MODIFICATION NO. 8
THIS SIXTH AMENDMENT AGREEMENT is made as of the 16th day of
August, 1996.
B E T W E N:
CINEPLEX ODEON CORPORATION
a corporation incorporated under the
laws of the Province of Ontario
("Cineplex")
- and -
XXXXX THEATRES, INC.
a corporation incorporated under the
laws of the State of Delaware
("Xxxxx")
- and -
CINEPLEX ODEON (QUEBEC) INC.
RKO CENTURY WARNER THEATRES, INC.
THE XXXXXX XXXXX ORGANIZATION, INC.
XXXXX SOUTHERN THEATRES, INC.
XXXXXXX THEATRE CORPORATION
(collectively, the "Guarantors")
- and -
THE BANK OF NOVA SCOTIA
NATIONAL BANK OF CANADA
THE BANK OF NEW YORK
ROYAL BANK OF CANADA
(collectively, the "Banks")
- and -
THE BANK OF NOVA SCOTIA
in its capacity as agent for the Banks
(the "Agent")
- and -
THE BANK OF NOVA SCOTIA
as operating lender
(the "Operating Lender")
WHEREAS:
A. Cineplex, Xxxxx, the Banks and the Agent entered into a credit
agreement dated as of 23 June 1994 pursuant to which the Banks
established a reducing/revolving term credit facility in favour of
Cineplex and Xxxxx, which agreement has been amended by a Waiver
Agreement made as of 25 October 1994, a Second Amendment Agreement
made as of 31 March 1995, a Second Waiver Agreement made as of 19
September 1995, a Third Amendment Agreement made as of 30 September
1995, a Consent made as of 15 December 1995, a Fourth Amendment
Agreement made as of 9 February 1996 and a Fifth Amendment Agreement
made as of 26 March 1996, (such credit agreement as so amended and
as further supplemented, amended, restated or replaced from time to
time, the "Credit Agreement").
B. Cineplex and the Operating Lender entered into a letter loan
agreement dated 23 June 1994 (as the same may be amended, supplemented,
restated or replaced from time to time, the "Operating Credit Agreement")
pursuant to which the Operating Lender established in favour of Cineplex
a revolving operating credit facility.
C. Pursuant to the Credit Agreement and the Operating Credit
Agreement, each of the Guarantors has provided a Guarantee.
D. Cineplex has requested that certain provisions of the Credit
Agreement be amended to permit the making of investments in certain
financial instruments, the expansion of its Exhibition Business in
Budapest, Hungary and the creation of certain Liens in connection with
the procurement of exhibition locations in the United States of America
and Canada.
E. The Banks and the Operating Lender have agreed to such requests
on the terms set forth herein and the parties hereto are entering into
to this Agreement to evidence their agreement with respect to such
requests, to set forth the terms and conditions upon which such
agreements by the Banks and the Operating Lender are made and to deal
with the other matters set forth herein.
NOW THEREFORE in consideration of these premises and for other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto
agree as follows:
Section 1 - Interpretation
Capitalized terms used herein, unless otherwise defined or
indicated herein, have the respective meanings ascribed thereto in
the Credit Agreement. This Agreement amends the Credit Agreement
effective from and after the date hereof. This Agreement and the
Credit Agreement shall be read together and have effect so far as
practicable as though the provisions thereof and the relevant provisions
hereof are contained in one agreement.
Section 2 - Amendment to Definitions
Section 1.01 of the Credit Agreement is amended by adding the
following definition as section 1.01(uu.1):
"(uu.1) "Ground Lease Property" means each freehold property
which is acquired by Cineplex
or a Restricted Subsidiary for the development of a location to be used
in its Exhibition Business in respect of which Cineplex and/or a
Restricted Subsidiary has (i) entered into agreements with a Person
to develop such property as a location to be used in its Exhibition
Business, (ii) has provided to the Banks a first priority security
interest in the furniture, fixtures and equipment relating to such
location, to the extent financed by Cineplex or a Restricted Subsidiary,
(iii) agreed to provide such Person with a long term ground lease of
the freehold interest, and (iv) agreed to enter into a long term lease
of the completed development with such Person."
Section 1.01 of the Credit Agreement is amended by adding the
following definition as section 1.01(ddd.1):
"(ddd.1) "Landlord Lender Ground Lease Mortgage" means,
with respect to each Ground Lease Property, a first priority mortgage
granted by the ground lessee of such property to its lenders charging
the ground lessee's interest in the ground lease of such Ground Lease
Property."
