1
EXHIBIT 10.2
$275,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
JANUARY 29, 1999
AMONG
CARMIKE CINEMAS, INC.
THE BANKS LISTED HEREIN
AND
WACHOVIA BANK, N.A.,
AS AGENT
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...........................................................................................1
Section I.1. Definitions................................................................................1
Section I.2. Accounting Terms and Determinations.......................................................20
Section I.3. Use of Defined Terms......................................................................20
Section I.4. Terminology...............................................................................20
Section I.5. References................................................................................20
ARTICLE II THE CREDITS ........................................................................................20
Section II.1. Commitments to Make Loans................................................................20
Section II.2. Method of Borrowing Loans................................................................21
Section II.3. Notes....................................................................................22
Section II.4. Maturity of Loans........................................................................23
Section II.5. Interest Rates...........................................................................23
Section II.6. Fees.....................................................................................25
Section II.7. Optional Termination or Reduction of Commitments.........................................27
Section II.8. Termination and Reduction of Commitments.................................................27
Section II.9. Optional Prepayments.....................................................................27
Section II.10. Mandatory Prepayments....................................................................27
Section II.11. General Provisions as to Payments........................................................28
Section II.12. Computation of Interest and Fees.........................................................29
ARTICLE III CONDITIONS TO BORROWINGS ............................................................................29
Section III.1. Conditions Precedent to Effectiveness....................................................29
Section III.2. Conditions to All Borrowings.............................................................30
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................31
Section IV.1. Corporate Existence and Power............................................................31
Section IV.2. Corporate and Governmental Authorization; No Contravention...............................32
Section IV.3. Binding Effect...........................................................................32
Section IV.4. Financial Information....................................................................32
Section IV.5. Litigation...............................................................................32
Section IV.6. Compliance with ERISA....................................................................32
Section IV.7. Taxes....................................................................................33
Section IV.8. Subsidiaries.............................................................................33
Section IV.9. Not an Investment Company................................................................33
Section IV.10. Public Utility Holding Company Act.......................................................33
Section IV.11. Ownership of Property; Liens.............................................................33
Section IV.12. No Default...............................................................................33
Section IV.13. Full Disclosure..........................................................................33
Section IV.14. Environmental Matters...................................................................34
Section IV.15. Compliance with Laws.....................................................................34
Section IV.16. Capital Stock............................................................................34
Section IV.17. Margin Stock.............................................................................35
Section IV.18. Insolvency...............................................................................35
ARTICLE V COVENANTS .............................................................................................35
Section V.1. Information..............................................................................35
Section V.2. Inspection of Property, Books and Records................................................36
Section V.3. Ratio of Consolidated Senior Funded Debt to Consolidated Cash Flow.......................37
Section V.4. Ratio of Consolidated Funded Debt to Consolidated Cash Flow..............................37
Section V.5. Restricted Payments......................................................................37
Section V.6. Fixed Charge Coverage....................................................................37
Section V.7. Adjusted Fixed Charge Coverage...........................................................37
Section V.8. Negative Pledge..........................................................................39
Section V.9. Maintenance of Existence.................................................................39
Section V.10. Dissolution..............................................................................39
Section V.11. Consolidations, Mergers and Sales of Assets..............................................39
Section V.12. Use of Proceeds..........................................................................40
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Section V.13. Compliance with Laws; Payment of Taxes...................................................40
Section V.14. Insurance................................................................................40
Section V.15. Change in Fiscal Year....................................................................40
Section V.16. Maintenance of Property..................................................................40
Section V.17. Environmental Notices....................................................................40
Section V.18. Environmental Matters....................................................................41
Section V.19. Environmental Release....................................................................41
Section V.20. Additional Covenants, Etc................................................................41
Section V.21. Investments..............................................................................42
Section V.22. Guaranty of Subsidiaries.................................................................42
Section V.23. Limitation on Consolidated Funded Debt...................................................43
Section V.24. Delivery of Collateral Documents.........................................................43
Section V.25. Subordinated Debt........................................................................44
ARTICLE VI DEFAULTS .............................................................................................44
Section VI.1. Events of Default........................................................................44
Section VI.2. Notice of Default........................................................................46
ARTICLE VII THE AGENT............................................................................................47
Section VII.1. Appointment, Powers and Immunities.......................................................47
Section VII.2. Reliance by Agent........................................................................47
Section VII.3. Defaults.................................................................................47
Section VII.4. Rights of Agent and Its Affiliates as a Bank.............................................48
Section VII.5. Indemnification..........................................................................48
Section VII.6. CONSEQUENTIAL DAMAGES....................................................................48
Section VII.7. Payee of Note Treated as Owner...........................................................48
Section VII.8. Non-Reliance on Agent and Other Banks....................................................49
Section VII.9. Failure to Act...........................................................................49
Section VII.10.Resignation or Removal of Agent..........................................................49
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION ..............................................................50
Section VIII.1.Basis for Determining Interest Rate Inadequate or Unfair.................................50
Section VIII.2.Illegality...............................................................................50
Section VIII.3.Increased Cost and Reduced Return........................................................50
Section VIII.4.Base Rate Loans Substituted for Euro-Dollar Loans........................................52
Section VIII.5.Compensation.............................................................................52
Section VIII.6.Replacement of Bank......................................................................53
ARTICLE IX MISCELLANEOUS.........................................................................................53
Section IX.1. Notices..................................................................................53
Section IX.2. No Waivers...............................................................................54
Section IX.3. Expenses; Documentary Taxes; Indemnification.............................................54
Section IX.4. Setoffs; Sharing of Set-Offs.............................................................55
Section IX.5. Amendments and Waivers...................................................................56
Section IX.6. Margin Stock Collateral..................................................................56
Section IX.7. Successors and Assigns...................................................................56
Section IX.8. Confidentiality..........................................................................58
Section IX.9. Representation by Banks..................................................................59
Section IX.10. Obligations Several......................................................................59
Section IX.11. Survival of Certain Obligations..........................................................59
Section IX.12 Georgia Law..............................................................................59
Section IX.13. Severability.............................................................................59
Section IX.14. Interest.................................................................................59
Section IX.15. Interpretation...........................................................................60
Section IX.16. Consent to Jurisdiction..................................................................60
Section IX.17 ▇▇▇▇▇ Filing.............................................................................60
Section IX.18 Counterparts.............................................................................60
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 29,
1999, among CARMIKE CINEMAS, INC., a Delaware corporation, the BANKS listed on
the signature pages hereof and WACHOVIA BANK, N.A., as Agent.
The parties hereto agree as follows:
This Amended and Restated Credit Agreement is an amendment and
restatement of the $275,000,000 Credit Agreement by and among the Borrower,
Wachovia Bank, N.A., First Union National Bank, SunTrust Bank, Atlanta, The
Long-Term Credit Bank of Japan, Ltd., The Bank of New York, First American
National Bank, The Industrial Bank of Japan, Limited, Atlanta Agency, The Sanwa
Bank Limited, The Bank of Tokyo-Mitsubishi, Ltd., Columbus Bank and Trust
Company, and Hibernia National Bank, and Wachovia Bank, N.A., as the Agent,
dated as of October 17, 1997, as amended prior to the date hereof by First
Amendment to Credit Agreement dated as of September 29, 1998 (as so amended, the
"Original Agreement"), which is superseded hereby.
ARTICLE I
DEFINITIONS
Section I.1. Definitions. The terms as defined in this Section
1.01 shall, for all purposes of this Agreement and any amendment hereto (except
as herein otherwise expressly provided or unless the context otherwise
requires), have the meanings set forth herein:
"Adjusted Cash Flow" means, for any period, Consolidated
Operating Income for such period, plus, to the extent deducted in determining
the amount thereof, (i) Rental Obligations (less any principal portion of any
Off-Balance Sheet Lease), (ii) depreciation and amortization, and (iii) any
aggregate net income during such period arising from the sale, exchange or other
distribution of capital assets, provided that the total amount so included
pursuant to this clause (iii) shall not exceed 5% of Consolidated Operating
Income for such period, provided further, however, that, in calculating Adjusted
Cash Flow for any such period, any acquisition or disposition of assets that
shall have occurred during such period will be deemed to have occurred at the
beginning of such period; and (iv) with respect to any Off-Balance Sheet
Property which was acquired or ground-leased by any entity acting in the
capacity of landlord (or in any functionally similar capacity to a landlord)
under any Off-Balance Sheet Lease within the 12-month period ending on the date
of determination of Consolidated Cash Flow, Adjusted Cash Flow shall include
Theatre-Level EBITDA for such Off-Balance Sheet Property and shall be determined
with respect to such Off-Balance Sheet Property on the basis of actual
Theatre-Level EBITDA within such period and projected Theatre-Level EBITDA for
the remainder of such period (with such projections being based on the average
Theatre-Level EBITDA of comparable theater properties of the Borrower which were
operated during the entire 12-month period).
"Adjusted Fixed Charges" means, for any period, without
duplication, the sum for such period of (i) Fixed Charges, plus (ii) all
dividends paid by the Borrower, plus (iii) the aggregate amount paid, or
required to be paid, in cash by the Borrower and its Subsidiaries in
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respect of income taxes (including deferred taxes), plus (iv) all scheduled
payments of principal made by the Borrower or any Subsidiary with respect to
Consolidated Funded Debt (excluding principal payments on the Senior Notes and
payments on the Loans hereunder).
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.05(c).
"Affiliate" of any Person means (i) any other Person which
directly, or indirectly through one or more intermediaries, controls such
Person, (ii) any other Person which directly, or indirectly through one or more
intermediaries, is controlled by or is under common control with such Person, or
(iii) any other Person of which such Person owns, directly or indirectly, 20% or
more of the common stock or equivalent equity interests. As used herein, the
term "control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Banks hereunder, and its successors and permitted
assigns in such capacity.
"Agent's Letter Agreements" means either or both, as the
context shall require, of those certain letter agreements dated September 5,
1997 and January 12, 1999, between the Borrower and the Agent relating to the
structure of the Loans, and certain fees payable by the Borrower to the Agent,
together with all amendments and modifications thereto.
"Agreement" means this Amended and Restated Credit Agreement,
together with all amendments and supplements hereto.
"Applicable Commitment Fee Rate" has the meaning set forth in
Section 2.06(a).
"Applicable Margin" has the meaning set forth in Section
2.05(a).
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.07(c) in the form attached hereto as
Exhibit B.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, and (ii)
one-half of one percent above the Federal Funds Rate for such day. For purposes
of determining the Base Rate for any day, changes in the Prime Rate and the
Federal Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based
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upon the Base Rate.
"Board of Directors" means the Board of Directors of the
Borrower or a duly authorized committee of directors lawfully exercising the
relevant powers of such Board.
"Borrower" means Carmike Cinemas, Inc., a Delaware
corporation, and its successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower at the same time by the Banks pursuant to Article II. A
Borrowing is a "Base Rate Borrowing" if such Loans are Base Rate Loans or a
"Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans.
"Capital Lease" as applied to any Person, means any lease of
any property (whether real, personal or mixed) by such Person as lessee which
would, in accordance with GAAP, be required to be classified and accounted for
as a capital lease on the balance sheet of such Person, other than, in the case
of the Borrower or a Subsidiary, any such lease under which the Borrower or a
Wholly-owned Subsidiary is the lessor.
"Capital Lease Obligation" with respect to any Capital Lease,
means the amount of the obligation of the lessee thereunder which would, in
accordance with GAAP, appear on a balance sheet of such lessee (or the notes
thereto) in respect of such Capital Lease.
"Capital Stock" means any capital stock (other than capital
stock which is either (i) mandatorily redeemable or (ii) redeemable at the
option of the holder thereof) of the Borrower or any Subsidiary (to the extent
issued to a Person other than the Borrower), whether common or preferred.
"Cash" means money, currency or a credit balance in a demand,
time, savings, passbook or like account with a bank, savings and loan
association, credit union or like organization, other than an account evidenced
by a negotiable certificate of deposit.
"Cash Equivalents" means, as at any date of determination: (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of acquisition thereof, the highest rating obtainable
from either S&P or ▇▇▇▇▇'▇; (iii) commercial paper maturing no more than one
year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
▇▇▇▇▇'▇; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Bank or by any commercial
bank organized under the laws of the United States or any state thereof or the
District of Columbia that (1) is at least "adequately capitalized" (as defined
in the regulations of its primary Federal banking regulator) and (2) has Tier 1
capital (as defined in such regulations) of not less than $100,000,000; (v)
shares of any money market mutual fund that (1) has at least 95% of its assets
invested continuously in the types of investments referred to in
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clauses (i), (ii) and (iii) above, (2) has net assets of not less than
$500,000,000 and (3) has the highest rating obtainable from either S&P or
▇▇▇▇▇'▇.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss.9601 et seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
"Coke Advance" means an advance in the amount of $10,000,000
made by The Coca Cola Company on certain advertising, promotional and incentive
fees anticipated to be earned by the Borrower pursuant to the Amended and
Restated Agreement between them dated December 20, 1998.
"Collateral" means the property of the Borrower and EastWynn,
respectively, in which the Collateral Agent, for the ratable benefit of the
Secured Parties, is granted a security interest pursuant to the Security
Agreement and the Pledge Agreement, to secure the Secured Obligations, for the
ratable benefit of the Secured Parties.
"Collateral Agent" means Wachovia Bank, N.A., in its capacity
as collateral agent under the Collateral Documents.
"Collateral Documents" means the Intercreditor Agreement, the
Pledge Agreement, the Security Agreement and such financing statements as the
Collateral Agent may require to perfect its security interest in the Collateral.
"Collateralization Date" means the date which is the earlier
of (x) the closing of the Term Loan, or (y) February 26, 1999 (or such later
date as the Agent, acting at the direction of the Required Banks, may agree upon
in writing).
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, or (ii)
as to any Bank which enters into an Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's Commitment
after giving effect to such Assignment and Acceptance, in each case as such
amount may be reduced from time to time pursuant to Sections 2.07.
"Commitment Fee Determination Date" has the meaning set forth
in Section 2.06(a).
