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EXHIBIT 10.4
[EXECUTION COPY]
U.S.$725,000,000
CREDIT AGREEMENT,
dated as of May 27, 1998,
among
REGAL CINEMAS, INC.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
THE BANK OF NOVA SCOTIA,
as the Administrative Agent,
BANCAMERICA XXXXXXXXX XXXXXXXX
as the Syndication Agent,
and
THE CHASE MANHATTAN BANK,
as the Documentation Agent.
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 27, 1998, among REGAL CINEMAS,
INC., a Tennessee corporation (the "Borrower"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Lenders", and, individually, a "Lender"), THE BANK OF NOVA SCOTIA
("Scotiabank"), as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), as Swing Line Lender and as an Issuer, BANCAMERICA
XXXXXXXXX XXXXXXXX, as syndication agent (in such capacity, the "Syndication
Agent") for the Lenders, and The Chase Manhattan Bank, as documentation agent
(in such capacity, the "Documentation Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower and its Subsidiaries (such and other capitalized
terms being used herein with the meanings provided in Section 1.1) are engaged
in the development, acquisition and operation of motion picture theatres; and
WHEREAS, the Borrower is a party to an Agreement and Plan of Merger,
dated as of January 19, 1998 and amended as of May 8, 1998 (the "Merger
Agreement"), with Screen Acquisition Corp., a Delaware corporation ("KKR Merger
Subsidiary") owned by Affiliates of KKR, and Monarch Acquisition Corp., a
Delaware corporation ("HMTF Merger Subsidiary" and, together with KKR Merger
Subsidiary, the "Merger Subsidiaries") owned by Affiliates of HMTF, pursuant to
which,
(a) prior to the Merger, (x) Affiliates of KKR and Affiliates
of HMTF will make cash contributions (the "Sponsor Fund Contributions")
to the equity capital of KKR Merger Subsidiary and HMTF Merger
Subsidiary in the amounts of approximately $287,300,000 and
approximately $437,300,000, respectively and (y) DLJ Merchant Banking
Partners II, Inc. (the "Additional Investor") will make a contribution
(the "Additional Equity") to the Equity Capital of the KKR Merger
Subsidiary;
(b) each Merger Subsidiary will merge (the "Merger", and the
date of the consummation of the Merger being the "Merger Date") with
and into the Borrower (the Borrower also being sometimes referred to
(x) prior to the Merger, as "Old Regal" and (y) as the Tennessee
corporation surviving the Merger, "Surviving Regal");
(c) all of the shares of common stock, no par value per share,
of Old Regal (the "Old Regal Shares") issued and outstanding on the
Merger Date (which, as at March 31, 1998 was 36,119,028 shares of
common stock) (including certain Old Regal Shares held by Key
Management but excluding, however, any Old Regal Shares held by a
Merger Subsidiary) will be converted (the"Conversion") into the right
to receive cash in the amount of $31.00 per share (the "Merger
Consideration");
(d) options held by various directors, officers and employees
of Old Regal will either (x) be converted into cash at a price per
share equal to the Merger Consideration minus the related exercise
price per share (the "Option Redemption") or (y) be rolled-over (the
"Management RollOver") into continuing equity options to acquire
Surviving Regal Common Shares with an equivalent aggregate spread, with
new options to acquire Surviving Regal Common Shares at an exercise
price of $31.00 per share being issued in connection therewith;
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(e) the Sponsors and their Affiliates will receive Surviving
Regal Preferred Shares and Surviving Regal Common Shares representing
in the aggregate approximately 93.2% of all of the issued and
outstanding Voting Stock of Surviving Regal on the Closing Date which,
after giving effect to the HMTF/KKR Swap, will be held equally by each
Sponsor and its respective Affiliates; and
(f) Surviving Regal will repay or defease, as the case may be,
all Indebtedness of Old Regal and its Subsidiaries identified on Item
7.2.1(b) ("Indebtedness to be Paid") of the Disclosure Schedule (the
"Refinancing"); and
WHEREAS, pursuant to a tender offer and consent solicitation, dated
April 23, 1998 and amended as of May 6, 1998 (as so amended, and collectively
with the related consent and letter of transmittal and other information and
exhibits furnished therewith, the "Offer to Purchase"), the Borrower has offered
to purchase for a maximum price of approximately $139,600,000 (including a
premium of approximately $14,600,000) all of its 8 1/2% Senior Subordinated
Notes due October 1, 2007 (the "Old Regal 8 1/2% Subordinated Notes")
outstanding in the aggregate principal amount of $125,000,000 and is soliciting
consents to amend the indenture, dated as of September 24, 1997 (the "Old Regal
8 1/2% Subordinated Note Indenture"), between Old Regal, as issuer, and IBJ
Xxxxxxxx Bank & Trust Company, as trustee, including to eliminate substantially
all of the restrictive covenants contained therein; and
WHEREAS, immediately following the consummation of the Merger,
Surviving Regal will issue to the initial purchasers at 9 1/2% of par at least
$400,000,000 in aggregate principal amount of 9 1/2% senior subordinated
promissory notes (the "9 1/2% Subordinated Notes") due June 1, 2008, pursuant to
the 9 1/2% Subordinated Note Indenture; and
WHEREAS, to fund (together with the proceeds of the Sponsor Fund
Contributions, the Additional Equity and the 9 1/2% Subordinated Notes) the
Conversion, the Option Redemption, the Offer to Purchase, the Refinancing and
Transaction Costs and to provide financing for the working capital and other
ongoing general corporate purposes of Surviving Regal and Restricted
Subsidiaries, the Borrower has requested that the Lenders and Issuer (as
applicable) make available to Surviving Regal on the Closing Date and
thereafter:
(a) a Term A Loan Commitment pursuant to which Term A Loans in
an aggregate original principal amount of up to $120,000,000 may be
borrowed in a single Borrowing on the Closing Date;
(b) a Term B Loan Commitment pursuant to which Term B Loans in
an aggregate original principal amount of up to $120,000,000 may be
borrowed in a single Borrowing on the Closing Date;
(c) a Term C Loan Commitment pursuant to which Term C Loans in
an aggregate original principal amount of up to $135,000,000 may be
borrowed in a single Borrowing on the Closing Date;
(d) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to
which Borrowings of Revolving Loans and Swing Line Loans in a maximum
aggregate outstanding principal amount (together with all Letter of
Credit Outstandings) not to exceed $350,000,000 (subject, however, to
Section 2.2.2) will be made
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to the Borrower from time to time on and subsequent to the Closing Date
but prior to the Revolving Loan Commitment Termination Date;
(e) a Letter of Credit Commitment pursuant to which the Issuer
will issue Letters of Credit (participated in by Revolving Loan
Lenders) for the account of the Borrower and Restricted Subsidiaries
from time to time on and subsequent to the Closing Date but prior to
the Revolving Loan Commitment Termination Date in a maximum aggregate
Stated Amount at any one time outstanding not to exceed the then
existing Letter of Credit Commitment Amount; provided, however, that
the aggregate outstanding principal amount of Revolving Loans, Swing
Line Loans and Letter of Credit Outstandings at any time shall not
exceed the then existing Revolving Loan Commitment Amount; and
(f) a Swing Line Loan Commitment pursuant to which Borrowings
of Swing Line Loans in an aggregate outstanding principal amount not to
exceed the then existing Swing Line Loan Commitment Amount will be made
by the Swing Line Lender (and participated in by the Revolving Loan
Lenders) on and subsequent to the Closing Date but prior to the
Revolving Loan Commitment Termination Date; provided, however, that the
aggregate outstanding principal amount of such Swing Line Loans,
Revolving Loans and Letter of Credit Outstandings at any time shall not
exceed the then existing Revolving Loan Commitment Amount;
with all the proceeds of the Credit Extensions to be used for the purposes
specified in Section 7.1.9;
WHEREAS, the Lenders and the Issuer are willing, on the terms and
subject to the conditions hereinafter set forth (including Article V), to extend
such Commitments and make such Loans to the Borrower and issue (or participate
in) Letters of Credit for the account of the Borrower and Restricted
Subsidiaries; and
WHEREAS, the Borrower wishes to provide for the ability of one or more
Lenders, in their respective sole and absolute individual discretion, to extend,
(a) in connection with a contemplated but uncommitted Act III
Acquisition, Revolving Credit Commitment Amount Increases or Additional
Commitments comprising the Act III Additional Financing; and
(b) in connection with Other Permitted Acquisitions, Revolving
Credit Commitment Amount Increases or Additional Commitments, all in an
aggregate principal amount, together with certain Indebtedness incurred
or assumed in connection with Other Permitted Acquisitions, not to
exceed $350,000,000 of which the amount in excess of $200,000,000 shall
constitute Permitted Additional Structured Indebtedness;
NOW, THEREFORE, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
italicized) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquired Person" means a Person acquired, or a Subsidiary created for
the purpose of acquiring all or substantially all of the assets of a Person (or
the business or any division of a Person) acquired, pursuant to a Permitted
Acquisition.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in
(a) the acquisition of all or substantially all of the assets
of a Person, or of any business or division of a Person;
(b) the acquisition of in excess of 50% of the Capital Stock
of any Person, or otherwise causing any Person to become a Subsidiary;
(c) a merger or consolidation or any other combination with
another Person (other than with a Person that is a Restricted
Subsidiary) that results in the surviving entity being the Borrower (or
its successor by merger) or a Restricted Subsidiary; or
(d) an Unrestricted Subsidiary becoming a Restricted
Subsidiary.
"Act III" means Act III Cinemas, Inc., a Delaware corporation.
"Act III Acquisition" means the merger of Act III with, or the purchase
of Act III by, the Borrower, for which, on the Effective Date, there exists no
contractual arrangement (written, verbal or otherwise) or obligation to enter
into or complete such merger or purchase.
"Act III Additional Financing" is defined in clause (a) of Section 2.8.
"Act III Credit Agreement" means, on any date, the Credit Agreement,
dated as of December 3, 1997, among Act III, various financial institutions,
Scotiabank, as administrative agent, and BancAmerica Xxxxxxxxx Xxxxxxxx, as
syndication agent, as in effect on the Effective Date and as thereafter from
time to time amended, supplemented, amended and restated or otherwise modified
and in effect on such date.
"Additional Commitment" is defined in Section 2.8.
"Additional Equity" is defined in clause (a) of the second recital.
"Additional Financing Amendment" means an Instrument (x) which may from
time to time be entered into by the Borrower, Lenders extending Revolving Credit
Commitment Amount Increases or Additional Commitments pursuant to Section 2.8
and the Agents solely for the purpose of amending this Agreement as then in
effect to effect such extensions hereunder and (y) which, subject, however, to
its
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compliance with the requirements of Section 2.8 applicable thereto and to its
not violating the requirements of clauses (a), (b), (c), (d) (subject to the
proviso therein) and (e) of Section 10.1 with respect to other Loans and
Commitments of other Lenders, shall be binding upon all other Lenders parties
hereto without any requirement for their consenting, or being a party, thereto.
"Additional Investor" is defined in clause (a) of the second recital.
"Additional Loan" is defined in Section 2.8.
"Additional Note" means (x) a promissory note, if any, executed and
delivered by the Borrower pursuant to clause (b) of Section 2.7 and payable to
any Lender in a form established in accordance with Section 2.8 (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to such Lender for
all Additional Loans made pursuant to any Additional Commitment and (y) all
other promissory notes accepted from time to time in substitution therefor or
renewal thereof.
"Adjusted EBITDA" means, relative to the Borrower and Restricted
Subsidiaries, for any applicable period, the difference of
(a) the sum (without duplication) of
(i) Consolidated Net Income of the Borrower and
Restricted Subsidiaries for such period,
plus
(ii) the amounts deducted by the Borrower and
Restricted Subsidiaries in determining Consolidated Net Income
of the Borrower and Restricted Subsidiaries for such period
representing (s) non-cash minority interest expense, (t)
non-cash charges (including non-cash Rental Expense),
amortization (including amortization of deferred financing
fees), depreciation, non-cash restructuring charges or
reserves, other non-cash reserves and non-recurring charges,
(u) all federal, state and local taxes (whether paid in cash
or deferred) computed on the basis of income, (v) Interest
Expense and non-cash interest expense of the Borrower and
Restricted Subsidiaries, (w) expenses or charges incurred in
connection with the issuance of debt or equity securities and
up-front fees paid with respect to credit facilities provided
by banks and other financial institutions, (x) Transaction
Costs, (y) expenses or charges incurred in connection with
Real Estate Financings consummated during such period and (z)
fees and expenses paid in connection with Permitted
Acquisitions consummated, and Investments made, during such
period,
minus
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(b) the amounts included by the Borrower and Restricted
Subsidiaries in determining Consolidated Net Income of the Borrower and
Restricted Subsidiaries for such period representing (x) non-cash gains
and (y) non-recurring gains;
provided, however, that (without duplication) "Adjusted EBITDA"
(c) for any applicable period shall be determined on the basis
that all Permitted Acquisitions which were consummated during such
period were consummated on the first day of such period;
(d) attributable to a particular motion picture theatre
complex (x) which was newly opened for business, (y) for which
additional screens were opened for business following an expansion of
the number of screens at such complex or (z) for which previously
existing screens were reopened for business following the installation
of "stadium riser" seating for such screen during any applicable period
shall be determined by the Borrower on a pro forma basis as if such
motion picture theatre complex or such screen, as the case may be, was
opened on the first day of such period; provided, however, that each
such determination shall be made on each date on which a Compliance
Certificate for such applicable period is delivered based on reasonable
assumptions at such time certified to the Administrative Agent and made
on a basis consistent with operating cash flows of similar motion
picture theatres (if any);
(e) attributable to a particular motion picture theatre which
was permanently closed for business during any applicable period shall
be determined on the basis that such motion picture theatre closed on
the last day of the previous period;
(f) for any applicable period shall be increased or decreased,
as the case may be, to reflect the projected good faith identifiable
and supportable net cost savings or additional net costs, as the case
may be, resulting from any Permitted Acquisition consummated during
such period (or either of the two Fiscal Quarters preceding such
period) realizable during such period by combining the operations of an
Acquired Person with the operations of the Borrower and Restricted
Subsidiaries (as determined by the Borrower based on reasonable
assumptions and computations set forth in sufficient detail and which
are acceptable, in substance, to the Administrative Agent, and which
determination shall be made on each date on which a Compliance
Certificate for such applicable period is delivered); provided,
however, that so long as such net savings or additional net costs will
be realizable at any time during such period, it may be assumed, for
the purpose of this clause, that such net cost savings or additional
net costs will be realizable during the entire period; and
(g) for any applicable period shall be determined on the basis
that any redesignation of a Subsidiary as an Unrestricted Subsidiary
or, as the case may be, a Restricted Subsidiary which occurred during
such period occurred on the first day of such period.
"Administrative Agent" is defined in the preamble and, in addition,
shall include each other Person as shall have subsequently been appointed as the
successor Administrative Agent pursuant to Section 9.4.
"Affiliate" means, relative to any Person, any other Person which,
directly or indirectly, controls, is controlled by or is under common control
with such Person (excluding, however, any trustee under, or any committee with
responsibility for administering, any Plan). With respect to
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(a) (i) any Lender or an Issuer, a Person shall be deemed to
be "controlled by" another Person if such other Person possesses,
directly or indirectly, 51% or more of the Voting Stock of such
"controlled" Person or (ii) any Lender that is a fund that invests in
commercial loans, such Lender shall be deemed to be "controlled by" any
other fund that invests in commercial loans and is managed or advised
by the same investment advisor as such Lender or by an Affiliate of
such investment advisor; and
(b) all Persons other than any Lender or an Issuer, a Person
shall be deemed to be "controlled by" another Person if such other
Person possesses, directly or indirectly, power (x) to vote 10% or more
of the Voting Stock of such "controlled" Person; or (y) to direct or
cause the direction of the management and policies of such "controlled"
Person whether through ownership of Voting Stock, by contract or
otherwise.
"Agent" means, as the context may require, the Administrative Agent,
the Syndication Agent or the Documentation Agent.
"this Agreement" means, on any date, this Credit Agreement as
originally in effect on the Effective Date and as thereafter from time to time
amended, supplemented, amended and restated or otherwise modified and in effect
on such date.
"Alternate Base Rate" means, on any date and relative to all Base Rate
Loans, a fluctuating rate of interest per annum (rounded upward, if necessary,
to the next highest 1/16 of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of
1%.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrower
and the Lenders of changes in the Alternate Base Rate.
"Applicable Commitment Fee" means,
(a) relative to the fee payable to the Lenders pursuant to
Section 3.3.1, the applicable rate per annum set forth below under the
column entitled "Applicable Commitment Fee":
Total Applicable
Leverage Ratio Commitment Fee
------------------------ ------------------------
>=5.5:1 0.425%
<5.5:1 and >= 4.5:1 0.375%
<4.5:1 and >= 4.0:1 0.350%
<4.0:1 and >= 3.5:1 0.300%
<3.5:1 and >= 3.0:1 0.250%
< 3.0:1 0.200%; and
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(b) relative to Additional Commitments which are revolving
credit commitments, a rate per annum agreed to by the Borrower and the
Lenders providing such Additional Commitments in accordance with
Section 2.8.
The Total Leverage Ratio used to compute the Applicable Commitment Fee pursuant
to clause (a) shall be the Total Leverage Ratio set forth in the Current
Compliance Certificate; provided, however, that for any period prior to June 30,
1998 for which the Borrower shall not have delivered a Compliance Certificate,
the Applicable Commitment Fee shall be 0.375%.
"Applicable Law" means, relative to any Person, (x) all provisions of
laws, statutes, ordinances, rules, regulations, requirements, restrictions,
permits, certificates or orders of any Governmental Authority applicable to such
Person or any of its assets or property and (y) all judgments, injunctions,
orders and decrees of all courts and arbitrators in proceedings or actions in
which such Person is a party or by which any of its assets or properties is
bound or subject.
"Applicable Margin" means
(a) relative to the unpaid principal amount of each Term A
Loan and Revolving Loan, the applicable rate per annum set forth below
under the column entitled "Applicable Margin - Base Rate Term A Loans
and Revolving Loans" or, as the case may be, "Applicable Margin - LIBO
Rate Term A Loans and Revolving Loans":
Applicable Margin
------------------------------------------------------------
Base Rate LIBO Rate
Total Term A Loans and Term A Loans and
Leverage Ratio Revolving Loans Revolving Loans
------------------------ ---------------------------- -----------------------------
>= 5.5:1 1.000% 2.250%
<5.5:1 and >= 5.0:1 0.750% 2.000%
<5.0:1 and >= 4.5:1 0.375% 1.625%
<4.5:1 and >= 4.0:1 0.125% 1.375%
<4.0:1 and >= 3.5:1 0.000% 1.125%
<3.5:1 and >= 3.0:1 0.000% 0.875%
< 3.0:1 0.000% 0.625%;
(b) relative to the unpaid principal amount of each Term B
Loan, the applicable rate per annum set forth below under the column
entitled "Applicable Margin - Base Rate Term B Loans" or, as the case
may be, "Applicable Margin - LIBO Rate Term B Loans":
Applicable Margin
------------------------------------------------------------
Total Base Rate LIBO Rate
Leverage Ratio Term B Loans Term B Loans
--------------------------- -------------------------- --------------------------
>= 5.5:1 1.250% 2.500%
< 5.5:1 and >= 4.5:1 1.000% 2.250%
< 4.5:1 0.750% 2.000%;
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(c) relative to the unpaid principal amount of each Term C
Loan, the applicable rate per annum set forth below under the column
entitled "Applicable Margin - Base Rate Term C Loans" or, as the case
may be, "Applicable Margin - LIBO Rate Term C Loans":
Applicable Margin
---------------------------------------------------------------
Total Base Rate LIBO Rate
Leverage Ratio Term C Loans Term C Loans
---------------------------- ---------------------------- -------------------------------
>= 5.5:1 1.500% 2.750%
< 5.5:1 and >= 4.5:1 1.250% 2.500%
< 4.5:1 1.000% 2.250%; and
(d) relative to Additional Loans, a rate per annum agreed to
by the Borrower and the Lenders making such Additional Loans in
accordance with Section 2.8.
The Total Leverage Ratio used to compute the "Applicable Margin" for all types
of Loans as set forth in clauses (a) through (c) shall be the Total Leverage
Ratio set forth in the Current Compliance Certificate; provided, however, that
for any period prior to June 30, 1998 for which the Borrower shall not have
delivered a Compliance Certificate, the Applicable Margin for each type and
class of Loan shall be determined by reference to the second to highest Total
Leverage Ratio for each applicable type and class of Loan.
"Approval" means, relative to any Obligor, each approval, license,
permit, consent, exemption, filing, notice or registration by or with any
Governmental Authority necessary to authorize or permit (x) the execution,
delivery or performance of (1) this Agreement, any Note, any Security Document
or any other Loan Document or for the validity or enforceability hereof or
thereof or (2) the Merger Agreement or (y) its conduct of its business.
"Authorized Officer" means, relative to the Borrower and any other
Obligor, those of its officers who are Responsible Officers or whose signatures
and incumbency shall have been certified to the Agents and the Lenders pursuant
to Section 5.1.1 and such other officers of the Borrower as the Borrower
designates in writing as such to the Administrative Agent.
"Available Cumulative Consolidated Net Income" means, on any date, 50%
of the sum of (x) Consolidated Net Income determined for the period (treated as
one accounting period) consisting of all Fiscal Quarters elapsed since the
Closing Date plus (y) with respect to any Permitted Acquisition, any goodwill
and other intangibles resulting therefrom, for which financial statements and
the Compliance Certificates related thereto have been delivered to the
Administrative Agent pursuant to Section 7.1.1.
"Available Investment Amount" means, on any date (a "Reference Date"),
an amount equal to the difference of
(a) the sum, computed for the period commencing on the Closing
Date (and after giving effect to the Transaction) and continuing
through the Reference Date, of
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(i) the aggregate amount of Net Cash Proceeds from
Dispositions which are refused by Lenders holding Term Loans
and retained by the Borrower in accordance with clause
(b)(iii) of Section 3.1.2 during such period,
plus
(ii) the Available Restricted Payment Amount (if
positive) determined on the Reference Date (and without giving
effect to clause (b)(iii) of such definition),
minus
(b) the aggregate amount of all Investments (as such aggregate
amount is determined in accordance with the definition of "Investment")
made by the Borrower and Restricted Subsidiaries pursuant to item (z)
of clause (h) of Section 7.2.4 during such period.
"Available Restricted Payment Amount" means, on any date (a "Reference
Date"), an amount equal to the difference of
(a) the sum, computed for the period commencing on the Closing
Date (and after giving effect to the Transaction) and continuing
through the Reference Date, of
(i) the aggregate amount of net cash proceeds
received by the Borrower during such periods (x) in respect of
equity contributions made to the Borrower by Persons other
than Subsidiaries and (y) from issuances of equity by the
Borrower, and, in each case, not applied to redemption
requirements pursuant to clause (b) or (c) of Section 7.2.5 or
item (x) of clause (e) of Section 7.2.5,
plus
(ii) Available Cumulative Consolidated Net Income (if
positive) on such Reference Date,
minus
(b) the sum, computed for the period commencing on the Closing
Date (as aforesaid) and continuing through the Reference Date, of
(i) the aggregate amount paid by the Borrower in
connection with any prepayment, repurchase or redemption of
the Subordinated Debt pursuant to item (y) of clause (e) of
Section 7.2.5 during such period,
plus
(ii) the aggregate amount of all cash dividends on
common or preferred stock (excluding, however, Qualified
Preferred Stock) paid by the Borrower pursuant to clause (f)
of Section 7.2.5 during such period,
plus
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(iii) the amount, if any, determined on the Reference
Date, by which the amount computed pursuant to clause (b) of
the definition of "Available Investment Amount" would exceed
the sum determined pursuant to clause (a)(i) thereof.
"Base Rate" means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York, New York as its base rate
for Dollars loaned in the United States. The Base Rate is not necessarily
intended to be the lowest rate of interest determined by the Administrative
Agent in connection with extensions of credit.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrower" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by all Lenders required to make
such Loans on the same Business Day and pursuant to the same Borrowing Request
in accordance with Section 2.1.
"Borrowing Request" means a Loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit
B-1 hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York; and
(b) relative to the making, continuing, prepaying or repaying
of any LIBO Rate Loans, any day which is a Business Day described in
clause (a) and which is also a day on which dealings in Dollars are
carried on in the London interbank eurodollar market.
"Capital Expenditures" means, for any period, the sum of
(a) the aggregate amount of all expenditures of the Borrower
and Restricted Subsidiaries for fixed or capital assets made during
such period which, in accordance with GAAP, would be classified as
capital expenditures,
plus
(b) without duplication, the aggregate amount of all cash
payments made during such period in respect of all Capitalized Lease
Liabilities allocable to the principal component thereof;
provided, however, that the term "Capital Expenditures" shall not include
(c) expenditures made in connection with the replacement,
substitution or restoration of assets to the extent financed from (x)
insurance proceeds paid on account of the loss of or damage to the
assets being replaced or restored or (y) awards of compensation arising
from the taking by eminent domain or condemnation of the assets being
replaced;
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(d) the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment to the extent
that the gross amount of such purchase price is reduced by the credit
granted by the seller of such equipment for the equipment being traded
in at such time;
(e) Capitalized Lease Liabilities paid in respect of equipment
that is leased in substitution for, or as replacement in connection
with the trade-in of, existing similar equipment;
(f) the purchase of plant, property or equipment made within
one year of the sale of any asset in replacement of such asset to the
extent purchased with the proceeds of such sale and Capitalized Lease
Liabilities paid in respect of such replaced asset; and
(g) the portion of the purchase price in connection with any
Permitted Acquisition that would otherwise be included as additions to
property, plant or equipment and Capitalized Lease Liabilities assumed
or incurred in connection with any Permitted Acquisition.
"Capital Stock" means, relative to any Person, any and all shares,
partnership or membership interests, participations or other equivalents
(however designated, whether voting or non-voting) of capital of such Person,
including, if such Person is a partnership, partnership interests (whether
general or limited) and any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
"Capitalized Lease Liability" means any monetary obligation of the
Borrower or any Restricted Subsidiary under any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capitalized lease, and, for
purposes of this Agreement and each other Loan Document, the amount of any such
obligation shall be the capitalized amount thereof determined in accordance with
GAAP, and the stated maturity thereof shall be determined in accordance with
GAAP.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or guaranteed by) the United
States government (or any agency or instrumentality thereof) maturing
not more than two years after the date of acquisition thereof;
(b) any direct obligation of (or guaranteed by) any state of
the United States (or any political subdivision, agency or
instrumentality thereof) maturing not more than two years after the
date of acquisition thereof and, at the time of such acquisition, rated
at least investment grade by either S&P or Xxxxx'x (or, if at any time
neither S&P or Xxxxx'x shall be rating such obligations, then from
another nationally recognized rating agency);
(c) commercial paper, maturing not more than 12 months from
the date of issue, which is issued by (x) a corporation (other than an
Affiliate of any Obligor) organized under the laws of any state of the
United States or of the District of Columbia and rated at least A-2 by
S&P or P-2 by Xxxxx'x (or, if at any time neither S&P or Xxxxx'x shall
be rating such obligations, then by another comparable nationally
recognized rating agency) or (y) any Lender (or its holding company);
(d) any certificate of deposit or bankers acceptance, maturing
not more than two years after the date of acquisition thereof, which is
issued by either (x) any bank which has a combined capital
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and surplus not less than $250,000,000 (or in the case of foreign
banks, the Dollar equivalent thereof) or (y) any Lender;
(e) any repurchase agreement entered into with any Lender or
any commercial banking institution of the stature referred to in item
(x) of clause (d) or securities dealers of recognized national standing
which (x) is for underlying obligations of the type described in clause
(a), (b) or (d) and (y) has a term of not more than 30 days;
(f) shares of investment companies that are registered under
the Investment Company Act of 1940 and invest solely in one or more of
the types of securities described in clauses (a) through (e); and
(g) short-term, high quality liquid investments made by a
Foreign Subsidiary in the ordinary course of managing its cash.
"CERCLA" is defined in the definition of "Environmental Law".
"Change of Control" means, and shall be deemed to have occurred if:
(a) either
(i) the Sponsors, their respective successors and
Affiliates and management of the Borrower shall cease to own
in the aggregate, directly or indirectly, beneficially and of
record, at least 35% of the outstanding Voting Stock of
Surviving Regal, other than, as the result of (1) one or more
public offerings of Capital Stock of Surviving Regal or (2) a
widely distributed private placement of Capital Stock of
Surviving Regal that does not provide any special director
designation or special election rights or other special
corporate governance rights to the holders of such Capital
Stock, in each case whether by Surviving Regal or another
Person), or
(ii) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Exchange Act) shall at any time
have acquired direct or indirect beneficial ownership (within
the meaning of Rule 13d-3 of the Exchange Act) of a percentage
of the outstanding Voting Stock of Surviving Regal that
exceeds in the aggregate the percentage of such Voting Stock
then beneficially owned, directly or indirectly, by the
Sponsors, their respective successors and Affiliates and
management of the Borrower,
unless, in the case of any such event occurring pursuant to clause (a),
the Sponsors, their respective successors and Affiliates and management
of the Borrower have, at such time, the right or the ability by voting
power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of Surviving Regal;
(b) at any time Continuing Directors shall not constitute a
majority of the Board of Directors of Surviving Regal; or
(c) any "Change of Control" shall occur under (as defined in)
the 9 1/2% Subordinated Note Indenture or any analogous event shall
occur under, or in respect of, any other Subordinated Debt.
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"Closing Date" means the Business Day, if any, on or prior to June 15,
1998 when all of the conditions precedent set forth in Article V are satisfied
(or waived by each Lender and each Agent) and the initial Credit Extensions are
made.
"Xxxxx-Regal" means Xxxxx-Regal, LLC, a California limited liability
company.
