWIN CINEMA CORPORATION, a New Jersey corporation, CCC MANASQUAN
CINEMA CORPORATION, a New Jersey corporation, CLEARVIEW THEATRE GROUP, INC., a
New Jersey corporation, CCC HERRICKS CINEMA CORP., a Delaware corporation, CCC
PORT WASHINGTON CINEMA CORP., a Delaware corporation, CCC GRAND AVENUE CINEMA
CORP., a Delaware corporation, CCC WASHINGTON CINEMA CORP., a Delaware
corporation, CCC XXXXXXX CINEMA CORP., a Delaware corporation, CCC XXXXXXX
CINEMA CORP., a Delaware corporation, CCC NEW CITY CINEMA CORP., a Delaware
corporation, and 000-000 XXXXXXXXXXX XXXXXX CORP., a New Jersey corporation,
(hereinafter collectively the Original Borrowers), and CCC BEDFORD CINEMA CORP.,
a Delaware corporation ("CCC Bedford") and CCC KISCO CINEMA CORP., a Delaware
corporation ("CCC Kisco"), CCC CLOSTER CINEMA CORP., a Delaware corporation,
("CCC Closter"), CCC BERGENFIELD CINEMA CORP., a Delaware corporation, ("CCC
Bergenfield"), CCC TENAFLY CINEMA CORP., a Delaware corporation, ("CCC Tenafly")
and CCC B.C. REALTY CORP., a Delaware corporation, (CCC Realty") (hereinafter,
together with their successors in title and assigns collectively called
"Borrowers" and each of which is a "Borrower") (CCC Closter, CCC Bergenfield,
CCC Tenafly, and CCC Realty collectively called the "New Subsidiaries") and THE
PROVIDENT BANK, an Ohio banking corporation ("Agent") and various Lenders as set
forth in the Credit Agreement.
PRELIMINARY STATEMENT
WHEREAS, Original Borrowers, Agent and Lenders have entered into a Credit
Agreement dated as of May 29, 1996 (the "Credit Agreement"); and
WHEREAS, CCC Bedford and CCC Kisco were joined as borrowers to the Credit
Agreement by that certain Joinder Agreement dated as of July 18, 1996,
WHEREAS, Holdings desires to enter into the Bergen County Transaction (as
hereinafter defined), in connection with which Borrowers have requested
additional loans from the Lenders to finance a portion of the purchase price
related to the Bergen County Transaction and to provide additional financing to
support said acquisition and capital expenditures; and
WHEREAS, in connection with the Bergen County Transaction, Holdings wishes
to create and capitalize the New Subsidiaries; and
WHEREAS, pursuant to Section 8.1 of the Credit Agreement, each New
Subsidiary, must execute and deliver a Joinder Agreement and such other
documents as Agent shall reasonably require to obligate such New Subsidiaries
under the Credit Agreement and other Loan Documents and to cause such New
Subsidiaries to grant Agent a security interest and lien in all of their
respective Property; and
WHEREAS, Agent and Lenders have agreed to make such additional loans on the
terms and conditions set forth herein; and
WHEREAS, Agent and Lenders desire to consent to the formation of the New
Subsidiaries and the Bergen County Transaction;
WHEREAS, Borrowers, Agent and Lenders now wish to amend the Credit
Agreement in accordance with the terms and provisions hereof;
NOW, THEREFORE, the parties hereto agree to supplement and amend the Credit
Agreement upon such terms and conditions as follows:
1. Capitalized Terms. All capitalized terms used herein shall have the
meanings assigned to them in the Credit Agreement unless the context hereof
requires otherwise. Any definitions as capitalized terms set forth herein shall
be deemed incorporated into the Credit Agreement as amended by this First
Amendment.
2. Schedules and Exhibits: The following schedules relative to the New
Subsidiaries are addendums to the respective Schedule to the Credit Agreement:
(a) Schedule 3.1 Mortgaged Property and Leasehold Interests
(b) Schedule 5.1(a) Jurisdictions where qualified to do business
(c) Schedule 5.1(b) Capital Stock
(d) Schedule 5.1(c) Subsidiaries
(e) Schedule 5.2 Authority
(f) Schedule 5.6 Material Adverse Changes
(g) Schedule 5.7 Material Leases of Property
(h) Schedule 5.8 Intellectual Property
(i) Schedule 5.9 Indebtedness for Borrowed Money
(j) Schedule 5.10 Litigation
(k) Schedule 5.13(a) Contracts with Affiliates
(l) Schedule 5.13(b) Indebtedness for Borrowed Money Owing to or by
Affiliates
(m) Schedule 5.21-A UCC Filing Offices
(n) Schedule 8.9(g) Liens
3. Definitions. (a) The following definitions contained in Section 1.2 of
the Credit Agreement are hereby amended in their entirety to read as follows:
"Loan Documents" mean this Agreement, the Notes, the Letter of Credit,
the Warrant Agreement, the Stockholders Agreement, the Security Documents,
the Subordination Agreement 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."