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"Commitment Fee Payment Date" means the last day of each
March, June, September and December.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Cash Flow" means, for any period, the sum of
Consolidated Operating Income of the Borrower, and its Subsidiaries, plus to the
extent deducted in determining such Consolidated Operating Income (i)
depreciation and amortization, and (ii) any aggregate net income during such
period arising from the sale, exchange or other distribution of capital assets,
provided, however, that the total amount so included pursuant to this clause
(ii) shall not exceed 5% of Consolidated Operating Income for such period,
provided further, however, that, in calculating Consolidated Cash Flow for any
such period, any acquisition or disposition of assets that shall have occurred
during such period will be deemed to have occurred at the beginning of such
period; provided further, however, that (x) for purposes of determining the
ratio of Consolidated Funded Debt to Consolidated Cash Flow and the ratio of
Consolidated Senior Funded Debt to Consolidated Cash Flow, all Off-Balance Sheet
Lease Payments made during the relevant period which has been deducted in
computing Consolidated Net Income shall be added back in computing Consolidated
Cash Flow and (y) with respect to any Off-Balance Sheet Property which was
acquired or ground-leased by any entity acting in the capacity of landlord (or
in any functionally similar capacity to a landlord) under any Off-Balance Sheet
Lease within the 12-month period ending on the date of determination of
Consolidated Cash Flow, Consolidated Cash Flow shall include Theatre-Level
EBITDA for such Off-Balance Sheet Property and shall be determined with respect
to such Off-Balance Sheet Property on the basis of actual Theatre-Level EBITDA
within such period and projected Theatre-Level EBITDA for the remainder of such
period (with such projections being based on the average Theatre-Level EBITDA of
comparable theater properties of the Borrower which were operated during the
entire 12-month period).
"Consolidated Current Assets" means, as at any date of
determination, the total assets of the Borrower and its Consolidated
Subsidiaries on a consolidated basis which may properly be classified as current
assets in conformity with GAAP, excluding Cash and Cash Equivalents.
"Consolidated Current Liabilities" means, at any date of
determination, the total liabilities of the Borrower and its Consolidated
Subsidiaries on a consolidated basis which may properly be classified as current
liabilities in conformity with GAAP (but excluding current maturities of
long-term debt of the Borrower and its Consolidated Subsidiaries determined in
accordance with GAAP).
"Consolidated Funded Debt" means at any date the Funded Debt
of the Borrower and its Subsidiaries, determined on a consolidated basis as of
such date.
"Consolidated Net Income" means for any period, the net income
(or deficit) of the Borrower and its Subsidiaries for such period in question
(taken as a cumulative whole) after deducting, without duplication, all
operating expenses, provisions for all taxes and reserves (including reserves
for deferred income taxes) and all other proper deductions, all determined in
accordance with GAAP on a consolidated basis, after eliminating material
inter-company items in accordance with GAAP and after deducting portions of
income properly attributable to outside
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minority interests, if any, in Subsidiaries; provided however, that there shall
be excluded (a) any income or deficit of any other Person accrued prior to the
date it becomes a Subsidiary or merges into or consolidates with the Borrower or
another Subsidiary, (b) the net income in excess of an amount equal to 5% of
Consolidated Net Income for such period before giving effect to this clause (b)
(or deficit) of any Person (other than a Subsidiary) in which the Borrower or
any Subsidiary has any ownership interest, except to the extent that any such
income has been actually received by the Borrower or such Subsidiary in the form
of cash dividends or similar distributions, and provided that the resulting
income is generated by lines of businesses substantially similar to those of the
Borrower and its Subsidiaries taken as a whole during the fiscal year ended
December 31, 1998, (c) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of income
accrued during such period, (d) any deferred credit or amortization thereof from
the acquisition of any properties or assets of any Person, (e) any aggregate net
income (but not any aggregate net loss) during such period arising from the
sale, exchange or other distribution of capital assets (such term to include all
fixed assets, whether tangible or intangible, all inventory sold in conjunction
with the disposition of fixed assets and all securities) to the extent the
aggregate gains from such transactions exceed losses from such transactions, (f)
any impact on the income statement resulting from any write-up of any assets
after the Effective Date, (g) any items properly classified as extraordinary in
accordance with GAAP, (h) proceeds of life insurance policies to the extent such
proceeds exceed premiums paid to maintain such life insurance policies, (i) any
portion of the net income of a Subsidiary which is unavailable for the payment
of dividends to the Borrower or a Subsidiary, (j) any gain arising from the
acquisition of any debt securities for a cost less than principal and accrued
interest, (k) in the case of a successor to the Borrower by permitted
consolidation or merger or transfer of assets pursuant to Section 5.12, any
earnings, of such successor or transferee prior to the consolidation, merger or
transfer of assets, (1) any earnings on any Investments of the Borrower or any
Subsidiary except to the extent that such earnings are received by the Borrower
or such Subsidiary as cash, provided that earnings which would otherwise be
excluded from Consolidated Net Income pursuant to the preceding provisions of
this clause (1) shall be included in Consolidated Net Income but only to the
extent that such earnings are attributable to the net income of any Person
(other than a Subsidiary) in which the Borrower or any Subsidiary has any
ownership interest and such net income is not otherwise excluded from
Consolidated Net Income by virtue of clause (b) of this definition and (m) the
Restructuring and Impairment Charges for 1998.
"Consolidated Net Worth" means as of any date of determination
(a) the sum of (i) the net book value (after deducting related depreciation,
obsolescence, amortization, valuation and other proper reserves other than any
such reserve maintained in accordance with GAAP in connection with the use of
the last-in-first-out method of inventory valuation) at which the assets of the
Borrower and its Subsidiaries would be shown on a consolidated balance sheet at
such date prepared in accordance with GAAP, but excluding any amount on account
of write-ups of assets after the date of the most recent audited financial
statements delivered pursuant to Section 5.01, and (ii) the net book value of
all Off-Balance Sheet Property minus (b) the amount at which the consolidated
liabilities of the Borrower and its Subsidiaries (other than capital stock and
surplus) would be shown on such balance sheet, and including as liabilities all
reserves for contingencies and other potential liabilities and all minority
interests in Subsidiaries.
"Consolidated Operating Income" means, for any period,
Consolidated Net Income for such period plus, to the extent deducted in
determining the amount thereof, (i) the
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aggregate amount paid, or required to be paid, in cash by the Borrower and its
Subsidiaries in respect of income taxes (including deferred taxes) during such
period plus (ii) Interest Expense.
"Consolidated Senior Funded Debt" means at any date the sum
of: (i) Consolidated Funded Debt, minus (ii) the Subordinated Debt.
"Consolidated Total Capitalization" means, at any time, the
sum of: (i) Consolidated Net Worth, and (ii) Consolidated Funded Debt.
"Consolidated Working Capital" means, as at any date of
determination, the excess of Consolidated Current Assets over Consolidated
Current Liabilities.
"Consolidated Working Capital Adjustment" means, for any
period on a consolidated basis, the amount (which may be a negative number) by
which Consolidated Working Capital as of the beginning of such period exceeds
(or is less than) Consolidated Working Capital as of the end of such period.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of Exhibit I to be executed by the
Borrower and by the Guarantors which are Subsidiaries on the Effective Date and
by each of the Guarantors which becomes a Subsidiary after the Effective Date
pursuant to Section 5.22(a).
"Control" means legal and beneficial ownership of that
percentage of Voting Stock which enables the owner thereof to elect a majority
of the corporate directors (or persons performing similar functions) of the
Borrower.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Current Debt" means as at any date of determination all Debt
for borrowed money maturing or payable on demand or within one year from the
date of the creation thereof including any Debt that is by its terms or by the
terms of any instrument or agreement relating thereto directly or indirectly
renewable or extendible, at the option of the debtor, to a date beyond such
year, including any outstanding amounts of any revolving credit facility, but
excluding any fixed or contingent payments maturing or required to be made not
more than one year after such date in respect of the principal and premium, if
any, on any Funded Debt. Any Debt that is extended or renewed shall be deemed to
have been created at the date of such extension or renewal.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under Capital
Leases, (v) all obligations of such Person to reimburse any bank or other Person
in respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations (absolute or contingent) of such Person
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to reimburse any bank or other Person in respect of amounts paid under a letter
of credit or similar instrument, (viii) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by such Person,
and (ix) all Debt of others Guaranteed by such Person. In determining the Debt
and assets of any Person, no effect shall be given to deposits, trust
arrangements or similar arrangements which, in accordance with GAAP, extinguish
Debt for which such Person remains legally liable, except Debt shall not include
the promissory note of the Borrower in a principal amount not to exceed
$3,622,974 and bearing interest at the rate of 10.083% per annum payable to
Columbus Bank and Trust Company, and any extensions and renewals thereof,
provided the proceeds of such promissory note are used to pay the full purchase
price of a certificate of deposit (the "IRB Certificate of Deposit"), such
promissory note (and any such extension or renewal thereof) is secured by the
pledge of such IRB Certificate of Deposit issued by Columbus Bank and Trust
Company in an amount and bearing interest at a rate sufficient to pay all
obligations under such promissory note, such promissory note is nonrecourse to
the Borrower or to any Subsidiary except to such IRB Certificate of Deposit and
the obligation under such promissory note is not, in accordance with GAAP, to be
classified on its balance sheet as debt.
"Debt Rating" means the rating of the Subordinated Debt by
Moody's and S&P.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the then highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
"Dividends" means for any period the sum of all dividends paid
or declared during such period in respect of any Capital Stock and Redeemable
Preferred Stock (other than dividends paid or payable in the form of additional
Capital Stock).
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized or
required by law to close.
"EastWynn" means EastWynn Theaters, Inc., an Alabama
corporation, and its successors.
"EastWynn Guaranty Obligations" means the obligations of
EastWynn under (i) the Guaranty, (ii) the "Guaranty", as defined in the Lease,
and (iii) from and after the closing of the Term Loan, the "Guaranty", as
defined in the Term Loan Credit Agreement.
"Effective Date " has the meaning specified in Section 3.01.
"Environmental Authority" means any federal, state or local
government that exercises any form of jurisdiction or authority under any
Environmental Law.
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"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Law.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Laws, whether or not entered upon consent, or written agreements with an
Environmental Authority arising from or in any way associated with a
noncompliance with, or liability or claim arising under, any Environmental Law.
"Environmental Laws" means any and all federal, state and
local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, licenses or other governmental restrictions relating to the
environment or to emissions, discharges or releases of pollutants, contaminants,
petroleum or petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment, including, without limitation,
ambient air, surface water, groundwater or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes or
the clean-up or other remediation thereof.
"Environmental Liability" shall mean any liability whatsoever,
whenever and by whomever asserted (whether absolute or contingent, matured or
unmatured) including, without limitation, any cost (including costs of
investigation), damage (including without limitation, damages for personal
injury or death, consequential damages and natural resource damages), penalty,
fine or order, expense, fee (including reasonable attorneys' fees and consulting
fees), or disbursement resulting from or related to a violation of any
Environmental Law or any remedial or response obligation arising under any
Environmental Law, or otherwise arising contractually with any party or entity
or by operation of any law relating to any Hazardous Material for which the
Borrower is responsible.
"Environmental Notices" means notice from any Environmental
Authority of an alleged noncompliance with or liability under any Environmental
Law, including without limitation any complaints, citations, demands or requests
from any Environmental Authority or from any other person or entity for
correction of any violation of any Environmental Law or any investigations
concerning any violation of any Environmental Law.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from any Environmental Law.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which
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dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.05(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Cash Flow" means, without duplication, for any Fiscal
Year, the sum for such Fiscal Year of: (a) Adjusted Cash Flow (excluding,
however, any amount described in clause (iv) of the definition thereof), minus
(b) capital expenditures, minus (c) Rental Obligations, minus (d) Interest
Expense, minus (e) all principal paid by the Borrower or any Subsidiary with
respect to Consolidated Funded Debt, minus (f) any positive Working Capital
Adjustment, plus (g) any negative Working Capital Adjustment and minus (h) all
income taxes actually paid in cash.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to Wachovia on such day on
such transactions as determined by the Agent.
"Financing" shall mean (i) any transaction or series of
transactions for the incurrence by the Borrower of any Debt or for the
establishment of a commitment to make advances which would constitute Debt of
the Borrower, which Debt is not by its terms subordinate and junior to other
Debt of the Borrower, (ii) an obligation incurred in a transaction or series of
transactions in which assets of the Borrower are sold and leased back, or (iii)
a sale of accounts or other receivables or any interest therein, other than a
sale or transfer of accounts or receivables attendant to a sale permitted
hereunder of an operating division; provided that Capital Leases and Capital
Lease Obligations shall be excluded from this definition.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Charges" for any period, means without duplication, the
sum of (i) the aggregate amount of Interest Expense during such period plus (ii)
the aggregate amount of Rental Obligations (less any principal portion of any
Off-Balance Sheet Lease) for such period.
"Funded Debt" of any Person means (i) all Debt of such Person
which in accordance with GAAP would be classified on a balance sheet of such
Person as of such date as long-term debt, and including in any event all Debt of
such Person, whether secured or unsecured, having a final maturity (or which,
pursuant to its terms, is renewable or extendible at
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the option of such Person for a period ending) more than one year after the date
of the creation thereof (including any portion thereof which is on such date
included in current liabilities of such Person) plus (ii) all Current Debt of
such Person; it being understood and agreed that, with respect to the Borrower,
the term "Funded Debt" shall include, in addition to all Debt which would
otherwise be included pursuant to the foregoing definition, but without
duplication, (x) all Unescrowed Off-Balance Sheet Lease Indebtedness, (y) the
Off-Balance Sheet Lease Equity Amounts and (z) the Subordinated Debt, but with
respect to the Borrower, the term "Funded Debt" shall not include the Coke
Advance.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" means each Person which is a Subsidiary as of the
Effective Date and any Person which becomes a Subsidiary after the Effective
Date.
"Guaranty" means the Guaranty Agreement of even date herewith
in substantially the form of Exhibit H to be executed by the Guarantors which
are Subsidiaries on the Effective Date and by each Person which becomes a
Subsidiary after the Effective Date pursuant to Section 5.22(a), for the benefit
of the Agent and the Banks.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss.6901 et seq. and its implementing regulations and amendments,
or in any applicable state or local law or regulation, (b) any "hazardous
substance", "pollutant" or "contaminant", as defined in CERCLA, or in any
applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Interest Expense" for any period, means the aggregate amount
(determined in accordance with GAAP on a consolidated basis after eliminating
all intercompany items) of all interest accrued (whether or not actually paid)
by the Borrower and its Subsidiaries during such
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period in respect of Debt of the Borrower and its Subsidiaries (including
Capital Lease Obligations), provided that the term "Interest Expense" shall (i)
include, without limitation, net amounts paid or accrued during such period in
connection with interest rate protection products (including, without
limitation, interest rate swaps, caps, floors and collars), amortized (if
appropriate under GAAP) appropriately over the term of the applicable Debt, any
amortized discount in respect of Debt issued at a discount and any fees or
commissions payable in connection with any letters of credit, the portion of any
Capital Lease Obligation allocable to interest in accordance with GAAP, the
amount of interest costs incurred by any Person during any period that is
capitalized in accordance with GAAP and is not included as an interest cost in
calculating Consolidated Net Income for such period, and (ii) shall exclude all
costs associated with the prepayment of fixed-rate debt.