"Closing Date Certificate" means the closing date certificate executed
and delivered by the Borrower pursuant to Section 5.1.15, substantially in the
form of Exhibit H hereto.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"Commitment" means, as the context may require, (x) a Lender's Term A
Loan Commitment, Term B Loan Commitment, Term C Loan Commitment, Revolving Loan
Commitment or Letter of Credit Commitment, (y) the Swing Line Lender's Swing
Line Loan Commitment or (z) any Additional Commitment. No Lender shall have any
Additional Commitment to make an Additional Loan of any Series unless it is a
party to the Additional Financing Amendment pursuant to which such Additional
Commitments were extended (and applicable percentage relating to such Additional
Commitments is set forth below its signature thereto).
"Commitment Amount" means, as the context may require, (x) the Term A
Loan Commitment Amount, the Term B Loan Commitment Amount, the Term C Loan
Commitment Amount, the Revolving Loan Commitment Amount or the Letter of Credit
Commitment Amount, (y) the Swing Line Loan Commitment Amount or (z) the amount
of any Additional Commitments obtained in accordance with Section 2.8.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in
clauses (a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either (x) the declaration of all or any portion of the
Loans to be due and payable pursuant to Section 8.3 or (y) the giving
of notice by the Administrative Agent, acting at the direction, or with
the consent, of the Required Lenders, to the Borrower that the
Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by the chief executive, financial or accounting Authorized Officer of
the Borrower, substantially in the form of Exhibit D hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time,
together with such changes thereto as the Agents may from time to time
reasonably request for the purpose of monitoring the Borrower's compliance with
the financial covenants contained herein.
"Confidential Information" is defined in Section 10.12.
"Consolidated Net Income" means, relative to the Borrower and
Restricted Subsidiaries for any period, the aggregate of the Net Income of the
Borrower and Restricted Subsidiaries for such period; provided, however, that
(x) any net after-tax extraordinary gains or losses (less all fees and expenses
relating thereto) shall be excluded, (y) any net after-tax gains or losses (less
all fees and expenses relating
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thereto) attributable to asset dispositions other than in the ordinary course of
business shall be excluded and (z) the Net Income for such period of the
Borrower or any Restricted Subsidiary attributable to any Person that is not a
Restricted Subsidiary, or that is accounted for by the equity method of
accounting, shall be included only to the extent of dividends or distributions
or other net payments paid in cash (or to the extent converted into cash) to the
Borrower or such Restricted Subsidiary (except for directors' qualifying shares)
in respect of such period.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, with or
without recourse, to provide funds for payment to, to purchase from, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the Indebtedness of any other Person, or guarantees the payment of
dividends or other distributions upon Capital Stock of any other Person. The
amount of any Person's obligation under any Contingent Liability shall (subject,
however, to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder), as determined by such
Person in good faith; provided, however, that the term "Contingent Liability"
shall not include (w) indemnities entered into by such Person in the ordinary
course of business in connection with management and director arrangements, (x)
endorsements of instruments for deposit or collection in the ordinary course of
business, (y) guarantees made by a Person of the obligations of a Restricted
Subsidiary of such Person that do not constitute Indebtedness of such Restricted
Subsidiary and are incurred in the ordinary course of business of such
Restricted Subsidiary and (z) obligations arising from agreements providing for
indemnification or adjustment of purchase price (or from guarantees supporting
any obligations pursuant to any such agreements) incurred in connection with the
disposition of any business of any assets or Restricted Subsidiary.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Continuing Director" means, at any date, an individual (x) who is a
member of the Board of Directors of Surviving Regal immediately after the
Closing Date, (y) who, as at such date, has been a member of such Board of
Directors for at least the 12 preceding months (or, for the period comprising
the first 12 months after the Closing Date, has been a member of such Board of
Directors at least since the Closing Date) or (z) who has been nominated to be a
member of such Board of Directors of the Borrower, directly or indirectly, by a
Sponsor or its Affiliate or by Persons nominated by a Sponsor or its Affiliate
or by a majority of the other Continuing Directors then in office.
"Contractual Undertaking" means, relative to any Obligor, any provision
of any debt or equity security issued by it or of any other Instrument or
undertaking to which it is a party or by which it or any of its assets or
property is bound or subject.
"Conversion" is defined in clause (c) of the second recital.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
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(b) the issuance of any Letter of Credit, or the extension of
any Stated Expiry Date of any existing Letter of Credit, by the Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Current Compliance Certificate" means, on any date, the Compliance
Certificate most recently delivered by the Borrower to the Administrative Agent
pursuant to clause (c) of Section 7.1.1. Changes in the Applicable Commitment
Fee or Applicable Margin resulting from a change in the Total Leverage Ratio
shall become effective, as of the first day following the Fiscal Quarter in
respect of which such Compliance Certificate was required to be delivered (a
"Change Date"), upon delivery by the Borrower to the Administrative Agent of a
new Compliance Certificate pursuant to clause (c) of Section 7.1.1. In the event
such Compliance Certificate indicates a Total Leverage Ratio that would result
in an Applicable Commitment Fee or Applicable Margin which is greater or lesser
than the Applicable Commitment Fee or Applicable Margin then in effect, then (A)
such greater or lesser Applicable Commitment Fee or Applicable Margin shall be
deemed to be in effect for all purposes of this Agreement from the Change Date
and (B) if the Borrower shall have made any payment of fees or interest in
respect of the period from the Change Date, then, on the next Quarterly Payment
Date, the Borrower shall pay in the form of a supplemental payment of fees or
interest an amount which equals the difference between the amount of fees or
interest that would otherwise have been paid based on such new Total Leverage
Ratio and the amount of fees or interest so paid, or, as the case may be, an
amount shall be deducted from the fees or interest then otherwise payable in an
amount which equals the difference between the amount of fees or interest so
paid and the amount of fees or interest that would otherwise have been paid
based on such new Total Leverage Ratio.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Defaulting Lender" means any Lender with respect to which a Lender
Default is in effect.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrower with the consent of the
Agents and the Required Lenders.
"Disposition" means the sale (including in connection with a Real
Estate Financing), conveyance, issuance or other disposition of any property,
business or assets by the Borrower or any Restricted Subsidiary (including
receivables of or owned by, and Capital Stock owned by, the Borrower or such
Restricted Subsidiary, and in all cases whether now owned or hereafter
acquired), other than (x) the issuance of Capital Stock of the Borrower and (y)
sales, conveyances or other dispositions in the ordinary course of business
(including sales, conveyances or other dispositions of inventory, the sale or
discount of delinquent receivables and sales and dispositions of obsolete or
worn out property, in each case, in the ordinary course).
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"Documentation Agent" is defined in the preamble and, in addition,
shall include each other Person as shall have been subsequently appointed as the
successor Documentation Agent pursuant to Section 9.4.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such Lender's "Domestic Office" below its name in Annex I
hereto or as set forth in a Lender Assignment Agreement, or such other office of
a Lender (or any successor or assign of such Lender) within the United States as
may be designated from time to time by notice from such Lender, as the case may
be, to each other Person party hereto.
"Domestic Restricted Subsidiary" means each Restricted Subsidiary that
is not a Foreign Subsidiary.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Eligible Assignee" means and includes each Lender (and any Affiliate
thereof), any commercial bank, any financial institution, any fund that is
regularly engaged in making, purchasing or investing in loans or any Person that
would satisfy the requirements of an "accredited investor" (as defined in SEC
Regulation D, but excluding, however, a natural Person).
"Environmental Claim" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by the Borrower or any Subsidiary (x) in the ordinary course of such Person's
business or (y) as required in connection with a financing transaction or an
acquisition or disposition of real estate) or proceedings relating in any way to
any Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (collectively, "Claims"), including (1) any and all
Claims by governmental or regulatory authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (2) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" means any and all present and future Applicable
Laws pertaining to pollution (including Hazardous Materials), natural resources
or the environment, whether federal, state, or local, including environmental
response laws such as the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, and as the same may be further amended
(collectively, "CERCLA").
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
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"ERISA Event" means any of the following if such event or occurrence
could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (u) the failure to make a required contribution to a
Pension Plan if such failure is sufficient to give rise to a Lien under Section
302(f) of ERISA; (v) a withdrawal by the Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (w) a complete or partial withdrawal by the Borrower or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization; (x) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, the receipt of any notice from the PBGC of its intent to terminate or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (y) an event or condition which might reasonably be expected
to constitute grounds under Section 4042(a)(1), (2) or (3) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan
or Multiemployer Plan; or (z) the imposition of any liability under Title IV of
ERISA other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"Event of Default" is defined in Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agent" is defined in clause (d) of Section 5.1.8.
"Exchange Fund" is defined in clause (d) of Section 5.1.8.
"Federal Funds Rate" means, for any day, a fluctuating interest rate
per annum equal to
(a) the rate set forth in the weekly statistical release
designated as H.15(519), or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fee Letter" means each of (x) the confidential letter, dated April 30,
1998, between the Borrower and the Agents, (y) the confidential fee letter,
dated April 30, 1998, between the Borrower and the Administrative Agent and (z)
the confidential fee letter, dated April 30, 1998, between the Borrower, the
Administrative Agent and the Syndication Agent.
"Fiscal Quarter" or "FQ" means a period approximating three consecutive
calendar months, commencing on the Friday immediately following the Thursday
which is closest to December 31, March 31, June 30 and September 30 and
continuing through the Thursday which is closest to the next succeeding March
31, June 30, September 30 and December 31, respectively; references to a Fiscal
Quarter with numbers corresponding to a calendar year and a number corresponding
to a Fiscal Quarter (e.g. "1998 FQ 1") refer to such Fiscal Quarter (i.e. the
first) of such Fiscal Year.
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"Fiscal Year" or "FY" means a period a period approximating 12
consecutive calendar months, commencing on the Friday immediately following the
Thursday which is closest to December 31 of each calendar year and continuing
through the Thursday which is closest to December 31 of the succeeding calendar
year; references to a Fiscal Year with a number corresponding to any calendar
year (e.g., "the 1998 Fiscal Year" or "1998 FY") refer to the Fiscal Year ending
the Thursday closest to the end of such calendar year.
"Fixed Charge Coverage Ratio" means, as of the close of any Fiscal
Quarter, the ratio, computed for the period consisting of such Fiscal Quarter
and each of the three immediately prior Fiscal Quarters, with respect to the
Borrower and Restricted Subsidiaries on a consolidated basis of:
(a) the difference (for such period) of
(i) the sum of (without duplication) (x) Adjusted
EBITDA of the Borrower and Restricted Subsidiaries plus (y)
Rental Expense (to the extent deducted in determining Net
Income or pro forma Net Income determined pursuant to clause
(d) of the definition of "Adjusted EBITDA") of the Borrower
and Restricted Subsidiaries;
minus
(ii) the lesser of (x) Maintenance Capital
Expenditures of the Borrower and Restricted Subsidiaries and
(y) 3% of the consolidated gross revenues of the Borrower and
Restricted Subsidiaries for such period, determined in
accordance with GAAP
to
(b) the sum (for such period) of
(i) Interest Expense of the Borrower and Restricted
Subsidiaries payable with respect to Total Funded Debt;
plus
(ii) the aggregate amount of all scheduled principal
payments in respect of Total Funded Debt (including scheduled
principal repayments of the Term Loans pursuant to clause (c)
of Section 3.1.1 (after giving effect to the application
thereto of all optional or mandatory non-scheduled
prepayments)), but excluding, however, (x) repayments of Term
Loans and Additional Loans made as term loans, in each case
scheduled to become due on their respective Stated Maturity
Dates, (y) Unrelated Final Maturity Payments of other
Indebtedness and (z) mandatory reductions of revolving credit
facilities, including the Revolving Commitments and all
Additional Commitments which are revolving commitments;
plus
(iii) Rental Expense (to the extent deducted in
determining Net Income or pro forma Net Income determined
pursuant to clause (d) of the definition of "Adjusted EBITDA")
of the Borrower and Restricted Subsidiaries;
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plus
(iv) the aggregate amount of all cash dividends paid
on common or preferred stock (excluding, however, Qualified
Preferred Stock) by the Borrower pursuant to clause (f) of
Section 7.2.5.
"Foreign Subsidiary" means any Subsidiary of the Borrower (x) which is
organized under the laws of any jurisdiction outside of the United States, (y)
which conducts the major portion of its business outside of the United States or
(z) all or substantially all of the property and assets of which are located
outside of the United States.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
including any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty" means the guaranty to be executed and delivered from time to
time by each direct or indirect Domestic Restricted Subsidiary pursuant to
Section 5.1.3 or 7.1.8, substantially in the form of Exhibit F hereto, as
amended, supplemented, amended and restated or otherwise modified.
"Hazardous Material" means any substance that is defined or listed as a
hazardous, toxic or dangerous substance under any present or future
Environmental Law or that is otherwise regulated or prohibited or subject to
investigation or remediation under any present or future Environmental Law
because of its hazardous, toxic, or dangerous properties, including (x) any
substance that is a "hazardous substance" under CERCLA and (y) petroleum wastes
or products.
"Hedging Liability" means, relative to any Person, any liability of
such Person under currency exchange agreements, interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, or any other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"HMTF" means HMTF Operating, Inc.
"HMTF/KKR Swap" means the exchange by an Affiliate of HMTF with an
Affiliate of KKR of Surviving Regal Preferred Shares valued at $75,000,000 for
Common Stock of Act III, which will occur following the Merger.
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"HMTF Merger Subsidiary" is defined in the second recital
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrower, any qualification or exception to such opinion or certification
(x) which questions the status of the Borrower and Restricted Subsidiaries,
taken as a whole, as a "going concern", (y) which relates to the limited scope
of examination of any material portion of the records of the Borrower and
Restricted Subsidiaries, taken as a whole, relevant to such financial statement
or (z) which relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal, would require an
adjustment to such item the effect of which would be to cause the Borrower to be
in default of any of its obligations under Section 7.2.3.
"including" and "include" means including without limiting the
generality of any description preceding such term.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money;
(b) all obligations, contingent or otherwise, with respect to
the face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
(d) net monetary liabilities of such Person under all Hedging
Liabilities (calculated, at any time, as the aggregate amount (giving
effect to any netting agreements) that such persons would be required
to pay if the agreements giving rise to such Hedging Liabilities were
terminated at such time);
(e) all obligations of such Person to pay the deferred
purchase price of property or services that, in accordance with GAAP,
would be included on the liability side of the balance sheet of such
Person as of the date at which Indebtedness is to be determined;
(f) all indebtedness referred to in clauses (a), (b), (c) and
(e) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse; provided,
however, that in the case of any such Indebtedness which is by its
terms non-recourse to such Person, the amount of such Indebtedness
shall, for the purpose of this clause, be deemed to be the lesser of
(x) the aggregate unpaid principal amount of such Indebtedness and (y)
the fair market value of the property subject to such Lien, as
determined by such Person in good faith; and
(g) all Contingent Liabilities of such Person in respect of
any of the foregoing;
provided, however, that accrued expenses incurred in the ordinary course of
business and obligations in respect of operating leases shall not constitute
"Indebtedness".
"Indemnified Liability" is defined in Section 10.4.
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"Indemnified Party" is defined in Section 10.4.
"Insolvency Proceeding" means, relative to any Person, (x) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, rehabilitation, dissolution, winding-up or relief of
debtors or (y) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors or other, similar arrangement in respect of
its creditors generally or any substantial portion of its creditors, undertaken
under U.S. Federal, state or foreign law, including the Federal Bankruptcy
Reform Act of 1978 (11 U.S.C. ss. 101, et seq.).
"Instrument" means any contract, agreement, indenture, mortgage,
document or other writing (whether by formal agreement, letter or otherwise)
under which any obligation is evidenced, assumed or undertaken or any Lien (or
right or interest therein) is granted or perfected.
"Interest Expense" means, for any period, the aggregate cash interest
expense (net of cash interest income) of the Borrower and Restricted
Subsidiaries for such period, as determined in accordance with GAAP, including
the portion of any payments made in respect of Capitalized Lease Liabilities
allocable to interest expense, but excluding, however, amortization of deferred
financing costs and any other non-cash interest expense.
"Interest Period" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Sections 2.3 or
2.4 and ending on (but excluding) the day which numerically corresponds to such
date one, two, three or six (or, if available from all the Lenders making such
Loans as determined by such Lenders in good faith based on prevailing market
conditions, nine or twelve) months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as the
Borrower may select in its relevant notice pursuant to Sections 2.3 or 2.4;
provided, however, that
(a) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than twenty different dates;
(b) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period for any Loan may end later than the
Stated Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person;
(b) any Contingent Liability of such Person incurred in
connection with Indebtedness of any other Person;
(c) any ownership or similar interest held by such Person in
any other Person; and
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(d) payments in respect of tax savings or liabilities made by
the Borrower or any Restricted Subsidiary to or for the benefit of an
Unrestricted Subsidiary with whom the Borrower or such Restricted
Subsidiary files a consolidated tax return.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity, or distributions or dividends
paid, thereon and shall, if made by the transfer or exchange of property other
than cash, be deemed to have been made in an original principal or capital
amount equal to the fair value of such property at the time of such Investment,
as determined in good faith by the Borrower.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in the
form of Exhibit B-2 hereto.
"Issuer" means Scotiabank in its capacity as issuer of the Letters of
Credit, together with each other Person as shall have subsequently been
appointed as the successor Issuer in accordance with Section 9.4. At the request
of Scotiabank or such successor Issuer, another Lender with a Revolving Loan
Commitment or an Affiliate of Scotiabank may, if it so desires, issue one or
more Letters of Credit hereunder and shall be deemed to be the Issuer with
respect to such Letters of Credit.
"Key Management" means Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxx or Xxxxx
Xxxxxx III.
"KKR" means Kohlberg Kravis Xxxxxxx & Co., L.P.
"KKR Merger Subsidiary" is defined in the second recital.
"Lender" is defined in the preamble and, in addition, shall include any
Eligible Assignee that becomes a Lender pursuant to Section 10.11.1.
"Lender Assignment Agreement" means a lender assignment agreement
substantially in the form of Exhibit I hereto.
"Lender Default" means, as a result of the appointment of a receiver or
conservator for any Lender, at the direction or request of any regulatory agency
or authority, either (x) the refusal or failure (which has not been retracted or
cured) of such Lender to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.6.1 or (y) such Lender
having notified the Administrative Agent or the Borrower that it does not intend
to comply with its obligations under Section 2.1, 2.3.2 or 2.6.1.
"Lender's Environmental Liability" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential damages),
disbursements or expenses of any kind or nature whatsoever (including reasonable
attorneys' fees at trial and appellate levels and reasonable experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against any Indemnified Party
in connection with or arising from (w) any Hazardous Material on, in, under or
affecting all or any portion of any property of the Borrower or any Subsidiary,
the groundwater thereunder, or any surrounding areas thereof to the extent
caused by Releases from the Borrower's or any Subsidiary's or any of their
respective predecessors' properties; (x) any misrepresentation, inaccuracy or
breach of any warranty, contained or
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referred to in Section 6.12; (y) any violation or claim of violation by the
Borrower or any Subsidiary of any Environmental Laws (including any
Environmental Claim); or (z) the imposition of any lien for damages caused by or
the recovery of any costs for the cleanup, release or threatened release of
Hazardous Material by the Borrower or any Subsidiary, or in connection with any
property owned or formerly owned by the Borrower or any Subsidiary.
"Letter of Credit" is defined in clause (a) of Section 2.1.2.
"Letter of Credit Commitment" means (x) relative to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.2 and (y)
to each other Lender that has a Revolving Loan Commitment, the obligations of
such Lender to participate in such Letters of Credit pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date (i) prior to
the Act III Acquisition (if it shall occur), a maximum amount of $75,000,000 and
(ii) on and after the Act III Acquisition (if it shall occur), a maximum amount
of $150,000,000, in either case, as such amount may be permanently reduced from
time to time pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"LIBO Rate" means, relative to each day during each Interest Period
pertaining to a LIBO Rate Loan, the rate of interest per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Telerate
Page 3750 as of 11:00 a.m., London time, two Business Days prior to the
beginning of such Interest Period. In the event that such rate does not appear
on Telerate Page 0000, "XXXX Rate" for the purposes of this paragraph shall be
determined by reference to such other publicly available service for displaying
eurodollar rates as may be agreed upon by the Agents and the Borrower or, in the
absence of such agreement, "LIBO Rate" for the purposes of this paragraph shall
instead be the rate per annum equal to the arithmetic average of the respective
rates notified to the Administrative Agent by each of the Reference Lenders as
the rate at which such Reference Lender is offered Dollar deposits for the
duration of such Interest Period in the amount of the LIBO Rate Loan to be made
by such Lender at or about 11:00 a.m., London time, two Business Days prior to
the beginning of such Interest Period, in the interbank eurodollar market where
the eurodollar and foreign currency and exchange operations in respect of its
LIBO Rate Loans are then being conducted for delivery.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "LIBOR Office" below its name in Annex I hereto or
as set forth in a Lender Assignment Agreement, or such other office of a Lender
as designated from time to time by notice from such Lender
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to the Borrower and the Administrative Agent, whether or not outside the United
States, which shall be making or maintaining LIBO Rate Loans of such Lender
hereunder.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, charge, lien (statutory or other), escrow or similar encumbrance
of any kind, or any other type of similar preferential arrangement (including
any agreement to give any of the foregoing, any conditional sale or other title
retention agreement or any lease in the nature thereof).
"Loan" means, as the context may require, (x) a Revolving Loan, a Term
A Loan, a Term B Loan or a Term C Loan, (y) a Swing Line Loan or (z) an
Additional Loan, in each case of any type.
"Loan Document" means this Agreement, the Notes (if any), the Letters
of Credit, the Pledge Agreement, the Guaranty, each Borrowing Request, each
Issuance Request, the Fee Letters or any other Instrument or writing required to
be delivered on the Closing Date pursuant to Section 5.1 or thereafter from time
to time pursuant to Section 7.1.8.
"Maintenance Capital Expenditures" means, for any period, the sum of
the aggregate amount of all Capital Expenditures of the Borrower and Restricted
Subsidiaries during such period, excluding, however, expenditures made, and
Capitalized Lease Liabilities incurred, for the purpose of building or acquiring
new motion picture theatres or making significant improvements, renovations or
remodelings to existing motion picture theatres.
"Management Rollover" is defined in clause (d) of the second recital.
"Material Adverse Change" means any change in the business, assets,
operations, properties or financial condition of the Borrower and Restricted
Subsidiaries taken as a whole that would materially adversely affect the ability
of the Borrower and the other Obligors taken as a whole to perform their
obligations under this Agreement and the other Loan Documents taken as a whole.
"Material Adverse Effect" means a circumstance or condition that (x)
constitutes a Material Adverse Change or (y) would materially adversely affect
the rights and remedies of the Administrative Agent, the Issuer or the Lenders
under this Agreement and the other Loan Documents taken as a whole.
"Material Restricted Subsidiary" means, at any time, each Restricted
Subsidiary having at such time either
(a) net sales (on a consolidated basis, including each of its
Subsidiaries that constitutes a Restricted Subsidiary, but excluding,
however, revenues received by any Restricted Subsidiary from the
Borrower or any other Restricted Subsidiary) for the applicable Test
Period in excess of 5% of the net sales of the Borrower and Restricted
Subsidiaries for such Test Period, or
(b) total assets (on a consolidated basis), as of the last day
of the preceding Fiscal Quarter, constituting in excess of 5% of the
total assets of the Borrower and Restricted Subsidiaries as of such
day,
in each case calculated, based upon the Borrower's most recent annual or
quarterly financial statements delivered to the Administrative Agent under
Section 7.1.1, in accordance with GAAP (it being acknowledged and understood
that, in the event the determination of whether a Restricted Subsidiary is a
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Material Restricted Subsidiary is to be made on or about the date such
Restricted Subsidiary was created or acquired, such determination shall be made
on a pro forma basis as if such Restricted Subsidiary were a Restricted
Subsidiary at the commencement of such Test Period for purposes of clause (a)
and on the last day of such Fiscal Quarter for purposes of clause (b); provided,
however, that, notwithstanding anything to the contrary in the foregoing, if, at
any time, "Material Restricted Subsidiaries" as defined above, taken together
with the Borrower, on a consolidated basis, account for less than 80% of
Adjusted EBITDA of the Borrower and Restricted Subsidiaries for the applicable
Test Period based upon the Borrower's most recent annual or quarterly financial
statements delivered to the Administrative Agent pursuant to Section 7.1.1, then
the term "Material Restricted Subsidiaries" shall be deemed to include such
number of the largest (pursuant to the foregoing criteria) Restricted
Subsidiaries as is sufficient to cause "Material Restricted Subsidiaries," when
taken together with the Borrower, to account for at least 80% of such Adjusted
EBITDA as set forth above.
"Merger" is defined in clause (b) of the second recital.
"Merger Agreement" is defined in the second recital.
"Merger Consideration" is defined in clause (c) of the second recital.
"Merger Date" is defined in clause (b) of the second recital.
"Merger Subsidiary" is defined in the second recital.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan," within the meaning
of Section 4001(a)(3) of ERISA, with respect to which the Borrower or any ERISA
Affiliate may have any liability.
"NAIC" means the National Association of Insurance Commissioners or any
successor thereto with similar authority.
"Net Cash Proceeds" means, relative to any Disposition by the Borrower
or any Restricted Subsidiary (other than a Disposition permitted pursuant to
clause (a) or (b) of Section 7.2.6), proceeds in cash as and when received by
such Person, net of
(a) the costs and expenses relating to such Disposition;
(b) the amount of all taxes paid or reasonably estimated to be
payable by the Borrower or Restricted Subsidiary in connection
therewith, but Net Cash Proceeds shall include the excess, if any, of
the estimated taxes payable in connection with such Disposition over
the actual amount of taxes paid, immediately after the payment of such
taxes;
(c) amounts required to be applied to repay principal,
interest and prepayment premiums and penalties on Indebtedness secured
by a Lien on the asset which is the subject of such Disposition; and
(d) the amount of any reasonable reserve established in
accordance with GAAP against any liabilities (other than any taxes
deducted pursuant to clause (b)) associated with the assets
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sold, disposed of or financed and retained by the Borrower or any
Restricted Subsidiary; provided, however, that the amount of any
subsequent reduction of such reserve (other than in connection with a
payment in respect of any such liability) shall be deemed to be Net
Cash Proceeds realized on the date of such reduction.
"Net Income" means, for any period, the net income (or loss) included
in accordance with GAAP as such on the consolidated financial statements of the
Borrower and Restricted Subsidiaries for such period.
"9 1/2% Subordinated Note" is defined in clause (b) of the fourth
recital.
"9 1/2% Subordinated Note Indenture" means the indenture, to be dated
the Closing Date, between the Borrower and IBJ Xxxxxxxx Bank and Trust Company,
as trustee, pursuant to which the 9 1/2% Subordinated Notes will be issued.
"9 1/2% Subordinated Note Offering Memorandum" means the final offering
memorandum, dated May 21, 1998, with respect to the 9 1/2% Subordinated Notes.
"Non-Defaulting Lender" means and includes each Lender other than a
"Defaulting Lender".
"Non-Performing Lender" means any Lender that either (x) refuses or
fails (which refusal or failure has not been retracted or cured) to make
available its portion of any Borrowing or to fund its portion of any
unreimbursed payment under Section 2.6.1 or (y) has notified the Administrative
Agent and/or the Borrower that it does not intend to comply with its obligations
under Section 2.1 or 2.6.1.
"Non-U.S. Lender" is defined in clause (d) of Section 4.6.
"Non-U.S. Participant" means a Participant that is not incorporated or
organized in or under the laws of the United States or a state thereof.
"Note" means, as the context may require, (x) a Revolving Note, a Term
A Note, a Term B Note or a Term C Note, (y) a Swing Line Note or (z) a
promissory note evidencing an Additional Loan, if any.
"Obligations" means all monetary obligations (whether absolute or
contingent, matured or unmatured, direct or indirect, xxxxxx or inchoate, sole,
joint, several or joint and several, due or to become due, heretofore or
hereafter contracted or acquired) of the Borrower and each other Obligor to any
Lender or Issuer or Agent arising under this Agreement (including as recorded in
loan accounts maintained in accordance with Section 2.7), any Rate Protection
Agreement, the Notes, the Letters of Credit and each other Loan Document.
"Obligor" means, as the context may require, the Borrower, each
Restricted Subsidiary and any other Person (other than any Agent, the Issuer or
any Lender) to the extent such Person is obligated under this Agreement or any
other Loan Document.
"Offer to Purchase" is defined in the third recital.
"Old Regal" is defined in clause (b) of the second recital.
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"Old Regal 8 1/2% Subordinated Note" is defined in the third recital
and, in addition, after the Closing Date shall refer to any Old Regal 8 1/2%
Subordinated Note not tendered pursuant to the Offer to Purchase and remaining
outstanding under the Old Regal 8 1/2 Subordinated Note Indenture as amended in
accordance with Section 5.1.11.
"Old Regal 8 1/2% Subordinated Note Indenture" is defined in the third
recital.
"Old Regal Share" is defined in clause (c) of the second recital.
"Option Redemption" is defined in clause (d) of the second recital.
"Organizational Document" means, relative to any Obligor, as
applicable, its certificate of incorporation, by-laws, certificate of
partnership, partnership agreement, certificate of formation or limited
liability agreement and any certificate of designations or similar instrument
relating to the rights of preferred shareholders of such Person.
"Other Permitted Acquisition" means any Permitted Acquisition
(excluding, however, an Act III Acquisition, if any).
"Other Taxes" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, this
Agreement or any other Loan Document.
"Participant" is defined in Section 10.11.2.
"Payment Default" means a Default pursuant to Section 8.1.1.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA (other than a Multiemployer Plan) with
respect to which the Borrower or any ERISA Affiliate may have any liability.