"Notes" mean, collectively, the Revolving Credit Notes, the Term Loan
A Notes and the Term Loan B Notes. "Note" shall mean any one of the Notes,
unless specifically identified.
"Maximum Revolving Commitment" means Three Hundred Thousand Dollars
($300,000).
"Subordinated Debt" means those 8% Subordinated Promissory Notes in
the aggregate principal amount of Five Hundred Thousand Dollars
($500,000.00) each dated either August 31, 1995 or October 11, 1995 issued
by Holdings in favor of CMNY, and all related documents, instruments and
agreements, and those Subordinated Promissory Notes in the aggregate
principal amount of Six Hundred Thousand Dollars ($600,000.00) each dated
December 13, 1996 issued by Holdings in favor of CMNY, and all related
documents, instruments and agreements.
"Subordination Agreement" means the Amended and Restated Subordination
Agreements dated as of December 13, 1996 among CMNY, Holdings, and Agent
substantially in the form of attached Exhibit K relating to the
subordination of the Subordinated Debt to the Obligations.
"Termination Date" means the earlier of (i) December 31, 2001; (ii)
the date upon which the entire principal of all the Notes shall become due
pursuant to the provisions hereof (whether as a result of acceleration by
Agent or the Requisite Lenders or otherwise); or (iii) the date upon which
the Credit Commitments terminate pursuant to Section 9.2 hereof.
(b) Section 1.2 of the Credit Agreement is hereby amended to add the
following definitions to read in their entirety as follows:
"Agreement" or "Credit Agreement" means this Credit Agreement and any
extensions, riders, supplements, scheduled, amendments, or modifications to
or in connection with this Credit Agreement."
"Bergen County Transaction" means the acquisition by Holdings of the
assets of the Bergen County Seller Group occurring on or prior to the First
Amendment Closing Date.
"Bergen County Seller" means Magic Cinemas L.L.C.
"Bergen County Transaction Property" means the real and personal
property acquired by Borrowers relative to the Bergen County Transaction.
"First Amendment Closing Date" means the day on which the Loans
relative to the First Amendment are made pursuant to this Agreement.
"Issuing Bank" means Provident or such other Lender as shall issue any
Letter of Credit hereunder.
"Letter of Credit Fee" means the fee charged by the Lender for the
issuance of a Letter of Credit pursuant to Section hereof.
"Letters of Credit" means the letters of credit issued by Lender at
any time pursuant to Section hereof.
"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.
"Seller Subordinated Note" means the Subordinated Promissory Note in
the aggregate principal amount of Six Hundred Thousand Dollars
($600,000.00) dated as of December 13, 1996 issued by Holdings in favor of
the Bergen County Seller, and all related documents, instruments and
agreements.
"Seller Subordination Agreement" the Subordination Agreements dated as
of December 13, 1996 among the Bergen County Seller, Holdings, and Agent
relating to the subordination of the Seller Subordinated Debt to the
Obligations.
"Senior Indebtedness for Borrowed Money" means the aggregate amount of
Indebtedness outstanding under the Credit Agreement and any other
indebtedness the payment of which has not been expressly subordinated to
the Loans hereunder.
4. Making the Loans. Section 2.2(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
(d) Term Loan A. Subject to the terms and conditions of this Agreement
and in reliance upon the representation and warranties of Borrowers herein
set forth, each Lender severally agrees to lend to Borrowers its
Participation Percentage of the Term Loan A. The aggregate amount of the
Term Loan A shall be Four Million Three Hundred Thousand Dollars
($4,300,000).
Amounts borrowed under Subsection 2.2(b) and repaid or prepaid may not be
reborrowed.