"Interest Rate Protection Agreement" means an interest rate
hedging or protection agreement entered into by and between the Borrower and a
Bank or a Term Lender, or an Affiliate of either, together with all exhibits,
schedules, extensions, renewals, amendments, substitutions and replacements
thereto and thereof.
"Intercreditor Agreement" means an intercreditor agreement
acceptable to the Collateral Agent and the Secured Parties, setting forth, among
other things, the appointment of the Collateral Agent and its rights, duties and
obligations, indemnification provisions for the Collateral Agent, provisions for
the administration and sharing of the Collateral, for the giving of certain
notices, as to voting rights and as to enforcement actions with respect to the
Collateral, as it may hereafter be amended or supplemented from time to time.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(1) any Interest Period (subject to clause (c) below) which
would otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(2) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall, subject
to clause (c) below, end on the last Euro-Dollar Business Day of the appropriate
subsequent calendar month; and
(3) no Interest Period may be selected which begins before the
Revolver Termination Date and would otherwise end after the Revolver Termination
Date.
(2) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending on the first day after the
date of such Borrowing which is the last day of a Fiscal Quarter; provided that:
(1) any Interest Period (subject to clause (b) below) which
would otherwise
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16
end on a day which is not a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(2) no Interest Period may end after the Revolver Termination
Date.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of assets, Debt or securities of such Person,
capital contribution to such Person, loan or advance to such Person, making of a
time deposit with such Person, Guarantee or assumption of any Debt of such
Person or otherwise; excluding, however, the acquisition of (i) "Leased
Property", as defined in the Lease, (ii) leases and/or real property acquired by
the Borrower or any of its Subsidiaries for the purpose of developing movie
theatres and (iii) equipment or inventory in the ordinary course of business.
"LC Agent" means the "Agent", as that term is defined in the
Reimbursement Agreement.
"LC Lenders" means the "Lenders", as that term is defined in
the Reimbursement Agreement.
"Lease" means the Amended and Restated Master Lease dated as
of even date herewith between Movieplex Realty Leasing, L.L.C., as Landlord, and
the Borrower, as Tenant, as it may hereafter be amended or supplemented from
time to time.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan and Loans
means Base Rate Loans or Euro-Dollar Loans, or any or all of them, as the
context shall require.
"Loan Documents" means this Agreement, the Notes, the
Guaranty, the Contribution Agreement, the Collateral Documents, any other
document evidencing, relating to or securing the Loans, and any other document
or instrument delivered from time to time in connection with this Agreement, the
Notes, the Guaranty, the Contribution Agreement, the Collateral Documents or the
Loans, as such documents and instruments may be amended or supplemented from
time to time.
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"London Interbank Offered Rate" has the meaning set forth in
Section 2.05(c).
"Maintenance Capital Expenditures" means expenditures of the
Borrower and its Subsidiaries which are (i) capitalized on the books of the
Borrower and its Subsidiaries in accordance with GAAP and (ii) incurred for the
purpose of maintaining existing Properties (but not for major renovations of or
new improvements to existing Properties or acquisition of new Properties).
"Margin Stock" means "margin stock" as defined in Regulation
T, U or X of the Board of Governors of the Federal Reserve System, as in effect
from time to time, together with all official rulings and interpretations issued
thereunder.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business, properties or prospects of
the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies
of the Agent or the Banks under the Loan Documents, or the ability of the
Borrower to perform its obligations under the Loan Documents to which it is a
party, as applicable, or (c) the legality, validity or enforceability of any
Loan Document.
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, in each case as set forth in a
statement in reasonable detail delivered by the respective Borrower to the
Agent:
(i) with respect to the disposition of assets (including in
connection with sale/leaseback transactions, but excluding sales of
inventory in the ordinary course of business) by any Borrower or
Subsidiary, the excess, if any, of (1) the cash proceeds received in
connection with such disposition over (2) the sum of (A) the principal
amount of any Debt (other than payments on the Secured Obligations
required by Section 2.10(b)) which is secured by such asset and which
is required to be repaid in connection with the disposition thereof,
plus (B) the reasonable out-of-pocket expenses incurred by such
Borrower or such Subsidiary, as the case may be, in connection with
such disposition, plus (C) so long as no Event of Default is in
existence, provision for taxes, including income taxes, attributable to
the disposition of such asset, less (D) cash proceeds in an amount
equal to an aggregate of $3,000,000 from all such dispositions of
assets in the Fiscal Year in which the relevant disposition of assets
occurs;
(ii) with respect to any cash proceeds received by any
Borrower or a Subsidiary from the issuance of any Capital Stock (other
than cash proceeds received by a Subsidiary from the sale of Capital
Stock to the Borrower or to another Subsidiary or received in
connection with any sale under the Borrower's stock option plans for
the benefit of officers, employees and directors or used to pay the
repurchase price of stock held by any
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of them pursuant to any such plans), all such cash proceeds, after
deducting therefrom all reasonable and customary costs and expenses
incurred by such Borrower or Subsidiary directly in connection with the
issuance of such Capital Stock;
(iii) with respect to any cash proceeds received in respect of
the incurrence of the Term Debt and the Subordinated Debt (other than
the $200,000,000 in Subordinated Debt described in Section 5.25(b)),
all such cash proceeds; and
(iv) with respect to any proceeds or awards from any
casualty to or condemnation of any of the Properties, the excess, if
any, of (1) the cash proceeds received in connection with such casualty
or condemnation award over (2) the sum of (A) the principal amount of
any Debt (other than payments on the Secured Obligations required by
Section 2.10(b)) which is secured by such Property and which is
required to be repaid in connection with the disposition thereof, plus
(B) the reasonable out-of-pocket expenses incurred by such Borrower or
such Subsidiary, as the case may be, in connection with the collection
of such proceeds, less (C) the amount which the Borrower estimates it
will expend to restore or replace such Property; less (D) cash proceeds
in an amount equal to an aggregate of $1,000,000 from all such
casualties and condemnation awards in the Fiscal Year in which the
relevant casualty or condemnation award occurs.
"Notes" means promissory notes of the Borrower, substantially
in the form of Exhibit A hereto, evidencing the obligation of the Borrower to
repay the Loans, together with all amendments, consolidations, modifications,
renewals and supplements thereto and "Note" means any one of such Notes.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Off-Balance Sheet Lease Equity Amounts" means the aggregate
amount of all capital contributions made from time to time to any entity acting
in the capacity of landlord (or in any functionally similar capacity to a
landlord) under any Off-Balance Sheet Lease by equity holders in such entity.
"Off-Balance Sheet Lease Indebtedness" means the aggregate
principal amount of (and capitalized interest on) all indebtedness incurred or
issued in connection with any Off-Balance Sheet Lease which is secured,
supported or serviced, directly or indirectly, by any payments made by the
Borrower or any Subsidiary.
"Off-Balance Sheet Lease Payments" means, for any period, the
aggregate amount of any rental payments or other similar payments made during
such period in connection with any Off-Balance Sheet Lease.
"Off-Balance Sheet Lease" means the Lease and any other lease
which is treated as a lease for accounting purposes and as a financing
instrument for property law and bankruptcy purposes, and in respect of which
transaction any Off-Balance Sheet Lease Indebtedness is issued or incurred.
"Off-Balance Sheet Property" means any property subject to an
Off-Balance Sheet Lease.
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"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Operating Lease" means a lease (including an Off-Balance
Sheet Lease) of real or personal property other than, in the case of the
Borrower or a Subsidiary, (a) any such lease under which the Borrower or a
Wholly-Owned Subsidiary is the lessor and (b) any Capital Lease.
"Original Agreement" has the meaning set forth in the
preamble.
"Participant" has the meaning set forth in Section 9.07(b).
"▇▇▇▇▇▇▇ Family" means any or all of ▇. ▇. ▇▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇, or trusts to which one or more of the foregoing are the sole
beneficiaries.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership
(including without limitation, a joint venture), an unincorporated association,
a trust or any other entity or organization, including, but not limited to, a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Pledge Agreement" means a Pledge Agreement in form and
substance satisfactory to the Agent and the Collateral Agent pursuant to which
the Borrower pledges and grants a first priority perfected security interest in
the capital stock of all Subsidiaries to the Collateral Agent, for the ratable
benefit of the Secured Parties, to secure the Secured Obligations, as it may
hereafter be amended or supplemented from time to time.
"Preferred Stock" means, as applied to any corporation, shares
of such corporation which are entitled to preference or priority over any other
shares of such corporation in respect of either the payment of dividends or the
distribution of assets upon liquidation.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased under a
ground lease or otherwise used or occupied by the Borrower or any Subsidiary,
wherever located.
"Rate Determination Date" has the meaning set forth in Section
2.05(a).
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"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Revolver
Termination Date either (i) mandatorily redeemable (by sinking fund or similar
payments or otherwise) or (ii) redeemable at the option of the holder thereof.
"Reimbursement Agreement" means that certain Reimbursement
Agreement dated as of November 20, 1997, among Movieplex Realty Leasing, L.L.C.,
the LC Agent and the LC Lenders, as amended by First Amendment to Reimbursement
Agreement dated as of even date herewith, and as it may hereafter be amended or
supplemented from time to time.
"Rental Obligations" means for any period, the total amount
(whether or not designated as rentals or additional or supplemental rentals)
payable by the Borrower or any Subsidiary under any Operating Lease during such
period (in each case exclusive of amounts so payable on account of maintenance,
repairs, insurance, taxes, assessments and other similar charges); if and to the
extent that the amount of any Rental Obligation during any future period is not
definitely determinable under the Operating Lease in question, the amount of
such Rental Obligation shall be estimated in such reasonable manner as the Board
of Directors in good faith may determine.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments are no
longer in effect, Banks holding at least 66 2/3% of the aggregate outstanding
principal amount of the Notes.
"Responsible Officer" means the chief financial officer or the
chief executive officer of the Borrower.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock or the Capital Stock
of any Subsidiary which is not a Wholly-Owned Subsidiary (except (x) dividends
payable solely in shares of such Capital Stock, (y) dividends payable on Capital
Stock of such Subsidiaries which are payable pro rata to all of the owners of
such Capital Stock, and (z) dividends payable to the Borrower or a Guarantor) or
(ii) any payment on account of the purchase, redemption, retirement or
acquisition of (a) any shares of the Borrower's or any such Subsidiary's Capital
Stock (except shares acquired upon the conversion thereof into other shares of
its Capital Stock) or (b) any option, warrant or other right to acquire shares
of the Borrower's or any such Subsidiary's Capital Stock.
"Restructuring and Impairment Charges for 1998" means the
following charges to be taken by the Borrower for the fourth Fiscal Quarter of
its 1998 fiscal year: (i) a restructuring charge in the amount of approximately
$33,000,000 and (ii) impairment of asset value charge in the amount of
approximately $37,000,000 to $41,000,000.
"Revolver Termination Date" means November 10, 2002.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.
"Secured Obligations" means: (i) the obligations of the
Borrower under (x) this Agreement, (y) the Lease and the Lessee Undertaking and
(z) from and after the closing of the Term Loan, the Term Loan Credit Agreement;
(ii) the EastWynn Guaranty Obligations; and (iii)
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the actual (as distinguished from notional) liability of the Borrower to any
Bank or Term Lender ,or Affiliate or either, under any Interest Rate
Protection Agreement with any such Bank, Term Lender or Affiliate.
"Secured Parties" means (i) the Agent and the Banks, and, with
respect to any Interest Rate Protection with an Affiliate of a Bank, such
Affiliate, (ii) the LC Agent (as assignee of the Landlord, for the ratable
benefit of the LC Lenders) and the LC Lenders and (iii) from and after the
closing of the Term Loan, the Term Administrative Agent and the Term Lenders,
and with respect to any Interest Rate Protection with an Affiliate of a Term
Lender, such Affiliate.
"Security Agreement" means a Security Agreement in form and
substance satisfactory to the Agent and the Collateral Agent pursuant to which
each of the Borrower and EastWynn grants a first priority, perfected security
interest in all personal property owned by it, including, without limitation,
all equipment, fixtures, accounts, chattel paper, instruments, inventory and
general intangibles, to the Collateral Agent, for the ratable benefit of the
Secured Parties, to secure the Secured Obligations, as it may hereafter be
amended or supplemented from time to time.
"Senior Notes" means, collectively, the 10.53% Senior Notes
due 2005 in the outstanding principal amount of approximately $47,700,000, the
7.90% Senior Notes due 2002 in the outstanding principal amount of approximately
$14,300,000 and the 7.52% Senior Notes due 2003 in the outstanding principal
amount of approximately $17,900,000.
"Subordinated Debt" means up to $350,000,000 in Debt of the
Borrower evidenced by Subordinated Notes.
"Subordinated Debt Documents" means the Subordinated Notes,
the Subordinated Debt Indenture and the Subsidiary Guarantees described in the
Subordinated Debt Offering Circular.
"Subordinated Debt Indenture" means the Indenture described in
the Subordinated Debt Offering Circular among the Borrower, the Guarantors
parties thereto described in the Subordinated Debt Offering Circular and The
Bank of New York, as Trustee.
"Subordinated Debt Offering Circular" means the Offering
Circular dated January 27, 1999 pertaining to the issuance of $200,000,000 of
Subordinated Notes and contemplating the subsequent issuance of up to an
additional $150,000,000 of Subordinated Notes, pursuant to the Subordinated Debt
Indenture.
"Subordinated Notes" means the 9.375% Senior Subordinated
Notes having a maturity not earlier than June 1, 2009 which are described in the
Subordinated Debt Offering Circular (including any "Exchange Notes" issued under
the Subordinated Debt Indenture) and which are subordinated in right of payment
to the payment of the obligations of the Borrower under the Credit Agreement and
the Term Credit Agreement pursuant to the subordination provisions described in
the Subordinated Debt Offering Circular.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or
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other persons performing similar functions are at the time directly or
indirectly owned by the Borrower.
"Term Administrative Agent" means the "Administrative Agent",
as defined in the Term Loan Credit Agreement.
"Term Agents" means Wachovia Bank, N.A., as Administrative
Agent, ▇▇▇▇▇▇▇, ▇▇▇▇▇ Credit Partners L.P., as Syndication Agent and First Union
National Bank, as Documentation Agent, under the Term Loan Credit Agreement.
"Term Lenders" means the "Lenders", as defined in the Term
Loan Credit Agreement.
"Term Loan" means, collectively, the term loans in the
aggregate amount of $75,000,000 having a maturity not later than June 1, 2005,
to be made by the Term Lenders pursuant to the Term Loan Credit Agreement in
accordance with the terms of the letter agreement dated January 12, 1999, among
the Term Agents and the Borrower.