"Percentage" means, relative to any Lender, the applicable percentage
relating to (x) Revolving Loans, Term A Loans, Term B Loans or Term C Loans, as
the case may be, as set forth below its name in Annex I hereto under the
applicable column heading or as set forth in a Lender Assignment Agreement under
the applicable column heading or (y) Additional Loans of any Series as set forth
below its name in the Additional Financing Amendment pursuant to which the
Additional Commitments for such Additional Loans were extended, in each case as
such percentage may be adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and the Eligible Assignee(s) and delivered
pursuant to Section 10.11.1.; provided that upon the making of any Additional
Commitments or Additional Loans pursuant to Section 2.8, each Lender's
percentage shall be adjusted to reflect any appropriate change to such
percentage at such time which shall have resulted from the making of any such
Additional Commitments or Additional Loans. No Lender shall have any Commitment
to make Revolving Loans, Term A Loans, Term B Loans or Term C Loans (as the case
may be) if its percentage under the respective column heading is zero (0%).
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"Permitted Acquisition" is defined in clause (d) of Section 7.2.6.
"Permitted Acquisition Come-Along Indebtedness" means any Indebtedness
of a Person existing at the time of its becoming an Acquired Person and a
Restricted Subsidiary as the result of a Permitted Acquisition which, when
incurred, would have been permitted, assuming that such Person had then been a
Restricted Subsidiary, pursuant to clause (i) of Section 7.2.1.
"Permitted Acquisition Ordinary Course Indebtedness" means any
Indebtedness of a Person existing at the time of its becoming an Acquired Person
and a Restricted Subsidiary as the result of a Permitted Acquisition which, when
incurred, would have been permitted, assuming that such Person had then been a
Restricted Subsidiary, pursuant to clause (d) or (j) of Section 7.2.1.
"Permitted Acquisition Subordinated Indebtedness" means:
(a) any unsecured Indebtedness of a Person existing at the
time of its merger with the Borrower pursuant to a Permitted
Acquisition and which thereby becomes Indebtedness of the Borrower and
is subject to subordination, postponement, standstill and related
provisions which are materially no less favorable to holders of senior
indebtedness than those generally prevailing in the high-yield senior
subordinated debt market when such Indebtedness was incurred; provided,
however, that the Agents shall be reasonably satisfied that (x) the
merger of such Person with the Borrower shall have occurred in
accordance with (and without violation of) the terms of the instruments
evidencing or governing such Indebtedness and (y) all Obligations shall
constitute "senior debt" or "senior indebtedness" or the functionally
equivalent term used in such instruments and the Lenders shall be fully
entitled to the benefits of such subordination, postponement,
standstill and related provisions; and
(b) any unsecured refinancing, refunding, renewal or extension
by the Borrower of any Indebtedness referred to in clause (a) which, in
the case of any refinancing or refunding, would constitute
"Subordinated Debt" in accordance with clause (b) of the definition
thereof; provided, however, that in the case of any bridge refinancing
or refunding the interest rate applicable thereto need not comply with
item (x) of such clause (b), subject, however, to the limitation that
the interest rate and other compensation payable shall conform to
pricing generally prevailing in the senior subordinated bridge loan
market for issuers of comparable creditworthiness.
"Permitted Additional Structured Indebtedness" means any Indebtedness
which is assumed or incurred pursuant to clause (g) (excluding, however,
Permitted Acquisition Ordinary Course Indebtedness, Permitted Acquisition
Subordinated Indebtedness and Permitted Acquisition Come-Along Indebtedness) or
(k) of Section 7.2.1 or pursuant to clause (b) of Section 2.8 as Additional
Loans and which, on the date on which it is assumed or incurred, has a Weighted
Average Life to Maturity which is at least as long as the Weighted Average Life
to Maturity of Indebtedness (excluding, however, all Additional Loans,
Additional Commitments and Revolving Credit Commitment Amount Increases)
outstanding under this Agreement, assuming that the Revolving Credit Commitments
are fully drawn.
"Permitted Lien" means:
(a) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or to the extent payment is not required pursuant to Section
7.1.4;
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(b) Liens of carriers, warehousemen, mechanics, materialmen
and landlords and other similar Liens imposed by law incurred in the
ordinary course of business, in each case so long as such Liens could
not reasonably be expected, to individually or in the aggregate, have a
Material Adverse Effect;
(c) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of
tenders, statutory and regulatory obligations, bids, leases and
contracts or other similar obligations (other than for borrowed money)
entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds or performance or return-of-money
bonds;
(d) Liens consisting of judgment or judicial attachment liens
in circumstances not constituting an Event of Default under Section
8.1.6;
(e) easements, rights-of-way, municipal and zoning ordinances
or similar restrictions, minor defects or irregularities in title and
other similar charges or encumbrances not interfering in any material
respect with the ordinary conduct of the business of the Borrower or
any Restricted Subsidiary;
(f) Liens arising solely by virtue of any statutory or common
law provision relating to banks' liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided, however, that such
deposit account is not a cash collateral account; and
(g) any interest or title of a lessor secured by a lessor's
interest under any lease permitted by this Agreement, or any leases or
subleases granted to others not interfering in any material respect
with the business of the Borrower or the Restricted Subsidiary to which
the property subject to such lease or sublease relates.
"Permitted Ongoing Reinvestment Project" means the construction and
completion of a motion picture theatre which was commenced, or is the subject of
binding construction agreements which were executed and delivered, at a time
when no Event of Default or Payment Default had occurred and was continuing.
"Permitted Sale Leaseback" means any Sale Leaseback consummated by the
Borrower or any Restricted Subsidiary with respect to any Real Estate of the
Borrower or any Restricted Subsidiary; provided, however, that (x) such Sale
Leaseback is consummated for fair value as determined at the time of
consummation in good faith by the Board of Directors of the Borrower (which such
determination may take into account any retained interest or other Investment of
the Borrower or the applicable Restricted Subsidiary in connection with, and any
other material economic terms of, such Sale Leaseback) and (y) the proceeds of
such Sale Leaseback are, to the extent required by clause (d) of Section 3.1.1,
applied to the prepayment of Term Loans.
"Permitted Securitization" means any structured financing (or series of
related structured financings) by the Borrower or any Restricted Subsidiary that
involves the sale, transfer or other disposition of Real Estate of the Borrower
or any Restricted Subsidiary to a Real Estate Financing Subsidiary and the
issuance by such Real Estate Financing Subsidiary of commercial paper,
medium-term
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notes or any other forms of financing; provided, however, that (x) such
structured financing is consummated for fair value as determined at the time of
consummation in good faith by the Board of Directors of the Borrower (which such
determination may take into account any retained interest or other Investment of
the Borrower or the applicable Restricted Subsidiary in connection with, and any
other material economic terms of, such structured financing) and (y) the
proceeds of such structured financing are, to the extent required by clause (d)
of Section 3.1.1, applied to the prepayment of Term Loans.
"Person" means any natural person, corporation, limited liability
company, partnership, joint venture, joint stock company, firm, association,
trust or unincorporated organization, government, governmental agency, court or
any other legal entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower or any Subsidiary sponsors or maintains or to which
the Borrower or any Subsidiary makes, is making or is obligated to make
contributions and includes any Pension Plan.
"Pledge Agreement" means the Pledge Agreement executed and delivered by
the Borrower on the Closing Date substantially in the form of Exhibit E hereto,
as from time to time thereafter amended, supplemented, amended and restated or
otherwise modified.
"PNC Letters of Credit" is defined in Section 2.6.
"Pro Forma Balance Sheet" is defined in clause (c) of Section 6.5.
"Proxy Statement" means the notice of annual meeting and proxy
statement, dated April 16, 1998, mailed to stockholders of Old Regal relative to
the special meeting of stockholders to be held on May 18, 1998.
"Qualified Preferred Stock" means Capital Stock of the Borrower which,
by its terms or by the terms of any security into which it is convertible,
exchangeable or otherwise,
(a) (x) is not, and, upon the happening of an event or passage
of time, would not, be required to be redeemed (for consideration other
than shares of common stock of the Borrower), (y) is not redeemable at
the option of the holder thereof (for consideration other than shares
of common stock of the Borrower) and (z) is not convertible into or
exchangeable for debt securities of the Borrower (other than
Subordinated Debt), in any case at any time prior to the tenth
anniversary of the Closing Date; and
(b) does not entitle the holders thereof to receive dividends
payable in cash at any time except as permitted by clause (f) (i) of
Section 7.2.5.
"Quarterly Payment Date" means the last day of each December, March,
June and September, or, if any such day is not a Business Day, the next
succeeding Business Day.
"Rate Protection Agreement" means, collectively, any interest rate
swap, cap, collar or similar agreement entered into by the Borrower pursuant to
the terms of this Agreement under which the counterparty to such agreement is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate of a Lender.
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"Real Estate" means land, buildings and improvements owned or leased by
the Borrower or any Subsidiary, but excluding, however, all operating fixtures
and equipment, whether or not incorporated into improvements.
"Real Estate Financing" means any Permitted Sale Leaseback or Permitted
Securitization.
"Real Estate Financing Subsidiary" means any special purpose entity of
the Borrower or any Restricted Subsidiary formed in connection with a Permitted
Securitization.
"Reference Lender" means Scotiabank or Bank of America National Trust &
Savings Association.
"Refinancing" is defined in the clause (f) of the second recital.
"Refunded Swing Line Loan" is defined in clause (b) of Section 2.3.2.
"Register" is defined in clause (c) of Section 10.11.1.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Rental Expense" means, for any period, the aggregate expense of the
Borrower and Restricted Subsidiaries for such period, calculated on a
consolidated basis in accordance with GAAP, in respect of all rental obligations
under operating leases for real or personal property (excluding, however, real
estate taxes, common area maintenance charges and Capitalized Lease
Liabilities).
"Replaced Lender" is defined in Section 4.4.
"Replacement Lender" is defined in Section 4.4.
"Required Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit
Extensions hereunder, Non-Defaulting Lenders having a majority of the
Commitments, taken as a whole, of all Non-Defaulting Lenders; and
(b) on and after the Closing Date, Non-Defaulting Lenders
having or holding a majority of the sum (without duplication) of (x)
the aggregate outstanding principal amount of the Loans, (including
Additional Loans if any), plus (y) the aggregate amount of the Letter
of Credit Outstandings plus (z) the unfunded amount of the Revolving
Loan Commitment Amount (including Additional Commitments, if any), in
each case, taken as a whole, of all Non-Defaulting Lenders.
"Required Revolving Lenders" means, at any time, Non-Defaulting Lenders
having or holding a majority of the sum (without duplication) of (x) the
aggregate outstanding principal amount of the Revolving Loans and Swing Line
Loans, plus (y) the aggregate amount of the Letter of Credit Outstandings plus
(z) the unfunded amount of the Revolving Loan Commitment Amount, in each case,
taken as a whole, of all such Non-Defaulting Lenders.
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"Required Term Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit
Extensions hereunder, Non-Defaulting Lenders having a majority of the
Term A Loan Commitment, the Term B Loan Commitment and the Term C Loan
Commitment, taken as a whole, of all such Non-Defaulting Lenders; and
(b) on and after Closing Date, Non-Defaulting Lenders then
holding a majority of the aggregate outstanding principal amount of the
Term Loans, taken as a whole, of all such Non-Defaulting Lenders.
"Required Term Series Lenders" means, at any time relative to any
Series of Term Loans, Non-Defaulting Lenders then holding a majority of the
aggregate outstanding principal amount of all Term Loans of such Series, taken
as a whole, of all such Non-Defaulting Lenders.
"Responsible Officer" means, relative to any Person, its chief
executive officer, its president or any vice president, managing director, chief
financial officer, treasurer, controller and, with respect to non-financial
matters, secretary or assistant secretary, or other officer thereof having
substantially the same authority and responsibility.
"Restricted Payment" means (x) any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of Capital Stock of the Borrower, (y) any
purchase, redemption or other acquisition for value of any shares of Capital
Stock of the Borrower or warrants, rights or options to acquire such shares, now
or hereafter outstanding, or (z) any payment, prepayment, purchase, redemption
or defeasance of any Subordinated Debt.
"Restricted Subsidiary" means each Subsidiary of the Borrower which is
neither an Unrestricted Subsidiary nor a Real Estate Financing Subsidiary.
"Revolving Credit Commitment Amount Increase" is defined in Section
2.8. The aggregate amount, at any time, of Revolving Credit Commitment Amount
Increases (including for purposes of Section 2.2.2, Section 2.8 and clauses (g)
and (k) of Section 7.2.1) shall be the aggregate amount of all Revolving Credit
Commitment Amount Increases made at or prior to such time pursuant to Section
2.8 less the aggregate amount of all voluntary reductions of the Revolving Loan
Commitment Amount made while any such Revolving Credit Commitment Amount
Increases shall be in effect and prior to such time; provided, however, that any
Revolving Credit Commitment Amount Increase constituting Act III Additional
Financing shall be excluded from calculations made pursuant to clause (b) of
Section 2.8 and clauses (g) and (k) of Section 7.2.1.
"Revolving Loan" is defined in clause (a) of Section 2.1.1.
"Revolving Loan Commitment" is defined in clause (a) of Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $350,000,000, as
such amount may be from time to time increased by Revolving Credit Commitment
Amount Increases pursuant to Section 2.8 or reduced pursuant to Section 2.2.
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"Revolving Loan Commitment Termination Date" means the earliest of
(a) June 15, 1998 (if the initial Credit Extensions have not
occurred on or prior to such date);
(b) the Business Day immediately preceding the seventh
anniversary of the Closing Date;
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to Section 2.2; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (c) or (d), the Revolving
Loan Commitments shall terminate automatically and without any further action.
"Revolving Note" means (x) a promissory note, if any, executed and
delivered by the Borrower pursuant to clause (b) of Section 2.7 and payable to
any Lender, in the form of Exhibit A-1 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Revolving Loans and (y) all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Sale Leaseback" means any transaction or series of related
transactions pursuant to which the Borrower or any Restricted Subsidiary sells,
transfers or otherwise disposes of any property, real or personal, whether now
owned or hereafter acquired, and thereafter rents or leases such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold, transferred or disposed.
"S&P" means Standard & Poor's Rating Service.
"Scotiabank" is defined in the preamble.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Leverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of
(a) the difference of
(i) the excess on such day of Total Funded Debt
outstanding (excluding, however, Subordinated Debt) over
Unrestricted Cash,
minus
(ii) the lesser of (x) $50,000,000 and (y) Total
Funded Debt outstanding on such day incurred in connection
with the construction of motion picture theatres that, on such
day, are not open for business
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to
(b) Adjusted EBITDA computed for the period consisting of such
Fiscal Quarter and each of the three immediately preceding Fiscal
Quarters.
"Series" means, relative to
(a) Term Loans, as the context may require, all Term A Loans,
all Term B Loans or all Term C Loans; and
(b) Additional Loans made as term loans, all Additional Loans
made pursuant to an Additional Financing Amendment as a single series
of Additional Loans.
"Sponsor" means HMTF or KKR.
"Sponsor Fund Contribution" is defined in clause (a) of the second
recital.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof, as
such amount may be amended from time to time.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means
(a) relative to all Swing Line Loans, Revolving Loans and Term
A Loans, the seventh anniversary of the Closing Date;
(b) relative to all Term B Loans, the eighth anniversary of
the Closing Date;
(c) relative to all Term C Loans, the ninth anniversary of the
Closing Date; and
(d) relative to Additional Loans, if any, the final stated
maturity therefor established pursuant to Section 2.8.
"Subordinated Debt" means
(a) the 9 1/2% Subordinated Notes;
(b) at any time after the Closing Date, any Old Regal 8 1/2%
Subordinated Notes then remaining outstanding;
(c) any other unsecured subordinated Indebtedness of the
Borrower (w) having no mandatory payments or prepayments of principal,
or mandatory redemptions which are scheduled or may otherwise be
required to be made (excluding, however, pursuant to customary
high-yield put rights arising upon the occurrence of (1) a change of
control under circumstances no more advantageous to the holders of such
Subordinated Debt than those provided under the definition of the term
"Change of Control" in the 9 1/2% Subordinated Notes or (2) an asset
sale the Net Cash Proceeds of which are retained by the Borrower in
accordance with clause (b)(iii) of Section 3.1.2)
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prior to the tenth anniversary of the Closing Date, (x) bearing
interest at a rate not to exceed the rate then generally prevailing in
the high-yield senior subordinated debt market for issuers of
comparable creditworthiness, (y) having terms of subordination,
standstill, postponement and related provisions which are materially no
less favorable to the Lenders than the corresponding terms of the 9
1/2% Subordinated Note and (z) which are otherwise (except as otherwise
consented to by the Agents) in all respects material to the Lenders
(including as to voting percentages necessary for waivers, amendments,
accelerations, rescissions and the commencement of litigation),
consistent with customary high-yield senior subordinated debt
issuances; and
(d) Permitted Acquisition Subordinated Indebtedness.
"Subsidiary" means, relative to any Person, any other corporation,
partnership or other business entity of which more than 50% of the outstanding
Voting Stock is at the time directly or indirectly owned by such Person. Unless
the context otherwise specifically requires, the term "Subsidiary" shall be a
reference to a Subsidiary of the Borrower.
"Successor Borrower" is defined in clause (d) of Section 7.2.6.
"Supermajority Revolving Lenders" means, at any time, Non-Defaulting
Lenders having or holding at least 66-2/3% of the sum (without duplication) of
the aggregate outstanding principal amount of the Revolving Loans and the Swing
Line Loans, the aggregate amount of the Letter of Credit Outstandings the
unfunded amount of the Revolving Loan Commitment Amount, in each case, taken as
a whole, of all such Non-Defaulting Lenders.
"Supermajority Term Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit
Extension hereunder, Non-Defaulting Lenders having at least 66-2/3% of
the Term A Loan Commitment, Term B Loan Commitment and Term C Loan
Commitment, taken as a whole, of all such Non-Defaulting Lenders; and
(b) on and after the Closing Date, Non-Defaulting Lenders
having or holding at least 66-2/3% of the aggregate outstanding
principal amount of all Term Loans, taken as a whole, of all such
Non-Defaulting Lenders.
"Surviving Regal" is defined in clause (b) of the second recital.
"Surviving Regal Common Share" means a share of common stock, $0.00 par
value per share, of Surviving Regal.
"Surviving Regal Preferred Share" means a share of Series A Convertible
Preferred Stock, $0.01 par value per share of Surviving Regal which is
mandatorily convertible into Surviving Regal Common Shares on the seventh day
after the Closing Date.
"Swing Line Lender" means, subject to the terms of this Agreement,
Scotiabank, its successors and assigns.
"Swing Line Loan" is defined in clause (b) of Section 2.1.1.
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"Swing Line Loan Commitment" is defined in clause (b) of Section 2.1.1.
"Swing Line Loan Commitment Amount" means, on any date, $15,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means (x) a promissory note, if any, executed and
delivered by the Borrower pursuant to clause (b) of Section 2.7 and payable to
the Swing Line Lender, in the form of Exhibit A-5 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to the Swing Line Lender
resulting from outstanding Swing Line Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"Syndication Agent" is defined in the preamble and, in addition, shall
include each other Person as shall have subsequently been appointed as the
successor Syndication Agent pursuant to Section 9.4.
"Syndication Memorandum" means the confidential information memorandum,
dated May 1998, containing information describing the Borrower for distribution
to prospective Lenders in connection with this Agreement
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, however, in the case of each Lender
and the Administrative Agent, respectively, taxes imposed on any Lender or the
Administrative Agent as a result of a present or former connection between such
Lender or the Administrative Agent and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from such
Lender or the Administrative Agent having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement).
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on the service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association interest settlement rates for Dollar deposits).
"Term A Loan" is defined in clause (a) of Section 2.1.3.
"Term A Loan Commitment" is defined in clause (a) of Section 2.1.3.
"Term A Loan Commitment Amount" means, on any date, $120,000,000.
"Term A, B, and C Loan Commitment Termination Date" means the earliest
of
(a) June 15, 1998 (if each of the Term Loans have not been
made on or prior to such date);
(b) the Closing Date (immediately after the making of the Term
Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
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Upon the occurrence of any event described in clause (b) or (c), the Term A Loan
Commitments, the Term B Loan Commitments and the Term C Loan Commitments shall
terminate automatically and without any further action.
"Term A Note" means (x) a promissory note, if any, executed and
delivered by the Borrower pursuant to clause (b) of Section 2.7 and payable to
any Lender, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term A Loans and (y) all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Term B Loan" is defined in clause (b) of Section 2.1.3.
"Term B Loan Commitment" is defined in clause (b) of Section 2.1.3.
"Term B Loan Commitment Amount" means, on any date, $120,000,000.
"Term B Note" means (x) a promissory note, if any, executed and
delivered by the Borrower pursuant to clause (b) of Section 2.7 and payable to
any Lender, in the form of Exhibit A-3 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term B Loans and (y) all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Term C Loan" is defined in clause (c) of Section 2.1.3.
"Term C Loan Commitment" is defined in clause (c) of Section 2.1.3.
"Term C Loan Commitment Amount" means, on any date, $135,000,000.
"Term C Note" means (x) a promissory note, if any, executed and
delivered by the Borrower pursuant to clause (b) of Section 2.7 and payable to
any Lender, in the form of Exhibit A-4 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term C Loans and (y) all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Term Loans" means, collectively, the Term A Loans, the Term B Loans
and the Term C Loans and the Additional Loans, if any, made as term loans.
"Test Period" means, relative to certain determinations to be made
under this Agreement at any time, the four consecutive Fiscal Quarters most
recently elapsed.
"Total Funded Debt" means, on any date (and without duplication), the
aggregate outstanding principal amount of all Indebtedness of the Borrower and
Restricted Subsidiaries of the type referred to in clauses (a) and (c), and all
unreimbursed drawings in respect of Indebtedness described in clause (b), in
each case of the definition of "Indebtedness" (excluding, however, intercompany
Indebtedness between the Borrower and any Restricted Subsidiary or between any
Restricted Subsidiaries).
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"Total Leverage Ratio" means, as of the last day of any Fiscal Quarter,
the ratio of
(a) the excess on such day of Total Funded Debt outstanding
over Unrestricted Cash
to
(b) Adjusted EBITDA computed for the period consisting of such
Fiscal Quarter and each of the three immediately preceding Fiscal
Quarters.
"Transaction" means the Sponsor Fund Contributions, the Merger, the
Conversion, the Management Roll-Over, the Option Redemption, the HMTF/KKR Swap,
the issuances of the Additional Equity and 9 1/2% Subordinated Notes, the
completion of the transactions contemplated to occur by the Offer to Purchase,
the initial Credit Extensions, the Refinancing and all other transactions
contemplated hereby (including pursuant to Section 5.1) to occur on the Closing
Date, including the payment of Transaction Costs.
"Transaction Cost" means any fee, cost, charge or expense payable by
the Borrower or any Subsidiary in connection with the Transaction.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in
effect in the State of New York.
"UCP" is defined in Section 2.6.5.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Plan pursuant to Section 412 of the Code for the applicable plan year.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Unrelated Final Maturity Payment" means, relative to any Indebtedness
of any Person, the final payment of principal of such Indebtedness becoming due
on the final stated maturity thereof if such final payment would not, consistent
with prevailing market practices, reasonably be considered to be substantively
an interim installment of a set of related Indebtedness rather than a final
maturity of a separate Indebtedness based on its contractual relationship with
other Indebtedness and other indicia of common interests and risks (including
requirements to share payments or collateral proceeds or abide by collective
voting procedures).
"Unrestricted Cash" means on any day the excess of (x) all cash of the
Borrower and Restricted Subsidiaries on such day over (y) $3,000,000.
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"Unrestricted Subsidiary" means
(a) any Subsidiary that is first created or acquired by the
Borrower or a Restricted Subsidiary after the Closing Date if (x) the
acquisition price therefor is funded by the Borrower or such Restricted
Subsidiary in accordance with clause (h) of Section 7.2.4 and (y) such
Subsidiary is designated by the Borrower as an Unrestricted Subsidiary
in a notice delivered to the Agents prior to or reasonably promptly
after such creation or acquisition;
(b) any Subsidiary that is first created or acquired after the
Closing Date by an Unrestricted Subsidiary created or acquired in
accordance with the provisions of this definition;
(c) any Restricted Subsidiary existing on the Closing Date
which is subsequently re-designated as an Unrestricted Subsidiary by
the Borrower in a notice to the Agents; provided, however, that such
re-designation shall be deemed to be an Investment pursuant to clause
(h) of Section 7.2.4 on the date of such re-designation in an
Unrestricted Subsidiary in an amount equal to the sum of (x) the net
worth of such re-designated Restricted Subsidiary immediately prior to
such re-designation (such net worth to be calculated without regard to
any Guaranty provided by such re-designated Restricted Subsidiary) plus
(y) the aggregate principal amount of any Indebtedness owed by such
re-designated Restricted Subsidiary to the Borrower or any other
Restricted Subsidiary immediately prior to such re-designation, all
calculated, except as set forth in the parenthetical to the foregoing
item (x), on a consolidated basis in accordance with GAAP;
provided, however, that, in each case, the provisions of clause (h) of Section
7.2.4 are not breached in connection with such creation, acquisition or
re-designation, and that promptly after the date of such creation, acquisition
or re-designation, as applicable, such Subsidiary and the Borrower enter into a
tax sharing agreement containing terms that, in the reasonable judgment of the
Borrower and the Agents, provide for appropriate allocation of tax liabilities
and benefits. Notwithstanding anything to the contrary herein,
(d) a Restricted Subsidiary cannot be a Subsidiary of an
Unrestricted Subsidiary;
(e) an Unrestricted Subsidiary cannot be designated as a
Restricted Subsidiary except (x) with prior notice to the Agents and
(y) if a Default has occurred and is continuing or would result from
such re-designation; at the time of any notice of re-designation by the
Borrower to the Agents of any Unrestricted Subsidiary as a Restricted
Subsidiary in accordance with this clause, the Unrestricted Subsidiary
so re-designated shall no longer constitute an Unrestricted Subsidiary;
and
(f) in order for any Unrestricted Subsidiary to be permitted
to be created or acquired (or re-designated in accordance with clause
(c)) or to continue to exist, no recourse whatsoever may be had to the
Borrower or any Restricted Subsidiary or any of their respective
properties in respect of any obligations or liabilities (contingent or
otherwise) of such Unrestricted Subsidiary except to the extent the
aggregate maximum amount of such recourse constituted when made as an
Investment permitted pursuant to clause (h) of Section 7.2.4.
"Voting Stock" means, relative to any Person, Capital Stock of any
class or kind, including any Capital Stock of such Person of any other class or
kind which is then convertible Capital Stock of such class or kind but,
ordinarily having the power to vote (and irrespective of whether at the time
Capital Stock of such Person of any other class or kind shall or might upon the
occurrence of a contingency have
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voting power) for the election of directors, managers or other voting members of
the governing body of such Person.
"Weighted Average Life to Maturity" means, relative to any Indebtedness
at any date, the number of years (rounded to the nearest one-twelfth) obtained
by dividing
(a) the then outstanding principal amount of such Indebtedness
into
(b) the total of the product obtained by multiplying
(i) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of
principal, including payment of final maturity, in respect
thereof,
by
(ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making
of such payment.
"wholly-owned" means, relative to any direct or indirect Subsidiary,
any Subsidiary all of the outstanding Capital Stock of which is owned directly
or indirectly by the Borrower.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each other Loan Document, the
Disclosure Schedule, or any Borrowing Request, Issuance Request,
Continuation/Conversion Notice, Compliance Certificate, Closing Date
Certificate, solvency certificate, Lender Assignment Agreement, notice or other
communications delivered from time to time in connection with this Agreement or
any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article, Section,
definition or recital are references to such Article, Section, definition or
recital of this Agreement or such other Loan Document, as the case may be, and,
unless otherwise specified, references in any Article, Section, definition or
recital to any clause are references to such clause of such Article, Section,
definition or recital.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document, or in
any Compliance Certificate or solvency certificate, shall be interpreted, all
accounting determinations and computations hereunder or thereunder (including
under Section 7.2.3) shall be made, and all financial statements required to be
delivered hereunder or thereunder shall be prepared, in accordance with, those
generally accepted accounting principles and policies ("GAAP") applied in the
preparation of the audited financial statements referred to in clause (a) of
Section 6.5; provided, however, that at any time the computations determining
compliance with Section 7.2 utilize accounting principles different from those
utilized in the financial statements furnished to the Lenders pursuant to
Section 7.1.1, such financial statements shall be accompanied by reconciliation
work-sheets. Unless otherwise expressly provided, all financial covenants
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and defined financial terms shall be computed on a consolidated basis for the
Borrower and Restricted Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Section 2.1.4, Section 2.1.5 and Article V),
(a) each Lender severally agrees to make Loans (other than
Swing Line Loans) pursuant to the Commitments and the Swing Line Lender
severally agrees to make Swing Line Loans pursuant to the Swing Line
Loan Commitment, in each case as described in this Section 2.1; and
(b) the Issuer severally agrees that it will issue Letters of
Credit pursuant to Section 2.1.2, and each other Lender that has a
Revolving Loan Commitment severally agrees that it will purchase
participation interests in such Letters of Credit pursuant to Section
2.6.1.
SECTION 2.1.1. Revolving Loan Commitment and Swing Line Loan
Commitment. From time to time on any Business Day occurring on and after the
Closing Date but prior to the Revolving Loan Commitment Termination Date,
(a) each Lender that has a Revolving Loan Commitment will make
a loan (with respect to such Lender, its "Revolving Loan") to the
Borrower equal to such Lender's Percentage of the aggregate amount of
each Borrowing of the Revolving Loans requested by the Borrower to be
made on such day (the Commitment of each such Lender described in this
clause being its "Revolving Loan Commitment"). On the terms and subject
to the conditions hereof, the Borrower may from time to time borrow,
prepay and reborrow the Revolving Loans.