5. Making the Loans. Section 2.2(c) of the Credit Agreement is hereby
amended in is entirety to read as follows:
(e) Term Loan B. Subject to the terms and conditions of this Agreement
and in reliance upon the representation and warranties of each Borrower
herein set forth, each Lender severally agrees to lend to Borrowers its
Participation Percentage of the Term Loan B. The aggregate amount of the
Term Loan B shall not exceed Four Million Three Hundred Thousand Dollars
($4,300,000). Amounts borrowed under Subsection 2.2(c) and repaid or
prepaid may not be reborrowed.
6. Draws, Advances and Settlement of Payments and Advances. Section 2.3(c)
of the Credit Agreement is hereby amended to in its entirety to read as follows:
(c) 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.
7. The Notes. Section 2.4 of the Credit Agreement is hereby amended to in
its entirety to read as follows:
Section 2.4 The Notes. The absolute and unconditional obligation of
Borrowers to repay to each Lender its respective Pro Rata Share of the
principal of each Loan and the interest thereon shall be evidenced by a
separate Revolving Credit Note, Term Loan A Note and Term Loan B Note for
each Lender in the amount of its respective Credit Commitment for each
Loan. All payments under the Notes shall be made to Agent at its Head
Office, for the account of Lenders, and Agent shall allocate all payments
on each Loan received from Borrowers among all Lenders in accordance with
each Lender's Pro Rata Share of such Loan in accordance with Section
2.7(b).
8. Repayments and Prepayments of Principal/Payments on the Term Loan A. The
"proviso" clause of the first paragraph Section 2.6(a) of the Credit Agreement
is hereby amended to in its entirety to read as follows:
"provided that in any event the last installment of principal on the
Term Loan A shall be due and payable on the earlier of July 1, 2001 or the
Termination Date (if not earlier prepaid) and shall be in an amount
sufficient to pay in full the entire unpaid principal amount of the Term
Loan A."
9. Repayments and Prepayments of Principal/Payment on the Term Loans. (a)
Section 2.6(a) of the Credit Agreement is hereby amended in its entirety to read
as follows:
(a) Payments on the Term Loan A. Borrowers shall pay to Agent, for the
account of Lenders in accordance with their respective Pro Rata Share on
Term Loan A, monthly in arrears on the first Business Day of each month
beginning with the month following the month in which the Closing Date
falls, interest on the outstanding principal amount of the Term Loan A at
the annual rate equal to the Interest Rate applicable thereto. Borrowers
shall pay to Agent, and Borrowers hereby authorize Agent to charge the
respective accounts of Borrowers maintained with Agent, beginning on
October 1, 1996 and on each January 1, April 1, July 1, and October 1,
thereafter, quarterly installments of principal in the amounts set forth
below (or such lesser principal amount of the Term Loan A as shall then be
outstanding), plus accrued interest thereon at the Interest Rate applicable
to the Term Loan A; provided that in any event the last installment of
principal on the Term Loan A shall be due and payable on the Termination
Date (if not earlier prepaid) and shall be in an amount sufficient to pay
in full the entire unpaid principal amount of the Term Loan A.
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PAYMENT DATE PRINCIPAL INSTALLMENT
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October 1, 1996 $125,000.00
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January 1, 1997 $153,560.00
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April 1, 1997 $153,560.00
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July 1, 1997 $153,560.00
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October 1, 1997 $184,320.00
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January 1, 1998 $184,320.00
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April 1, 1998 $184,320.00
--------------------------------------------------------------------------------
July 1, 1998 $184,320.00
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October 1, 1998 $215,000.00
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January 1, 1999 $215,000.00
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April 1, 1999 $215,000.00
--------------------------------------------------------------------------------
July 1, 1999 $215,000.00
--------------------------------------------------------------------------------
October 1, 1999 $245,680.00
--------------------------------------------------------------------------------
January 1, 2000 $245,680.00
--------------------------------------------------------------------------------
April 1, 2000 $245,680.00
--------------------------------------------------------------------------------
July 1, 2000 $245,680.00
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October 1, 2000 $276,440.00
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January 1, 2001 $276,440.00
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April 1, 2001 $276,440.00
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July 1, 2001 $305,000.00
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Section 2.6(b) of the Credit Agreement is hereby amended to in its
entirety to read as follows:
(b) Payments on the Term Loans.