"Term Loan Credit Agreement" means the Term Loan Credit
Agreement to be executed by the Borrower, the Term Agents and the Term Lenders
on or about February 16, 1999, pertaining to the Term Loans, as it may hereafter
be amended or supplemented from time to time.
"Theater-Level EBITDA" means with respect to any Off-Balance
Sheet Property, operating income derived therefrom, without provision for any
interest, taxes related to income, depreciation, amortization and corporate
general and administrative expenses.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.07(d).
"Unescrowed Off-Balance Sheet Lease Indebtedness" means the
aggregate amount of all Off-Balance Sheet Lease Indebtedness minus the aggregate
amount of any Off-Balance Sheet Lease Indebtedness being held in an escrow fund
pending expenditure with respect to the property or asset being financed in
connection with the Off-Balance Sheet Lease with respect to which such
Off-Balance Sheet Lease Indebtedness was issued or incurred.
"Unused Commitments" means at any date an amount equal to the
aggregate amount of the Commitments less the aggregate outstanding principal
amount of the Loans.
"Voting Stock" means capital stock of a corporation the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect the corporate directors (or persons performing similar functions).
"Wachovia" means Wachovia Bank, N.A., a national banking
association and its successors.
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"Wholly-Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
Section I.2. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks, unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii) the
Required Banks shall so object in writing within 30 days after the delivery of
such financial statements, in either of which events such calculations shall be
made on a basis consistent with those used in the preparation of the latest
financial statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements delivered
under Section 5.01 hereof, shall mean the financial statements referred to in
Section 4.04); provided that, if either the Borrower or the Required Banks shall
so object, then the Borrower and the Banks shall negotiate in good faith to
modify the relevant covenants set forth in Article V in order to appropriately
reflect such changes in GAAP and, in the event such covenants are so modified,
upon execution of an amendment to this Agreement effectuating such modification,
the related changes in GAAP will be effective for calculation and reporting
purposes under this Agreement.
Section I.3. Use of Defined Terms. All terms defined in this
Agreement shall have the same meanings when used in any of the other Loan
Documents, unless otherwise defined therein or unless the context shall
otherwise require.
Section I.4. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
Section I.5. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", and
"Sections" are references to articles, exhibits, schedules and sections hereof.
ARTICLE II
THE CREDITS
Section II.1. Commitments to Make Loans. Each Bank severally
agrees, on the terms and conditions set forth herein, to make Loans to the
Borrower from time to time during the period from the Effective Date and before
the Revolver Termination Date; provided that,
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immediately after each such Loan is made, the aggregate outstanding principal
amount of Loans by such Bank shall not exceed the amount of its Commitment,
provided further that the aggregate principal amount of all Loans at any one
time outstanding shall not exceed the aggregate amount of the Commitments of all
of the Banks at such time. Each Euro-Dollar Borrowing under this Section shall
be in an aggregate principal amount of $3,000,000 or any larger multiple of
$500,000 (except that any such Euro-Dollar Borrowing may be in the amount of the
Unused Commitments) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Each Base Rate Borrowing under this
Section shall be in an aggregate principal amount of $1,000,000 or any larger
multiple of $500,000 (except that any such Base Rate Borrowing may be in the
amount of the Unused Commitments) and shall be made from the several Banks
ratably in proportion to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section, repay or prepay Loans and
reborrow under this Section at any time before the Revolver Termination Date.
Section II.2. Method of Borrowing Loans.
(1) The Borrower shall give the Agent notice in the form
attached hereto as Exhibit G (a "Notice of Borrowing") prior to 11:00 A.M.
(Atlanta, Georgia time) on the Domestic Business Day of each Base Rate Borrowing
and at least 3 Euro-Dollar Business Days before each Euro-Dollar Borrowing,
specifying:
(1) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or
a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing,
(2) the aggregate amount of such Borrowing,
(3) whether the Loans comprising such Borrowing are
to be Base Rate Loans or Euro-Dollar Loans, and
(4) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period.
(2) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(3) Not later than 11:00 A.M. (Atlanta, Georgia time) on the
date of each Euro-Dollar Borrowing, and not later than 2:00 P.M. (Atlanta,
Georgia time) on the date of each Base Rate Borrowing, each Bank shall (except
as provided in subSection (d) of this Section) make available its ratable share
of such Borrowing, in Federal or other funds immediately available in Atlanta,
Georgia, to the Agent at its address referred to in or specified pursuant to
Section 9.01. Unless the Agent determines that any applicable condition
specified in Article III has not been satisfied, the Agent will make the funds
so received from the Banks available to the Borrower at the Agent's aforesaid
address. Unless the Agent receives notice from a Bank, at the Agent's address
referred to in Section 9.01, no later than 4:00 P.M. (local time at such
address) on the Domestic Business Day before the date of a Euro-Dollar
Borrowing, and no later than
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1:00 P.M. (local time at such address) on the Domestic Business Day of a Base
Rate Borrowing, stating that such Bank will not make a Loan in connection with
such Borrowing, the Agent shall be entitled to assume that such Bank will make a
Loan in connection with such Borrowing and, in reliance on such assumption, the
Agent may (but shall not be obligated to) make available such Bank's ratable
share of such Borrowing to the Borrower for the account of such Bank. If the
Agent makes such Bank's ratable share available to the Borrower and such Bank
does not in fact make its ratable share of such Borrowing available on such
date, the Agent shall be entitled to recover such Bank's ratable share from such
Bank or the Borrower (and for such purpose shall be entitled to charge such
amount to any account of the Borrower maintained with the Agent), together with
interest thereon for each day during the period from the date of such Borrowing
until such sum shall be paid in full at a rate per annum equal to the rate at
which the Agent determines that it obtained (or could have obtained) overnight
Federal funds to cover such amount for each such day during such period,
provided that any such payment by the Borrower of such Bank's ratable share and
interest thereon shall be without prejudice to any rights that the Borrower may
have against such Bank. If such Bank shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
(4) If any Bank makes a new Loan hereunder on a day on which
the Borrower is to repay all or any part of an outstanding Loan from such Bank,
such Bank shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Bank to the
Agent as provided in subSection (c) of this Section, or remitted by the Borrower
to the Agent as provided in Section 2.11, as the case may be.
(5) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived in writing.
(6) In the event that a Notice of Borrowing fails to specify
whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, such Loans shall be made as Base Rate Loans. If the Borrower
is otherwise entitled under this Agreement to repay any Loans maturing at the
end of an Interest Period applicable thereto with the proceeds of a new
Borrowing, and the Borrower fails to repay such Loans using its own moneys and
fails to give a Notice of Borrowing in connection with such new Borrowing, a new
Borrowing shall be deemed to be made on the date such Loans mature in an amount
equal to the principal amount of the Loans so maturing, and the Loans comprising
such new Borrowing shall be Base Rate Loans.
(7) Notwithstanding anything to the contrary contained herein,
(i) there shall not be more than 7 different Interest Periods outstanding at the
same time (for which purpose Interest Periods described in different numbered
clauses of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous) and (ii) the proceeds
of any Base Rate Borrowing shall be applied first to repay the unpaid principal
amount of all Base Rate Loans (if any) outstanding immediately before such Base
Rate Borrowing.
Section II.3. Notes.
(1) The Loans of each Bank shall be evidenced by a single Note
payable to the
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order of such Bank for the account of its Lending Office in an amount equal to
the original principal amount of such Bank's Commitment.
(2) Upon receipt of each Bank's Notes pursuant to Section
3.01, the Agent shall deliver such Notes to such Bank. Each Bank shall record,
and prior to any transfer of its Notes shall endorse on the schedule forming a
part thereof appropriate notations to evidence, the date, amount and maturity
of, and effective interest rate for, each Loan made by it, the date and amount
of each payment of principal made by the Borrower with respect thereto and
whether such Loan is a Base Rate Loan or Euro-Dollar Loan, and such schedule
shall constitute rebuttable presumptive evidence of the principal amount owing
and unpaid on such Bank's Notes; provided that the failure of any Bank to make,
or any error in making, any such recordation or endorsement shall not affect the
obligation of the Borrower hereunder or under the Notes or the ability of any
Bank to assign its Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
Section II.4. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
Section II.5. Interest Rates.
(1) "Applicable Margin" shall be determined quarterly based
upon the ratio of Consolidated Funded Debt to Consolidated Cash Flow (calculated
as of the last day of each Fiscal Quarter for the period of 4 consecutive Fiscal
Quarters then ended), as follows:
-----------------------------------------------------------------------------------------------------------
Ratio of Consolidated Funded Debt to Consolidated Cash Base Rate Loans Euro-Dollar
Flow Loans
-----------------------------------------------------------------------------------------------------------
Greater than or equal to 5.5 1.75% 2.75%
-----------------------------------------------------------------------------------------------------------
Greater than or equal to 5.0 but less than 5.5 1.5% 2.5%
-----------------------------------------------------------------------------------------------------------
Greater than or equal to 4.5 but less than 5.0 1.25% 2.25%
-----------------------------------------------------------------------------------------------------------
Greater than or equal to 4.0 but less than 4.5 1.0% 2.0%
-----------------------------------------------------------------------------------------------------------
Less than 4.0 0.75% 1.75%
-----------------------------------------------------------------------------------------------------------
The Applicable Margin shall be determined effective as of each date (herein, the
"Rate Determination Date") which is 50 days after the last day of the final
Fiscal Quarter in the period for which the foregoing ratio is being determined,
and the Applicable Margin so determined shall remain effective from such Rate
Determination Date until the date which is 50 days after the last day of the
Fiscal Quarter in which such Rate Determination Date falls (which latter date
shall be a new Rate Determination Date); provided that (i) for the period from
and including the Effective Date to but excluding the Rate Determination Date
next following the Effective Date, the Applicable Margin shall be (A) 1.25% for
Base Rate Loans and (B) 2.25% for Euro-Dollar Loans, (ii) in the case of
Applicable Margins determined for the fourth and final Fiscal Quarter of a
Fiscal Year, the Rate Determination Date shall be the date which is 95 days
after the last day of
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such final Fiscal Quarter and such Applicable Margins shall be determined based
upon the annual audited financial statements for the Fiscal Year ended on the
last day of such final Fiscal Quarter, and (iii) if on any Rate Determination
Date the Borrower shall have failed to deliver to the Banks the financial
statements required to be delivered pursuant to Section 5.01 with respect to the
Fiscal Quarter most recently ended prior to such Rate Determination Date (or, in
the case of annual audited financial statements, with respect to the Fiscal Year
which includes such final Fiscal Quarter), then for the period beginning on such
Rate Determination Date and ending on the earlier of (x) the next Rate
Determination Date (on which the Applicable Margin shall again be determined
pursuant to this paragraph) and (y) the date on which the Borrower shall deliver
to the Banks the financial statements to be delivered pursuant to Section
5.01(b) with respect to such Fiscal Quarter (in the case of a failure to deliver
quarterly unaudited financial statements) or the date on which the Borrower
shall deliver to the Banks the annual audited financial statements to be
delivered pursuant to Section 5.01(a) with respect to the Fiscal Year which
includes such final Fiscal Quarter (in the case of a failure to deliver annual
audited financial statements), the Applicable Margin shall be determined as if
the ratio of Consolidated Funded Debt to Consolidated Cash Flow was more than
5.50 at all times during such period. Any change in the Applicable Margin on any
Rate Determination Date shall result in a corresponding change, effective on and
as of such Rate Determination Date, in the interest rate applicable to each Loan
outstanding on such Rate Determination Date, provided that (i) for Euro-Dollar
Loans, changes in the Applicable Margin shall only be effective for Interest
Periods commencing on or after the Rate Determination Date, and (ii) no
Applicable Margin shall be decreased pursuant to this Section 2.05 if an Event
of Default is in existence on the Rate Determination Date.
(2) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(3) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period;
provided that if any Euro-Dollar Loan shall, as a result of clause (1)(c) of the
definition of Interest Period, have an Interest Period of less than one month,
such Euro-Dollar Loan shall bear interest during such Interest Period at the
rate applicable to Base Rate Loans during such period. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than 3 months, at intervals of 3 months after the first day
thereof. Any overdue principal of and, to the extent permitted by applicable
law, overdue interest on any Euro-Dollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means
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for the Interest Period of such Euro-Dollar Loan the rate per annum determined
on the basis of the rate for deposits in Dollars of amounts equal or comparable
to the principal amount of such Euro-Dollar Loan offered for a term comparable
to such Interest Period, which rate appears on Page "3750" of the Telerate
Service (or such other page as may replace page 3750 of that service or such
other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for
deposits in Dollars), determined as of 1:00 P.M. (Atlanta, Georgia time), 2
Euro-Dollar Business Days prior to the first day of such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
(4) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks by telecopy of each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
(5) After the occurrence and during the continuance of a
Default, the principal amount of the Loans (and, to the extent permitted by
applicable law, all accrued interest thereon) may, at the election of the
Required Banks, bear interest at the Default Rate.
Section II.6. Fees.