(b) the Swing Line Lender will make a loan (a "Swing Line
Loan") to the Borrower equal to the principal amount of the Swing Line
Loan requested by the Borrower to be made on such day (the Commitment
of the Swing Line Lender described in this clause being its "Swing Line
Loan Commitment"). On the terms and subject to the conditions hereof,
the Borrower may from time to time borrow, prepay and reborrow Swing
Line Loans.
SECTION 2.1.2. Letter of Credit Commitment. From time to time on any
Business Day occurring on and after the Closing Date but prior to the Revolving
Loan Commitment Termination Date, the Issuer will
(a) issue one or more standby or documentary letters of credit
(a "Letter of Credit") for the account of the Borrower in the Stated
Amount requested by the Borrower on such day; or
(b) extend the Stated Expiry Date of an existing standby
Letter of Credit previously issued hereunder to a date not later than
the earlier of (x) the Revolving Loan Commitment Termination Date and
(y) one year from the date of such extension.
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SECTION 2.1.3. Term Loan Commitments. In a single Borrowing occurring
on the Closing Date, each Lender that has a Term A Loan Commitment, a Term B
Loan Commitment or a Term C Loan Commitment, as applicable,
(a) will make a loan (with respect to such Lender, its "Term A
Loan") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing of Term A Loans requested by the
Borrower to be made on the Closing Date (the commitment of each such
Lender described in this clause being its "Term A Loan Commitment");
(b) will make a loan (with respect to such Lender, its "Term B
Loan") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing of Term B Loans requested by the
Borrower to be made on the Closing Date (with the commitment of each
such Lender described in this clause being its "Term B Loan
Commitment"); and
(c) will make a loan (with respect to such Lender, its "Term C
Loan") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing of Term C Loans requested by the
Borrower to be made on the Closing Date (the commitment of each such
Lender described in this clause being its "Term C Loan Commitment").
No amounts paid or prepaid with respect to Term A Loans, Term B Loans or Term C
Loans may be reborrowed.
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans. No
Lender shall be permitted or required to make any Loan if, after giving effect
thereto, the aggregate outstanding principal amount of
(a) all Revolving Loans
(i) of all Lenders with a Revolving Loan Commitment
and the outstanding principal amount of all Swing Line Loans,
together with the aggregate amount of all Letter of Credit
Outstandings, would exceed the then existing Revolving Loan
Commitment Amount, or
(ii) of such Lender with a Revolving Loan Commitment,
together with such Lender's Percentage of the aggregate amount
of all Letter of Credit Outstandings, and such Lender's
Percentage of the outstanding principal amount of all Swing
Line Loans, would exceed such Lender's Percentage of the then
existing Revolving Loan Commitment Amount;
(b) all Term A Loans, all Term B Loans or all Term C Loans (as
the case may be)
(i) of all Lenders made on the Closing Date would
exceed the Term A Loan Commitment Amount (in the case of Term
A Loans) or the Term B Loan Commitment Amount (in the case of
Term B Loans) or the Term C Loan Commitment Amount (in the
case of Term C Loans), or
(ii) of such Lender with a Term A Loan Commitment,
with a Term B Loan Commitment or with a Term C Loan Commitment
Amount, as applicable, made on the
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Closing Date would exceed such Lender's Percentage of the Term
A Loan Commitment Amount (in the case of Term A Loans), the
Term B Loan Commitment Amount (in the case of Term B Loans) or
the Term C Loan Commitment Amount (in the case of Term C
Loans); or
(c) all Swing Line Loans would exceed the then existing Swing
Line Loan Commitment Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. The Issuer shall not be permitted or required to issue any Letter of
Credit if,
(a) after giving effect thereto, (x) the aggregate amount of
all Letter of Credit Outstandings would exceed the Letter of Credit
Commitment Amount or (y) the sum of the aggregate amount of all Letter
of Credit Outstandings plus the then outstanding aggregate principal
amount of all Revolving Loans and Swing Line Loans would exceed the
Revolving Loan Commitment Amount; or
(b) a Lender Default known to the Issuer exists or the Issuer
becomes aware of any Lender being a Non-Performing Lender, unless the
Issuer has entered into arrangements reasonably satisfactory to it and
the Borrower to eliminate the Issuer's risk with respect to the
participation in Letter of Credit Outstandings by each Defaulting
Lender and each Non-Performing Lender, including cash collateralizing
such Defaulting Lender's (or such Non-Performing Lender's, as the case
may be) Percentage of Letter of Credit Outstandings in respect thereof.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment
Amounts are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the Effective Date, voluntarily reduce the amount
of the Revolving Loan Commitment Amount, the Swing Line Loan Commitment Amount
or the Letter of Credit Commitment Amount on the Business Day so specified by
the Borrower; provided, however, that all such reductions shall require at least
three Business Day's prior notice to the Administrative Agent (and the Swing
Line Lender in the case of a reduction to the Swing Line Commitment Amount) and
shall be permanent, and any partial reduction of any Commitment Amount shall be
in a minimum amount of $1,000,000 and in an integral multiple of $250,000. Upon
termination of the Revolving Loan Commitment Amount, Letter of Credit
Outstandings then existing which have been fully cash collateralized to the
satisfaction of the applicable Issuers shall no longer be considered "Letter of
Credit Outstandings" hereunder, and any participating interest heretofore
granted by the applicable Issuers to the Lenders with a Revolving Loan
Commitment shall be deemed terminated, provided that fees payable pursuant to
Section 3.3.3. shall continue to accrue to the applicable Issuers with respect
to the applicable Letters of Credit until the expiry thereof.
SECTION 2.2.2. Mandatory. On each anniversary of the Closing Date set
forth below, the then existing Revolving Loan Commitment Amount shall, without
any further action, automatically and permanently be reduced to an amount equal
to the product of (x) the percentage set forth below opposite such anniversary
date times (y) the sum of the Revolving Loan Commitment Amount on the Effective
Date plus the amount of the Revolving Credit Commitment Amount Increases
effective on such anniversary date (unless on or prior to any such date the
Revolving Loan Commitment Amount shall have
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been reduced to a lesser amount, in which case the Revolving Loan Commitment
Amount shall not be required to be reduced below):
% of Maximum
Anniversary of Revolving Credit
the Closing Date Commitment Amount
------------------------- ----------------------------
Fourth 92%
Fifth 80%
Sixth 60%
provided, however, that on the Revolving Loan Commitment Termination Date, the
Revolving Loan Commitment Amount shall be zero.
SECTION 2.3. Obtaining Loans. Loans (other than Swing Line Loans) shall
be made by the Lenders in accordance with Section 2.3.1, and Swing Line Loans
shall be made by the Swing Line Lender in accordance with Section 2.3.2.
SECTION 2.3.1. Borrowings. In the case of other than Swing Line Loans,
by delivering a Borrowing Request to the Administrative Agent on or before 2:00
p.m., New York City time, on a Business Day, the Borrower may from time to time
irrevocably request (including by telephonic notice promptly confirmed in
writing), on not less than one Business Day's notice in the case of Base Rate
Loans, or three Business Days' notice in the case of LIBO Rate Loans, and in
either case not more than five Business Days' notice, that a Borrowing be made,
in the case of LIBO Rate Loans, in a minimum amount of $5,000,000 and an
integral multiple of $500,000, in the case of Base Rate Loans, in a minimum
amount of $3,000,000 and an integral multiple of $500,000 or, in either case, in
the unused amount of the applicable Commitment, or, in the case of Refunded
Swing Line Loans, the amount thereof. On the terms and subject to the conditions
of this Agreement, each Borrowing shall be comprised of the type of Loans, and
shall be made on the Business Day, specified in such Borrowing Request. In the
case of other than Swing Line Loans, on or before 12:00 noon (New York City
time) on such Business Day each Lender that has a Commitment to make the Loans
being requested shall deposit with the Administrative Agent same day funds in an
amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Administrative Agent shall make such funds available to
the Borrower by wire transfer to the accounts the Borrower shall have specified
in its Borrowing Request. No Lender's obligation to make any Loan shall be
affected by any other Lender's failure to make any Loan.
SECTION 2.3.2. Swing Line Loans. (a) By telephonic notice, promptly
followed (within one Business Day) by the delivery of a confirming Borrowing
Request, to the Administrative Agent and the Swing Line Lender on or before 2:00
p.m., New York City time, on the Business Day the proposed Swing Line Loan is to
be made, the Borrower may from time to time irrevocably request that a Swing
Line Loan be made by the Swing Line Lender in an aggregate minimum principal
amount of $250,000 and an integral multiple of $50,000. All Swing Line Loans
shall be made as Base Rate Loans and shall not be entitled to be converted into
LIBO Rate Loans. The proceeds of each Swing Line Loan shall be made available by
the Swing Line Lender to the Borrower (x) in the case that telephonic notice is
received on or prior to 11:00 a.m., New York City time on a Business Day, by
3:30 p.m., New York City time such the Business Day and (y) in the case that
telephonic notice is received after 11:00 a.m. and before 2:00 p.m.,
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New York City time, by its close of business on such Business Day, by wire
transfer to the account the Borrower shall have specified in its notice
therefor.
(b) If (x) any Swing Line Loan shall be outstanding for more than five
Business Days, (y) any Swing Line Loan is or will be outstanding on a date when
the Borrower requests that a Revolving Loan be made or (z) any Default shall
occur and be continuing, then, each Lender with a Revolving Loan Commitment
(other than the Swing Line Lender) irrevocably agrees that it will, at the
request of the Administrative Agent (on behalf of, and at the request of, the
Swing Line Lender), make a Revolving Loan (which shall initially be funded as a
Base Rate Loan) in an amount equal to such Lender's Percentage of the aggregate
principal amount of all such Swing Line Loans then outstanding (such outstanding
Swing Line Loans being hereinafter referred to as the "Refunded Swing Line
Loans"). On or before 11:00 a.m. (New York City time) on the first Business Day
following receipt by each such Lender of a request to make Revolving Loans as
provided in the preceding sentence, each such Lender shall deposit in an account
specified by the Swing Line Lender the amount so requested in same day funds and
such funds shall be applied by the Swing Line Lender to repay the Refunded Swing
Line Loans. At the time such Lenders make such Revolving Loans, the Swing Line
Lender shall be deemed to have made, in consideration of the making of the
Refunded Swing Line Loans, Revolving Loans in an amount equal to its Percentage
of the aggregate principal amount of the Refunded Swing Line Loans. Upon the
making (or deemed making, in the case of the Swing Line Lender) of any Revolving
Loans pursuant to this clause (b), the amount so funded shall become outstanding
under such Lender's Revolving Note and shall no longer be owed under the Swing
Line Note. All interest payable with respect to any Revolving Loans made (or
deemed made, in the case of the Swing Line Lender) pursuant to this clause (b)
shall be appropriately adjusted to reflect the period of time during which the
Swing Line Lender had outstanding Swing Line Loans in respect of which such
Revolving Loans were made. The obligation of each Lender with a Revolving Loan
Commitment to make the Revolving Loans referred to in this clause (b) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (1) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever; (2) the occurrence or continuance of any
Default; (3) any adverse change in the condition (financial or otherwise) of the
Borrower; (4) the acceleration or maturity of any Loans or the termination of
any Commitment after the making of any Swing Line Loan; (5) any breach of this
Agreement or any other Loan Document by the Borrower or any Lender; or (6) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent or the Swing Line Lender, as the case may be, may act prior
to receipt of written confirmation without liability upon the basis of such
telephonic notice believed by the Administrative Agent or the Swing Line Lender,
as the case may be, in good faith to be from an Authorized Officer of the
Borrower (or a designee of such Authorized Officer). In each such case the
record of the Administrative Agent or the Swing Line Lender, as the case may be,
of the terms of any such telephonic notice shall be conclusive absent manifest
error.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before 10:00
a.m., New York City time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Days' notice in the case of any
Loans that are to be converted into Base Rate Loans, or three Business Days'
notice in the case of any Loans that are to be continued as, or converted into,
LIBO Rate Loans, and in either case not more than five Business Days' notice,
that all, or any portion in an aggregate minimum amount of $5,000,000
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and an integral multiple of $250,000, in the case of any Loans that are to be
continued as, or converted into, LIBO Rate Loans, or an aggregate minimum amount
of $3,000,000 and an integral multiple of $250,000, in the case of any Loans
that are to be converted into Base Rate Loans, be, in the case of Base Rate
Loans, converted into LIBO Rate Loans or be, in the case of LIBO Rate Loans,
converted into Base Rate Loans or continued as LIBO Rate Loans (in the absence
of delivery of a Continuation/Conversion Notice with respect to any LIBO Rate
Loan at least three Business Days (but not more than five Business Days) before
the last day of the then current Interest Period with respect thereto, such LIBO
Rate Loan shall, on such last day, automatically be continued as a LIBO Rate
Loan having an Interest Period of one month); provided, however, that (x) each
such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders that have made such Loans, and (y) if any
Default is in existence at the applicable time of any proposed continuation of,
or conversion into, any LIBO Rate Loans and the Administrative Agent has, or the
Required Lenders have, determined in its or their sole discretion not to permit
such continuation or conversion and have notified the Borrower telephonically or
in writing thereof, the Borrower may not elect to have a Loan converted into or
continued as a LIBO Rate Loan and any outstanding LIBO Rate Loans shall be
automatically converted on the last day of the current Interest Period
applicable thereto into a Base Rate Loan.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility; provided, however,
further, that in no event shall the Borrower be obligated to pay to any Lender
any amounts pursuant to Sections 4.1, 4.2, 4.3, 4.5 or 4.6 that would not have
arisen but for such Lender's election pursuant to the first sentence of this
Section (it being acknowledged and agreed that any change in lending office or
other action taken by a Lender in accordance with Section 4.7 shall not be
considered to be an "election" by such Lender under this Section).
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 10:00 a.m., New York City time, on a
Business Day, the Borrower may, from time to time irrevocably request, on not
less than three nor more than ten Business Days' notice, in the case of an
initial issuance of a Letter of Credit for the account of the Borrower, and not
less than three Business Days' prior notice to the date any issued Letter of
Credit containing an "evergreen" or similar automatic extension feature is
scheduled to automatically be extended unless the beneficiary thereof shall have
received notice to the contrary from the Issuer and subject to the Issuer's
right not to extend if the conditions precedent to issuance of such a Letter of
Credit would not be satisfied, in the case of a request for the extension of the
Stated Expiry Date of a standby Letter of Credit, that the Issuer issue, or
extend the Stated Expiry Date of, as the case may be, an irrevocable Letter of
Credit in such form as may be requested by the Borrower and complying with the
provisions hereof. Each Letter of Credit shall by its terms be stated to expire
on a date (its "Stated Expiry Date") no later than the earlier to occur of
(a) in the case of a standby Letter of Credit, (x) the
Revolving Loan Commitment Termination Date and (y) one year from the
date of its issuance; and
(b) in the case of a documentary Letter of Credit, (x) the
Revolving Loan Commitment Termination Date and (y) 180 days from the
date of its issuance.
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The Issuer will make available to the beneficiary thereof the original of each
Letter of Credit which it issues hereunder. Notwithstanding anything to the
contrary herein, the letters of credit described in Schedule II hereto are
deemed to be "Letters of Credit" hereunder issued by PNC Bank, N.A. (the "PNC
Letters of Credit") and PNC Bank, N.A. shall be an "Issuer" hereunder solely (as
of the Closing Date) with respect to the PNC Letters of Credit.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased, to the extent of its Percentage
of the Revolving Loan Commitment Amount, a participation interest in such Letter
of Credit (including the Contingent Liability and any Reimbursement Obligation
with respect thereto), and such Lender shall, to the extent of its Percentage of
the Revolving Loan Commitment Amount, be responsible for reimbursing promptly
(and in any event within one Business Day) the Issuer for Reimbursement
Obligations which have not been reimbursed by the Borrower in accordance with
Section 2.6.3. In addition, such Lender shall, to the extent of its Percentage
of the Revolving Loan Commitment Amount, be entitled to receive a ratable
portion of the Letter of Credit fees payable pursuant to Section 3.3.3 with
respect to each Letter of Credit (other than the issuance fees payable to the
Issuer of such Letter of Credit pursuant to the last sentence of Section 3.3.3)
and of interest payable pursuant to Section 3.2 with respect to any
Reimbursement Obligation. To the extent that any Lender has reimbursed the
Issuer for a Disbursement as required by this Section, such Lender shall be
entitled to receive its ratable portion of any amounts subsequently received
(from the Borrower or otherwise) in respect of such Disbursement.
SECTION 2.6.2. Disbursements. The Issuer will notify the Borrower and
the Administrative Agent promptly of the presentment for payment of any Letter
of Credit issued by the Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, the Issuer shall make such payment to the beneficiary (or
its designee) of such Letter of Credit. Prior to 11:00 a.m., New York City time,
on the first Business Day following the Disbursement Date, the Borrower will
reimburse the Administrative Agent, for the account of the Issuer, for all
amounts which the Issuer has disbursed under such Letter of Credit, together
with interest thereon at a rate per annum then in effect for Base Rate Loans
plus the Applicable Margin for Revolving Loans pursuant to Section 3.2 for the
period from the Disbursement Date through the date of such reimbursement;
provided, however, that unless the Borrower shall have notified the
Administrative Agent and the Issuer prior to such time on the Disbursement Date,
the Borrower will be deemed to have requested (and shall deliver a Borrowing
Request within one Business Day of the Disbursement Date confirming) that a
Swing Line Loan be made in the amount of such reimbursement and the
Administrative Agent shall so notify the Swing Line Lender which shall, subject,
however, to the conditions of Section 2.3.2 (except for the notice, the minimum
principal amount and the integral amount requirements), make a Swing Line Loan
in such amount (the proceeds of which will be wired to the Issuer unless the
Issuer and the Swing Line Lender are the same Person, in which case a book-entry
transfer may be made). Without limiting in any way the foregoing and
notwithstanding anything to the contrary contained herein or in any separate
application for any Letter of Credit, the Borrower hereby acknowledges and
agrees that it shall be obligated to reimburse the Issuer upon each Disbursement
of a Letter of Credit.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon), and, upon the failure
of the Borrower to reimburse the Issuer, each Lender's (to the extent it has a
Revolving Loan Commitment) obligation under Section 2.6.1 to reimburse the
Issuer, shall
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be absolute and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment which the Borrower or such
Lender, as the case may be, may have or have had against the Issuer or any such
Lender, including any defense based upon the failure of any Disbursement to
conform to the terms of the applicable Letter of Credit (if, in the Issuer's
good faith opinion, such Disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of such
Letter of Credit; provided, however, that, after paying in full its
Reimbursement Obligation hereunder, nothing herein shall preclude the right of
such Lender to commence any proceeding against the Issuer for any wrongful
Disbursement made by the Issuer under a Letter of Credit as a result of acts or
omissions constituting gross negligence or wilful misconduct as determined by a
court of competent jurisdiction on the part of the Issuer; provided, however,
further, that, in any event, the Borrower may have a claim against the Issuer,
and the Issuer may be liable to the extent (but only to the extent) of any
direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the Issuer's wilful misconduct
or gross negligence as determined by a court of competent jurisdiction or the
Issuer's wilful failure to pay under any Letter of Credit after the presentation
to it by the beneficiary of a demand for payment strictly complying with the
terms and conditions of such Letter of Credit.
SECTION 2.6.4. Nature of Reimbursement Obligations. The Borrower and,
to the extent set forth in Section 2.6.1, each Lender with a Revolving Loan
Commitment shall assume all risks of the acts, omissions or misuse of any Letter
of Credit by the beneficiary thereof. The Issuer (except to the extent of its
own gross negligence or wilful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon the Borrower and each such Lender, and shall
not put the Issuer under any resulting liability to the Borrower or any such
Lender, as the case may be.
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SECTION 2.6.5. Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber of
Commerce ("UCP") most recently at the time of issuance of any Letter of Credit
shall (unless otherwise expressly provided in the Letters of Credit) apply to
such Letter of Credit.
SECTION 2.7. Loan Accounts and Notes. (a) The Loans made by each Lender
and the Letters of Credit issued by the Issuer shall be evidenced by one or more
loan accounts or records maintained by the Administrative Agent in the ordinary
course of business. The loan accounts or records maintained by the
Administrative Agent shall be conclusive absent clearly demonstrable error of
the amount of the Loans made by the Lenders to, and the Letters of Credit issued
by the Issuer for the account of, the Borrower and the interest and payments
thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Loans and the Reimbursement Obligations.
(b) Upon the request of any Lender made through the Administrative
Agent, solely to facilitate the pledge or assignment of its Loans to any Federal
Reserve Bank or to comply with state law or regulations applicable to such
Lender pursuant to clause (b) of Section 10.11.1, the Loans made by such Lender
may be evidenced by one or more Notes, instead of or in addition to loan
accounts. Each such Lender is irrevocably authorized by the Borrower to endorse
on the schedules annexed to its Note(s) the date, amount and maturity of each
Loan made, continued or converted by it and the amount of each payment of
principal made by the Borrower with respect thereto. Each such Lender's record
shall be conclusive absent clearly demonstrable error; provided, however, that
the failure of a Lender to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any such Note to such Lender.
SECTION 2.8. Additional Commitments and Loans, etc. Anything in this
Agreement (including Section 10.1) to the contrary notwithstanding, any Lender
may agree with the Borrower and the Agents (which Agents shall not unreasonably
withhold their agreement) and without the consent of the Required Lenders
(a) to increase (a "Revolving Credit Commitment Amount
Increase") its Revolving Loan Commitment (and such Lender's Percentage
and the Revolving Loan Commitment Amount may be increased accordingly)
and to make additional term loans hereunder, to refinance, in
connection with an Act III Acquisition becoming effective on or prior
to the date which is 120 days after the Effective Date, all Obligations
then outstanding under (and as defined in) the Act III Credit Agreement
and to repay the Subordinated Debt issued by Act III (and as defined in
the Act III Credit Agreement), provided, however, that such Revolving
Credit Commitment Amount Increases and Additional Loans (collectively,
the "Act III Additional Financing") shall (i) be in an amount (which
shall include all Loans outstanding under (and as defined in) the Act
III Credit Agreement immediately prior to such refinancing by the Act
III Additional Financing and the portion of the "Revolving Loan
Commitments" under (and as defined in) the Act III Credit Agreement to
be included as Additional Commitments hereunder), the aggregate of
which shall not exceed $495,000,000 plus the amount of all interest,
fees and other expenses then accrued and unpaid under the Act III
Credit Agreement, (ii) have a Weighted Average Life to Maturity on the
day of such refinancing which is at least as long as the Weighted
Average Life to Maturity on such day of all Loans outstanding
immediately prior to such refinancing under (and as defined in) the Act
III Credit Agreement as in effect on the Effective Date and (iii) have
rates of interest
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calculated in a manner which is no higher than the rates provided under
the existing Act III Credit Agreement as in effect on the Effective
Date; and
(b) to extend additional commitments (together with the Act
III Additional Financing, the "Additional Commitments") to make other
revolving credit loans or term loans hereunder (together with the Loans
constituting the Act III Additional Loans, "Additional Loans"), to
finance Other Permitted Acquisitions, provided, that, (w) the sum on
the date of the financing of each such Other Permitted Acquisition of
the aggregate original principal amount of the Revolving Credit
Commitment Amount Increases and Additional Commitments (in each case,
other than pursuant to the Act III Additional Financing) to finance
such Other Permitted Acquisition, plus the aggregate amount of all
Revolving Credit Commitment Amount Increases and all continuing
Additional Commitments (or, in the case of Additional Commitments for
term loans, the outstanding principal amount thereof) made previously
to finance Other Permitted Acquisitions plus the aggregate outstanding
principal amount of Indebtedness permitted by clauses (g) (excluding,
however, Permitted Acquisition Ordinary Course Indebtedness, Permitted
Acquisition Subordinated Indebtedness and Permitted Acquisition
Come-Along Indebtedness) and (k) of Section 7.2.1, shall not exceed
$350,000,000, (x) the aggregate amount by which the amounts described
in item (w) exceed $200,000,000 must constitute Permitted Additional
Structured Indebtedness and (y) such Revolving Credit Commitment Amount
Increases and Additional Commitments shall constitute "Senior
Indebtedness" under (and as defined in) the 9 1/2% Subordinated Note
Indenture and (z) to the extent representing additional revolving
credit commitments other than an increase of the Revolving Loan
Commitment, the material terms of any such Additional Commitments shall
be satisfactory to the Agents;
provided, however, that in the case of either clause (a) or (b),
(c) after giving effect to such Permitted Acquisition and the
incurrence of such Indebtedness, (x) no Default shall have occurred and
be continuing and (y) on a pro forma basis as of the last day of the
Fiscal Quarter most recently ended, the Borrower shall be in compliance
with clauses (a) and (b) of Section 7.2.3, as set forth in a pro forma
Compliance Certificate delivered to the Administrative Agent pursuant
to clause (d) of Section 7.2.6;
(d) the Borrower pledges the Capital Stock of any Acquired
Person acquired thereby to the Administrative Agent to the extent
required under Section 7.1.8, which shall (notwithstanding the proviso
therein set forth), with respect to the Act III Acquisition, include
the Capital Stock of Act III Cinemas, Inc. and Act III Theatres Inc.
(or, if such entities have merged, of the surviving corporation)
whether or not at such time such Person is a direct Restricted
Subsidiary;
(e) such Acquired Person and each of its Subsidiaries that
become Domestic Restricted Subsidiaries executes a supplement to the
Guaranty to the extent required under Section 7.1.8, which shall
(notwithstanding the proviso therein set forth), with respect to the
Act III Acquisition, include a Guaranty of Act III Cinemas, Inc. and
Act III Theatres Inc. (or, if such entities have merged, of the
surviving corporation) and their Domestic Subsidiaries,
(f) if such Acquired Person has any Indebtedness (other than
Permitted Acquisition Ordinary Course Indebtedness or Permitted
Acquisition Come-Along Indebtedness) which is secured, its Obligations
under the Guaranty, if required to be supplemented pursuant to clause
(e), are secured equally and ratably with such other Indebtedness; and
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(g) to the extent determined by the Administrative Agent to be
necessary to ensure pro rata borrowings commencing with the initial
Borrowing after giving effect to such increase, the Borrower shall
prepay any LIBO Rate Loans outstanding immediately prior to such
initial Borrowings.
Upon the effectiveness of Additional Commitments to make Additional Loans, such
Additional Loans shall become Loans hereunder subject, however, to the specific
terms of such Additional Loans that the applicable Lenders in respect thereof
and the Borrower may agree to that may differ from the corresponding terms
applicable to the Term Loans and the Revolving Loans, including interest rates,
fees and repayment schedules; provided, however, that (x) for the purposes of
voting matters, this Agreement shall be deemed amended to include protection for
any class of Lenders having Additional Loans or Additional Commitments
corresponding to those protections set forth thereunder for other classes of
Lenders and (y) the Administrative Agent is hereby authorized by the Lenders to
enter into any technical amendments or supplements with the Borrower to this and
any other Loan Document to the extent necessary to implement the foregoing and
include such Additional Loans and Additional Commitments hereunder.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the applicable Stated
Maturity Date therefor. Prior thereto, payments and prepayments of Loans shall
or may be made as set forth below.
(a) Voluntary Prepayments. From time to time on any Business
Day, the Borrower may make a voluntary prepayment, in whole or in part,
of the outstanding principal amount of any
(i) Loans (other than Swing Line Loans and Additional
Loans); provided, however, that
(A) any such prepayment of the Term A Loans,
Term B Loans or Term C Loans shall be applied to the
Term A Loans, Term B Loans or Term C Loans as the
Borrower shall direct (or, in the absence of any such
direction, pro rata among Term A Loans, Term B Loans
and Term C Loans)(with the amounts so allocated to
the Term A Loans, the Term B Loans or the Term C
Loans being applied to the remaining amortization
payments for the Term A Loans, the Term B Loans and
the Term C Loans, as the case may be, in such amounts
as the Borrower shall determine),
(B) all such voluntary prepayments shall
require at least one but no more than five Business
Days' prior notice to the Administrative Agent, and
(C) all such voluntary partial prepayments
shall be, in the case of LIBO Rate Loans, in an
aggregate minimum amount of $1,000,000 and an
integral
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multiple of $250,000 and, in the case of Base Rate
Loans, in an aggregate minimum amount of $1,000,000
and an integral multiple of $250,000,
(ii) Swing Line Loans; provided, however, that
(A) all such voluntary prepayments shall
require prior telephonic notice to the Administrative
Agent (which shall promptly notify the Swing Line
Lender) on or before 2:00 p.m., New York City time,
on the day of such prepayment (such notice to be
confirmed in writing by the Borrower within 24 hours
thereafter), and
(B) all such voluntary partial prepayments
shall be in an aggregate minimum amount of $250,000
and an integral multiple of $100,000, and
(iii) Additional Loans as agreed by the Borrower and
the Lenders making such Additional Loans in accordance with
Section 2.8.
(b) Exceeding the Revolving Loan Commitment Amount, etc.
(i) On each date when the sum of (x) the aggregate
outstanding principal amount of all Revolving Loans and Swing
Line Loans plus (y) the aggregate amount of all Letter of
Credit Outstandings exceeds the Revolving Loan Commitment
Amount (as it may be reduced from time to time, including
pursuant to Sections 2.2 and 3.1), the Borrower shall make a
mandatory prepayment of first, all Swing Line Loans, then, all
Revolving Loans and, if necessary, give cash collateral to the
Administrative Agent pursuant to an agreement satisfactory to
the Agents to collateralize Letter of Credit Outstandings, in
an aggregate amount equal to such excess, to be applied to
such Loans as agreed by the Borrower and the Lenders making
such Loans.
(ii) On each date when the aggregate outstanding
principal amount of Additional Loans made pursuant to
Additional Commitments which are revolving credit commitments
exceeds the amount of such Additional Commitments (as they may
be reduced from time to time as agreed by the Borrower and the
Lenders extending such Additional Commitments in accordance
with Section 2.8), the Borrower shall make a mandatory
prepayment of such Additional Loans in an aggregate amount
equal to such excess.