(i) Payments on the Term Loan B. Borrowers shall pay to Agent,
for the account of Lenders in accordance with their respective Pro
Rata Share on Term Loan B, monthly in arrears on the first Business
Day of each month beginning with the month following the month in
which Term Loan B is disbursed, interest on the outstanding principal
amount of the Term Loan B at the annual rate equal to the Interest
Rate applicable thereto. Borrowers shall pay to Agent, and Borrowers
hereby authorize Agent to charge the respective accounts of Borrowers
maintained with Agent, beginning on July 1, 1997 and on each January
1, April 1, July 1, and October 1, thereafter, quarterly installments
of principal in the amounts set forth below (or such lesser principal
amount of the Term Loan B as shall then be outstanding), plus accrued
interest thereon at the Interest Rate applicable to the Term Loan B;
provided that in any event the last installment of principal on the
Term Loan B shall be due and payable on the Termination Date (if not
earlier prepaid) and shall be in an amount sufficient to pay in full
the entire unpaid principal amount of the Term Loan B.
================================================================================
PAYMENT DATE PRINCIPAL INSTALLMENT
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July 1, 1997 $ 100,000.00
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October 1, 1997 $ 100,000.00
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January 1, 1998 $ 100,000.00
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April 1, 1998 $ 150,000.00
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July 1, 1998 $ 150,000.00
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October 1, 1998 $ 150,000.00
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January 1, 1999 $ 150,000.00
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April 1, 1999 $ 175,000.00
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July 1, 1999 $ 175,000.00
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October 1, 1999 $ 175,000.00
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January 1, 2000 $ 175,000.00
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April 1, 2000 $ 200,000.00
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July 1, 2000 $ 200,000.00
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October 1, 2000 $ 200,000.00
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January 1, 2001 $ 200,000.00
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April 1, 2001 $ 225,000.00
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July 1, 2001 $ 225,000.00
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October 1, 2001 $ 225,000.00
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December 31, 2001 $1,225,000.00
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10. Letters of Credit. Article 2 of the Credit Agreement is hereby amended
to add a new Section 2.12 to read as follows:
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, provided
that Issuing Bank shall not issue any Letter of Credit if: 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 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 the earlier of thirty (30)
days after the date of the issuance thereof.
(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 Loan proceeds available for disbursement under the Term
Loan B in 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.
(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 Loan under Term Loan B. 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 amount of Term Loan B.
(g) Fees. A fee in the amount of Four and One-Quarter Percent
(4.25%) 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 (1/4%) 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.
11. Financial Covenants.
(a) Section 7.2 of the Credit Agreement is hereby amended in its entirety
to read as follows:
Section 7.2 Debt Service Coverage. Holdings shall not permit its
Consolidated ratio of Cash Flow to Fixed Charges for the Reference Period
ending on each Computation Date set forth below to be less than 1.25 to
1.00 for each Computation Date.
(b) Section 7.4 of the Credit Agreement is hereby amended in its entirety
to read as follows:
Section 7.4 Debt to EBITDA. As of the last day of each fiscal quarter
of Holdings, the ratio of Consolidated Indebtedness for Borrowed Money
outstanding as of such date to Consolidated EBITDA for the twelve (12)
months ending on each Computation Date shall not exceed 4.5 to 1.0;
provided, however, that calculations of EBITDA for Computation Dates prior
to December 31, 1997
shall include therein actual, historical EBITDA for the theaters acquired
in the Bergen Transaction.
(c) Section 7.5 of the Credit Agreement is hereby amended in its entirety
to read as follows:
Section 7.5 Senior Debt to EBITDA. As of the last day of each fiscal
quarter of Holdings, the ratio of Consolidated Senior Indebtedness for
Borrowed Money outstanding as of such date to Consolidated EBITDA for the
twelve (12) months ending on each Computation Date shall not exceed 3.7 to
1.0; provided, however, that calculations of EBITDA for Computation Dates
prior to December 31, 1997 shall include therein actual, historical EBITDA
for the theaters acquired in the Bergen Transaction.
(d) Article 7 of the Credit Agreement is hereby amended to add a new
Section 7.6 to read as follows:
Section 7.6 Limitation on Capital Expenditures. Holdings shall not
make or incur any Capital Expenditures in the aggregate during any fiscal
year in excess of Four Hundred Fifty Thousand Dollars ($450,000).