(1) The Borrower shall pay to the Agent for the ratable
account of each Bank a commitment fee equal to the product of: (i) the aggregate
of the daily average unused amounts of such Bank's Commitment, times (ii) a per
annum percentage equal to the Applicable Commitment Fee Rate. Such commitment
fee shall accrue from and including the Effective Date to and including the
Revolver Termination Date. Commitment fees shall be payable quarterly in arrears
on the first Commitment Fee Payment Date following each Commitment Fee
Determination Date and on the Revolver Termination Date; provided that should
the Commitments be terminated at any time prior to the Revolver Termination Date
for any reason, the entire accrued and unpaid commitment fee shall be paid on
the date of such termination. The "Applicable Commitment Fee Rate" shall be
determined quarterly based upon the ratio of Consolidated Funded Debt to
Consolidated Cash Flow (calculated as of the last day of each Fiscal Quarter for
the period of 4 Fiscal Quarters then ended) as follows:
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----------------------------------------------------------------------------------------------
Ratio of Consolidated Funded Debt Applicable Commitment
to Consolidated Cash Flow Fee Rate
----------------------------------------------------------------------------------------------
Greater than or equal to 5.5 0.5%
----------------------------------------------------------------------------------------------
Greater than or equal to 5.0 but less than 5.5 0.5%
----------------------------------------------------------------------------------------------
Greater than or equal to 4.5 but less than 5.0 0.5%
----------------------------------------------------------------------------------------------
Greater than or equal to 4.0 but less than 4.5 0.375%
----------------------------------------------------------------------------------------------
Less than 4.0 0.375%
----------------------------------------------------------------------------------------------
The Applicable Commitment Fee Rate shall be determined effective as of each date
(herein, the "Commitment Fee Determination Date") which is 50 days after the
last day of the final Fiscal Quarter in the period for which the foregoing ratio
is being determined, and the Applicable Commitment Fee Rate so determined shall
remain effective from such Commitment Fee Determination Date until the date
which is 50 days after the last day of the Fiscal Quarter in which such
Commitment Fee Determination Date falls (which latter date shall be a new
Commitment Fee Determination Date); provided that (i) for the period from and
including the Effective Date to but excluding the Commitment Fee Determination
Date next following the Effective Date, the Applicable Commitment Fee Rate shall
be 0.5%; (ii) in the case of any Applicable Commitment Fee Rate determined for
the fourth and final Fiscal Quarter of a Fiscal Year, the Commitment Fee
Determination Date shall be the date which is 95 days after the last day of such
final Fiscal Quarter and such Applicable Commitment Fee Rate shall be determined
based upon the annual audited financial statements for the Fiscal Year ended on
the last day of such final Fiscal Quarter, and (iii) if on any Commitment Fee
Determination Date the Borrower shall have failed to deliver to the Banks the
financial statements required to be delivered pursuant to Section 5.01 with
respect to the Fiscal Quarter most recently ended prior to such Commitment Fee
Determination Date (or, in the case of annual audited financial statements, with
respect to the Fiscal Year which includes such final Fiscal Quarter), then for
the period beginning on such Commitment Fee Determination Date and ending on the
earlier of (x) the next Commitment Fee Determination Date (on which the
Applicable Commitment Fee Rate shall again be determined pursuant to this
paragraph) and (y) the date on which the Borrower shall deliver to the Banks the
financial statements to be delivered pursuant to Section 5.01(b) with respect to
such Fiscal Quarter (in the case of a failure to deliver quarterly unaudited
financial statements) or the date on which the Borrower shall deliver to the
Banks the annual audited financial statements to be delivered pursuant to
Section 5.01(a) with respect to the Fiscal Year which includes such final Fiscal
Quarter (in the case of a failure to deliver annual audited financial
statements), the Applicable Commitment Fee Rate shall be determined as if the
ratio of Consolidated Funded Debt to Consolidated Cash Flow was more than 5.5 at
all times during such period, provided that the Applicable Commitment Fee Rate
shall not be decreased pursuant to this Section 2.06 if an Event of Default is
in existence on the Commitment Fee Determination Date.
(2) On the Effective Date, the Borrower shall pay to the
Agent, for the ratable account of each Bank a fee in an amount equal to 0.20% of
such Bank's Commitment.
(3) The Borrower shall pay to the Agent, for the account and
sole benefit of the Agent, such fees and other amounts at such times as set
forth in the Agent's Letter Agreement.
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Section II.7. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least 3 Domestic Business Days' notice to
the Agent, terminate at any time, or proportionately reduce from time to time by
an aggregate amount of at least $5,000,000 or any larger multiple of $1,000,000,
the Commitments. If the Commitments are terminated in their entirety, all
accrued fees (as provided under Section 2.06) shall be payable on the effective
date of such termination.
Section II.8. Termination and Reduction of Commitments.
(1) The Commitments shall terminate on the Revolver
Termination Date and any Loans then outstanding (together with accrued interest
thereon) shall be due and payable on such date.
(2) The Commitments of each of the Banks shall be reduced
ratably by the amount of the mandatory payments required to be made by the
Borrower to the Banks pursuant Section 2.10(b); provided, that such payments
pursuant to Section 2.10(b) shall not, except as set forth in 2.10(b), cause the
aggregate Commitments to be reduced below $150,000,000.
Section II.9. Optional Prepayments.
(1) The Borrower may, upon at least 1 Domestic Business Day's
notice to the Agent, prepay any Base Rate Borrowing in whole at any time, or
from time to time in part in amounts aggregating at least $500,000, or any
larger multiple of $500,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Base Rate Loans of
the several Banks included in such Base Rate Borrowing.
(2) Except as provided in Sections 2.01 and 8.02, the Borrower
may prepay all or any portion of the principal amount of any Euro-Dollar Loan
prior to the maturity thereof only upon (i) at least 3 Euro-Dollar Business
Days' notice to the Agent, (ii) compliance with the provisions of Section 8.05,
and (iii) payment of an administrative fee of $250 to the Agent (which fee shall
be retained by the Agent).
(3) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
Section II.10. Mandatory Prepayments.
(a) On each date on which the Commitments are reduced or
terminated pursuant to Section 2.07 or terminated pursuant to Section 2.08, the
Borrower shall repay or prepay (a) in the case of a reduction of the Commitments
pursuant to Section 2.07 such principal amount of the outstanding Loans, if any
(together with interest accrued thereon and any amounts due under Section
8.05(a)), as may be necessary so that after such payment the aggregate unpaid
principal amount of the Loans does not exceed the aggregate amount of the
Commitments as then reduced, or (b) in the case of a termination of the
Commitments pursuant to Section 2.07 or 2.08, the entire principal amount of the
outstanding Loans (together with interest accrued thereon and any amounts due
under Section 8.05(a)).
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(b) The Borrower shall repay or prepay (i) Loans in an amount
equal to 100% of the proceeds of the Term Loan, (ii) Loans and the Term Loan in
an amount equal to 50% of other Net Cash Proceeds and (iii) Loans and the Term
Loan in amount equal to 50% of any Excess Cash Flow. Prepayments pursuant to the
foregoing clause (i) shall be made on the date of receipt of the proceeds of the
Term Loan. Payments pursuant to the foregoing clause (ii) shall be made within
15 Business Days after the receipt of Net Cash Proceeds (except that prepayments
from proceeds of Subordinated Debt shall be made on the date of receipt of such
proceeds); provided, that amounts not included in Net Cash Proceeds pursuant to
clause (iv)(C) of the definition thereof which have not been used or committed
to be used within 180 days from the casualty or condemnation of such Property to
restore or replace the relevant Property shall be paid on such 180th day.
Payments pursuant to the foregoing clause (iii) shall be made on the date the
Borrower furnishes its annual financial statements to the Banks pursuant to
Section 5.01(a) (or on the date such statements are required to be so furnished
pursuant to such section, if they have not been furnished by such date).
Prepayments pursuant to the foregoing clause (i) shall be made to the Agent, for
the ratable account of the Banks. Prepayments pursuant to the foregoing clauses
(ii) and (iii) shall be made to the Agent and, after the Term Loan has been
made, the Term Agent, for the ratable account of the Banks and the Term Lenders,
based on the aggregate amount of the Commitments and the aggregate principal
balance of the Term Loan as of the time of the payment; provided, that from and
after the date that the Commitments have been reduced to $150,000,000 by
payments made pursuant to the foregoing clauses (ii) and (iii) in accordance
with Section 2.08, such repayments or prepayments shall be made solely to the
Term Lenders, until the Term Loan is paid in full, except that after the
Commitments have so been reduced to $150,000,000, with respect to any sale of
Collateral, if the Term Loan has been paid in full (or prepayments pursuant
hereto have been waived by the Term Lenders), any Net Cash Proceeds from such
sale which are not used to purchase replacement Collateral having equal or
greater value shall be used to prepay the Loans, and the Commitments shall be
reduced by the amount of such prepayments.
Section II.11. General Provisions as to Payments.
(1) The Borrower shall make each payment of principal of, and
interest on, the Loans and of commitment fees hereunder, not later than 11:00
A.M. (Atlanta, Georgia time) on the date when due, in Federal or other funds
immediately available in Atlanta, Georgia, to the Agent at its address referred
to in Section 9.01. The Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for the account of the Banks.
(2) Whenever any payment of principal of, or interest on, the
Base Rate Loans or the fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(3) Each payment or prepayment of Loans shall be applied by
the Agent to
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repay or prepay ratably the Loans of the several Banks in the following order of
priority:
(1) first, to Euro-Dollar Loans maturing on the date
of such payment or prepayment;
(2) second, to Base Rate Loans maturing on or after
the date of such payment or prepayment (in the direct order of
maturity); and
(3) third, to Euro-Dollar Loans maturing after the
date of such payment or prepayment (in direct order of
maturity).
Section II.12. Computation of Interest and Fees. Interest on
Base Rate Loans based on the Base Rate shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day). Interest on Euro-Dollar Loans shall be computed
on the basis of a year of 360 days and paid for the actual number of days
elapsed, calculated as to each Interest Period from and including the first day
thereof to but excluding the last day thereof. Commitment fees and any other
fees payable hereunder shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
Section III.1. Conditions Precedent to Effectiveness. This
Agreement shall become effective on and as of the first date on which the
following conditions precedent have been satisfied (the "Effective Date"):
(1) receipt by the Agent from each of the parties hereto of
either (i) a duly executed counterpart of this Agreement signed by such party or
(ii) a facsimile transmission stating that such party has duly executed a
counterpart of this Agreement and sent such counterpart to the Agent;
(2) [INTENTIONALLY OMITTED];
(3) receipt by the Agent of an opinion (together with any
opinions of local counsel relied on therein) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, counsel for
the Borrower and the Guarantors, dated as of the Effective Date, substantially
in the form and substance delivered by such counsel in connection with the
Original Agreement and covering such additional matters relating to the
transactions contemplated hereby as the Agent or any Bank may reasonably
request;
(4) receipt by the Agent of an opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ &
▇▇▇▇▇, special counsel for the Agent, dated as of the Effective Date,
substantially in the form of Exhibit C hereto and covering such additional
matters relating to the transactions contemplated hereby as the Agent may
reasonably request;
(5) receipt by the Agent of a certificate (the "Closing
Certificate"), dated the Effective Date, substantially in the form of Exhibit D
hereto, signed by a principal financial
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officer of the Borrower, to the effect that (i) no Default has occurred and is
continuing on the Effective Date and (ii) the representations and warranties of
the Borrower contained in Article IV are true on and as of the Effective Date;
(6) receipt by the Agent of all documents which the Agent or
any Bank may reasonably request relating to the existence of the Borrower and
each Guarantor, the corporate authority for and the validity of this Agreement,
the Guaranty and any other matters relevant hereto, all in form and substance
satisfactory to the Agent, including without limitation a certificate of
incumbency of the Borrower and each Guarantor (the "Officer's Certificate"),
signed by the Secretary or an Assistant Secretary of the Borrower or each
Guarantor, substantially in the form of Exhibit E hereto, certifying as to the
names, true signatures and incumbency of the officer or officers of the Borrower
or each Guarantor authorized to execute and deliver the Loan Documents to which
the Borrower or each Guarantor is a party, and certified copies of the following
items: (i) the Certificate or Articles of Incorporation of the Borrower and each
Guarantor, (ii) the Bylaws of the Borrower and each Guarantor, (iii) a
certificate of the Secretary of State of the State of Delaware as to the good
standing of the Borrower as a Delaware corporation and similar certificates for
each Guarantor from its jurisdiction of incorporation, and (iv) the action taken
by the Board of Directors of the Borrower and each Guarantor authorizing the
Borrower's and Guarantors' execution, delivery and performance of this Agreement
and the other Loan Documents to which the Borrower and each Guarantor is a
party;
(7) receipt by the Agent from each of the Guarantors as of the
Effective Date of a duly executed counterpart of the Guaranty signed by such
Guarantor and from the Borrower and each of the Guarantors as of the Effective
Date of a duly executed counterpart of the Contribution Agreement signed by the
Borrower and such Guarantors;
(8) receipt by the Agent of the amendment fee pursuant to
Section 2.06(b) and other fees payable on the Effective Date in accordance with
the Agent's Letter Agreement;
(9) receipt by the Agent of evidence satisfactory to it of
execution and delivery of the Lease and the First Amendment to the Reimbursement
Agreement as contemplated in an engagement letter dated January 12, 1999,
between Carmike Cinemas, Inc., Movieplex Realty Leasing, L.L.C. and Wachovia
Bank, N.A.;
(10) the Subordinated Debt shall have received a Debt Rating
of B- or higher by S&P and B3 or higher by ▇▇▇▇▇'▇; and
(11) Payment to the Agent, for the ratable account of the
Banks, of the "Facility Fee", as defined in the Original Agreement, pursuant to
Section 2.06(a) of the Original Agreement, for the period ending on the
Effective Date.
Section III.2. Conditions to All Borrowings. The obligation of
each Bank to make a Loan on the occasion of each Borrowing is subject to the
satisfaction of the following conditions:
(1) receipt by the Agent of Notice of Borrowing as required by
Section 2.02;
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(2) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(3) the fact that the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true on and as of
the date of such Borrowing; and
(4) the fact that, immediately after such Borrowing (i) the
aggregate outstanding principal amount of the Loans of each Bank will not exceed
the amount of its Commitment and (ii) the aggregate outstanding principal amount
of the Loans will not exceed the aggregate amount of the Commitments of all of
the Banks as of such date.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in clauses (b), (c) and (d) of this Section; provided that (i)
such Borrowing shall not be deemed to be such a representation and warranty as
to the truth and accuracy of the fact specified in clause (c) of this Section,
if the aggregate outstanding principal amount of the Loans immediately after
such Borrowing will not exceed the aggregate outstanding principal amount
thereof immediately before such Borrowing, (ii) if the aggregate outstanding
principal amount of the Loans immediately after such Borrowing will not exceed
the aggregate outstanding principal amount thereof immediately before such
Borrowing, then (A) such Borrowing shall be deemed to be a representation and
warranty as to the truth and accuracy of the fact specified in clause (b) of
this Section determined as if the term "Default" appearing in such clause (b)
were instead the term "Event of Default" and (B) the representation contained in
the last sentence of Section 4.12 shall when remade pursuant to this Section in
connection with such Borrowing be deemed to exclude the words "Default or",
(iii) any representation and warranty contained in Article IV which by its terms
is made as to matters as of a specified date shall when remade pursuant to this
Section in connection with such Borrowing be deemed to be made as to matters as
of such specified date and not any later date, and (iv) the representation
contained in Section 4.04(b) shall when remade pursuant to this Section in
connection with such Borrowing be deemed to refer not to December 31, 1997, but
rather to the last day of the Fiscal Quarter most recently ended prior to the
date of such Borrowing as to which the Borrower shall have delivered financial
statements to the Bank pursuant to Section 5.01.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section IV.1. Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, unless the failure to be so qualified or to have such corporate
powers or governmental licenses, authorizations, consents or approvals would not
have a Material Adverse Effect.