(c) Scheduled Repayments of Term A, B and C Loans.
(i) On each anniversary of the Closing Date prior to
and on the Stated Maturity Date for any particular Term Loans
specified below, the Borrower shall make a scheduled repayment
of the aggregate outstanding principal amount, if any, of such
Term Loans in respective amount set forth below (after giving
effect to any adjustments in respect of any optional or
mandatory non-scheduled prepayments of such Term Loan)
opposite such anniversary:
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Term A Loans Term B Loans Term C Loans
Principal Principal Principal
Anniversary of Repayment Repayment Repayment
Closing Date Amount Amount Amount
-------------- --------------- --------------- ---------------
First $ 1,200,000 $ 1,200,000 $ 1,350,000
Second $ 1,200,000 $ 1,200,000 $ 1,350,000
Third $ 1,200,000 $ 1,200,000 $ 1,350,000
Fourth $ 1,200,000 $ 1,200,000 $ 1,350,000
Fifth $ 1,200,000 $ 1,200,000 $ 1,350,000
Sixth $ 1,200,000 $ 1,200,000 $ 1,350,000
Seventh $ 112,800,000 $ 1,200,000 $ 1,350,000
Eighth $ 111,600,000 $ 1,350,000
Ninth $ 124,200,000
(ii) the Borrower shall make scheduled repayments of
the aggregate outstanding principal amount of Additional Loans
on such dates, and in such amounts, as shall be agreed by the
Borrower and the Lenders making such Additional Loans in
accordance with Section 2.8.
(d) Asset Dispositions and Real Estate Financings. If the
Borrower or any Restricted Subsidiary shall at any time (x) consummate
a Disposition (other than a Real Estate Financing or a Disposition
permitted pursuant to clause (a) or (b) of Section 7.2.6) having Net
Cash Proceeds which, when taken together with the Net Cash Proceeds for
all previous Dispositions, exceeds $1,000,000 or (y) consummate a Real
Estate Financing, then
(i) the Borrower or such Restricted Subsidiary may,
for a period not exceeding 540 days after the receipt by the
Borrower or such Restricted Subsidiary of such Net Cash
Proceeds, (x) reinvest up to 100% of such Net Cash Proceeds in
the businesses of the Borrower and Restricted Subsidiaries
described in Section 7.1.11, but (1) in the case of any such
reinvestment involving payments when due in respect of any
Permitted Ongoing Reinvestment Project, only if, on the date
of such reinvestment, no Payment Default shall have occurred
and be continuing and (2) in the case of any other such
reinvestment, only if, and to the extent that, on the date of
such reinvestment, no Event of Default or Payment Default
shall have occurred and be continuing, (y) prepay the Term A
Loans, Term B Loans, Term C Loans and Additional Loans made as
term loans in an amount equal to such Net Cash Proceeds (or a
portion thereof) or (z) retain the amount of such Net Cash
Proceeds not so applied pending such reinvestment or
prepayment, and
(ii) to the extent such Net Cash Proceeds are not so
reinvested during such 540-day period and the aggregate amount
of all such Net Cash Proceeds not so reinvested since the last
prepayment made pursuant to this clause (d) equals or exceeds
$2,000,000, the Borrower shall, except as and to the extent
otherwise provided in clause (b)(iii) of Section 3.1.2, make a
mandatory prepayment of the Term A Loans, Term B Loans, Term C
Loans and Additional Loans made as term loans on the Business
Day immediately succeeding the last day of such 540-day period
in an aggregate amount equal to the portion of such Net Cash
Proceeds not so applied.
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(e) Acceleration of Maturity. Immediately upon any
acceleration of the Stated Maturity Date of any Loans pursuant to
Section 8.2 or 8.3, the Borrower shall repay all the Loans, unless,
pursuant to Section 8.3, only a portion of all the Loans is so
accelerated (in which case the portion so accelerated shall be so
prepaid).
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.5. No prepayment of
principal of any Revolving Loans or Swing Line Loans pursuant to clause (a) or
(b) shall cause a reduction in the Revolving Loan Commitment Amount or the Swing
Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. Application. Amounts prepaid shall be applied as set
forth in this Section.
(a) Subject to clauses (b) and (c), each prepayment or
repayment of the principal of Loans (other than Swing Line Loans) shall
be applied, to the extent of such prepayment or repayment, as the
Borrower shall direct (and in the absence of such direction, shall be
applied first, to the principal amount thereof being maintained as Base
Rate Loans, and second, to the principal amount thereof being
maintained as LIBO Rate Loans with the shortest Interest Periods
remaining); provided, however, that prepayments or repayments of LIBO
Rate Loans not made on the last day of the Interest Period with respect
thereto, shall be prepaid or repaid subject to the provisions of
Section 4.5 (together with a payment of all accrued interest). In the
case of any mandatory prepayments of Loans to be made pursuant to
clause (d) of Section 3.1.1, at the Borrower's option, exercised in
writing to the Administrative Agent at least one Business Day before
such prepayment is to be distributed, such prepayments pursuant to this
Section 3.1.2 shall not be applied to any Loan of a Defaulting Lender,
but shall be allocated ratably to the Loans of the Non-Defaulting
Lenders.
(b) Each prepayment made pursuant to clause (d) of Section
3.1.1 shall be applied to a mandatory prepayment of the outstanding
principal amount of all Term A Loans, Term B Loans, Term C Loans and
Additional Loans made as term loans, pro rata according to the
respective aggregate outstanding principal amounts thereof (with the
amount of such prepayment of the Term A Loans, the Term B Loans, the
Term C Loans and such Additional Loans being applied to the scheduled
repayments thereafter remaining to become due prior to and on their
respective Stated Maturity Dates pursuant to clause (c) of Section
3.1.1, first, sequentially, in the order of their maturity, to each of
the next two such unpaid scheduled repayments thereof and second, pro
rata according to their respective amounts, to the remaining scheduled
repayments); provided, however, that
(i) the Borrower will, prior to prepaying any such
Loans, give the Administrative Agent telephonic notice
(promptly confirmed in writing) requesting that the
Administrative Agent provide notice of such prepayment to each
Lender entitled to receive any portion of such prepayment,
(ii) each such Lender will have the right to refuse
any such prepayment by giving notice of such refusal to the
Borrower within seven Business Days after such Lender's
receipt of notice from the Administrative Agent of such
prepayment (and the Borrower shall not prepay any such Term A
Loans, Term B Loans, Term C Loans or Additional Loans until
such seventh Business Day or such time as the Borrower
receives notice from such Lender that it consents to such
prepayment, whichever is earlier), and
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(iii) the aggregate amount of any prepayment so
refused may be retained by the Borrower.
(c) Interest Periods. In lieu of making any payment pursuant
to clause (d) of Section 3.1.1 in respect of any LIBO Rate Loan other
than on the last day of the Interest Period therefor, so long as no
Default shall have occurred and be continuing, the Borrower at its
option may deposit with the Administrative Agent an amount equal to the
amount of the LIBO Rate Loan to be prepaid and such LIBO Rate Loan
shall be repaid on the last day of the Interest Period therefor in the
required amount (it being understood and agreed that such LIBO Rate
Loan shall not be considered repaid until such last day of such
Interest Period). Such deposit shall be held by the Administrative
Agent in a corporate time deposit account established on terms
reasonably satisfactory to the Administrative Agent, earning interest
(for the account of the Borrower) at the then customary rate for
accounts of such type. Such deposit shall cash collateralize the
Obligations, provided, however, that the Borrower may at any time
direct that such deposit be applied to make the applicable payment
required pursuant to Section 3.1.1, subject to the provisions of
Section 4.5.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Subject to the first sentence of Section 2.3.1
and clause (a) of Section 2.3.2 regarding telephonic notice, pursuant to an
appropriately delivered Borrowing Request or Continuation/Conversion Notice, the
Borrower may elect that Loans comprising a Borrowing accrue interest at a rate
per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin; provided, however, that all
Swing Line Loans shall always accrue interest at a rate per annum equal
to the higher of (x) the Alternate Base Rate (for Revolving Loans
maintained as Base Rate Loans) and (y) the sum of the Alternate Base
Rate (for Revolving Loans maintained as Base Rate Loans) plus the
Applicable Margin (for Revolving Loans maintained as Base Rate Loans)
minus the Applicable Commitment Fee; and
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the LIBO
Rate for such Interest Period plus the Applicable Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan or Reimbursement Obligation is due and payable (whether on its
Stated Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrower shall have become due and payable, the
Borrower shall pay, but only to the extent permitted by law, interest (after as
well as before the entry of judgment thereon) on such overdue amounts at a rate
per annum equal to the Alternate Base Rate from time to time in effect plus the
Applicable Margin plus a margin of 2%. Anything herein to the contrary
notwithstanding, the obligations of the Borrower to any Lender hereunder shall
be subject to the limitation that payments of interest shall not be required for
any period for which interest is computed hereunder, to the extent (but only to
the extent) that contracting for or receiving such payment by such Lender would
be
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contrary to the provisions of any law applicable to such Lender limiting the
highest rate of interest that may be lawfully contracted for, charged or
received by such Lender, and in such event the Borrower shall pay such Lender
interest at the highest rate permitted by applicable law.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment of Loans other
than Base Rate Loans, in whole or in part, of principal outstanding on
such Loan on the principal amount so paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the Closing Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on each date occurring at three-month intervals after the
first day of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been payable
pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on a Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period (including
any portion thereof when any of its Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Closing Date and continuing through the Revolving Loan Commitment Termination
Date, a commitment fee in an amount equal to the Applicable Commitment Fee, in
each case on such Lender's Percentage of the sum of the average daily unused
portion of the Revolving Loan Commitment Amount (net of Letter of Credit
Outstandings). All commitment fees payable pursuant to this Section shall be
calculated on a year comprised of 365 days or 366 days, as the case may be, and
payable by the Borrower in arrears on each Quarterly Payment Date, commencing
with the first Quarterly Payment Date following the Closing Date, and on the
Revolving Loan Commitment Termination Date. The making of Swing Line Loans shall
not constitute usage of the Revolving Loan Commitment with respect to the
calculation of commitment fees to be paid by the Borrower to the Lenders.
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SECTION 3.3.2. Arrangement and Agency Fees. The Borrower agrees to pay
to the Administrative Agent, for its own account and the account of each Agent
(as the case may be), the fees in the amounts and on the dates set forth in the
applicable Fee Letter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the Issuer and each other
Lender that has a Revolving Loan Commitment, a Letter of Credit fee in an amount
equal to
(a) with respect to each standby Letter of Credit, a rate per
annum equal to the then Applicable Margin for Revolving Loans
maintained as LIBO Rate Loans, minus 1/8 of 1% per annum, multiplied by
the Stated Amount of each such Letter of Credit; and
(b) with respect to each documentary Letter of Credit, 1/8 of
1% multiplied by the Stated Amount of each such Letter of Credit,
such fees being payable quarterly in arrears on each Quarterly Payment Date. The
Borrower further agrees to pay to the Issuer (x) quarterly in arrears payable on
each Quarterly Payment Date, an issuance fee as specified in the applicable Fee
Letter and (y) from time to time promptly after demand, the normal issuance,
presentation, amendment and other processing fees, and other standard
administrative costs and charges, of the Issuer relating to Letters of Credit as
from time to time in effect.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower absent demonstrable error) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any central bank or other Governmental Authority asserts that it is
unlawful, for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a LIBO Rate Loan, the obligations of such Lender to make,
continue or maintain or to convert any Loan into, a LIBO Rate Loan shall, upon
such determination, forthwith be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist (which notice the Administrative Agent shall give promptly upon the
applicable circumstances ceasing to exist), and all outstanding LIBO Rate Loans
of such Lender shall automatically convert into Base Rate Loans at the end of
the then current Interest Periods with respect thereto or sooner, if required by
such law or assertion. Each Lender agrees to promptly give notice to the
Administrative Agent and the Borrower when the circumstances causing such
suspension cease to exist.
SECTION 4.2. Deposits Unavailable. If the Required Lenders shall have
determined that (x) Dollar deposits in the relevant amount and for the relevant
Interest Period are neither available to such Required Lenders in the eurodollar
market nor available to them in their respective relevant markets, or (y) by
reason of circumstances arising on or after the Effective Date affecting the
eurodollar market, adequate means do not exist for ascertaining the interest
rate applicable hereunder to LIBO Rate Loans, then, upon notice from the
Administrative Agent to the Borrower and the Lenders, the obligations of all
Lenders under Sections 2.3 and 2.4 to make or continue any Loans as, or to
convert any Loans into, LIBO Rate Loans shall forthwith be suspended until the
Administrative Agent shall notify the Borrower and the
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Lenders that the circumstances causing such suspension no longer exist. Upon
receipt of notice from the Administrative Agent that the Required Lenders are
unable to determine the LIBO Rate, the Borrower may revoke any Borrowing Request
or Conversion/Continuation Notice then submitted by it. If the Borrower does not
revoke such Borrowing Request or Continuation/Conversion Notice, the Lenders
shall make, convert or continue the Loans, as proposed by the Borrower, in the
amount specified in the applicable notice submitted by the Borrower, but such
Loans shall be made, converted or continued as Base Rate Loans instead of LIBO
Rate Loans.
SECTION 4.3. Change of Circumstances. If, after the Effective Date, the
introduction of or any change in or in the interpretation of, or any change in
the application of, any law or any regulation (including Regulation D of the
Board) or guideline issued by any central bank or other Governmental Authority
(whether or not having the force of law), or by NAIC or any other comparable
agency charged with the interpretation or administration thereof or including
any reserve or special deposit requirement or any tax (other than Taxes covered
by Section 4.6 and taxes on a Lender's general income) or any capital
requirement, has, due to a Lender's compliance has the effect, directly or
indirectly, of (x) increasing the cost to such Lender of performing its
obligations hereunder (including the making, continuing or maintaining of any
Loans as or converting any Loans into, LIBO Rate Loans), (y) reducing any amount
received or receivable by such Lender hereunder or its effective return
hereunder or on its capital or (z) causing such Lender to make any payment or to
forego any return based on any amount received or receivable by such Lender
hereunder, then, upon demand of such Lender to the Borrower through the
Administrative Agent, accompanied by notice showing in reasonable detail the
basis for calculation of any such amounts, from time to time, the Borrower shall
be obligated to pay such amounts and shall compensate such Lender promptly after
receipt of such notice and demand for any such cost, reduction, payment or
foregone return. Any certificate of a Lender in respect of the foregoing will be
conclusive and binding upon the Borrower, except for clearly demonstrable error.
SECTION 4.4. Replacement of Lender. If (w) the Borrower receives notice
from any Lender requesting increased costs or additional amounts under Section
4.3 or 4.6, (x) any Lender is affected in the manner described in Section 4.1,
(y) a Lender becomes a Non-Performing Lender or a Defaulting Lender or (z) S&P
or Xxxxx'x, after the date that any Person becomes a Lender with a Revolving
Loan Commitment, downgrades the long-term certificate of deposit ratings of such
Lender, and the resulting rating is below BBB- or Baa3, respectively, or the
equivalent, then
(a) in each case, the Borrower shall have the right, so long
as no Event of Default shall have occurred and be continuing and
unless,
(i) in the case of item (w), such Lender has removed
or cured the conditions which resulted in the obligation to
pay such increased costs or additional amounts or agreed to
waive and otherwise forego any right it may have to any
payments provided for under Section 4.3 or 4.6 in respect of
such conditions, or
(ii) in the case of item (z), such Lender's rating is
upgraded by S&P or Xxxxx'x to a rating of at least BBB- or
Baa3, respectively, or the equivalent, and
(b) in the case of item (z), the Swing Line Lender and the
Issuer shall have the right (with the consent of the Borrower, which
consent shall not be unreasonably withheld) but not the obligation,
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to replace in its entirety such Lender (the "Replaced Lender"), upon prior
notice to the Administrative Agent and such Replaced Lender, with one or more
other Eligible Assignee(s) (collectively, the "Replacement Lender") reasonably
acceptable to the Administrative Agent and, in the case of item (w), (x) or (z)
and in the event the Replaced Lender is a Lender with a Revolving Loan
Commitment, the Swing Line Lender and the Issuer (which acceptance, in each
case, shall not be unreasonably withheld); provided, however, that, at the time
of any replacement pursuant to this Section, the Replaced Lender and the
Replacement Lender shall enter into (each Replaced Lender hereby unconditionally
agreeing to enter into) one or more Lender Assignment Agreements (appropriately
completed), pursuant to which (A) the Replacement Lender shall acquire all of
the Commitments and outstanding Revolving Loans and Term Loans of, and
participations in Swing Line Loans and Letter of Credit Outstandings of, the
Replaced Lender and, in connection therewith, shall pay (1) to the Replaced
Lender in respect thereof an amount equal to the sum of the principal of, and
all accrued but unpaid interest on, all outstanding Loans of the Replaced Lender
plus all accrued but theretofore unpaid fees owing to the Replaced Lender
pursuant to Section 3.3 and (2) to the Issuer, an amount equal to any portion of
the Replaced Lender's funding of an unpaid drawing under a Letter of Credit as
to which the Replaced Lender is then in default and (B) the Borrower shall pay
to the Replaced Lender any other amounts payable to the Replaced Lender under
this Agreement (including amounts payable under Sections 3.3.3, 4.1, 4.3, 4.5
and 4.6 which have accrued to the date of such replacement). Upon the execution
of the Lender Assignment Agreement(s), the payment of the amounts referred to in
the preceding sentence and, if so requested by the Replacement Lender in
accordance with clause (b) of Section 10.11.1, delivery to the Replacement
Lender of the applicable Notes executed by the Borrower, the Replacement Lender
shall automatically become a Lender hereunder and the Replaced Lender shall
cease to constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement, which shall survive as to such Replaced Lender.
It is understood and agreed that if any Replaced Lender shall fail to enter into
a Lender Assignment Agreement in accordance with the foregoing, it shall be
deemed to have entered into such a Lender Assignment Agreement.
SECTION 4.5. Funding Losses. In the event any Lender shall reasonably
incur any loss or expense (including any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to make, continue or maintain any portion of the principal amount of any
Loan as, or to convert any portion of the principal amount of any Loan into, a
LIBO Rate Loan) as a result of (w) any conversion or repayment or prepayment of
the principal amount of any LIBO Rate Loans on a date other than the scheduled
last day of the Interest Period applicable thereto, whether pursuant to Section
3.1 or otherwise, (x) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor, (y) any Loans not being made or continued
as, or continued into, LIBO Rate Loans as a result of a withdrawn or revoked
Borrowing Request or Continuation/Conversion Notice or for any other reason
(other than a default by any Lender or the Administrative Agent) or (z) any
Loans not being continued as, or converted into, LIBO Rate Loans in accordance
with the Continuation/ Conversion Notice therefor, then, upon the notice of such
Lender to the Borrower (with a copy to the Administrative Agent), the Borrower
shall, promptly after its receipt thereof, pay to the Administrative Agent for
the account of such Lender such amounts required to compensate such Lender for
any additional losses, costs or expenses that such Lender may reasonably incur
as a result of such payment, failure to convert or failure to continue,
including any loss, cost or expense (excluding, however, loss of anticipated
profits) actually incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such LIBO
Rate Loan. Such notice (which shall set forth in reasonable detail the basis for
requesting such amount and include calculations in reasonable detail in support
thereof) shall, in the absence of clearly demonstrable error, be conclusive and
binding on the Borrower.
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SECTION 4.6. Taxes. (a) Any and all payments by the Borrower to each
Lender and the Administrative Agent under this Agreement and any other Loan
Document shall be made free and clear of, and without deduction or withholding
for, any Taxes. In addition, the Borrower shall pay all Other Taxes to the
relevant taxing authority or other authority in accordance with applicable law.
(b) If the Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, then, (x) the sum payable shall be increased
as necessary so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums payable
under this Section), such Lender or the Administrative Agent, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions or withholdings been made, (y) the Borrower shall make such
deductions and withholdings and (z) the Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority or other authority in
accordance with applicable law and shall as promptly as possible thereafter send
to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original receipt (or other
written evidence) showing payment thereof.
(c) The Borrower agrees to indemnify and hold harmless each Lender and
the Administrative Agent for the full amount of Taxes and Other Taxes that are
payable by such Lender or the Administrative Agent and any penalties, interest,
additions to tax, expenses or other similar liabilities arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Payment under this indemnification shall be made within 45
days after the date such Lender or the Administrative Agent makes written demand
therefor.
(d) Each Lender that is not incorporated or organized in or under the
laws of the United States or a state thereof (a "Non-U.S. Lender") shall:
(i) deliver to the Borrower and the Administrative Agent,
prior to the first day on which the Borrower is required to make any
payments hereunder to such Lender, two copies of either United States
Internal Revenue Service Form 1001 or Form 4224 or, in the case of a
Non-U.S. Lender claiming exemption from U.S. Federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions thereof or
successors thereto (and, if such Non-U.S. Lender delivers a Form W-8, a
certificate representing that such Non-U.S. Lender (x) is not a bank
for purposes of Section 881(c) of the Code, is not subject to
regulatory or other legal requirements as a bank in any jurisdiction,
and has not been treated as a bank for purposes of any tax, securities
law or other filing or submission made to any Governmental Authority,
any application made to a rating agency or qualification for any
exemption from tax, securities law or other legal requirements, (y) is
not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and (z) is not a controlled
foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed
by such Non-U.S. Lender claiming complete exemption from, or a reduced
rate of, U.S. Federal withholding tax on payments by the Borrower under
this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form of certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
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(iii) obtain such extensions of time for filing and completing
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case any change in treaty, law or regulation has occurred
prior to the date on which any such delivery would otherwise be required that
renders any such form inapplicable or would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent. Each Non-U.S. Lender that
shall become a Participant pursuant to Section 10.11.2 or a Lender pursuant to
Section 10.11.1 shall, upon the effectiveness of the related transfer, be
required to provide all the forms and statements required pursuant to this
clause (d), provided, however, that in the case of a Participant such
Participant shall furnish all such required forms and statements to the Lender
from which the related participation shall have been purchased.
(e) The Borrower shall not be required to indemnify any Non-U.S. Lender
or the Administrative Agent, or to pay any additional amounts to such Non-U.S.
Lender or the Administrative Agent, in respect of U.S. Federal withholding tax
pursuant to clause (a) to the extent that (x) the obligation to withhold amounts
with respect to U.S. Federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement (or, in the case of a Non-U.S.
Participant, on the date such Participant became a Participant hereunder) or as
of the date such Non-U.S. Lender changes its applicable lending office
(provided, however, that this item (x) shall not apply to the extent that (1) in
the case of an assignee Lender or a Participant or a change in the Lender's
applicable lending office, the indemnity payments or additional amounts any
Lender (or Participant) would be entitled to receive (without regard to this
item (x)) do not exceed the indemnity payment or additional amounts that the
Person making the assignment, participation, transfer or change in lending
office would have been entitled to receive in the absence of such assignment,
participation, transfer or change in lending office, or (2) such assignment,
participation, transfer or change in lending office had been requested by the
Borrower), (y) the obligation to pay such additional amounts would not have
arisen but for a failure by such Non-U.S. Lender or Non-U.S. Participant to
comply with the provisions of clause (d) or (z) any of the representations or
certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to
clause (d) are incorrect at the time a payment hereunder is made, other than by
reason of any change in treaty, law or regulation having effect after the date
such representations or certifications were made.
(f) If the Borrower determines in good faith that a reasonable basis
exists for contesting any Taxes for which indemnification has been demanded
hereunder, the relevant Lender (to the extent such Lender reasonably determines
in good faith that it will not suffer any adverse effect as a result thereof) or
the Administrative Agent, as applicable, shall cooperate with the Borrower in
challenging such Taxes at the Borrower's expense if so requested by the Borrower
in writing. If any Lender or the Administrative Agent, as applicable, receives a
refund of a Tax for which a payment has been made by the Borrower pursuant to
this Agreement, which refund in the good faith judgment of such Lender or the
Administrative Agent, as the case may be, is attributable to the Borrower, then
such Lender or the Administrative Agent, as the case may be, shall reimburse the
Borrower for such amount as such Lender or the Administrative Agent, as the case
may be, determines to be the proportion of the refund as will leave it, after
such reimbursement, in no better or worse position than it would have been in if
the payment had not been required. Neither the Lenders nor the Administrative
Agent shall be obliged to disclose information regarding its tax affairs or
computations to the Borrower in connection with this clause (f) or any other
provision of this Section.
(g) Promptly after the date of any payment by the Borrower of Taxes or
Other Taxes, the Borrower shall furnish to each Lender and the Administrative
Agent the original or a certified copy of a
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receipt evidencing payment thereof, or other evidence of payment satisfactory to
such Lender or the Administrative Agent.
SECTION 4.7. Change of Lending Office. Each Lender agrees that, as
promptly as practicable after it becomes aware of the occurrence of an event or
the existence of a condition that would give rise to the operation of Section
4.1, 4.3 or clause (b) or (c) of Section 4.6 with respect to such Lender, it
will exercise commercially reasonable efforts to make, fund or maintain the
affected Loans of such Lender through another lending office and to take such
other actions as it deems appropriate to remove or lessen the impact of such
condition and if, as determined by such Lender in its sole discretion, the
making, funding or maintaining of such affected Loans through such other lending
office or the taking of such other actions would not otherwise adversely affect
such Loans or such Lender and would not, in such Lender's sole discretion, be
commercially unreasonable. Nothing in this Section 4.7 shall affect or postpone
any of the Obligations of the Borrower or the right of any Lender provided in
Section 4.1, 4.3 or clause (b) or (c) of Section 4.6.
SECTION 4.8. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement, the Notes,
each Letter of Credit or any other Loan Document shall be made by the Borrower
to the Administrative Agent for the pro rata account of the Lenders entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 1:00 p.m., New York City time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after 3:30
p.m., New York City time, on such due date shall be deemed to have been received
by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Lender its
share, if any, of such payments received by the Administrative Agent for the
account of such Lender. All computations of interest for LIBO Rate Loans and
Base Rate Loans (calculated at the Federal Funds Rate) shall be made on the
basis of a 360-day year and actual days elapsed. All other computations
(including for interest on Base Rate Loans (calculated at other than the Federal
Funds Rate) and fees) shall be made on the basis of a year or 365 or 366 days,
as the case may be, and actual days elapsed. Whenever any payment to be made
shall otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of "Interest
Period") be made on the next succeeding Business Day and such extension of time
shall be included in computing interest and fees, if any, in connection with
such payment.
SECTION 4.9. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligation (other
than pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in excess of its pro
rata share of payments then or therewith obtained by all Lenders, such Lender
shall purchase from the other Lenders such participations in Credit Extensions
made by them as shall be necessary to cause such purchasing Lender to share the
excess payment or other recovery ratably with each of them; provided, however,
that if all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded and each
Lender which has sold a participation to the purchasing Lender shall repay to
the purchasing Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Lender's ratable share (according
to a fraction having a numerator of (x) the amount of such selling Lender's
required repayment to the purchasing Lender and a denominator of (y) total
amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this
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Section may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 4.10) with respect to such participation
as fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section to share in the benefits
of any recovery on such secured claim.
SECTION 4.10. Setoff. Each Lender shall, upon the occurrence and during
the continuance of any Default described in clauses (a) through (d) of Section
8.1.9 or, with the consent of the Required Lenders, upon the occurrence and
during the continuance of any other Event of Default, without prior notice to
the Borrower (any such notice being waived by the Borrower to the fullest extent
permitted by law), have the right to appropriate and apply to the payment of the
Obligations then due and payable to it, any and all balances, credits, deposits,
accounts or moneys of the Borrower then or thereafter maintained with such
Lender; provided, however, that any such appropriation and application shall be
subject to the provisions of Section 4.9. Each Lender agrees promptly to notify
the Borrower and the Administrative Agent after any such setoff and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Lender may have.
SECTION 4.11. Notice of Certain Costs. Notwithstanding anything in this
Agreement to the contrary, to the extent any notice required by Section 4.1, 4.3
or 4.6 is given by any Lender more than 180 days after such Lender has knowledge
of the occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such Sections, such
Lender shall not be entitled to compensation under Section 4.1, 4.3 or 4.6, as
the case may be, for any such amounts incurred or accruing more than 180 days
prior to the giving of such notice to the Borrower.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extensions. The obligations of the Lenders
and, if applicable, the Issuer, to fund the initial Credit Extensions shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from each Obligor, as applicable,
(a) good standing certificates for each Obligor from the
Secretary of State (or similar, applicable Governmental Authority) of
such Obligor's state of incorporation; and
(b) a certificate, dated the Closing Date and with
counterparts for each Agent and copies for each Lender, duly executed
and delivered by such Obligor's Secretary or Assistant Secretary, as to
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(i) resolutions of each such Obligor's Board of
Directors then in full force and effect authorizing, to the
extent relevant, the execution, delivery and performance of
this Agreement, the Notes, each other Loan Document to be
executed by such Obligor and the Transaction;
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to this Agreement, the
Notes and each other Loan Document to be executed by such
Obligor; and
(iii) each Organizational Document of such Obligor,
upon which certificates each Agent and each Lender may conclusively
rely until it shall have received a further certificate of the
Secretary or Assistant Secretary of any such Obligor canceling or
amending the prior certificate of such Obligor.