If any Borrower enters into a Capital Lease with respect to fixed
assets, for purposes of calculating Capital Expenditures under this
Section, the aggregate amount of all payments due for the entire term of
such Capital Lease (excluding, however, the interest portion of capitalized
lease payments or the interest portion of any other permitted Indebtedness)
shall be considered expended in full on the date that such Borrower enters
into such Capital Lease.
12. Joinder Agreement. Each New Subsidiary hereby covenants and agrees as
follows:
(a) New Subsidiaries hereby enter into this Joinder Agreement and First
Amendment to Credit Agreement in order to comply with Sections 6.14 and 8.1 of
the Credit Agreement.
(b) Each New Subsidiary hereby adopts the Credit Agreement, as amended, a
copy of which is attached hereto as Exhibit A, agrees to be bound by all of the
terms, conditions and provisions thereof and of each of the Notes as if it was
an original party thereto, including without limitation the affirmative and
negative covenants in Articles and of the Credit Agreement, assumes all of the
duties and obligations of a Borrower to the Credit Agreement, and reconfirms the
representations and warranties set forth in Article of the Credit Agreement on
and as of the date hereof as if fully set forth herein.
(c) Each New Subsidiary shall be considered, and deemed to be, for all
purposes, a "Borrower" under the Credit Agreement and a maker on the Notes as if
each
New Subsidiary had signed the Notes at the time originally issued under the
Credit Agreement and hereby, jointly and severally, promises to pay or prepay
when due all principal and interest on the Notes whether at stated maturity or
otherwise and to pay or perform all of the Obligations of a Borrower under the
Credit Agreement in accordance with their respective terms, and each New
Subsidiary further agrees to execute and deliver to the Lenders the Notes, upon
the request of the Lenders, and if the Notes are reissued, amended or restated
for any reason after the date hereof to execute and deliver such reissued,
amended or restated Notes; provided, however, that the liability of each New
Subsidiary shall not exceed the liability limitation applicable to New
Subsidiary in accordance with Section 2.12 of the Credit Agreement.
(d) To secure the prompt repayment of the Notes and the Obligations, each
New Subsidiary hereby grants, pledges and collaterally assigns to Agent, on
behalf of the Lenders, a lien and security interest in and to all of each New
Subsidiary's respective personal property and fixtures, wherever located,
whether now or hereafter owned, existing or acquired or hereafter arising,
including, without limitation, the Collateral of each new subsidiary. Each New
Subsidiary shall execute UCC Financing Statements and such other security
documents as reasonably required by Agent to perfect the first Lien (subject
only to the Permitted First Liens) and security interest in the Collateral.
(e) Each New Subsidiary shall be considered and deemed to be, for all
purposes a Borrower and Indemnitee under the Environmental Indemnity Agreement
dated May 29, 1996 and agrees to be bound by the terms thereby as the same
relates to any Property.
(f) To secure further such liabilities and obligations, each New Subsidiary
shall grant to Agent, on behalf of the Lenders, a first Lien, subject to the
Permitted First Liens, upon all real property owned by such New Subsidiary and a
first Lien, subject to Permitted First Liens, on all leasehold interests of such
New Subsidiary, each of which are identified on Schedule 3.1 attached hereto,
and each such New Subsidiary shall execute and deliver to Agent, on behalf of
the Lenders, the Leasehold Mortgages, Mortgages and valid assignments of all
other Property rights which now exist or arise hereafter from time to time.
13. Reaffirmation of Covenants, Warranties and Representations. Each
Borrower hereby agrees and covenants that all representations and warranties in
the Credit Agreement, including without limitation all of those warranties and
representations set forth in Article , are true and accurate as of the date
hereof. Each Borrower further reaffirms all covenants in the Credit Agreement,
and reaffirm each of the affirmative covenants set forth in Article and negative
covenants set forth in Article and financial covenants set forth in Article
thereof, as if fully set forth herein, except to the extent modified by this
First Amendment.
14. Conditions Precedent to Closing of First Amendment. On or prior to the
closing of the First Amendment (hereinafter the "First Amendment Closing Date"),
each of the following conditions precedent shall have been satisfied:
(a) Certified Copies of Charter Documents and Bylaws. Agent and each Lender
shall have received from each New Subsidiary a copy, certified by the Secretary
or an Assistant Secretary of such Borrower to be true and complete on and as of
the First Amendment Closing Date, of the charter or other organization documents
and by-laws of such New Subsidiary as in effect on the First Amendment Closing
Date (together with all, if any, amendments thereto); and the charter or other
organization documents of each New Subsidiary certified by the applicable
Secretary of State.