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Section IV.2. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of, or filing with, any
governmental body, agency or official (other than the filing of this Agreement
with the Securities and Exchange Commission), (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
Section IV.3. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the Notes and the other Loan Documents, when executed and delivered
in accordance with this Agreement, will constitute valid and binding obligations
of the Borrower enforceable in accordance with their respective terms, provided
that the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
Section IV.4. Financial Information.
(1) The consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 1997 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended,
reported on by Ernst & Young, copies of which have been delivered to each of the
Banks, and the unaudited consolidated financial statements of the Borrower and
its Subsidiaries for the interim period ended September 30, 1998, copies of
which have been delivered to each of the Banks, fairly present, in conformity
with GAAP, the consolidated financial position of the Borrower and its
Subsidiaries as of such dates and their consolidated results of operations and
cash flows for such periods stated.
(2) Since December 31, 1997. there has been no event, act,
condition or occurrence having a Material Adverse Effect (and the Agent and the
Banks acknowledge that the Restructuring and Impairment Charges for 1998 do not
have such an effect).
Section IV.5. Litigation. On the Effective Date, there is no
action, suit or proceeding pending, or to the knowledge of the Borrower
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official which could
have a Material Adverse Effect or which in any manner draws into question the
validity or enforceability of, or could impair the ability of the Borrower to
perform its obligations under, this Agreement, the Notes or any of the other
Loan Documents.
Section IV.6. Compliance with ERISA.
(1) The Borrower and each member of the Controlled Group have
fulfilled their obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and are in compliance in all material respects
with the presently applicable provisions of ERISA and the Code, and have not
incurred any liability to the PBGC or a Plan under Title IV of ERISA.
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(2) On the Effective Date, neither the Borrower nor any member
of the Controlled Group is or ever has been obligated to contribute to any
Multiemployer Plan.
Section IV.7. Taxes. There have been filed on behalf of the
Borrower and its Subsidiaries all Federal, state and local income, material
excise, material property and other material tax returns which are required to
be filed by them and all taxes due pursuant to such returns or pursuant to any
assessment received by or on behalf of the Borrower or any Subsidiary have been
paid prior to the same becoming delinquent, other than (i) those presently
payable without penalty or interest and (ii) those being contested in good faith
by appropriate proceedings with respect to which adequate reserves have been
established in accordance with GAAP. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate. As of the
Effective Date, United States income tax returns of the Borrower and its
Subsidiaries (other than Westwynn Theatres, Inc.) have been examined and closed
through the Fiscal Year ended December 31, 1993.
Section IV.8. Subsidiaries. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
to transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, unless the failure to be so qualified or to
have such corporate powers or governmental licenses, authorizations, consents or
approvals would not have a Material Adverse Effect. As of the Effective Date,
the Borrower has no Subsidiaries except those Subsidiaries listed on Schedule
4.08, which accurately sets forth each such Subsidiary's complete name and
jurisdiction of incorporation.
Section IV.9. Not an Investment Company. Neither the Borrower
nor any of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Section IV.10. Public Utility Holding Company Act. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
Section IV.11. Ownership of Property; Liens. Each of the
Borrower and its Subsidiaries has title to its properties sufficient for the
conduct of its business, and none of such property is subject to any Lien except
as permitted in Section 5.07.
Section IV.12. No Default. Neither the Borrower nor any of its
Subsidiaries is in Default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which could have or cause a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
Section IV.13. Full Disclosure. All information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is as of
the Effective Date, and all such information hereafter
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furnished by the Borrower to the Agent or any Bank will be, true, accurate and
complete in every material respect or based on reasonable estimates on the date
as of which such information is stated or certified. As of the Effective Date,
the Borrower has disclosed to the Banks in writing any and all facts which could
have or cause a Material Adverse Effect.
Section IV.14. Environmental Matters.
(1) Except as otherwise provided in Exhibit 4.14A, (1) neither
the Borrower nor any Subsidiary is subject to Environmental Liabilities which
could cause a Material Adverse Effect, (2) to the best of the Borrower's
knowledge, neither the Borrower nor any Subsidiary has been designated a
potentially responsible party under CERCLA or under any state statute similar to
CERCLA, and (3) to the best of the Borrower's knowledge, none of the Properties
has been identified on any current National Priorities List or CERCLIS List.
(2) Except as otherwise provided in Exhibit 4.14(B), to the
best of the Borrower's knowledge, (1) the Borrower, and each of its
Subsidiaries, have used, managed, stored and otherwise handled Hazardous
Materials at the Properties in compliance with applicable Environmental Laws,
excluding any violation of Environmental Laws which did not cause a Material
Adverse Effect, and (2) neither the Borrower nor any Subsidiary has caused an
Environmental Release of Hazardous Materials into the subsurface soil or
groundwater underlying the Properties which could reasonably be expected to
cause a Material Adverse Effect.
(3) Except as otherwise provided in Exhibit 4.14(C), to the
best of the Borrower's knowledge, the Borrower and each of its Subsidiaries
maintain all Environmental Authorizations necessary for the conduct of their
respective businesses and are in compliance with all Environmental Laws
applicable to the operation of the Properties and their respective businesses,
excluding any omission of Environmental Authorizations or violation of
Environmental Laws which could not reasonably be expected to cause a Material
Adverse Effect.
Section IV.15. Compliance with Laws. The Borrower and each
Subsidiary is in compliance with all applicable laws, including, without
limitation, all Environmental Laws, except where any failure to comply with any
such laws would not, alone or in the aggregate, have a Material Adverse Effect.
Section IV.16. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws; provided that this
representation shall not extend to any violation of applicable laws in
connection with any such issuance occurring by reason of the action or inaction
of any Person other than the Borrower, any Subsidiary or any Person retained or
employed by the Borrower or any Subsidiary. The issued shares of Capital Stock
of the Borrower's Wholly Owned Subsidiaries are owned by the Borrower free and
clear of any Lien or adverse claim. At least a majority of the issued shares of
capital stock of each of the Borrower's other Subsidiaries (other than Wholly
Owned Subsidiaries) is owned by the Borrower free and clear of any Lien or
adverse claim.
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Section IV.17. Margin Stock. Not more than 25% of the
aggregate fair market value of the assets of the Company and its Subsidiaries
which are subject to the provisions of Section 5.08 consists of Margin Stock.
Neither the Borrower nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of purchasing or carrying any
Margin Stock. No part of the proceeds of any Loan will be used for any purpose
which violates, or which is inconsistent with, the provisions of Regulation X.
Section IV.18. Insolvency. After giving effect to the
execution and delivery of the Loan Documents and the making of the Loans under
this Agreement, the Borrower will not be "insolvent," within the meaning of such
term as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of Title 11 of the
United States Code or Section 2 of the Uniform Fraudulent Transfer Act, or any
other applicable state law pertaining to fraudulent transfers, as each may be
amended from time to time, or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid (unless the
Required Banks consent in writing):
Section V.1. Information. The Borrower will deliver to each of
the Banks:
(1) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such Fiscal Year and the related consolidated
statements of income, shareholders' equity and cash flows for such Fiscal Year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all certified by Ernst & Young or other independent public
accountants of nationally recognized standing, with such certification to be
free of exceptions and qualifications not acceptable to the Required Banks;
(2) as soon as available and in any event within 45 days after
the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a condensed
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such Fiscal Quarter and the related condensed statement of income and condensed
statement of cash flows for such Fiscal Quarter and for the portion of the
Fiscal Year ended at the end of such Fiscal Quarter, setting forth in each case
in comparative form the figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified (subject to
normal year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer or the chief executive officer of the
Borrower;
(3) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate,
substantially in the form of Exhibit F or in such other form as shall be
mutually satisfactory to the Borrower and the Agent (a "Compliance
Certificate"), of the chief financial officer or the chief executive officer of
the Borrower (i) setting forth in reasonable detail the calculations required to
establish whether the Borrower was in compliance with the requirements of
Sections 5.03 through 5.08, inclusive, 5.11 and 5.21, on
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the date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(4) simultaneously with the delivery of each set of annual
financial statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements to the effect
that nothing has come to their attention to cause them to believe that any
Default existed on the date of such financial statements;
(5) within 5 Domestic Business Days after the Borrower
becomes aware of the occurrence of any Default, a certificate of the chief
financial officer or the chief executive officer of the Borrower setting forth
the details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;
(6) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(7) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Borrower shall have filed with the Securities and Exchange
Commission;
(8) if and when the Borrower or any member of the Controlled
Group (i) gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy of
such notice;
(9) promptly after the Borrower knows of the commencement
thereof, notice of any litigation, dispute or proceeding involving a claim
against the Borrower and/or any Subsidiary for $1,000,000 or more in excess of
amounts covered in full by applicable insurance;
(10) promptly after the Borrower knows of the existence
thereof, any and all facts which could have or cause a Material Adverse Effect;
and
(11) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
Section V.2. Inspection of Property, Books and Records. The
Borrower will (i) keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense prior to the occurrence of an
Event of
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Default and at the Borrower's expense after the occurrence of an Event of
Default to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower agrees to cooperate
and assist in such visits and inspections, in each case at such reasonable times
and as often as may reasonably be desired.
Section V.3. Ratio of Consolidated Senior Funded Debt to
Consolidated Cash Flow. At the end of each Fiscal Quarter, commencing with the
Fiscal Quarter ending March 31, 1999, the ratio of Consolidated Senior Funded
Debt to Consolidated Cash Flow for the period of 4 consecutive Fiscal Quarters
ending on such date shall not be greater than the applicable ratio provided in
the following table:
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
On or before June 30, 2000 4.00 to 1.0
September 30, 2000, and thereafter 3.75 to 1.0
Section V.4. Ratio of Consolidated Funded Debt to Consolidated
Cash Flow. At the end of each Fiscal Quarter ending as provided in the following
table, the ratio of Consolidated Funded Debt at the end of such Fiscal Quarter
to Consolidated Cash Flow for the period of 4 consecutive Fiscal Quarters ending
on such date shall not be greater than the applicable ratio provided in the
following table:
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
On or before June 30, 2000 6.00 to 1.0
September 30, 2000, and thereafter 5.75 to 1.0
Section V.5. Restricted Payments. The Borrower will not
declare or make any, or permit any Subsidiary which is not a Wholly-Owned
Subsidiary to make any, Restricted Payment after the Effective Date, if the
aggregate amount of such Restricted Payments made in any consecutive 4 Fiscal
Quarter period would exceed $4,000,000; provided that after giving effect to the
payment of any such Restricted Payments, no Default shall be in existence or be
created thereby.
Section V.6. Fixed Charge Coverage. At the end of each Fiscal
Quarter, commencing with the Fiscal Quarter ending December 31, 1998, the ratio
of (a) Adjusted Cash Flow to (b) Fixed Charges, in each case for the current
Fiscal Quarter and the immediately preceding 3 Fiscal Quarters, shall not be
less than 1.40 to 1.00.
Section V.7. Adjusted Fixed Charge Coverage. At the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 1999,
the ratio of (a) Adjusted Cash Flow minus Maintenance Capital Expenditures to
(b) Adjusted Fixed Charges, in each case for the current Fiscal Quarter and the
immediately preceding 3 Fiscal Quarters, shall not be less than 1.25 to 1.00.
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Section V.8. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(1) Liens existing on the date of this Agreement securing
Debt outstanding on the Effective Date in an aggregate principal amount not
exceeding $43,000,000;
(2) any Lien in favor of the Collateral Agent pursuant to
the Collateral Documents;
(3) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring or
constructing such asset, provided that such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion of
construction thereof;
(4) Liens securing Debt owing by any Guarantor to the
Borrower;
(5) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses (a) or (c) of this Section, provided that (i) such Debt is not
secured by any additional assets, and (ii) the amount of such Debt secured by
any such Lien is not increased;
(6) any Lien on Margin Stock;
(7) Liens for taxes, assessments or governmental charges or
levies either not yet due or the payment of which is not at the time required by
Section 5.13;
(8) Liens of landlords, carriers, warehousemen, mechanics,
materialmen and other similar Persons incurred in the ordinary course of
business for sums either not yet due or the payment of which is not at the time
required by Section 5.13;
(9) Liens (other than any Lien created or imposed under ERISA
and Liens on the Collateral) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
(exclusive in any case of obligations incurred in connection with the borrowing
of money or the obtaining of advances of credit);
(10) any attachment or judgment Lien arising in connection
with court proceedings, provided that (i) the execution or other enforcement of
such Lien is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings diligently
conducted, and (ii) such reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made therefor and neither the
Borrower's nor any such Subsidiary's title to or right to use any of its
property is impaired in any material respect by reason of such contest;
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(11) easements, licenses, rights-of-way and other rights and
privileges in the nature of easements and similar Liens incidental to the
ownership of property and not incurred in connection with the borrowing of money
or the obtaining of advances of credit, and which do not, individually or in the
aggregate, interfere with the ordinary conduct of the business of the Borrower
or any Subsidiary or materially detract from the value of the properties subject
to any such Liens;
(12) Liens on fixed assets (1) of any Person at the time such
Person becomes a Subsidiary and not created in contemplation of such event, (2)
of any Person existing at the time such Person is merged or consolidated with or
into the Borrower or a Subsidiary and not created in contemplation of such event
and (3) existing prior to the acquisition of such fixed assets by the Borrower
or a Subsidiary and not created in contemplation of such acquisition, provided
that the aggregate principal amount outstanding of Debt secured by Liens
permitted under this paragraph (l) may not exceed at any time 5% of Consolidated
Total Capitalization; and
(13) Liens on assets other than the Collateral not otherwise
permitted by the foregoing clauses of this Section securing Debt (other than
indebtedness represented by the Notes) in an aggregate principal amount at any
time outstanding not to exceed 5% of Consolidated Total Capitalization.
Section V.9. Maintenance of Existence. The Borrower shall, and
shall cause each Subsidiary to, maintain its corporate existence and carry on
its business in substantially the same manner and in substantially the same
fields as such business is now carried on and maintained; provided that (i) the
Borrower and its Subsidiaries may engage in any transaction permitted by Section
5.10 and (ii) dissolution of any Subsidiary shall not be prohibited by this
Section if all of the assets of such Subsidiary are transferred to the Borrower
or any other Subsidiary following such dissolution.
Section V.10. Dissolution. The Borrower shall not suffer or
permit dissolution or liquidation either in whole or in part or redeem or retire
any shares of its own stock, except (i) through corporate reorganization to the
extent permitted by Section 5.11, and (ii) through Restricted Payments permitted
by Section 5.05.