SECTION 5.1.2. Pledge Agreement. The Administrative Agent shall have
received, with counterparts for each Lender,
(a) the Pledge Agreement, dated the Closing Date, duly
executed and delivered by an Authorized Officer of Surviving Regal,
together with certificates evidencing all of the issued and outstanding
shares of Capital Stock pledged pursuant to the Pledge Agreement (which
shall include all of the issued and outstanding shares of Capital Stock
of each direct Domestic Restricted Subsidiary (other than Xxxxx-Regal)
and 65% of the issued and outstanding shares of Capital Stock of each
direct Foreign Subsidiary that is also a Material Restricted
Subsidiary, if any, all as such direct Domestic Subsidiaries and direct
Foreign Subsidiaries which are also Material Restricted Subsidiaries
are listed on Schedule I to the Pledge Agreement), which certificates
shall in each case be accompanied by undated stock powers duly executed
in blank, or, if any securities subject thereto are uncertificated
securities, confirmation and evidence satisfactory to the Agents that
the control of such uncertificated securities has been transferred to,
and the security interest therein has been perfected by, the
Administrative Agent for the benefit of the Lenders in accordance with
Section 9-115 of the Uniform Commercial Code, as in effect in the State
of New York, and all laws otherwise applicable to the perfection of the
pledge of such shares; and
(b) the Agents and their counsel shall be satisfied that
(i) the Lien granted to the Administrative Agent,
for the benefit of the Agents, the Issuers and the Lenders, in
the collateral described in clause (a) is a first priority
security interest; and
(ii) no Lien exists on any of the collateral
described clause (a) other than the Lien created in favor of
the Administrative Agent, for the benefit of the Agents, the
Issuers and the Lenders, pursuant to the Pledge Agreement.
SECTION 5.1.3. Guaranty. The Administrative Agent shall have received,
with counterparts for each Lender, a Guaranty, dated the Closing Date, duly
executed and delivered by an Authorized Officer of each direct and indirect
Domestic Restricted Subsidiary (other than Xxxxx-Regal).
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SECTION 5.1.4. No Material Adverse Change. Except as may be disclosed
by the financial statements referred to in clause (b) of Section 6.5., no
material adverse change has occurred since January 2, 1998 with respect to the
business, assets, operations, results of operations, properties, condition
(financial or otherwise) or prospects of Old Regal and its Subsidiaries, taken
as a whole.
SECTION 5.1.5. Approvals. All necessary material governmental and
third-party Approvals in connection with the Merger and the other transactions
contemplated by the Merger Agreement and the execution, delivery and performance
of this Agreement and the other Loan Documents shall have been duly obtained and
all applicable waiting periods shall have expired without, in all such cases,
any action being taken by any competent authority that restrains, prevents or
imposes materially adverse conditions or material increased costs upon the
consummation of the Merger or the Transaction.
SECTION 5.1.6. Litigation. Neither the Borrower nor any Subsidiary
shall be subject to any material litigation, governmental or administrative
proceeding that would reasonably be expected to have a material adverse effect
on the business, assets, operations, properties, financial condition or
prospects of the Borrower and Subsidiaries, taken as whole, or on the ability of
the parties to consummate the Merger and the Transaction.
SECTION 5.1.7. Sponsor Fund Contributions. Each Merger Subsidiary shall
have received its Sponsor Fund Contribution in the amount referred to in clause
(a) of the second recital from its respective Sponsor or its Affiliates in cash
in immediately available funds.
SECTION 5.1.8. Additional Equity. The KKR Merger Subsidiary shall have
received net cash proceeds of at least approximately $50,000,000 constituting
the Additional Equity.
SECTION 5.1.9. Consummation of Merger. Currently with the initial
funding hereunder, pursuant to the Merger Agreement (which shall not have been
amended nor shall any provision thereof have been waived by any party thereto,
in each case unless such amendment or waiver is not adverse in any material
respect to the interests of the Lenders)
(a) a majority of the stockholders of Old Regal entitled to
vote at the Special Meeting (as defined in the Proxy Statement) shall
have approved the Merger in accordance with the Tennessee Business
Corporation Act (which approval shall not have been rescinded or
withdrawn);
(b) the Merger (and the other transactions contemplated by the
Merger Agreement) shall have been consummated in accordance with
applicable law and pursuant to the Merger Agreement;
(c) the Sponsors and their Affiliates shall have received
pursuant to the Merger, Surviving Regal Preferred Shares and Surviving
Regal Common Shares in the aggregate sufficient that the Sponsors and
their Affiliates shall own in the aggregate approximately 93.2% of the
Surviving Regal Preferred Shares and Surviving Regal Common Shares
issued and outstanding after giving effect to the Transaction;
(d) the Merger Consideration shall have been transferred to
the paying agent appointed pursuant to the Merger Agreement (the
"Exchange Agent") to be paid as the Merger Consideration for the Old
Regal Shares (the "Exchange Fund"); and
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(e) the Additional Investor shall have received, pursuant to
the Merger, Surviving Regal Preferred Shares and Surviving Regal Common
Shares.
SECTION 5.1.10. Issuance of 9 1/2% Subordinated Notes. Surviving Regal
shall have (w) duly authorized, executed and delivered the 9 1/2% Subordinated
Note Indenture in substantially the form of the draft thereof dated May 26, 1998
furnished to the Lenders in connection with the execution and delivery of this
Agreement, (x) issued pursuant thereto to the initial purchasers at 99.831% of
par 9 1/2% Subordinated Notes in an aggregate original principal amount of at
least $400,000,000, (y) received from the initial purchasers thereof net
proceeds of at least $399,324,000 in immediately available funds and (z)
delivered to the Administrative Agent true and correct copies of certificates,
documents, agreements, consents and opinion letters furnished pursuant to or in
connection therewith, the terms and conditions of which shall be consistent with
the 9 1/2% Subordinated Note Offering Memorandum.
SECTION 5.1.11. Offer to Purchase, etc. Pursuant to the Offer to
Purchase, Surviving Regal shall have (x) purchased at least $120,000,000
aggregate outstanding principal amount of the Old Regal 8 1/2% Subordinated
Notes and (y) entered into with the trustee under the Old Regal 8 1/2%
Subordinated Note Indenture a supplemental indenture substantially as described
in the Offer to Purchase or otherwise satisfactory as to terms material to the
Lenders in form and substance to the Agents.
SECTION 5.1.12. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.1(b) ("Indebtedness to be Paid") of the
Disclosure Schedule, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, shall have been paid in full
from or, as the case may be, defeased with the proceeds of the initial Credit
Extensions and the commitments in respect of such Indebtedness shall have been
terminated, and all Liens securing payment of any such Indebtedness have been
released and the Administrative Agent shall have received all Uniform Commercial
Code Form UCC-3 termination statements or other instruments as may be suitable
or appropriate in connection therewith.
SECTION 5.1.13. Total Equity Capitalization, etc. After giving effect
to the Merger and the Transaction,
(a) the total equity capitalization of the Borrower (including
the Sponsor Fund Contributions, the Additional Equity and the
Management Roll-Over) shall be at least $790,000,000;
(b) the Borrower and Subsidiaries shall have outstanding no
Indebtedness other than (w) Indebtedness under this Agreement, (x) Old
Regal 8 1/2% Subordinated Notes in an aggregate outstanding principal
amount not to exceed $1,000,000, (y) the 9 1/2% Subordinated Notes and
(z) other Indebtedness existing on the Closing Date and permitted to be
outstanding Section 7.2.1 (other than clauses (g), (h), (k) and (n));
and
(c) the Pro Forma Balance Sheet shall be accurate and complete
in all material respects.
SECTION 5.1.14. Solvency. The Administrative Agent shall have received,
with counterparts for each Lender, a letter, dated the Closing Date, from
Houlihan, Lokey, Xxxxxx & Zukin as to the solvency of Surviving Regal and
Subsidiaries, taken as a whole after giving effect to the Merger and the
Transaction in the form of Exhibit G hereto.
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SECTION 5.1.15. Closing Date Certificate. The Administrative Agent
shall have received, with copies for each Lender, the Closing Date Certificate,
dated the Closing Date, duly executed and delivered by an Authorized Officer of
Surviving Regal, in which certificate Regal shall agree and acknowledge that the
statements made therein shall be deemed to be true and correct representations
and warranties in all material respects of the Borrower made as of the Closing
Date and under this Agreement, and, at the time such certificate is delivered,
such statements shall in fact be true and correct in all material respects. All
documents and agreements required to be appended to the Closing Date Certificate
(which shall include true and complete, as certified in such certificate, copies
of the Merger Agreement, the Offer to Purchase, the Proxy Statement, the
Syndication Memorandum, the 9 1/2% Subordinated Note Offering Memorandum, the 9
1/2% Subordinated Note Indenture and any tax sharing agreement) shall be in form
and substance reasonably satisfactory to each Agent and such certificate shall
specify that none of such documents or agreements have been modified except as
set forth in such certificate.
SECTION 5.1.16. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the date of the initial Credit Extensions and
addressed to each Agent, each Lender and the Issuer, from
(a) Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the
Obligors, substantially in the form of Exhibit J-1 hereto; and
(b) Xxxxxx, Xxxxx and Xxxxxx, P.C., counsel to the Borrower
and each of the other Obligors, substantially in the form of Exhibit
J-2 hereto.
SECTION 5.1.17. Closing Fees, Expenses, etc. The Administrative Agent
shall have received evidence of payment by the Borrower of (x) all accrued and
unpaid fees, costs and expenses to the extent then due and payable under this
Agreement or the Fee Letters and (y) all reasonable and documented legal costs
and expenses of the Agents to the extent then or theretofore invoiced prior to
the Closing Date, including any such fees, costs and expenses arising under or
referenced in Sections 3.3 and 10.3.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and
the Issuer to make any Credit Extension (including the initial Credit
Extensions) shall be subject to Sections 2.1.4 and 2.1.5 and the satisfaction of
each of the conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension:
(a) the representations and warranties set forth in Article VI
and in each other Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. Subject to Sections
2.3.1, 2.3.2 and 2.6.2, the Administrative Agent shall have received a Borrowing
Request if Loans are being requested, or an Issuance Request if a Letter of
Credit is being requested or extended. Each of the delivery of a Borrowing
Request or Issuance Request, the giving of telephonic notice pursuant to
Sections 2.3.1 and 2.3.2 and the deemed making of a request for a Swing Line
Loan as set forth in Section 2.6.2 and the acceptance by the
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Borrower of the proceeds of such Credit Extension shall constitute a
representation and warranty by the Borrower that on the date of such Credit
Extension (both immediately before and after giving effect to such Credit
Extension and the application of the proceeds thereof) the statements made in
Section 5.2.1 are true and correct in all material respects.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and each Agent to enter into
this Agreement and to make Credit Extensions hereunder, the Borrower represents
and warrants unto each Agent, the Issuer and each Lender as set forth in this
Article VI.
SECTION 6.1. Organization, etc. Each Obligor:
(a) is a corporation or limited partnership validly organized
and existing and in good standing under the laws of the state or
jurisdiction of its incorporation or organization;
(b) is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction where the nature of its
business requires such qualification; and
(c) has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and
perform its Obligations under this Agreement, the Notes and each other
Loan Document to which it is a party and to own and hold under lease
its property and to conduct its business substantially as currently
conducted by it,
except with respect to each Material Restricted Subsidiary and each other
Obligor other than the Borrower, and, in the case of clause (b), with respect to
the Borrower and each Material Restricted Subsidiary and each other Obligor, to
the extent that the failure of which could not reasonably be expected to have a
Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, the execution, delivery
and performance by each other Obligor of each Loan Document executed or to be
executed by it, the granting of the Liens contemplated by the Pledge Agreement,
the consummation of the Merger and the Transaction, and the Borrower's, each
Material Restricted Subsidiary's and each other Obligor's participation in the
consummation of all aspects of the Transaction, are in each case within each
such Person's corporate or partnership powers, have been duly authorized by all
necessary corporate or partnership action, and do not
(a) contravene any such Person's Organizational Documents;
(b) contravene any material Contractual Undertaking binding
on or affecting any such Person or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default
under the terms of any material Contractual Undertaking to which the
Borrower or any of the Restricted Subsidiaries is a party or by which
it or any of its property or assets is bound;
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(c) contravene any material Applicable Law; or
(d) result in, or require the creation or imposition of, any
Lien on any of such Person's material properties (except as permitted
by this Agreement).
SECTION 6.3. Government Approval, Regulation, etc. No Approval by any
Governmental Authority and no authorization, approval or other action by, or
notice or other filing with, any other Person (other than those that have been,
or on the Closing Date will be, duly obtained or made and which are, or on the
Closing Date will be, in full force and effect and other than those, singly or
in the aggregate, with respect to which the failure to obtain or make could not
reasonably be expected to have a Material Adverse Effect) is necessary or
required for the consummation of the Transaction or the due execution, delivery
or performance by, or enforcement against, the Borrower or any other Obligor of
this Agreement, the Notes or any other Loan Document to which it is a party or
the granting of the Liens contemplated by the Pledge Agreement or as of the
Closing Date, the consummation of the Transaction. Neither the Borrower nor any
other Obligor nor any Subsidiary is an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document, executed by the Borrower will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
their respective terms; and each other Loan Document executed pursuant hereto by
each other Obligor will, on the due execution and delivery thereof by such
Obligor, constitute the legal, valid and binding obligation of such Obligor
enforceable against such Obligor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by
principles of equity.
SECTION 6.5. Financial Information. The following financial information
previously furnished by or on behalf of the Borrower to the Administrative
Agent, the Issuer and the Lenders:
(a) the audited consolidated balance sheets as of January 2,
1997 and January 1, 1998, and the consolidated statements of income,
changes in shareholders' equity and cash flows for each of the three
Fiscal Years in the period ended January 1, 1998, certified by Coopers
& Xxxxxxx,
(b) the summary unaudited consolidated financial data for each
of the five Fiscal Years in the period ended January 1, 1998 and for
1997 FQ 1 and 1998 FQ 1 set forth in the 9 1/2% Subordinated Note
Offering Memorandum,
(c) the unaudited pro forma consolidated balance sheet of
Surviving Regal and its Subsidiaries as of April 2, 1998, assuming that
the Merger and the Transaction had occurred on such date (the "Pro
Forma Balance Sheet"), set forth in the 9 1/2% Subordinated Note
Offering Memorandum, and
(d) the unaudited pro forma consolidated statement of
operations of Surviving Regal and its Subsidiaries for the 1997 FQ 1,
the 1998 FQ 1 and for the Fiscal Year ended January 1, 1998, and the
summary unaudited pro forma financial data of Surviving Regal and its
Subsidiaries for the Fiscal Year ending January 1, 1998, for 1997 FQ 1
and 1998 FQ 1 and for the 12 month period ending April 2, 1998, all
assuming that the Merger and the Transaction had occurred on January 3,
1997 and as set forth in the 9 1/2% Subordinated Note Offering
Memorandum,
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have been prepared (to the extent GAAP may be applied to such preparation) in
accordance with GAAP consistently applied, except as otherwise expressly noted
therein and subject to normal year-end audit adjustments, and present fairly in
all material respects (subject, however, in the case of pro forma financial
information specified therein, including as to the occurrence of the Merger and
the Transaction at an earlier date) the consolidated financial condition of the
Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended. All balance sheets, all statements of
operations, shareholders' equity, earnings and cash flow and all other financial
information of each of the Borrower and Subsidiaries furnished pursuant to
Section 7.1.1 will for periods following the Closing Date be prepared in
accordance with GAAP consistently applied, except as otherwise expressly noted
therein and subject to normal year-end audit adjustments, and do or will present
fairly in all material respects the consolidated financial condition of the
Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended.
SECTION 6.6. No Material Adverse Change. Except as may be disclosed in
the financial statements referred to in clause (a) of Section 6.5 or in the
Syndication Memorandum, there has been no Material Adverse Change since January
2, 1998.
SECTION 6.7. Litigation, etc. There is no pending or, to the knowledge
of the Borrower, threatened litigation, action or proceeding affecting the
Borrower or any Subsidiary which could reasonably be expected to have a Material
Adverse Effect, except as disclosed in Item 6.7 ("Litigation") of the Disclosure
Schedule.
SECTION 6.8. Subsidiaries. On the Closing Date, the Borrower will have
no Subsidiaries, except those Subsidiaries which are identified in Item 6.8
("Existing Subsidiaries") of the Disclosure Schedule (and each Material
Restricted Subsidiary as of the Closing Date has been so designated therein).
SECTION 6.9. Ownership of Properties. The Borrower and each Material
Restricted Subsidiary has good title to, or leasehold interests in, all of its
properties that are necessary for the operation of their respective businesses
as currently conducted and proposed to be conducted, free and clear of all Liens
or claims, except (x) for Liens permitted pursuant to Section 7.2.2 and (y)
where the failure to have such good title or leasehold interests could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each of the Borrower and Material Restricted Subsidiaries owns
or are licensed or otherwise have the right to use all of the trademarks,
copyrights, patents, licenses and other rights that are reasonably necessary for
the operation of each of their respective businesses, without, to the knowledge
of the Borrower, conflict with the rights of any other Person and free of
burdensome restrictions, except where the failure to have any such rights could
not reasonably be expected to have a Material Adverse Effect.
SECTION 6.10. Taxes. The Borrower, the Restricted Subsidiaries and all
other Persons with whom the Borrower or any Restricted Subsidiary joins in the
filing of a consolidated tax return have filed all Federal income tax returns
and other material tax returns and reports, domestic and foreign, required by
Applicable Law to have been filed, and have paid all material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable except those not
yet delinquent, those which are being contested in good faith or those for which
the unpaid amount, in the aggregate, is not significant. The Borrower, each
Restricted Subsidiary and each such other Person with whom the Borrower or any
Restricted Subsidiary joins in the filing of a consolidated tax return have
paid, or have provided adequate reserves (in the good faith judgement of the
management of the Borrower) in accordance with GAAP for the payment of all such
material taxes,
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assessments, fees and charges relating to all prior taxable years and the
current taxable year of the Borrower, each Restricted Subsidiary and each such
other Person with whom the Borrower or any Restricted Subsidiary joins in the
filing of a consolidated tax return. To the best knowledge of the Borrower,
there is no proposed tax assessment against the Borrower or any Subsidiary or
any such other Person with whom the Borrower or any Subsidiary joins in the
filing of a consolidated tax return that could reasonably be expected to have a
Material Adverse Effect.
SECTION 6.11. ERISA Compliance. Except as specifically disclosed in
Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule:
(a) Each Plan is in compliance in all material respects with
the terms thereof and the applicable provisions of ERISA, the Code and
other federal or state law except to the extent that failure to comply
would not result, individually or in the aggregate, in an amount of
liability that could reasonably be expected to have a Material Adverse
Effect. The Borrower and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, except to
the extent that a failure to do so could not reasonably be expected to
have a Material Adverse Effect, and no application for a funding waiver
or an extension of any amortization period pursuant to Section 412 of
the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of
Borrower, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Pension Plan which has
resulted or could reasonably be expected to result in a Material
Adverse Effect.
(c) (x) No ERISA Event has occurred or is reasonably expected
to occur; and (y) neither the Borrower nor any ERISA Affiliate has
engaged in a transaction that could reasonably be expected to be
subject to Section 4069 or 4212(c) of ERISA and could reasonably be
expected to have a Material Adverse Effect.
SECTION 6.12. Compliance with Environmental Laws. The Borrower and each
Subsidiary is in compliance with all applicable Environmental Laws in respect of
the conduct of its business and the ownership of its property, except such
noncompliance as could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect. Without limiting the effect of the preceding sentence:
(a) neither the Borrower nor any Subsidiary has received a
complaint, order, citation, notice or other written communication with
respect to the existence or alleged existence of a violation of, or
liability arising under, any Environmental Law, the outcome of which,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect;
(b) to the best of the Borrower's knowledge, after due
inquiry, there are no environmental, health or safety conditions
existing or reasonably expected to exist at any real property owned,
operated, leased or used by the Borrower or any existing or former
Subsidiary including off-site treatment or disposal facilities used by
the Borrower or its existing or former Subsidiaries or any of their
respective predecessors, for wastes treatment or disposal, which could
reasonably be expected to require any construction or other capital
costs or clean-up obligations to be incurred prior to the Stated
Maturity Date for all Term C Loans in order to assure compliance with
any Environmental Law, including provisions regarding clean-up, to the
extent that any of such conditions, construction or other capital costs
or clean-up obligations, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect; and
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(c) neither the Borrower nor any current or former Subsidiary
has treated, stored, transported or disposed of Hazardous Materials at
or from any currently or formerly owned Real Estate or facility in a
manner that could reasonably be expected to have a Material Adverse
Effect.
SECTION 6.13. Regulations U and X. Neither the Borrower nor any
Subsidiary is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no use of any proceeds of any Credit
Extensions will violate F.R.S. Board Regulation U or X. Terms for which meanings
are provided in F.R.S. Board Regulation U or X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with such
meanings.
SECTION 6.14. Year 2000 Compliance. The Borrower does not believe that
the risk that the computer applications of the Borrower and its Subsidiaries may
not be able to perform properly date sensitive functions after December 31, 1999
could reasonably be expected to cause a Material Adverse Effect.
SECTION 6.15. Accuracy of Information. (a) All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
the Borrower or any Subsidiary in writing to any Agent, the Issuer or any Lender
on or before the Closing Date (including (v) the Offer to Purchase, (w) the
Proxy Statement, (x) the Syndication Memorandum, (y) the 9 1/2% Subordinated
Note Offering Memorandum and (z) all information contained in the Loan
Documents) for purposes of or in connection with this Agreement or Transaction
is true and complete in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
material fact necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which such
information was provided, it being understood and agreed that for purposes of
this clause (a), such factual information shall not include projections and pro
forma financial information.
(b) The projections contained in the factual information referred to in
clause (a) were or are based on good faith estimates and assumptions believed to
be reasonable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
significantly from the projected results.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with each
Agent, the Issuer and each Lender that, until all Commitments have terminated,
all Letters of Credit have terminated or expired and all Obligations have been
paid and performed in full, the Borrower will perform or cause to be performed
the obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish, or will cause to be furnished to the Administrative Agent
for distribution to each Lender and the Issuer copies of the following financial
statements, reports, notices and information:
(a) as soon as available and in any event within 60 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
(commencing on the last day of 1998 FQ 3), unaudited
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consolidated balance sheets of the Borrower and Restricted Subsidiaries
and, to the extent available, unaudited consolidated balance sheets of
the Borrower and Subsidiaries, in each case as of the end of such
Fiscal Quarter and unaudited consolidated statements of earnings and
cash flow of the Borrower and Restricted Subsidiaries and, to the
extent available, unaudited consolidated statements of earnings and
cash flow of the Borrower and Subsidiaries, in each case for such
Fiscal Quarter and for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter, certified
by a Responsible Officer of the Borrower as fairly presenting in all
material respects, in accordance with GAAP (subject to year-end audit
adjustments), the financial position and results of operations of the
Borrower and Subsidiaries covered thereby as of the date thereof;
(b) as soon as available and in any event within (x) 90 days
after the end of Fiscal Year 1998 and (y) 120 days after the end of
each Fiscal Year other than Fiscal Year 1998, a copy of the annual
audited financial statements for such Fiscal Year for the Borrower and
Restricted Subsidiaries, including therein consolidated balance sheets
of the Borrower and Restricted Subsidiaries as of the end of such
Fiscal Year and consolidated statements of earnings and cash flow of
the Borrower and Restricted Subsidiaries for such Fiscal Year, in each
case as audited (without any Impermissible Qualification) by a
nationally recognized independent public accounting firm, together in
any event with a certificate of such accounting firm stating that in
the course of its regular audit of the business of the Borrower and
Restricted Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm has
obtained no knowledge of any Default or Event of Default relating to
clause (a) or (b) of Section 7.2.3 that has occurred and is continuing
or, if in the opinion of such accounting firm such a Default or Event
of Default has occurred and is continuing, a statement as to the nature
thereof;
(c) within 45 days following the end of any 1998 FQ, a
Compliance Certificate, executed by a Responsible Officer of the
Borrower, showing in reasonable detail, including with respect to
appropriate calculations and computations, the Total Leverage Ratio for
the purpose of determining the Applicable Commitment Fee and the
Applicable Margin for each Loan, and concurrently with the financial
information delivered pursuant to clause (a) or (b),
(i) a Compliance Certificate, executed by a
Responsible Officer of the Borrower, showing in reasonable
detail, including with respect to appropriate calculations and
computations, (w) pro forma calculations showing the effect of
Permitted Acquisitions proposed to be made during the
succeeding Fiscal Quarter, (x) the identity of all Permitted
Ongoing Reinvestment Projects which shall have been publicly
announced or disclosed or as to which permitting or
construction activity shall have commenced during the prior
Fiscal Quarter, (y) compliance with the financial covenants
set forth in Section 7.2.3 and (z) the Total Leverage Ratio
for the purpose of determining the Applicable Commitment Fee
and the Applicable Margin for each Loan, and
(ii) financial statements prepared on a pro forma
basis (x) assuming each Permitted Acquisition consummated
during the Test Period relating to the financial statements
then being delivered pursuant to clause (a) or (b) had been
consummated on the first day of such Test Period and (y)
otherwise consistent with the proviso to the definition of the
term "Adjusted EBITDA", together with a pro forma Compliance
Certificate based thereon executed by the chief executive,
financial or accounting Authorized Officer of the Borrower;
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(d) promptly after any Responsible Officer of the Borrower or
any Restricted Subsidiary obtains knowledge of the occurrence of a
Default (including any default, or event which after notice or lapse of
time or both would constitute a default, under any Subordinated Debt),
a statement of a Responsible Officer of the Borrower setting forth
details of such Default and the action which the Borrower has taken and
proposes to take with respect thereto;
(e) promptly after any Responsible Officer of the Borrower or
any Restricted Subsidiary obtains knowledge of (x) the occurrence of
any material adverse development with respect to any litigation,
action, proceeding or labor controversy or (y) the commencement of any
litigation, action, proceeding or labor controversy, in each case to
the extent the same, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, notice thereof;
(f) promptly after any receipt of any notice of acceleration,
redemption or purchase demands or other similar notices provided by the
holder of or the trustee for the 9 1/2% Subordinated Notes or any other
Subordinated Debt, notice thereof and copies of all documentation
relating thereto;
(g) promptly upon filing thereof, copies of any reports filed
on Forms 10-K, 10-Q, and 8-K, effective registration statements filed
on Forms X-0, X-0, X-0 and S-4, and any proxy statements, as well as
any substitute or similar documents to substantially the same effect as
the foregoing, including, to the extent requested by the Administrative
Agent, the schedules and exhibits thereto, in such each case as filed
with the SEC by the Borrower or any Restricted Subsidiary (other than
immaterial amendments to any such registration statement);
(h) promptly after transmission thereof, copies of any notices
of reports that the Borrower or any Subsidiary shall send to the
holders of any publicly issued debt of the Borrower (including any
Subordinated Debt) or any Subsidiary in their capacity as such holders
(in each case to the extent not theretofore delivered to the
Administrative Agent or the Lenders pursuant to this Agreement);
(i) promptly after a Responsible Officer of the Borrower or
any Restricted Subsidiary obtains knowledge of the occurrence of any
ERISA Event (but in no event, in the case of an ERISA Event described
in clause (u) of the definition of "ERISA Event", more than 10 days,
and in the case of any other ERISA Event, 30 days after such
Responsible Officer obtains knowledge of such ERISA Event), notice
thereof together with a copy of any notice with respect to such event
that is filed with a Governmental Authority and any notice delivered by
a Governmental Authority to the Borrower or any ERISA Affiliate with
respect to such event;
(j) promptly when available and in any event within 60
Business Days after the end of each Fiscal Year (ending after the
Closing Date), a budget for the then current Fiscal Year as customarily
prepared by the management of the Borrower for its internal use, which
budget shall be prepared on a Fiscal Quarter basis and shall set forth
the principal assumptions on which such budget is based;
(k) promptly after obtaining knowledge of any one or more of
the following environmental matters, unless such environmental matters
would not, individually or when aggregated with all other such matters,
be reasonably expected to result in a Material Adverse Effect, notice
of:
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(i) any pending or threatened Environmental Claim
against the Borrower or any Subsidiary or any Real Estate,
(ii) any condition or occurrence on any Real Estate
that (x) results in noncompliance by the Borrower or any
Subsidiary with any applicable Environmental Law or (y) could
reasonably be anticipated to form the basis of an
Environmental Claim against the Borrower or any Subsidiary or
any Real Estate,
(iii) any condition or occurrence on any Real Estate
that could reasonably be anticipated to cause such Real Estate
to be subject to any restrictions on the ownership, occupancy,
use or transferability of such Real Estate under any
Environmental Law, and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any Real Estate,
all such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the Borrower's response thereto; and
(l) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any Subsidiary
as any Agent, or the Required Lenders through the Administrative Agent,
may from time to time reasonably request in writing.
SECTION 7.1.2. Preservation of Corporate Existence, etc. The Borrower
will, and will cause each Restricted Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate or partnership existence under the laws of its state or
jurisdiction of incorporation or organization (provided, however, that
the Borrower and Restricted Subsidiaries may consummate any transaction
permitted under Section 7.2.6), except, in the case of any such
Restricted Subsidiary, to the extent that the failure to do so could
not reasonably be expected to have a Material Adverse Effect; and
(b) preserve and maintain in full force and effect its good
standing under the laws of its state or jurisdiction of incorporation
or organization and all material governmental rights, privileges,
qualification, permits, licenses and franchises necessary in the normal
conduct of its business except in each case to the extent that the
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
SECTION 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each Restricted Subsidiary to, ensure that its properties and equipment
used or useful in its business, in whomsoever's possession they may be to the
extent that it is within the Borrower's or such Restricted Subsidiary's control
to cause same, are kept in good repair, working order and condition, normal wear
and tear excepted, and that from time to time there are made in such properties
and equipment all needful and proper repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto, to the extent and
in the manner customary for companies in similar businesses and consistent with
third-party leases, except in each case to the extent the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
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SECTION 7.1.4. Payment of Taxes. The Borrower will, and will cause each
Subsidiary to, pay and discharge all material taxes, assessments and
governmental charges or levies upon it or upon its income or profits, or upon
any properties belonging to it, prior to the date on which material penalties
attach thereto, and all lawful material claims that, if unpaid, could reasonably
be expected to become a material Lien upon any properties of the Borrower or any
Restricted Subsidiary; provided, however, that neither the Borrower nor any
Subsidiary shall be required hereunder to pay any such tax, assessment, charge,
levy or claim that is being contested in good faith if it has maintained
adequate reserves (in the good faith judgment of the management of the Borrower
or such Subsidiary) with respect thereto in accordance with GAAP.