(b) Incumbency Certificate. Agent and each Lender shall have received from
each New Subsidiary an incumbency certificate, dated as of the First Amendment
Closing Date, signed by the Secretary or an Assistant Secretary of each New
Subsidiary and giving the name and bearing a specimen signature of each
individual who shall be authorized to sign, in the name and on behalf of such
New Subsidiary, each of the Loan Documents to which such New Subsidiary is or is
to become a party on the First Amendment Closing Date; and to give notices and
to take other action on behalf of such New Subsidiary under the Loan Documents
(c) Proof of Corporate Authority. Agent shall have received from each
Borrower copies, certified by a duly authorized officer to be true and complete
on and as of the First Amendment Closing Date, of records of all action taken by
Borrowers to authorize the execution and delivery of this First Amendment and
all other certificates, documents and instruments to which it is or is to become
a party as contemplated or required by this First Amendment, and its performance
of all of its obligations under each of such documents.
(d) Loan Documents, etc.. Each of the documents to be executed and
delivered at the First Amendment Closing and all other certificates, documents
and instruments to be executed in connection herewith shall have been duly and
properly authorized, executed and delivered by Borrowers and shall be in full
force and effect on and as of the First Amendment Closing Date.
(e) 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.
(f) 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 each New Subsidiary pursuant to Section
6.2(b) of the Credit Agreement, 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.
(g) Mortgages and Title Evidence. Agent shall have received the following
documents, each of which shall be executed (and, where appropriate,
acknowledged) by Persons satisfactory to the Agent:
(i) the following Mortgages and Leasehold Mortgages, in each case duly
executed and delivered by the respective Borrowers (and where appropriate
by the trustee thereunder) in recordable form (in such number of copies as
the Agent shall have requested), together with such Uniform Commercial Code
financing statements as may be needed in order to perfect the security
interests granted by each of the Mortgages and Leasehold Mortgages in any
fixtures and other property therein described which may be subject to the
Uniform Commercial Code, in each case appropriately completed and duly
executed and in proper form for filing in all offices in which required:
(1) Open-End Mortgage and Security Agreement executed by CCC B.C.
Realty Corp., relating to a fee-Simple estate in property located
in the town of Bergenfield, Bergen County, New Jersey;
(2) Open-End Mortgage and Security Agreement executed by CCC B.C.
Realty Corp., relating to a fee-Simple estate in property located
in the town of Tenafly, Bergen County, New Jersey; and
(3) Open-End Leasehold Mortgage executed by CCC Closter Cinema Corp.
relating to a leasehold estate in property located in the town of
Closter, Bergen County, New Jersey.
(ii) with respect to the Real Estate covered by the Open-End Mortgage
and Security Agreements identified in (i)(1) and (i)(2) above, title
evidence satisfactory to each Lender that each respective Borrower has a
good, marketable fee-simple estate in the Real Estate subject only to the
Permitted First Liens.
(iii) with respect to the Real Estate covered by the Open-End
Leasehold Mortgages identified in (i)(3) above, title evidence satisfactory
to each Lender that each respective Borrower has a good, marketable
leasehold estate in the Real Estate subject only to the Permitted First
Liens.
(iv) with respect to the Open-End Leasehold Mortgage identified in
paragraph (i)(3) above, consents of the respective landlords consenting to
the mortgaging of the respective Borrower's leasehold estate.
(v) with respect to the Leasehold Mortgages identified in (i) (3)
above, non-disturbance and attornment agreement executed by the landlord
and their mortgage holder, each in form and substance satisfactory to
Agent.
(vi) Borrowers shall have paid to the Agent an amount equal to all
title search and exam fees, mortgage and mortgage recording taxes,
intangibles taxes, stamp taxes and other taxes payable in connection with
the execution and delivery of the Mortgages and Leasehold Mortgages and the
obligations secured thereby and the recording of the Mortgages and
Leasehold Mortgages in the appropriate land offices.
(h) 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 each New Subsidiary, which shall be
substantially in the form of Exhibit L to the Credit Agreement and which legal
opinions shall otherwise be acceptable to Agent and each Lender.
(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 for Agent and each Lender to perform any of its agreements or
obligations under any of the Loan Documents, or for Borrower to perform any of
its agreements or obligations under any of the Loan Documents.