Section V.11. Consolidations, Mergers and Sales of Assets. The
Borrower will not, nor will it permit any Subsidiary to, consolidate or merge
with or into, or sell, lease or otherwise transfer all or any substantial part
of its assets to, any other Person, or discontinue or eliminate any business
line or segment, provided that (a) the Borrower may merge with another Person if
(i) such Person was organized under the laws of the United States of America or
one of its states, (ii) the Borrower is the corporation surviving such merger
and (iii) immediately after giving effect to such merger, no Default shall have
occurred and be continuing, (b) Subsidiaries of the Borrower may merge or
consolidate with one another or with the Borrower, (c) any Subsidiary of the
Borrower may be merged or consolidated with or into another Person to consummate
an acquisition of such other Person permitted by Section 5.21, provided that the
surviving Person shall be a Subsidiary of the Borrower, (d) the foregoing
limitation on the sale, lease or other transfer of assets and on the
discontinuation or elimination of a business line or segment shall not prohibit
(i) the sale, lease or other transfer of assets by a Subsidiary to any other
Subsidiary (other than of Collateral by Eastwynn) or to the Borrower, or (ii)
subject to the mandatory prepayment provisions of Section 2.10(b), during any
Fiscal Quarter, a transfer of
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assets in an arm's length transaction for fair market value or the
discontinuance or elimination of a business line or segment (in a single
transaction or in a series of related transactions) unless the aggregate assets
to be so transferred or utilized in a business line or segment to be so
discontinued, when combined with all other assets transferred, and all other
assets utilized in all other business lines or segments discontinued, during
such Fiscal Quarter and the immediately preceding three Fiscal Quarters
(excluding, however, transfers of assets permitted by clause (i) of this
Section) contributed more than 10% of Consolidated Operating Income during the 4
consecutive Fiscal Quarters immediately preceding such Fiscal Quarter, and (e)
subject to the mandatory prepayment provisions of Section 2.10(b) and to
presentation to the Agent and the Banks of a certificate showing pro forma
compliance with the financial covenants contained in this Agreement after giving
effect thereto, the Borrower may enter into sale/leaseback transactions after
the Effective Date in an amount not to exceed in the aggregate $150,000,000,
provided in each of the foregoing such cases no Default shall be in existence or
be created thereby. At the request of the Borrower, the Collateral Agent shall
release any Collateral sold by the Borrower or Eastwynn in conformity with the
foregoing provisions, so long as any prepayments required by Section 2.10(b)
have been made.
Section V.12. Use of Proceeds. No portion of the proceeds of
the Loans will be used by the Borrower or any Subsidiary for any purpose in
violation of any applicable law or regulation.
Section V.13. Compliance with Laws; Payment of Taxes. The
Borrower will, and will cause each of its Subsidiaries and, in the case of
ERISA, each member of the Controlled Group to, comply in all material respects
with applicable laws (including but not limited to ERISA), regulations and
similar requirements of governmental authorities (including but not limited to
PBGC), except where the necessity of such compliance is being contested in good
faith through appropriate proceedings diligently pursued. The Borrower will, and
will cause each of its Subsidiaries to, pay promptly when due all taxes,
assessments, governmental charges, claims for labor, supplies, rent and other
obligations which, if unpaid, might become a lien against the property of the
Borrower or any Subsidiary, except (i) liabilities being contested in good faith
by appropriate proceedings diligently pursued and against which, if requested by
the Agent, the Borrower shall have set up reserves in accordance with GAAP and
(ii) liabilities the nonpayment of which could have a Material Adverse Effect.
Section V.14. Insurance. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain (either in the name of the Borrower
or in such Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its Property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or similar business.
Section V.15. Change in Fiscal Year. The Borrower will not
change its Fiscal Year.
Section V.16. Maintenance of Property. The Borrower shall, and
shall cause each Subsidiary to, maintain all of its material properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted.
Section V.17. Environmental Notices. When a Responsible
Officer or any officer
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of the Borrower or any Subsidiary responsible for compliance with Environmental
Laws with respect to any Property becomes aware of (i) an Environmental
Liability associated with the Properties which could cause a Material Adverse
Effect, (ii) an Environmental Release at any of the Properties which could cause
a Material Adverse Effect, (iii) the designation of the Borrower or such
Subsidiary as a potentially responsible party under CERCLA or any state statute
similar to CERCLA, or (iv) identification of such Property on any National
Priorities List or CERCLIS List, the Borrower shall promptly furnish to the
Banks and the Agent written notice thereof.
Section V.18. Environmental Matters. The Borrower and its
Subsidiaries will not, and will not knowingly permit any Third Party to, use,
produce, manufacture, process, treat, recycle, generate, store, dispose, manage,
or otherwise handle at the Properties any Hazardous Materials in such a manner
which gives rise to an Environmental Liability which could cause a Material
Adverse Effect.
Section V.19. Environmental Release. Upon the occurrence of an
Environmental Release of Hazardous Materials at any of the Properties of which
Borrower or a Subsidiary becomes aware, Borrower or the Subsidiary shall comply
with any and all notice, investigation, removal and remediation requirements
applicable to the Borrower or Subsidiary under Environmental Laws with respect
to such Environmental Release.
Section V.20. Additional Covenants, Etc. In the event that at
any time this Agreement is in effect or any Note remains unpaid the Borrower
shall enter into any agreement, guarantee, indenture or other instrument
governing, relating to, providing for commitments to advance or guaranteeing any
Financing which exceeds $3,000,000 in aggregate amount (a "New Financing
Agreement") or to amend any terms and conditions applicable to any Financing
which exceeds $3,000,000 in aggregate amount (a "Financing Agreement
Amendment"), which New Financing Agreement includes or which Financing Agreement
Amendment adds or modifies Covenants, warranties, representations, defaults or
events of default (or any other type of restriction which would have the
practical effect of any of the foregoing, including, without limitation, any
"put" or mandatory prepayment of all or substantially all of such debt) not
substantially as, or in addition to those, provided in this Agreement or any
other Loan Document, or more favorable to the lender or other counterparty
thereunder than those provided in this Agreement or any other Loan Document
(individually an "Additional Term" and collectively, the "Additional Terms"),
the Borrower shall promptly so notify the Agent and the Banks. Thereupon, if the
Agent shall request by written notice to the Borrower (after a determination has
been made by the Required Banks that any such New Financing Agreement or
Financing Agreement Amendment contains any provisions which either individually
or in the aggregate are more favorable than one of the provisions set forth
herein), the Borrower, the Agent and the Banks shall enter into an amendment to
this Agreement providing for substantially the same such Additional Terms as
those provided for in such New Financing Agreement or Financing Agreement
Amendment, as the case may be, to the extent required and as may be selected by
the Agent, such amendment to remain in effect, unless otherwise specified in
writing by the Agent, for the entire duration of the stated term to maturity of
such Financing (to and including the date to which the same may be extended at
the Borrower's option), notwithstanding that such Financing might be earlier
terminated by prepayment, refinancing, acceleration or otherwise; provided that
if any such New Financing Agreement or the agreement, guarantee, indenture or
other instrument amended by a Financing Agreement Amendment shall be modified,
supplemented, amended or restated so as to modify, amend or eliminate therefrom
any such
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Additional Term so made a part of this Agreement, then so long as there exists
no Default or Event of Default, the Agent and the Banks shall, at the Borrower's
request made within 90 days following the date on which such New Financing
Agreement or the agreement, guarantee, indenture or other instrument amended by
a Financing Agreement Amendment is so modified, supplemented, amended or
restated, amend this Agreement to similarly modify, amend or eliminate such
Additional Term so made a part of this Agreement, provided that in no event will
the Banks and the Agent be required to (i) eliminate any Covenant,
representation, warranty, default or event of default which was set forth in
this Agreement on the Effective Date or added to this Agreement pursuant to an
amendment to this Agreement entered into other than pursuant to this Section, or
(ii) modify or amend any Covenant, representation, warranty, default or event of
default which was set forth in this Agreement on the Effective Date or added to
this Agreement pursuant to any amendment to this Agreement entered into other
than pursuant to this Section in a manner such that such Covenant,
representation, warranty, default or event of default is less favorable to the
Banks or the Agent than such Covenant, representation, warranty, default or
event of default was on the Effective Date or the date the same was added to
this Agreement pursuant to such an amendment, as the case may be.
As used in this Section, the term "Covenants" shall mean covenants of a
type similar to those set forth in Article V hereof or which customarily are
described as affirmative, negative or financial covenants, but in no event shall
such term encompass (w) agreements of the Borrower in respect of interest rate,
fees, expenses, yield protection, indemnities, collateral, loan maturities,
prepayment premiums, prepayment prohibitions or "call" protection or conditions
precedent, (x) provisions whereby the Borrower waives rights, (y) provisions of
a type comparable to those contained in Article IX or customarily included in
the miscellaneous Section of a credit agreement or similar instrument, or (z)
definitions to the extent such definitions relate to any of the provisions
described in the foregoing clauses (w), (x) and (y).
Section V.21. Investments. Neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except: (a) Investments in (i)
direct obligations of the United States Government maturing within one year,
(ii) certificates of deposit issued by a commercial bank whose credit is
satisfactory to the Agent, (iii) commercial paper rated A1 or the equivalent
thereof by S&P or P1 or the equivalent thereof by ▇▇▇▇▇'▇ and in either case
maturing within 6 months after the date of acquisition, (iv) tender bonds the
payment of the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates of deposit
are rated at least AA or the equivalent thereof by S&P and Aa or the equivalent
thereof by ▇▇▇▇▇'▇, (v) loans or advances to employees not exceeding $1,000,000
in the aggregate principal amount outstanding at any time, in each case made in
the ordinary course of business and consistent with practices existing on
December 31, 1998, (vi) deposits required by government agencies or public
utilities, and (vii) loans, advances or other Investments to or in Guarantors;
and (b) other Investments which, in the aggregate, do not exceed 20% of
Consolidated Net Worth; provided, however, immediately after giving effect to
the making of any Investment, no Default shall have occurred and be continuing.
Section V.22. Guaranty of Subsidiaries.
(1) The Borrower shall deliver to the Agent and each Bank
notice that a Person has become a Subsidiary within 10 days after the day on
which such Person became a Subsidiary. The Borrower shall cause any Person which
becomes a Subsidiary after the Effective
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Date to become a party to, and agree to be bound by the terms of, the Guaranty
and the Contribution Agreement pursuant to an instrument in form and substance
satisfactory to the Agent executed and delivered to the Agent within 30 days
after the day on which such Person became a Subsidiary.
(2) Together with the instrument referred to in Section
5.22(a), the Borrower shall deliver to the Agent an opinion of counsel to such
Subsidiary substantially in the form of the opinion delivered pursuant to
Section 3.01(c) (to the extent such opinion includes opinions applicable to the
Guarantors), modified appropriately to refer to such Subsidiary, and the items
specified in Section 3.01(f) (to the extent such items relate to the Guarantors)
for such Subsidiary.
(3) Once any Person becomes a Subsidiary and therefore becomes
a party to the Guaranty Agreement in accordance with Section 5.22(a), such
Person thereafter shall remain a party to the Guaranty Agreement without regard
to whether it thereafter ceases to be a Subsidiary.
(4) If (i) the Borrower and/or any Subsidiary sells all of the
equity interests owned by the Borrower and its Subsidiaries in any Guarantor,
(ii) immediately before and after giving effect to such sale no Default or Event
of Default shall have occurred, and (iii) the Borrower shall have delivered to
the Agent and the Banks notice of such sale, then the Agent shall release such
Guarantor from the Guaranty.
Section V.23. Limitation on Consolidated Funded Debt. Neither
the Borrower nor any Subsidiary will incur, create, assume or suffer to exist
any Consolidated Funded Debt, other than (i) Consolidated Funded Debt set forth
or reflected on the consolidated balance sheet of the Borrower and its
Subsidiaries for the Fiscal Quarter ending September 30, 1998 delivered to the
Banks pursuant to Section 4.04(a), (ii) any extension, renewal or refinancing of
Consolidated Funded Debt described in clause (i) of this Section made on terms
no less favorable to the Borrower or such Subsidiary than the terms of the
Consolidated Funded Debt being so extended, renewed or refinanced immediately
prior to such extension, renewal or refinancing, (iii) the Term Loan, (iv)
Subordinated Debt, (v) Debt securing Liens permitted by Section 5.08 and (vi)
additional Consolidated Funded Debt not exceeding at any time an aggregate
amount outstanding of $5,000,000.
Section V.24. Delivery of Collateral Documents. The Borrower
will execute and deliver, and will cause EastWynn to execute and deliver, to the
Collateral Agent the Collateral Documents, together with a favorable opinion of
counsel to the Borrower and Eastwynn (as to corporate authority, power, no
violation of other material agreements, validity, binding effect and
enforceability) with respect to the Collateral Documents, on or before the
Collateralization Date; provided, that if the Term Loan has not been made by the
Term Lenders on or before the Collateralization Date, the Borrower and all
Secured Parties other than the Term Agent and the Term Lenders shall execute and
deliver the Intercreditor Agreement on the Collateralization Date, and the
Intercreditor Agreement shall be executed by the Term Agent and the Term Lenders
(and the other Secured Parties, if any amendments thereto have been requested by
the Term Agent and agreed to by the other Secured Parties) on the date the Term
Loan is made.
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Section V.25. Subordinated Debt.
(a) The Borrower will issue Subordinated Notes on the terms
(including the subordination provisions) described in the Subordinated Debt
Offering Circular, on or before February 5, 1999, in an aggregate amount not
less than $200,000,000, and use proceeds thereof to pay in full the Senior
Notes.
(b) The Borrower shall not (i) amend the terms of any of the
Subordinated Debt Documents, or (ii) make any voluntary or mandatory redemptions
or prepayments (whether upon a change of control or otherwise) with respect to,
or any legal or covenant defeasance of, the Subordinated Debt, without the
consent of the Agent and the Required Lenders or (iii) make any payments
whatsoever in violation of the subordination provisions pertaining to the
Subordinated Notes.