SECTION 7.1.5. Compliance with Statutes, etc. The Borrower will, and
will cause each Subsidiary to comply, in all material respects, with all
Applicable Laws (including Environmental Laws) having jurisdiction over it or
its business, except such as may be contested in good faith or as to which a
bona fide dispute may exist or except to the extent that the failure to so
comply could not reasonably be expected to have a Material Adverse Effect.
SECTION 7.1.6. Insurance. The Borrower shall, and shall cause each
Restricted Subsidiary to, at all times maintain in full force and effect, with
insurance companies which the Borrower believes (in the good faith judgment of
the management of the Borrower) are financially sound and responsible at the
time the relevant coverage is placed or renewed, insurance with respect to its
properties and business (including business interruption insurance) against such
casualties and contingencies and of such types and in such amounts, and with
such deductibles, retentions, self-insured amounts and reinsurance provisions,
as are customarily maintained by companies engaged in the same or similar
businesses and will, upon request of the Administrative Agent, furnish to each
Lender information presented in reasonable detail as to the insurance maintained
by the Borrower and Restricted Subsidiaries.
SECTION 7.1.7. Inspection Of Property and Books and Records. The
Borrower will, and will cause each Restricted Subsidiary to, permit officers and
designated representatives of the Agents or the Required Lenders, upon
reasonable advance notice and at reasonable times and intervals, to visit and
inspect any of its properties or its assets, to discuss its financial matters
with its officers and independent public accountant and to examine (and, at the
expense of the Borrower, photocopy extracts from) any of its books or other
corporate records, provided, that, the Borrower shall be given reasonable prior
notice of any such contact with such officers or accountants and shall have the
right (which, if not exercised, does not otherwise affect the obligations
hereunder) to participate in such discussions. The Borrower shall pay any fees
of such independent public accountant incurred in connection with such Agent's
or any Lender's reasonable exercise of its rights pursuant to this Section.
SECTION 7.1.8. Future Subsidiaries. Upon (w) any Person becoming, after
the Closing Date, a Subsidiary of the Borrower (other than any Unrestricted
Subsidiary), (x) the Borrower acquiring additional Capital Stock of any existing
Restricted Subsidiary the Capital Stock of which is then pledged under the
Pledge Agreement, (y) any indirect Restricted Subsidiary becoming a direct
Restricted Subsidiary or (z) any Unrestricted Subsidiary being designated as a
Restricted Subsidiary, the Borrower shall notify the Agents of such event, and,
unless otherwise agreed to among the Borrower, the Agents and the Required
Lenders,
(a) such Person shall, if it is a Domestic Restricted
Subsidiary and not theretofore a party to the Guaranty, execute and
deliver to the Administrative Agent a supplement to the Guaranty in the
form of Annex I thereto for the purposes of becoming a guarantor
thereunder;
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(b) the Borrower shall, if such Person is a direct Domestic
Restricted Subsidiary of the Borrower or a direct Foreign Subsidiary
which is a Material Restricted Subsidiary, pledge to the Administrative
Agent pursuant to the Pledge Agreement all of the outstanding shares of
Capital Stock of such Subsidiary owned directly by it (provided,
however, that, in the event such Subsidiary is a Foreign Subsidiary,
the Borrower shall not be required to pledge more than 65% of the
outstanding shares of the Capital Stock of such Subsidiary), along with
undated stock powers for such certificates, executed in blank (or, if
any such shares of capital stock are uncertificated, confirmation and
evidence satisfactory to the Agents that the control of such
uncertificated securities has been transferred to, and the security
interest therein has been perfected by, the Administrative Agent, for
the benefit of the Lenders, the Agents and the Issuer, in accordance
with Section 9-115 of the U.C.C. or any other similar law which may be
applicable); and
(c) if and to the extent required by clause (g)(iii) or
(k)(ii) of Section 7.2.1, such Subsidiary shall secure its Obligations
under the Guaranty by executing and delivering to the Administrative
Agent security instruments satisfactory to the Administrative Agent and
taking all such further actions as may reasonably be required by the
Administrative Agent so as to create in favor of the Administrative
Agent a pari passu Lien on all assets of such Subsidiary in which a
Lien shall continue in existence pursuant to clause (e) or (f) of
Section 7.2.2;
provided, however, that the Borrower may, by notice to the Administrative Agent
on the date of any Permitted Acquisition, elect to exclude the Restricted
Subsidiary so becoming a Restricted Subsidiary (and elect to continue so to
exclude any Restricted Subsidiaries previously so designated in a notice
delivered pursuant to this proviso) from the requirements of this Section if
such Restricted Subsidiary has no Contingent Liability in respect of any
Subordinated Debt and the aggregate outstanding principal amount of all other
Indebtedness of such Restricted Subsidiary outstanding pursuant to clause (g)
(excluding, however, Permitted Acquisition Come-Along Indebtedness, Permitted
Acquisition Subordinated Indebtedness and Permitted Acquisition Ordinary Course
Indebtedness) and (k) of Section 7.2.1 is at least $10,000,000 and does not
exceed, together with the aggregate outstanding principal amount of all such
Indebtedness of all other such Restricted Subsidiaries continuing to be so
designated, $50,000,000 (it being understood that the Borrower shall comply on
the date of delivering a notice pursuant to this proviso with the requirements
of this Section as to any Restricted Subsidiary (x) which shall have been so
designated in such a notice previously delivered pursuant to this proviso and
(y) which shall not continue to be so designated in such notice).
SECTION 7.1.9. Use of Proceeds. The Borrower shall apply the proceeds
of the Credit Extensions
(a) to finance the Merger (and the other transactions
contemplated by the Merger Agreement);
(b) to complete the Offer to Purchase and to repay or, as the
case may be, defease the Indebtedness identified in Item 7.2.1(b)
("Indebtedness to be Paid") of the Disclosure Schedule;
(c) for working capital and general corporate purposes of the
Borrower and Restricted Subsidiaries, including Permitted Acquisitions
by such Persons; and
(d) to pay Transaction Costs.
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SECTION 7.1.10. Transactions with Affiliates. The Borrower shall, and
shall cause each Restricted Subsidiary to, conduct all transactions with any of
its Affiliates (other than the Borrower and Restricted Subsidiaries) upon terms
that are substantially as favorable to the Borrower or such Restricted
Subsidiary as it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate of the Borrower or such Restricted Subsidiary; provided,
however, that the foregoing restrictions shall not apply to
(a) the payment of customary annual fees and reimbursement of
expenses to the Sponsors and their Affiliates for management,
consulting and financial services rendered to the Borrower and
Restricted Subsidiaries, and customary investment banking fees paid to
the Sponsors and their Affiliates for services rendered to the Borrower
or to Restricted Subsidiaries in connection with divestitures,
acquisitions, financings and other transactions;
(b) customary fees paid to members of the Board of Directors
of the Borrower and any Restricted Subsidiary; and
(c) the performance of the management agreements entered into
with the Borrower identified in Item 7.1.10 ("Management Agreements
with the Borrower") of the Disclosure Schedule; and
(d) employment arrangements with respect to the procurement of
services of directors, officers and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith.
SECTION 7.1.11. Business Activities. The Borrower will, and will cause
each Restricted Subsidiary to, engage primarily in the business referred to in
the first recital or such other activities as are reasonably related, incidental
or substantially similar thereto.
SECTION 7.1.12. End of Fiscal Year. The Borrower will, for financial
reporting purposes, cause each of its, and each Domestic Restricted
Subsidiary's, Fiscal Years to end on the Thursday which is the closest to each
December 31; provided, however, that the Borrower may, upon prior notice to the
Administrative Agent, change the last day of its Fiscal Year to any other date
reasonably acceptable to the Administrative Agent, in which case the Borrower
and the Administrative Agent will, and are hereby authorized by the Lenders to,
make any adjustments to this Agreement that are necessary in order to reflect
such change in financial reporting.
SECTION 7.2. Negative Covenants. The Borrower agrees with each Agent,
the Issuer and each Lender that, until all Commitments have terminated, all
Letters of Credit have terminated or expired and all Obligations have been paid
and performed in full, the Borrower will perform the obligations set forth in
this Section 7.2.
SECTION 7.2.1. Indebtedness. The Borrower will not, and will not permit
any Restricted Subsidiary to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
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(b) until the date of the initial Credit Extension,
Indebtedness identified in Item 7.2.1(b) ("Indebtedness to be Paid") of
the Disclosure Schedule;
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.1(c) ("Ongoing Indebtedness") of the Disclosure
Schedule;
(d) unsecured Indebtedness incurred in the ordinary course of
business of the Borrower and Restricted Subsidiaries (consisting of
open accounts extended by suppliers on normal trade terms in connection
with purchases of goods and services and Indebtedness in respect of
performance, surety or appeal bonds provided in the ordinary course of
business, but excluding, however, Indebtedness incurred through the
borrowing of money and Contingent Liabilities in respect thereof);
(e) Indebtedness in respect of Capitalized Lease Liabilities
(other than any Indebtedness permitted by clauses (i) or (g)) at any
time not exceeding $50,000,000;
(f) unsecured Indebtedness between the Borrower and Restricted
Subsidiaries and unsecured Indebtedness between Restricted
Subsidiaries;
(g) Indebtedness of a Person existing at the time of its
becoming an Acquired Person as a result of a Permitted Acquisition;
provided, however, that
(i) such Indebtedness existed at the time such
Person became an Acquired Person or at the time such assets
were acquired and, in each case, was not created in
anticipation thereof,
(ii) such Indebtedness is not guaranteed in any
respect by the Borrower or any other Restricted Subsidiary
(other than any other Acquired Person which was the parent or
a Subsidiary of the Person so being acquired and it being
understood that a merger does not constitute a guarantee),
(iii) if such Person becomes a Restricted Subsidiary,
concurrently therewith, the requirements of Section 7.1.8 are
satisfied to the extent required thereby, and
(iv) if such Indebtedness subordinates the rights of
the holders thereof to any other creditors, such Indebtedness
qualifies as Permitted Acquisition Subordinated Indebtedness;
(h) unsecured Subordinated Debt of the Borrower;
(i) Indebtedness (including Indebtedness constituting
Capitalized Lease Liabilities) incurred by the Borrower or any
Restricted Subsidiary specifically to finance the acquisition,
improvement or construction of fixed or capital assets of a particular
motion picture theatre and its directly related assets which (x) is
incurred substantially concurrently therewith or within 270 days prior
to or after the completion thereof and (y) either (1) is secured by a
Lien permitted by clause (d)(iii) of Section 7.2.2 or (2) has the
benefit of a covenant which restricts the Borrower or such Restricted
Subsidiary from xxxxxxx, mortgaging or otherwise disposing of such
asset (or any or all assets comprising such motion picture theatre and
its directly related assets and up to four additional motion picture
theatres and their directly related assets);
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(j) Indebtedness in respect of Hedging Liabilities of the
Borrower or any Restricted Subsidiary incurred in the ordinary course
of business and not for speculative purposes (as determined in good
faith by the Borrower);
(k) Indebtedness of the Borrower or any Restricted Subsidiary
incurred to finance a Permitted Acquisition; provided, however, that
(i) such Indebtedness is not guaranteed in any
respect by any other Restricted Subsidiary (other than any
Person which as a result of such Permitted Acquisition becomes
an Acquired Person) or, in the case of Indebtedness of any
Restricted Subsidiary, by the Borrower (it being understood
that a merger does not constitute a guarantee), and
(ii) concurrently therewith, the requirements of
Section 7.1.8 are satisfied to the extent required thereby;
(l) any refinancing, refunding, renewal or extension of any
Indebtedness permitted under clauses (c) through (g) and (i) through
(k); provided, however, that (x) the principal amount thereof is not
increased above the principal amount thereof outstanding immediately
prior to such refinancing, refunding, renewal or extension (except to
the extent otherwise permitted under this Section) and (y) the direct
and contingent obligors with respect to such Indebtedness are not
changed unless permitted under the applicable provisions hereof;
(m) Contingent Liabilities of the Borrower or any Restricted
Subsidiary
(i) in respect of any Indebtedness which is (x)
permitted by any other clause of this Section to be incurred
by the Borrower or any other Restricted Subsidiary and (y)
which, by the terms of such other clause, is not restricted
from being guaranteed by the Borrower or Restricted
Subsidiaries (provided, however, that the Contingent Liability
of a Restricted Subsidiary in respect of any Subordinated Debt
of the Borrower shall be subordinated to such Restricted
Subsidiary's Guaranty on terms identical to the terms of the
subordination of the Borrower's obligations in respect of such
Subordinated Debt to the Obligations), and
(ii) in respect of any Indebtedness of other Persons
(including in Unrestricted Subsidiaries), but only if such
Contingent Liability (x) is incurred when the Total Leverage
Ratio as of the last day of the most recently ended Fiscal
Quarter was greater than 4.0:1.0 and (y) was permitted to have
been made as an Investment pursuant to clause (h) of Section
7.2.4;
(n) additional Indebtedness in an aggregate principal amount
not exceeding $125,000,000 at any time outstanding; and
(o) Indebtedness of Surviving Regal to former stockholders of
Old Regal in respect of Merger Consideration, including after the
release by the Exchange Agent of the Exchange Fund;
provided, however, that (x) the sum of (1) the aggregate outstanding principal
amount of all Indebtedness permitted by clauses (g) (excluding, however,
Permitted Acquisition Ordinary Course Indebtedness, Permitted Acquisition
Subordinated Indebtedness and Permitted Acquisition Come-Along Indebtedness) and
(k) plus (2) to the extent not constituting Act III Additional Financing, the
Revolving Credit
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Commitment Amount Increase plus the aggregate outstanding principal amount of
all Additional Loans shall not at any time exceed $350,000,000 and (y) on each
date of incurring any such Indebtedness as the result of which the aggregate
outstanding principal amount of all such Indebtedness shall exceed $200,000,000,
an aggregate principal amount of such Indebtedness in the amount of such excess
shall constitute Permitted Additional Structured Indebtedness.
SECTION 7.2.2. Liens. The Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien upon
any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens securing payment of the Obligations granted pursuant
to any Loan Document or any Rate Protection Agreement;
(b) until the date of the initial Credit Extension, Liens
securing payment of Indebtedness permitted by clause (b) of Section
7.2.1;
(c) Liens existing as of the Effective Date securing
Indebtedness of the type permitted by clause (c) of Section 7.2.1 and
described in Item 7.2.1(c) ("Ongoing Indebtedness") of the Disclosure
Schedule;
(d) Liens securing
(i) payment of foreign currency exchange or rate
swap and similar agreements referred to in clause (j) of
Section 7.2.1, in each case to the extent the counterparty to
any such agreement is (or at the time such agreement was
entered into, was) a Lender or an Affiliate of a Lender,
(ii) Indebtedness of the type permitted by clause
(e) of Section 7.2.1 (which Liens shall extend to only the
assets that are the subject of the lease giving rise to such
Capitalized Lease Liabilities), and
(iii) Indebtedness of the type permitted by clause
(i) of Section 7.2.1 (which Liens shall extend to only (x) the
asset the construction, improvement or acquisition of which
was financed with the proceeds of such Indebtedness, or (y)
any and all assets comprising (1) the motion picture theatre
and directly related assets of which such asset is a part or
(2) up to four additional motion picture theatres and their
directly related assets),
and renewals, extensions and refinancing of such Indebtedness;
provided, however, that the Liens permitted by this clause shall only
cover the same assets (or substitutions or replacements therefor of the
same general type) which originally secured the Indebtedness incurred
pursuant to such clauses;
(e) Liens existing on the assets of any Person that becomes a
Restricted Subsidiary, or existing on assets acquired, pursuant to a
Permitted Acquisition under clause (d) of Section 7.2.6 to the extent
such Liens secure Indebtedness permitted by clause (g) of Section
7.2.1; provided, however, that such Liens (x) existed on the date of
such Permitted Acquisition and were not created in anticipation
thereof, (y) attach only to a specific asset or type of asset of such
Person and not assets of such Person generally and (z) attach at all
times only to the same assets that such
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Liens attached to, and secure only the same Indebtedness that such
Liens secured, immediately prior to such Permitted Acquisition;
(f) Liens placed upon the Capital Stock or assets of any
Restricted Subsidiary acquired pursuant to a Permitted Acquisition
under clause (d) of Section 7.2.6 to the extent such Liens secure
Indebtedness incurred pursuant to clause (k) of Section 7.2.1 to
finance the Acquisition of such Restricted Subsidiary by the Borrower
or any of its other Restricted Subsidiaries;
(g) Permitted Liens;
(h) other Liens securing Indebtedness permitted by Section
7.2.1 in an aggregate outstanding amount not to exceed $25,000,000 at
any time; and
(i) the replacement, extension or renewal of any Lien
permitted by clauses (c) or (e) through (h) upon or in the same assets
theretofore subject to such Lien (or substitution or replacement assets
of the same general type) or the replacement, extension or renewal
(without increase in the amount or change in any direct or contingent
obligor except to the extent otherwise permitted under this Agreement)
of the Indebtedness secured thereby.
SECTION 7.2.3. Financial Condition and Operations. The Borrower will
not permit to occur any of the events set forth below.
(a) Fixed Charge Coverage Ratio. The Borrower will not
permit the Fixed Charge Coverage Ratio as of the last day of any Fiscal
Quarter ending on or about any date set forth below or occurring during
any period set forth below to be less than the ratio set forth opposite
such period:
Fixed Charge
Period Coverage Ratio
------ --------------
12/31/1998 through 06/30/1999 1.20:1
09/30/1999 through 12/31/1999 1.25:1
03/31/2000 through 12/31/2000 1.30:1
03/31/2001 through 12/31/2001 1.40:1
03/31/2002 and thereafter 1.50:1.
(b) Maximum Senior Leverage Ratio. The Borrower will not
permit the Senior Leverage Ratio as of the last day of any Fiscal
Quarter ending on or about any date set forth below or occurring during
any period set forth below to be greater than the ratio set forth
opposite such date or such period, as applicable:
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Maximum Senior
Period Leverage Ratio
------ --------------
12/31/1998 through 06/30/1999 5.000:1
09/30/1999 through 12/31/1999 4.750:1
03/31/2000 through 06/30/2000 4.625:1
09/30/2000 through 12/31/2000 4.500:1
03/31/2001 through 06/30/2001 4.375:1
09/30/2001 through 12/31/2001 4.250:1
03/31/2002 through 06/30/2002 4.125:1
09/30/2002 through 12/31/2002 3.875:1
03/31/2003 through 12/31/2003 3.625:1
03/31/2004 and thereafter 3.500:1
SECTION 7.2.4. Investments. The Borrower will not, and will not permit
any Restricted Subsidiary to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified
in Item 7.2.4(a) ("Ongoing Investments") of the Disclosure Schedule and
any extensions, renewals, modifications, restatements or replacements
thereof, provided, that, no such extension, renewal, modification,
restatement or replacement shall increase the amount of the original
Investment;
(b) Cash Equivalent Investments;
(c) without duplication, Investments to the extent permitted
as Indebtedness pursuant to Section 7.2.1;
(d) without duplication, Investments permitted by Section
7.2.6;
(e) Investments by way of contributions to capital or
purchases of equity by the Borrower in any Restricted Subsidiary or by
any Restricted Subsidiary in the Borrower or any other Restricted
Subsidiary;
(f) Investments constituting (x) accounts receivable arising,
(y) trade debt granted or (z) deposits made in connection with the
purchase price of goods or services, in each case in the ordinary
course of business;
(g) Investments constituting loans and advances to officers,
directors and employees of the Borrower or any Restricted Subsidiary
(x) to finance the purchase of Capital Stock of the Borrower and (y)
for additional purposes not contemplated by item (x), in an aggregate
principal amount at any time outstanding not exceeding $25,000,000;
(h) additional Investments (including Contingent Liabilities)
by the Borrower or any Restricted Subsidiary (including in Unrestricted
Subsidiaries); provided, however, that at any time
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that the Total Leverage Ratio as of the last day of the most recently
ended Fiscal Quarter is greater than 4.0:1.0, additional Investments
may not be made pursuant to this clause if, after giving effect
thereto, the aggregate amount of all Investments made pursuant to this
clause at such time would exceed the sum of (x) $100,000,000 plus (y)
with respect to each Permitted Acquisition, the greater, on the date of
such Permitted Acquisition, of (1) 100% of Adjusted EBITDA of such
Acquired Person determined for its four most recently elapsed fiscal
quarters and (2) 20% of the total value of all of such Acquired
Person's assets on such date plus (z) the then Available Investment
Amount;
(i) payments made in accordance with tax sharing agreements of
the nature referred to in the proviso to the definition of
"Unrestricted Subsidiary";
(j) promissory notes and other non-cash consideration received
by the Borrower and any Restricted Subsidiary in connection with asset
sales permitted pursuant to Section 7.2.6;
(k) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, suppliers arising in the ordinary course of
business;
provided, however, that
(l) any Investment which when made complies with the
requirements of clause (a), (b) or (c) of the definition of "Cash
Equivalent Investment" may continue to be held notwithstanding that
such Investment if made thereafter would not comply with such
requirements;
(m) no Investment otherwise permitted by clause (d) or (h)
shall be permitted to be made if any Event of Default or Payment
Default has occurred and is continuing or would result therefrom;
(n) no Contingent Liability shall be permitted to be incurred
pursuant to clause (c) (insofar as it relates to clause (m) of Section
7.2.1) or (h) if, after giving effect thereto, the aggregate amount of
all Contingent Liabilities then outstanding pursuant to clauses (c)
(insofar as it relates to clause (m) of Section 7.2.1) and (h) shall
exceed the sum determined at such time pursuant to the proviso to
clause (h); and
(o) notwithstanding anything herein to the contrary, the
aggregate Investments made pursuant to this Section in Xxxxx-Regal
shall not exceed $10,000,000 unless, on or prior to the date which is
90 days after the Closing Date, Xxxxx-Regal shall have delivered a
Guaranty and the Borrower shall have pledged to the Administrative
Agent, on behalf of the Lenders, its Capital Stock of Xxxxx-Regal.
SECTION 7.2.5. Restricted Payments, etc. The Borrower will not, and
will not permit any Restricted Subsidiary to, make any Restricted Payment;
provided, however, except that, so long as before and after giving effect to any
such payment no Default shall have occurred, the Borrower may:
(a) declare and make dividends or other distributions payable
solely in shares of its Capital Stock;
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(b) purchase, redeem or otherwise acquire shares of common
stock of the Borrower or warrants or options to acquire any such shares
with the proceeds received from the substantially concurrent issuance
of new shares of common stock of the Borrower;
(c) redeem or exchange in whole or in part any Capital Stock
of the Borrower for another class of Capital Stock or rights to acquire
such other class of Capital Stock of the Borrower; provided, however,
that such other class of Capital Stock contains terms and provisions
(taken as a whole) at least as advantageous to the Lenders as those
contained in the Capital Stock redeemed or exchanged thereby;
(d) repurchase shares of its Capital Stock (together with
options or warrants in respect of any thereof) held by the officers,
directors and employees of the Borrower, so long as such repurchase is
pursuant to, and in accordance with the terms of, management and/or
employee stock plans, stock subscription agreements or shareholder
agreements;
(e) subject to the subordination provisions applicable thereto
(1), redeem, defease or otherwise prepay or retire any Subordinated
Debt (x) from the net proceeds of the issuance of other Subordinated
Debt, Qualified Preferred Stock or common stock of the Borrower or (y)
in an aggregate amount not to exceed at any time the then Available
Restricted Payment Amount, or (2) redeem any 8 1/2 % Regal Notes not
purchased on the Closing Date;
(f) pay cash dividends on common stock or preferred stock to
the extent that
(i) the Borrower shall have delivered to the
Administrative Agent (x) financial statements prepared on a
pro forma basis after giving effect to the payment of such
cash dividends for the period of four consecutive Fiscal
Quarters ending with the Fiscal Quarter then last ended for
which financial statements and the Compliance Certificate
relating thereto have been delivered to the Administrative
Agent pursuant to Section 7.1.1 and (y) a certificate of the
Borrower executed by a Responsible Officer demonstrating that
the financial results reflected in such financial statements
would (1) comply with the requirements of clauses (a) and (b)
of Section 7.2.3 for the Fiscal Quarter in which such dividend
is to be made and (2) satisfy a requirement (A) in the case of
Qualified Preferred Stock, that the Fixed Charge Coverage
Ratio (which shall be adjusted to include the amount of such
dividend being paid as additional Interest Expense in clause
(b)(i) of the definition of such term) shall be at least
1.15:1.00 and (B) in the case of other preferred stock or
common stock, that the Total Leverage Ratio as at the end of
such period be not greater than 4.0:1.0, and
(ii) the aggregate amount expended by the Borrower
with respect to dividends on common and preferred (excluding,
however, Qualified Preferred Stock) stock pursuant to this
clause shall not at any time exceed in the aggregate of then
Available Restricted Payment Amount.
SECTION 7.2.6. Consolidations and Mergers; Sales of Assets. The
Borrower shall not, and shall not suffer or permit any Restricted Subsidiary to,
merge, consolidate or otherwise combine or liquidate with or into, or enter into
or consummate any Disposition (other than any Disposition resulting from a
casualty or condemnation) or any Acquisition, whether in one transaction or in a
series of transactions to or in favor of, any Person, except:
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(a) any Restricted Subsidiary may merge or otherwise
consolidate with (x) the Borrower (provided, however, that the Borrower
shall be the continuing or surviving corporation) or (y) any other
Restricted Subsidiary;
(b) any Restricted Subsidiary may sell or otherwise transfer
its assets (upon voluntary liquidation or otherwise) to the Borrower or
any other Restricted Subsidiary, and the Borrower may sell or otherwise
transfer its assets to any Restricted Subsidiary (which Restricted
Subsidiary shall, immediately after giving effect to such transfer,
continue to be a Restricted Subsidiary);
(c) the Borrower or any Restricted Subsidiary may consummate
one or more Dispositions; provided, however, that (x) the Borrower
complies with the requirements of clause (d) of Section 3.1.1, (y) such
Disposition is made for fair value (as determined in good faith by the
Borrower) and (z) the aggregate consideration received for all assets
disposed of in Dispositions not constituting Real Estate Financings
from and after the Closing Date pursuant to this clause shall not
exceed the sum of (1) $150,000,000 plus (2) at any time, 25% of the
total value (determined,
with respect to each Permitted Acquisition, on the date of such
Permitted Acquisition) of the assets acquired pursuant to all Permitted
Acquisitions consummated at or prior to such time;
(d) the Borrower or any Restricted Subsidiary may consummate
an Acquisition (any such Acquisition permitted pursuant to this clause,
a "Permitted Acquisition"), so long as
(i) such Acquisition and all transactions related
thereto are consummated in accordance with applicable law,
(ii) in the case of an Acquisition of Capital Stock
or other equity interest by the Borrower or a Restricted
Subsidiary of any Person,
(A) such Acquisition results in the issuer
of such Capital Stock or other equity interest
becoming a Restricted Subsidiary,
(B) the Borrower pledges the Capital Stock
of such Person to the Administrative Agent to the
extent required under Section 7.1.8, and
(C) such Person executes a supplement to the
Guaranty to the extent required under Section 7.1.8,
(iii) in the case of a merger of the Borrower with
another Person that results in such Person being the surviving
entity, (u) the Person formed by or surviving any such merger
or consolidation (if other than the Borrower) shall be a
corporation organized or existing under the laws of the United
States, any state thereof, the District of Columbia or any
territory thereof (such Person being the "Successor
Borrower"), (v) the Successor Borrower shall expressly assume
all the obligations of the Borrower under this Agreement and
the other Loan Documents pursuant to a supplement hereto or
thereto in form and substance reasonably satisfactory to the
Administrative Agent, (w) no Default would occur as a result
of the consummation of such merger or consolidation, (x) the
Successor Borrower shall be in compliance, on a pro forma
basis as set forth in clause (d)(vii), (y) each Guarantor,
unless it is the other party to such merger or consolidation,
shall have by a supplement to the Guaranty confirmed that its
Guaranty shall continue to be effective with
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respect to the Successor Borrower's Obligations under this
Agreement and (z) the Borrower shall have delivered to the
Administrative Agent an officer's certificate and an opinion
of counsel, each stating that such merger or consolidation and
such supplement to this Agreement or any Guaranty comply with
this Agreement, in which event, if all of the foregoing are
satisfied, the Successor Borrower will succeed to, and be
substituted for, the Borrower under this Agreement,
(iv) no Capital Stock or other equity interest or
assets acquired in connection with such Acquisition shall be
subject to any Lien (other than Liens permitted by Section
7.2.2),
(v) neither the Borrower nor any other Restricted
Subsidiary shall assume or incur, directly or indirectly, any
Indebtedness in connection with such Acquisition (other than
as specifically permitted by clause (g) or (k) of Section
7.2.1),
(vi) after giving effect to such Acquisition, no
Default shall have occurred and be continuing (provided,
however, that, for purposes of this clause, the pendency of a
change of control put right with respect to any Permitted
Acquisition Subordinated Indebtedness shall not constitute a
Default),
(vii) in the case that the total cash and non-cash
consideration with respect to such Acquisition is $30,000,000
or more, the Borrower shall have delivered to the
Administrative Agent prior to the consummation of such
Acquisition
(A) financial statements or reconciliations
prepared on a pro forma basis for the period of four
consecutive Fiscal Quarters ending with the Fiscal
Quarter then last ended for which financial
statements and the Compliance Certificate relating
thereto have been delivered to the Administrative
Agent pursuant to Section 7.1.1 (assuming, for
purposes of such pro forma calculation, that such
Acquisition had been consummated on the first day of
such period), and
(B) a certificate of the Borrower executed
by its chief financial Authorized Officer
demonstrating that the financial results reflected in
such financial statements would comply with the
requirements of Section 7.2.3 for the Fiscal Quarter
in which such Acquisition is to be made,
(viii) after giving effect to such Acquisition, not
more than the greater of (x) 20% of the Adjusted EBITDA and
(y) 20% of the total assets of the Borrower and Restricted
Subsidiaries, shall be attributable to Foreign Subsidiaries.