(j) Performance, Etc. Except as set forth herein, Borrower shall have duly
and properly performed, complied with and observed each of its covenants,
agreements and obligations contained in each of the Loan Documents. Except as
set forth herein, no event shall have occurred on or prior to the First
Amendment Closing Date, and no condition shall exist on the First Amendment
Closing Date, which constitutes a Default or an Event of Default.
(k) Proceedings and Documents. All corporate, governmental and other
proceedings in connection with the transactions contemplated on the First
Amendment Closing Date, each of the other Loan Documents and all instruments and
documents incidental thereto shall be in form and substance reasonably
satisfactory to Provident.
(l) Changes; None Adverse. Since the date of the most recent balance sheets
of Borrower delivered to Provident, no changes shall have occurred in the
assets, liabilities, financial condition, business, operations or prospects of
Borrower which, individually or in the aggregate, are material to Borrower, and
Provident shall have completed such review of the status of all current and
pending legal issues as Agent shall deem necessary or appropriate.
(m) Bergen County Transaction. Borrowers shall have closed, or be prepared
to simultaneously close with the closing of the Loans, the Bergen County
Transaction on terms and conditions satisfactory to Agent and each Lender.
(n) Lien Searches. Agent shall have received the results of a recent search
by a Person satisfactory to Agent, of the UCC, judgment and tax lien filings
which may have been filed with respect to personal property of the Borrowers or
any of their
Subsidiaries and each of the Bergen County Sellers in the jurisdictions listed
on Schedule 5.21-A, and the results of such search shall be satisfactory to
Agent.
(o) Environmental Assessment. Agent and Lenders shall have received an
environmental survey and assessment relative to the Bergen County Transaction
Property by a firm of licensed engineers in form and substance satisfactory to
each, and the conditions disclosed in such survey and assessment shall be
satisfactory to Agent and Lenders.
(p) Warrants. Holdings shall have issued to Provident warrants to purchase
the agreed upon percentage of the fully-diluted Equity Interests of Holdings in
form and substance satisfactory to Provident and substantially in the form of
Exhibit M to the Credit Agreement.
(q) Subordination Agreement. Agent shall have received the Subordination
Agreement and the Seller Subordination Agreement, each executed by the
respective parties thereto.
15. Miscellaneous. (a) Borrower shall reimburse Agent for all fees and
disbursements of legal counsel to Agent which shall have been incurred by Agent
in connection with the preparation, negotiation, review, execution and delivery
of this First Amendment and the handling of any other matters incidental hereto.
(b) All of the terms, conditions and provisions of the Agreement not herein
modified shall remain in full force and effect. In the event a term, condition
or provision of the Agreement conflicts with a term, condition or provision of
this First Amendment, the latter shall govern.
(c) This First Amendment shall be governed by and shall be construed and
interpreted in accordance with the laws of the State of Ohio.
(d) This First Amendment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns.
(e) This First Amendment may be executed in several counterparts, each of
which shall constitute an original, but all which together shall constitute one
and the same agreement
[Remainder of page intentionally left blank. Signature pages follow.]
IN WITNESS WHEREOF, this Joinder Agreement and First Amendment to Credit
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.
SIGNED IN THE PRESENCE OF:
CLEARVIEW CINEMA GROUP, INC.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC MADISON TRIPLE CINEMA CORP.,
a New Jersey corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC XXXXXXX TWIN CINEMA
CORPORATION, a New Jersey corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC MANASQUAN CINEMA CORPORATION,
a New Jersey corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CLEARVIEW THEATRE GROUP, INC.,
a New Jersey corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC HERRICKS CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC PORT WASHINGTON CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC GRAND AVENUE CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC WASHINGTON CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC XXXXXXX CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC XXXXXXX CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC NEW CITY CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
000-000 XXXXXXXXXXX XXXXXX CORP.,
a New Jersey corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC BEDFORD CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC KISCO CINEMA CORP.,
a Delaware corporation ("CCC Kisco"),
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC CLOSTER CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC BERGENFIELD CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC TENAFLY CINEMA CORP.,
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
CCC B.C. REALTY CORP.
a Delaware corporation
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
THE PROVIDENT BANK, Agent
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
THE PROVIDENT BANK, Lender
________________________ By: _____________________________
Name: ___________________________
________________________ Title: __________________________
[Schedules are not included herewith, but will be provided by the Company upon
request.]