Section 1.01 of the Credit Agreement is amended by amending the
definition of "Permitted Investments" by deleting the period at the end
of subparagraph 1.01(vvv)(xi) and replacing it with "; and" by adding
the following provision as subparagraph (xii) thereof:
"(xii) Investments in bankers' acceptances with a maturity of
not more than 180 days which are issued by a corporation organized under
the laws of Canada or of a province of Canada and which are accepted by
a bank chartered under the Bank Act (Canada) applies which has combined
capital, surplus and undivided profits of not less than U.S.
$100,000,000 (or the equivalent in Canadian dollars) determined on the
date of the Investment and which is either rated in one of the top two
rating classifications by at least one nationally recognized rating
agency in Canada acceptable to the Agent or is a Bank under this
Agreement."
Section 1.01 of the Credit Agreement is amended by amending the
definition of "Permitted Lien" by deleting the period at the end of
subparagraph 1.01(www) (xv) and replacing it with "; and" by adding
the following provision as subparagraph (xvi) thereof:
"(xvi) Liens which are Landlord Lender Ground Lease Mortgages
to the extent that the face amount of all such Landlord Lender Ground
Lease Mortgages does not, in the aggregate, exceed U.S. $30,000,000."
Section 3 - Consent to Budapest, Hungary Project
Subject to and in accordance with the provisions of this Agreement and
the Credit Agreement, the Banks agree to permit Cineplex to enter into
the transactions relating to a proposed exhibition location in
Budapest, Hungary strictly on the terms and conditions of the deal
memorandum attached hereto as Appendix A.
Section 4 - Conditions
Precedent to Effectiveness of this Amendment Agreement
This Sixth Amendment Agreement shall only become binding on the
Banks upon satisfaction of the following conditions precedent:
(a) receipt by the Agent of evidence, in form and substance
satisfactory to the Agent and its counsel, that all terms, conditions
and provisions relating to the subject matter of this Sixth Amendment
Agreement are permitted under the Senior Subordinated Indenture; and
(b) execution of this Sixth Amendment Agreement by the
Super Majority Banks in accordance with Section 12.01(ii) of the Credit
Agreement.
Section 5 - Confirmation by Guarantors
Each Guarantor confirms that the Guarantee and Collateral made
or granted by it pursuant to the Credit Agreement and the Operating
Credit Agreement remain in full force and effect notwithstanding the
amendments and supplements to Credit Agreement herein contained.
Section 6 - Continuing Effect of Agreements
Except as amended by this Agreement, the Credit Agreement and the
Operating Credit Agreement shall remain in full force and effect,
without amendment, and each is hereby ratified and confirmed.
Section 7 - Counterparts
This Agreement may be executed in any
number of counterparts and all such counterparts taken together shall
be deemed to constitute one and the same instrument and shall be
effective on the date when each of the parties hereto has signed a
copy hereof and shall have delivered the same to the Agent.
EXECUTED AND EFFECTIVE as of the date first written above.
THE BANKS
---------
THE BANK OF NOVA SCOTIA NATIONAL BANK OF CANADA
By: X. Xxxxxx By: X. Xxxxx
XXX XXXX XX XXX XXXX XXXXX XXXX XX XXXXXX
By: Xxxxxxxx X. Xxxxxx By: X. Xxxxxx
THE BANK OF NOVA SCOTIA, THE BANK OF NOVA SCOTIA, as
as Agent Operating Lender
By: X. Xxxx By: X. Xxxxxx
THE BORROWERS
-------------
CINEPLEX ODEON CORPORATION XXXXX THEATRES, INC.
By: Xxxxx Xxxxx By: Xxxxx Xxxxx
EACH OF THE UNDERSIGNED hereby acknowledges and agrees to and accepts
the terms and conditions set forth in this Agreement as of the date
first written above.
THE GUARANTORS
--------------
CINEPLEX ODEON CORPORATION XXXXX THEATRES, INC.
By: Xxxxx Xxxxx By: Xxxxx Xxxxx
RKO CENTURY WARNER THE XXXXXX XXXXX ORGANIZATION,
THEATRES, INC. INC.
By: Xxxxx Xxxxx By: Xxxxx Xxxxx
XXXXX SOUTHERN THEATRES, INC. XXXXXXX THEATRE CORPORATION
By: Xxxxx Xxxxx By: Xxxxx Xxxxx
CINEPLEX ODEON (QUEBEC) INC.
By: Xxxxx Xxxxx