SECTION 7.2.7. Modification of Subordinated Instruments. The Borrower
will not, and will not permit any Restricted Subsidiary to, consent to or permit
or suffer to exist any amendment, supplement or other modification of the 9 1/2%
Subordinated Note Indenture, the Old Regal 8 1/2% Subordinated Note Indenture
(as amended through the Closing Date) or any other Instrument evidencing or
applicable to any other Subordinated Debt in a manner which would be adverse to
Lenders in any material respect.
SECTION 7.2.8. Designation of Senior Indebtedness. The Borrower will
not designate any Indebtedness as "Designated Senior Indebtedness" pursuant to
clause (ii) of the definition of such term in the 9 1/2% Subordinated Note
Indenture.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Section 8.1 shall constitute an "Event
of Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default
in the payment or prepayment when due of
(a) any principal of any Loan; or
(b) any interest on any Loan, any Reimbursement Obligation,
any fee described in Article III or of any other amount payable
hereunder or under any other Loan Document and such default shall
continue unremedied for a period of five days.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
the Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of the Borrower or any other Obligor to any Agent, the Issuer or
any Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to Article
V), is or shall be untrue when made or deemed to have been made in any material
respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance and observance of any of its
obligations under (x) clause (d) or (f) of Section 7.1.1 or Section 7.2 or (y)
Section 8 of the Pledge Agreement.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. The
Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days after notice thereof shall have been given to the Borrower or such other
Obligor, as applicable, by the Administrative Agent or the Required Lenders.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Borrower or any Restricted Subsidiary having
a principal amount, individually or in the aggregate, in excess of $20,000,000,
or a default or other event shall occur in the performance or observance of any
obligation or condition with respect to such Indebtedness (subject, however, to
any applicable grace period) if the effect of such default or event is to
accelerate the maturity of any such Indebtedness or such default or event shall
continue unremedied for any applicable period of time sufficient to permit the
holder or holders of such Indebtedness, or any trustee or agent for such
holders, to cause or declare such Indebtedness to become due and payable or to
require such Indebtedness to be prepaid, redeemed, purchased or defeased, or to
cause an offer to purchase or defease such Indebtedness to be required to be
made, prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment, order, decree or arbitration
award for the payment of money in excess of $20,000,000 (to the extent not fully
covered by insurance, other than self-insurance
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(less any applicable deductible) or indemnification and as to which the insurer
or the indemnifying party, as the case may be, has not disputed in writing its
responsibility to cover such judgment, order, decree or arbitration award) shall
be rendered against the Borrower or any Restricted Subsidiary and either (x)
enforcement proceedings have been commenced by any creditor upon such judgement
or order or (y) the same shall not have been satisfied or vacated or discharged
or stayed or bonded pending appeal within 60 days after the entry thereof.
SECTION 8.1.7. ERISA. An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan.
SECTION 8.1.8. Control of the Borrower. Any Change of Control shall
occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any
Material Restricted Subsidiary shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness generally to pay, debts as they
become due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for any
substantial part of the property of any thereof, or make a general
assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect thereof, and, if any
such case or proceeding is not commenced by the Borrower or any such
Subsidiary, such case or proceeding shall be consented to or acquiesced
in by the Borrower or such Subsidiary, as the case may be, or shall
result in the entry of an order for relief or shall remain for 60 days
undismissed; or
(e) take any corporate action authorizing, or in furtherance
of, any of the foregoing.
SECTION 8.1.10. Impairment of Security, etc. The Pledge Agreement or
the Guaranty, in whole or in material part, or any Lien granted under the Pledge
Agreement, shall (except in accordance with its terms and except as a result of
acts or omissions of any Agent or Lender) terminate, cease to be effective or
cease to be the legally valid, binding and enforceable obligation of any Obligor
party thereto; the Borrower, any other Obligor or any other party shall,
directly or indirectly, deny or disaffirm in writing such effectiveness,
validity, binding nature or enforceability; or, except as permitted under any
Loan Document, any Lien securing any Obligation shall, in whole or in part,
cease to be a perfected first priority Lien and, in any such event, the Borrower
or such Obligor shall have failed to cure such invalidity within 5 days after
notice thereof from the Administrative Agent.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur with respect to the
Borrower, the Commitments (if not theretofore terminated)
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shall automatically terminate and the outstanding principal amount of all
outstanding Loans and all other Obligations (including Reimbursement
Obligations) shall automatically be and become immediately due and payable,
without notice or demand, the Issuer shall terminate any Letter of Credit that
may be terminated in accordance with its terms, and the Borrower shall
automatically and immediately be obligated to pay to the Administrative Agent at
the Administrative Agent's Office such additional amounts of cash, to be held as
security for the Borrower's reimbursement obligations for drawings that may
subsequently occur thereunder, equal to the aggregate Stated Amount of all
Letters of Credit issued and then outstanding.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default with respect to the Borrower described in
clauses (a) through (d) of Section 8.1.9) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Borrower (w) declare
all Commitments (if not theretofore terminated) to be terminated, whereupon the
Commitments shall terminate, (x) declare all or any portion of the outstanding
principal amount of the Loans and other Obligations (including Reimbursement
Obligations) to be due and payable, whereupon the full unpaid amount of such
Loans and other Obligations which shall be so declared due and payable shall be
and become immediately due and payable, without further notice, demand or
presentment, (y) terminate any Letter of Credit that may be terminated in
accordance with its terms; and (z) direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice it will pay) to the Administrative
Agent at the Administrative Agent's Office such additional amounts of cash, to
be held as security for the Borrower's reimbursement obligations for drawings
that may subsequently occur thereunder, equal to the aggregate Stated Amount of
all Letters of Credit issued and then outstanding.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. (a) Each Lender hereby appoints (x) Scotiabank as
its Administrative Agent, (y) BancAmerica Xxxxxxxxx Xxxxxxxx as its Syndication
Agent and (z) The Chase Manhattan Bank as its Documentation Agent, in each case
under and for purposes of this Agreement, the Notes and each other Loan
Document. Each Lender authorizes each such Agent to act on behalf of such Lender
under this Agreement, the Notes and each other Loan Document and, in the absence
of other written instructions from the Required Lenders received from time to
time by any particular Agent (with respect to which each Agent agrees that it
will comply, except as otherwise provided in this Section or as otherwise
advised by counsel in order to avoid contravention of applicable law), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of such Agent by the terms hereof or thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) each of the
Agents and their respective directors, officers, employees or agents, ratably in
accordance with each such Lender's respective Term Loans outstanding and
Commitments (or, if no Term Loans or Commitments are at the time outstanding or
in effect, then ratably in accordance with the principal amount of Term Loans
held by such Lender, and each such Lender's respective Commitments as in effect
in each case on the date of the termination of this Agreement), from and against
any and all liabilities, obligations, losses, damages, claims, costs or expenses
of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against, such Agent, in any way relating to or arising out of
this Agreement, the Notes and any other Loan Document, including reasonable
attorneys' fees, and as to which the same is not reimbursed by the
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Borrower; provided, however, that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, claims, costs or
expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from the gross negligence or wilful
misconduct of such Agent or any of its directors, officers, employees or agents.
No Agent shall be required to take any action hereunder, under the Notes or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement, the Notes or any other Loan Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of any Agent shall be
or become, in such Agent's determination inadequate, such Agent may call for
additional indemnification from the Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given.
(b) Each Lender with a Revolving Loan Commitment hereby irrevocably
appoints the Issuer to act on behalf of such Lender with respect to any Letters
of Credit issued by the Issuer and the documents associated therewith until such
time and except for so long as the Administrative Agent may agree at the request
of the Required Lenders to act for such Issuer with respect thereto; provided,
however, that the Issuer shall have all of the benefits and immunities (x)
provided to the Administrative Agent in this Article with respect to any acts
taken or omissions suffered by the Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term "Administrative Agent", as used in this Article, included the Issuer with
respect to such acts or omissions and (y) as additionally provided in this
Agreement with respect to the Issuer.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York City time, on the Business Day prior to a Borrowing that
such Lender will not make available the amount which would constitute its
Percentage of such Borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender will make such amount available to the
Administrative Agent and, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent that such Lender shall
not have made such amount available to the Administrative Agent, such Lender and
the Borrower severally agree to repay the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available to the
Borrower to the date such amount is repaid to the Administrative Agent, at the
interest rate applicable at the time to Loans comprising such Borrowing, in the
case of the Borrower, and, in the case of a Lender, at the Federal Funds Rate
for the first two Business Days after which such amount has not been repaid, and
thereafter at the interest rate applicable to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. None of the Agents nor any of their
respective directors, officers, employees or agents shall be liable to any
Lender or the Issuer for any action taken or omitted to be taken by it under
this Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own wilful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by the Borrower of
its obligations hereunder or under any other Loan Document. Any such inquiry
which may be made by any such Agent shall not obligate such Person to make any
further inquiry or to take any action. Each of the Agents shall be entitled to
rely upon advice of counsel concerning legal matters and upon any notice,
consent, certificate, statement or writing which it believes to be genuine and
to have been presented by a proper Person.
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SECTION 9.4. Successor. Any Agent may resign as such at any time upon
at least 30 days' prior notice to the Borrower and all Lenders. If any Agent at
any time shall resign, the Required Lenders may appoint another Lender
reasonably acceptable to the Borrower as a successor to such Agent which shall
thereupon become an Agent hereunder in such capacity as the retiring Agent. If
no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving notice of resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the U.S. (or any
State thereof) or a U.S. branch or agency of a commercial banking institution,
and having (x) a combined capital and surplus of at least $1,000,000,000 and (y)
a credit rating of AA or better by Xxxxx'x or a comparable rating by S&P;
provided, however, that if, after expending all reasonable commercial efforts,
such retiring Agent is unable to find a commercial banking institution which is
willing to accept such appointment and which meets the qualifications set forth
in item (y), such retiring Agent, shall be permitted to appoint as its successor
from all available commercial banking institutions willing to accept such
appointment such institution having the highest credit rating of all such
available and willing institutions. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall be entitled to
receive from the retiring Agent such documents of transfer and assignment as
such successor Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was an Agent under
this Agreement, and Sections 10.3 and 10.4 shall continue to inure to its
benefit.
SECTION 9.5. Loans by Agents. Each Agent shall have the same rights and
powers with respect to (x) the Credit Extensions made by it or any of its
Affiliates, and (y) the Notes held by it or any of its Affiliates, as any other
Lender and may exercise the same as if it were not an Agent hereunder. Each
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any Subsidiary or Affiliate
of the Borrower as if it were not an Agent hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrower, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. Each Agent shall give prompt notice to each
Lender and each other Agent of each notice or request required or permitted to
be given to such Agent by the Borrower pursuant to the terms of this Agreement
(unless concurrently delivered to the Lenders by the Borrower). Each Agent will
distribute to each Lender and each other Agent each document or instrument
received for its account and copies of all other communications received by such
Agent from the Borrower for distribution to the Lenders by the such Agent in
accordance with the terms of this Agreement or any other Loan Document.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
waived or otherwise modified, if such amendment, waiver or modification is in
writing and consented to by the Borrower and the Required Lenders (except as
provided in Section 2.8) provided, however, that no such amendment, waiver or
modification shall:
(a) extend the Revolving Loan Commitment Termination Date or
the Term A, B and C Loan Commitment Termination Date, change any
Commitment to any other Commitment, amend, waive or modify any
provision of this Section 10.1 or reduce the percentages specified in
the definitions of the terms "Required Lenders", "Supermajority
Revolving Lenders" or "Supermajority Term Lenders", or consent to the
assignment or transfer by the Borrower of its rights and obligations
under any Loan Document to which it is a party, in each case without
the consent of each Lender directly and adversely affected thereby;
(b) forgive any principal of or interest on any Lender's Loan,
reduce the stated rate of any interest hereunder or any fees described
in Article III payable to any Lender, extend the Stated Maturity Date
for any Lender's Loan or extend any scheduled time of payment of such
interest or such fees (other than as a result of waiving the
applicability of any post-default increase in interest rates) without
the consent of such Lender;
(c) increase the aggregate amount of any Lender's Percentage
of any Commitment Amount or increase the aggregate amount of any Loans
required to be made by a Lender pursuant to its Commitments without the
consent of such Lender;
(d) extend the due date (other than the Stated Maturity Date,
as to which clause (b) applies) for any scheduled repayment of or any
scheduled reduction of a Commitment, or decrease the relative
proportion of any mandatory prepayment to be received by the Lenders
holding
(i) Revolving Loans without the consent of the
Required Revolving Lenders, or
(ii) any Series of Term Loans without the consent of
the Required Term Series Lenders for such Series;
(e) except to the extent expressly permitted under the Loan
Documents, release
(i) all or substantially all of the Obligors that
are guarantors under the Guaranty from their obligations under
the Guaranty, or
(ii) all or substantially all of the collateral
security provided under the Loan Documents, including all
Pledged Shares (as such term is defined in the Pledge
Agreement),
in either case without the consent of (x) the Supermajority Revolving
Lenders and (y) the Supermajority Term Lenders; or
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(f) affect adversely the interests, rights or obligations of
any Agent qua such Agent, the Swing Line Lender qua the Swing Line
Lender or the Issuer qua the Issuer, unless consented to by such Agent,
the Swing Line Lender or the Issuer, as the case may be;
provided, however, that no extension of Additional Commitments (nor the making
and repayment of Additional Loans pursuant thereto nor the securing of
Additional Loans pursuant to Guaranty and Pledge Agreement as Loans hereunder)
pursuant to an Additional Financing Amendment shall require the consent of the
Required Lenders or shall be construed as a decrease of the "relative proportion
of any mandatory prepayment" of any Lenders pursuant to clause (d).
No failure or delay on the part of any Agent, the Issuer or any Lender
in exercising any power or right under this Agreement or any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Borrower in
any case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by any Agent, the Issuer or any Lender
under this Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth below its signature hereto, in the
case of the Borrower or any Agent, or set forth below its name in Annex I hereto
or in a Lender Assignment Agreement, in the case of any Lender (including in its
separate capacity as the Swing Line Lender or Issuer, if applicable), or at such
other address or facsimile number as may be designated by such party in a notice
to the other parties. Any notice, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any notice, if transmitted by facsimile, shall be
deemed given when the confirmation of transmission thereof is received by the
transmitter.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
or reimburse on demand all reasonable and documented costs and expenses of the
Agents (including the reasonable, itemized fees and out-of-pocket expenses of a
single primary counsel to the Agents and of each local and foreign counsel, if
any, who may be retained by counsel to the Agents) in connection with
(a) the negotiation, preparation, execution, delivery and
syndication of this Agreement and of each other Loan Document,
including schedules and exhibits, and any amendments, waivers,
consents, supplements or other modifications to this Agreement or any
other Loan Document as may from time to time hereafter be required;
(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements
relating thereto and all amendments, supplements, amendments and
restatements and other modifications to any thereof and any and all
other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or the
terms of any Loan Document; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
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The Borrower further agrees to pay, and to save each Agent, the Issuer and the
Lenders harmless from all liability for, any stamp or other taxes which may be
payable in connection with the execution or delivery of this Agreement (subject
to the applicable provisions of Article IV), the Credit Extensions hereunder, or
the issuance of the Notes, Letters of Credit or any other Loan Documents. The
Borrower also agrees to reimburse each Agent, the Issuer and each Lender upon
demand for all reasonable and documented out-of-pocket costs and expenses
(including reasonable attorneys' fees and legal expenses of counsel to each
Agent, the Issuer and each Lender) incurred by such Agent, the Issuer or such
Lender in connection with (x) the negotiation of any restructuring or "work-out"
with the Borrower, whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds each Agent, the Issuer and
each Lender and each of their respective Affiliates, and each other Person
controlling any of the foregoing within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of their respective
officers, directors, employees, trustees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees and disbursements, whether incurred in
connection with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the "Indemnified Liabilities"), incurred
by the Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into, performance and enforcement of this
Agreement and any other Loan Document by any of the Indemnified
Parties;
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any Subsidiary
of all or any portion of the stock or assets of any Person, whether or
not any Agent, the Issuer or any Lender is party thereto;
(d) any investigation, litigation or proceeding regarding the
Borrower or any Subsidiary related to any environmental cleanup, audit,
compliance or other matter relating to the protection of the
environment or the Release by the Borrower or any Subsidiary of any
Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, the Borrower or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive payment in full of the Obligations and any
transfer of the property of the Borrower or any Subsidiary by
foreclosure or by a deed in lieu of foreclosure for any Lender's
Environmental Liability, regardless of whether caused by, or within the
control of, the Borrower or such Subsidiary);
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except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct or resulting from disputes among the Agents, the
Lenders and/or their transferees or, with respect to a Lender, resulting from a
material breach by such Lender of its obligations hereunder. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any assignment from one Lender to
another (in the case of Sections 10.3 and 10.4) and any termination of this
Agreement, the payment in full of all the Obligations and the termination of all
the Commitments. The representations and warranties made by the Borrower and
each other Obligor in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each such other Loan
Document.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of the Borrower, each Agent and each Lender (or notice
thereof satisfactory to the Agents) shall have been received by the
Administrative Agent and notice thereof shall have been given by the
Administrative Agent to the Borrower and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT (INCLUDING PROVISIONS WITH RESPECT TO
INTEREST, LOAN CHARGES AND COMMITMENT FEES) SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF A SECURITY INTEREST OR MORTGAGE HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK. This Agreement, the Notes, the
other Loan Documents and each of the Regal Fee Letters constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and thereof and supersede any prior agreements, written or oral, with respect
thereto.
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SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the Agents
and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit Outstandings and Commitments to one or more other Persons in
accordance with this Section.
SECTION 10.11.1. Assignments. (a) Upon prior notice to the Borrower and
the Administrative Agent, any Lender may at any time assign and delegate to one
or more Eligible Assignees with the consent of the Borrower and the
Administrative Agent (which consents shall not be required if the Eligible
Assignee is a Lender or an Affiliate of a Lender and shall not be unreasonably
withheld or delayed if such consents are in fact required), all or any fraction
of such Lender's total Loans, Letter of Credit Outstandings and Commitments in a
minimum aggregate amount of the lesser of $5,000,000 (or such lesser amount as
may be agreed to by the Borrower and the Administrative Agent in their sole and
absolute discretion) and the entire remaining amount of such Lender's Loans,
Letter of Credit Outstandings and Commitments (except that no such minimum shall
be applicable on an assignment to a Lender or an Affiliate of a Lender);
provided, however, that with respect to assignments solely of Revolving Loans,
the assigning Lender must assign a pro-rata portion of each of its Revolving
Loan Commitments, Revolving Loans and interest in Letters of Credit
Outstandings. The Borrower and each other Obligor and each of the Agents shall
be entitled to continue to deal solely and directly with such Lender in
connection with the interests so assigned and delegated to an Eligible Assignee
until
(i) notice of such assignment and delegation,
together with (A) payment instructions, (B) the Internal
Revenue Service Forms or other statements contemplated or
required to be delivered pursuant to Section 4.6, if
applicable, (C) addresses and related information with respect
to such Eligible Assignee, shall have been delivered to the
Borrower and the Administrative Agent by such Lender and such
Eligible Assignee and (D) the Administrative Agent has made
the appropriate entries in the Register;
(ii) such Eligible Assignee shall have executed and
delivered to the Borrower and the Administrative Agent a
Lender Assignment Agreement, accepted by such Agent; and
(iii) the processing fees described below shall have
been paid.
From and after the date that such Agent accepts such Lender Assignment
Agreement, (x) the Eligible Assignee thereunder shall be deemed automatically to
have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Eligible Assignee in
connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Accrued interest on that part of the Loans assigned, if any, and
accrued fees, shall be paid as provided in the Lender Assignment Agreement.
Accrued interest and accrued fees shall be paid at the same time or
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times provided in this Agreement. Such assignor Lender or such Eligible Assignee
must also pay a processing fee in the amount of $3,500 to the Administrative
Agent upon delivery of any Lender Assignment Agreement. Notwithstanding any
other term of this Section, the agreement of the Swing Line Lender to provide
the Swing Line Loan Commitment shall not impair or otherwise restrict in any
manner the ability of the Swing Line Lender to make any assignment of its Loans
or Commitments, it being understood and agreed that the Swing Line Lender may
terminate its Swing Line Loan Commitment, either in whole or in part, in
connection with the making of any assignment. Any attempted assignment and
delegation not made in accordance with this Section shall be null and void.
(b) Notwithstanding anything to the contrary set forth above, any
Lender may (without requesting the consent of the Borrower or the Administrative
Agent) pledge its Loans to a Federal Reserve Bank in support of borrowings made
by such Person from such Federal Reserve Bank. Upon the request of the Lender,
solely to facilitate the pledge or assignment of its Loans to any Federal
Reserve Bank, the Borrower shall issue Notes to such Lender. Upon the request of
an assignor Lender, if applicable, solely to facilitate such pledge or
assignment of its Loans to any Federal Reserve Bank, the Borrower shall issue a
reduced Note to such assignor in exchange and replacement for its then existing
Note. The reasonable costs and expenses incurred in connection with the issuance
of each Note shall be for the account of the Borrower.
(c) The Administrative Agent, on behalf of the Borrower, shall maintain
at the address of the Administrative Agent specified below its signature hereto
(or at such other address as may be designated by the Administrative Agent from
time to time in accordance with Section 10.2) a copy of each Lender Assignment
Agreement delivered to it and a register (the "Register") for the recordation of
the names and addresses of the Lenders and the Commitment of and principal
amount of the Loans owing to each Lender from time to time. The entries in the
Register shall be conclusive and binding, in the absence of clearly demonstrable
error, and the Borrower, the Agents and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder shall be effective only
upon appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
SECTION 10.11.2. Participations. Upon prior notice to the Borrower and
the Administrative Agent, any Lender may at any time sell to one or more
commercial lenders, financial institutions or other Persons (each of such
commercial lenders, financial institutions or other Persons, a "Participant")
participating interests in any of the Loans, Letter of Credit Outstandings,
Commitments, or other interests of such Lender hereunder (including loan
derivatives and similar swap arrangements based on such Lender's interests
hereunder); provided, however, that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and each Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and each
of the other Loan Documents;
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(d) no Participant, unless such Participant is an Affiliate of
such Lender or is itself a Lender, or unless the Borrower otherwise
agrees in writing, shall be entitled to require such Lender to take or
refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any Participant that
such Lender will not, without such Participant's consent, to the extent
requiring the consent of such Lender, take any action of the type
described in clause (b) of Section 10.1; and
(e) the Borrower shall not be required to pay any amount under
this Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
Each Participant shall only be indemnified for increased costs pursuant to
Section 4.3, 4.5 or 4.6 if and to the extent that the Lender which sold such
participating interest to such Participant concurrently is entitled to make, and
does make, a claim on the Borrower for such increased costs. Any Lender that
sells a participating interest in any Loan, Commitment or other interest to a
Participant under this Section shall indemnify and hold harmless the Borrower
and each Agent from and against any taxes, penalties, interest or other costs or
losses (including reasonable attorneys' fees and expenses) incurred or payable
by the Borrower or such Agent as a result of the failure of the Borrower or such
Agent to comply with its obligations to deduct or withhold any Taxes from any
payments made pursuant to this Agreement to such Lender or such Agent, as the
case may be, which Taxes would not have been incurred or payable if such
Participant had been a Non-U.S. Lender that was entitled to deliver to the
Borrower, such Agent or such Lender, and did in fact so deliver, a duly
completed and valid Form 1001 or 4224 (or applicable successor form) entitling
such Participant to receive payments under this Agreement without deduction or
withholding of any United States federal taxes. If amounts outstanding under
this Agreement are due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement.
SECTION 10.12. Confidentiality. Each Lender agrees to maintain, in
accordance with its customary procedures for handling confidential information,
the confidentiality of all information provided to it by or on behalf of the
Borrower or any Subsidiary, or by any Agent on the Borrower's or such
Subsidiary's behalf, under this Agreement or any other Loan Document
("Confidential Information"), and neither it nor any of its Affiliates shall use
any such information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other business now
or hereafter existing or contemplated with the Borrower or any Subsidiary,
except to the extent such information (x) was or becomes generally available to
the public other than as a result of disclosure by the Lender or (y) was or
becomes available on a non-confidential basis from a source other than the
Borrower, provided that such source is not bound by a confidentiality agreement
with the Borrower known to the Lender; provided, however, that any Lender may
disclose such information (A) at the request or pursuant to any requirement of
the NAIC or any Governmental Authority to which the Lender is subject or in
connection with an examination of such Lender by any such Governmental
Authority; (B) pursuant to subpoena or other court process; (C) when required to
do so in accordance with the provisions of any Applicable Law; (D) to the extent
reasonably required in connection with any litigation or proceeding to which any
Agent, any Lender or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (F) to such Lender's independent auditors and
other professional advisors who have been advised that such information is
confidential pursuant to this Section; (G) to any Participant or Eligible
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Assignee, actual or potential, provided, however, that such Person shall have
agreed in writing to keep such information confidential to the same extent
required of the Lenders hereunder; and (H) to its Affiliates who have been
advised that such information is confidential pursuant to this Section. Unless
prohibited by applicable law or court order, each Lender and each Agent shall
notify the Borrower of any request by any Governmental Authority (other than any
request in connection with an examination of the financial condition of such
Lender) for disclosure of Confidential Information prior to such disclosure;
provided, however, further, that in no event shall any Agent or any Lender be
obligated to return any materials furnished by the Borrower or any Subsidiary.
This Section shall supersede any confidentiality letter or agreement with
respect to the Borrower or the Facilities entered into prior to the date hereof.
SECTION 10.13. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY AGENT, THE
LENDERS, THE ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
LOCATED IN THE COUNTY OF NEW YORK IN THE SATE OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK LOCATED IN THE COUNTY OF NEW YORK OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION, SUBJECT TO THE BORROWER'S RIGHT TO CONTEST SUCH JUDGMENT
BY MOTION OR APPEAL ON ANY GROUNDS NOT EXPRESSLY WAIVED IN THIS SECTION. THE
BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK
AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 10.2. THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
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SECTION 10.14. Waiver of Jury Trial. THE AGENTS, THE LENDERS, THE
ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO
THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
ANY AGENT, THE LENDERS, THE ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR
THEREWITH. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENTS, THE LENDERS AND THE ISSUER ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
REGAL CINEMAS, INC.
By
-------------------------------------
Title: Executive Vice President
Address: 0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Executive Vice President
and Chief Financial Officer
with copies to:
Hicks, Muse, Xxxx & First Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Attention: Xxxxxxxx X. Xxxxxx, Xx. and
Xxxxxxx X. XxXxx
Kohlberg Kravis Xxxxxxx & Co., L.P.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Facsimile No.: 000-000-0000
Attention: Xxxxxxxxx Xxxxx, Xx.
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AGENTS:
THE BANK OF NOVA SCOTIA, as the Administrative
Agent
By
-------------------------------------------
Title: Senior Relationship Manager
Address: Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxx and Xxxxxx Xxxxxxxx
BANCAMERICA XXXXXXXXX XXXXXXXX, as the
Syndication Agent
By
--------------------------------------------
Title: Vice President
Address: 000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X'Xxxxx
THE CHASE MANHATTAN BANK, as the Documentation
Agent
By
--------------------------------------------
Title: Vice President
Address: 000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxx
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SCHEDULE I
DISCLOSURE SCHEDULE
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SCHEDULE II
PNC LETTERS OF CREDIT
Beneficiary Account Party Face Amount Type of Letter Issuance Expiry Date
of Credit Date
County of Hearico, Virginia Regal Cinemas, Inc. $41,970 Standby 2/2/94 2/2/99
Township of Edgmont Regal Cinemas, Inc. $44,880 Standby 12/12/96 11/18/98
Xxxxxxxx Xxxxxx, Xx. Regal Cinemas, Inc. $40,002 Standby 9/6/97 6/9/98
Township of Upper Providence Regal Cinemas, Inc. $1,275,000 Standby 11/5/97 1/1/99
Florida Power & Light Regal Cinemas, Inc. $450,000 Standby 3/9/98 3/9/98
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ANNEX I
LENDER INFORMATION
1. THE BANK OF NOVA SCOTIA
Domestic Office: LIBOR Office:
---------------- ------------- Revolving Loan Commitment
Address: One Liberty Plaza Address: One Liberty Plaza __%
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 __%
Attention: Xxxx Xxxxxxxxxxxxx Attention: Xxxx Xxxxxxxxxxxxx Term B Loan Commitment
__%
Term C Loan Commitment
__%
2. BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
Domestic Office: LIBOR Office:
---------------- ------------- Revolving Loan Commitment
Address: 000 Xxxx Xxxxxxx Xxxx. Address: 000 Xxxxxxx Xxxxxx __%
Xxxxxxx, XX 00000 0xx Xxxxx
Xxx Xxxx, XX 00000 Term A Loan Commitment
Facsimile No.: (000) 000-0000 __%
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx Term B Loan Commitment
Attention: Xxxxxxx X'Xxxxx __%
Term C Loan Commitment
__%
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3. THE CHASE MANHATTAN BANK
Domestic Office:
----------------
Address: LIBOR Office:
------------- Revolving Loan Commitment
Address: __%
Facsimile No.:
Facsimile No.: Term A Loan Commitment
Attention: __%
Attention:
Term B Loan Commitment
__%
Term C Loan Commitment
__%
A-2