ARTICLE VI
DEFAULTS
Section VI.1. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(1) the Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay any interest on any Loan within five Domestic
Business Days after such interest shall become due, or shall fail to pay any fee
or other amount payable hereunder within five Domestic Business Days after such
fee or other amount becomes due; or
(2) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.01(e), 5.01(j), 5.02(ii), 5.03 to 5.07, inclusive, 5.09
(as to the Borrower) and 5.10 (as to the Borrower) and 5.12, or Section 5.15,
5.21(b), or 5.23 to 5.25, inclusive;
(3) the Borrower shall fail to observe or perform any covenant
or agreement contained or incorporated by reference in this Agreement (other
than those covered by clause (a) or (b) above) for thirty days after the earlier
of (i) the first day on which the a Responsible Officer has knowledge of such
failure or (ii) written notice thereof has been given to the Borrower by the
Agent at the request of any Bank; or
(4) any representation, warranty, certification or statement
made or deemed made by the Borrower in Article IV of this Agreement or in any
other Loan Document, certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have been incorrect or
misleading in any material respect when made (or deemed made); or
(5) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt or any Off-Balance Sheet Lease Indebtedness in an
aggregate amount in excess of $3,000,000 outstanding (other than the Notes, but
including, without limitation, the Subordinated Debt and the Term Loan) when due
or within any applicable grace period; or
(6) any event or condition shall occur (other than (i) any
voluntary notice of purchase, payment or prepayment delivered by the Borrower as
Tenant under the Lease which
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results in any amount which is the subject of such notice becoming due prior to
its scheduled due date, and (ii) any damage, destruction, other casualty or
condemnation which under Article 19 of the Lease results in any amount payable
under the Lease becoming due prior to its scheduled due date) which results in
the termination of any commitment regarding Debt or acceleration of the maturity
of Debt or Off-Balance Sheet Lease Indebtedness in an aggregate amount in excess
of $3,000,000 outstanding of the Borrower or any Subsidiary or the mandatory
prepayment or purchase of such Debt or Off-Balance Sheet Lease Indebtedness by
the Borrower (or its designee) or such Subsidiary (or its designee) prior to the
scheduled maturity thereof, or enables (with any requirement for the giving of
notice or lapse of time or both, having been satisfied) the holders of such
commitment or Debt or Off-Balance Sheet Lease Indebtedness or any Person acting
on such holders' behalf to terminate such commitment or accelerate the maturity
thereof or require the mandatory prepayment or purchase thereof prior to the
scheduled maturity thereof (including, without limitation, any required
mandatory prepayment or "put" of such Debt to the Borrower or any Subsidiary);
or
(7) the Borrower or any Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(8) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect; or
(9) the Borrower or any member of the Controlled Group shall
fail to pay when due any material amount which it shall have become liable to
pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans shall be filed under Title IV of ERISA by the
Borrower, any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan or Plans must be
terminated or the Borrower or any other member of the Controlled Group shall
enter into, contribute or be obligated to contribute to, terminate or incur any
withdrawal liability with respect to, a Multiemployer Plan; or
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(10) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000 shall be rendered against the
Borrower or any Subsidiary and such judgment or order shall continue unsatisfied
and unstayed for a period of 30 days; or
(11) a federal tax lien shall be filed against the Borrower
under Section 6323 of the Code or a lien of the PBGC shall be filed against the
Borrower or any Subsidiary under Section 4068 of ERISA and in either case such
lien shall remain undischarged for a period of 25 days after the date of filing;
or
(12) the ▇▇▇▇▇▇▇ Family shall at any time fail to Control the
Borrower; or
(13) the occurrence of any event, act or condition which the
Required Banks determine either does or has a reasonable probability of causing
a Material Adverse Effect and the failure of the Borrower to cure or prevent
such Material Adverse Effect within 45 days after receipt of notice of such
determination from the Required Banks; or
(14) any Collateral Document or Guaranty shall cease to be in
full force and effect or the Borrower or EastWynn or any Guarantor, as
applicable, shall deny or disaffirm its obligations thereunder; or
(15) any of the subordination provisions of the Subordinated
Notes shall cease to be in full force and effect or any of the holders of
Subordinated Debt or the Borrower shall deny or disaffirm its obligations
thereunder;
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by the Required Banks, by notice to
the Borrower declare the Notes (together with accrued interest thereon) and all
other amounts payable hereunder and under the other Loan Documents to be, and
the Notes (together will all accrued interest thereon) and all other amounts
payable hereunder and under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; provided that if
any Event of Default specified in clause (g) or (h) above occurs with respect to
the Borrower, without any notice to the Borrower or any other act by the Agent
or the Banks, the Commitments shall thereupon automatically terminate and the
Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents shall automatically become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower. Notwithstanding the
foregoing, the Agent shall have available to it all other remedies at law or
equity, and shall exercise any one or all of them at the request of the Required
Banks.
Section VI.2. Notice of Default. The Agent shall give notice
to the Borrower of any Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
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ARTICLE VII
THE AGENT
Section VII.1. Appointment, Powers and Immunities. Each Bank
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks, and then only on terms and
conditions satisfactory to the Agent, and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely as
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
Section VII.2. Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telefax, telegram or cable) believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks or all the Banks where unanimity is required under this Agreement, and
such instructions of the Required Banks or all the Banks where unanimity is
required under this Agreement in any action taken or failure to act pursuant
thereto shall be binding on all of the Banks.
Section VII.3. Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
non-payment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each non-payment of principal of or
interest on the Loans, whether or not
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it has received any notice of the occurrence of such non-payment. The Agent
shall (subject to Section 9.05) take such action with respect to such Default or
Event of Default as shall be directed by the Required Banks, provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
Section VII.4. Rights of Agent and Its Affiliates as a Bank.
With respect to any Loan made by Wachovia or an Affiliate of Wachovia, such
Affiliate and Wachovia in their capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not an Affiliate of Wachovia (or in Wachovia's case, acting as
the Agent), and the term "Bank" or "Banks" shall, unless the context otherwise
indicates, include such Affiliate of Wachovia or Wachovia in its individual
capacity. Such Affiliate and Wachovia may (without having to account therefor to
any Bank) accept deposits from, lend money to and generally engage in any kind
of banking, trust or other business with the Borrower (and any of its
Affiliates) as if they were not an Affiliate of the Agent or the Agent,
respectively; and such Affiliate and Wachovia may accept fees and other
consideration from the Borrower (in addition to any agency fees and arrangement
fees heretofore agreed to between the Borrower and Wachovia) for services in
connection with this Agreement or any other Loan Document or otherwise without
having to account for the same to the Banks.
Section VII.5. Indemnification. Each Bank severally agrees to
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
the Borrower, ratably in accordance with its Commitment, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; provided, however, that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
Section VII.6. CONSEQUENTIAL DAMAGES. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section VII.7. Payee of Note Treated as Owner. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Agent and the
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provisions of Section 9.07(c) have been satisfied. Any requests, authority or
consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of that Note or of any Note or
Notes issued in exchange therefor or replacement thereof.
Section VII.8. Non-Reliance on Agent and Other Banks. Each
Bank agrees that it has, independently and without reliance on the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or any of the
other Loan Documents. The Agent shall not be required to keep itself (or any
Bank) informed as to the performance or observance by the Borrower of this
Agreement or any of the other Loan Documents or any other document referred to
or provided for herein or therein or to inspect the properties or books of the
Borrower or any other Person. Except for notices, reports and other documents
and information expressly required to be furnished to the Banks by the Agent
hereunder or under the other Loan Documents, the Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower or any
other Person (or any of their Affiliates) which may come into the possession of
the Agent.
Section VII.9. Failure to Act. Except for action expressly
required of the Agent hereunder or under the other Loan Documents, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction by
the Banks of their indemnification obligations under Section 7.05 against any
and all liability and expense which may be incurred by the Agent by reason of
taking, continuing to take, or failing to take any such action.
Section VII.10. Resignation or Removal of Agent. Subject to
the appointment and acceptance of a successor Agent as provided below, the Agent
may resign at any time by giving notice thereof to the Banks and the Borrower
and the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Agent's notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent. Any successor Agent shall be a bank which has
a combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
Section VIII.1. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period in respect of
any Euro-Dollar Loan:
(1) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(2) the Required Banks advise the Agent that the London
Interbank Offered Rate as determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding the Euro-Dollar Loans for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
the Euro-Dollar Loans specified in such notice shall be suspended. Unless the
Borrower notifies the Agent at least 2 Domestic Business Days before the date of
any Borrowing of Euro-Dollar Loans for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
Section VIII.2. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such authority, bank or agency being referred to as an "Authority" and any such
event being referred to as a "Change of Law"), or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any Authority shall make it unlawful or impossible for any Bank (or
its Lending Office) to make, maintain or fund its Euro-Dollar Loans and such
Bank shall so notify the Agent, the Agent shall forthwith give notice thereof to
the other Banks and the Borrower, whereupon until such Bank notifies the
Borrower and the Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant to this Section, such
Bank shall designate a different Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Euro-Dollar
Loans to maturity and shall so specify in such notice, the Borrower shall, on
the later of (i) the date such notice is received by the Borrower and (ii) the
date such Change of Law becomes applicable, prepay in full the then outstanding
principal amount of each Euro-Dollar Loan of such Bank, together with accrued
interest thereon and any amount due such Bank pursuant to Section 8.05(a).
Concurrently with prepaying each such Euro-Dollar Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from such Bank (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and such Bank shall make such a Base Rate
Loan.
Section VIII.3. Increased Cost and Reduced Return.
(1) If after the date hereof, a Change of Law or compliance by
any Bank (or its Lending Office) with any request or directive (whether or not
having the force of law) of any Authority:
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(1) shall subject any Bank (or its Lending Office) to
any tax, duty or other charge with respect to its Euro-Dollar
Loans, its Notes or its obligation to make Euro-Dollar Loans,
or shall change the basis of taxation of payments to any Bank
(or its Lending Office) of the principal of or interest on its
Euro-Dollar Loans or any other amounts due under this
Agreement in respect of its Euro-Dollar Loans or its
obligation to make Euro-Dollar Loans (except for changes in
the rate of tax on the overall net income of such Bank or its
Lending Office imposed by the jurisdiction in which such
Bank's principal executive office or Lending Office is
located); or
(2) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System, but excluding with
respect to any Euro-Dollar Loan any such requirement included
in an applicable Euro-Dollar Reserve Percentage) against
assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Lending Office); or
(3) shall impose on any Bank (or its Lending Office)
or on the United States market for certificates of deposit or
the London interbank market any other condition affecting its
Euro-Dollar Loans, its Notes or its obligation to make
Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(2) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any existing or future law, rule or regulation, or
any change in the interpretation or administration thereof, or compliance by any
Bank (or its Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
(3) Each Bank shall notify the Borrower of any event occurring
after the date of this Agreement entitling such Bank to compensation under this
Section as promptly as practicable, but in any event within 45 days, after the
officer of such Bank responsible for the business relationship of the Bank with
the Borrower obtains actual knowledge thereof; provided
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that (i) if any Bank fails to give such notice within 45 days after such officer
obtains actual knowledge of such an event, such Bank shall with respect to
compensation payable pursuant to this Section in respect of any costs resulting
from such event, only be entitled to payment under this Section for costs
incurred from and after the date 45 days prior to the date that such Bank does
give such notice and (ii) each Bank will designate a different Lending Office
for the Loans of such Bank affected by such event if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
sole opinion of such Bank, be disadvantageous to such Bank or contrary to its
general lending policies. Each Bank will furnish to the Borrower a certificate
setting forth the basis and amount of each request by such Bank for compensation
under this Section, accompanied by a statement of an officer of such Bank
certifying that such request for compensation is being made pursuant to a policy
adopted by such Bank to seek such compensation generally from customers similar
to the Borrower.
(4) The provisions of this Section 8.03 shall be applicable
with respect to any Participant, Assignee or other Transferee.
Section VIII.4. Base Rate Loans Substituted for Euro-Dollar
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least 5
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(1) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (in which case
interest and principal on such Loans shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and
(2) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Bank, the Borrower shall remain liable for, and shall pay to
such Bank as provided herein, all amounts due such Bank under Section 8.03 in
respect of the period preceding the date of conversion of such Bank's Loans
resulting from the Borrower's election.
Section VIII.5. Compensation. Upon the request of any Bank,
delivered to the Borrower and the Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense incurred by such Bank as a result of:
(1) any payment or prepayment (pursuant to Section 2.08,
Section 2.09, Section 8.02 or otherwise) of a Euro-Dollar Loan on a date other
than the last day of an Interest Period for such Euro-Dollar Loan, as the case
may be;
(2) any failure by the Borrower to prepay a Euro-Dollar Loan
on the date for such prepayment specified in the relevant notice of prepayment
hereunder; or
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(3) any failure by the Borrower to borrow a Euro-Dollar Loan
on the date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a
part specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein
(excluding, however, for purposes of this Section only the Applicable Margin in
determining such rate of interest) over (y) the amount of interest (as
reasonably determined by such Bank) such Bank would have paid on deposits in
Dollars of comparable amounts having terms comparable to such period placed with
it by leading banks in the London interbank market.
Section VIII.6. Replacement of Bank. In the event that any
Bank gives any notice under Section 8.02 resulting in the suspension of its
obligation to make Euro-Dollar Loans or requests compensation pursuant to
Section 8.03, then, so long as the condition giving rise to such suspension or
compensation exists, the Borrower may designate another bank or financial
institution (such bank or financial institution being herein called a
"Replacement Bank") acceptable to the Agent (which acceptance will not be
unreasonably withheld) and which is not an Affiliate of the Borrower, to assume
such Bank's Commitment hereunder and to purchase the Loans of such Bank and such
Bank's rights under this Agreement and the Notes held by such Bank, all without
recourse to or representation or warranty by, or expense to, such Bank, for a
purchase price equal to the outstanding principal amount of the Loans payable to
such Bank plus any accrued but unpaid interest on such Loans and accrued but
unpaid fees owing to such Bank plus any amounts payable to such Bank under
Section 8.05 or otherwise owing to such Bank under the Loan Documents, and upon
such assumption, purchase and substitution, and subject to the execution and
delivery to the Agent by the Replacement Bank of documentation satisfactory to
the Agent (pursuant to which such Replacement Bank shall assume the obligations
of such original Bank under this Agreement), the Replacement Bank shall succeed
to the rights and obligations of such Bank hereunder. In the event that the
Borrower exercises its rights under the preceding sentence, the Bank against
which such rights were exercised shall no longer be a party hereto or have any
rights or obligations hereunder; provided that the obligations of the Borrower
to such Bank under Article VIII and Section 9.03 with respect to events
occurring or obligations arising before or as a result of such replacement shall
survive such exercise.
ARTICLE IX
MISCELLANEOUS
Section IX.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission or similar writing) and shall be given to such party at its address
or telecopy number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for the purpose by notice
to each other party. Each such notice, request or other communication shall be
effective
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(i) if given by telecopier, when such telecopy is transmitted to the telecopy
number specified in this Section and the telecopy machine used by the sender
provides a written confirmation that such telecopy has been so transmitted or
receipt of such telecopy transmission is otherwise confirmed, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, and (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent under Article II or Article VIII shall not be effective
until received.
Section IX.2. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
or other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section IX.3. Expenses; Documentary Taxes; Indemnification.
(1) The Borrower shall pay (i) all out-of-pocket expenses of
the Agent, including fees and disbursements of special counsel for the Agent, in
connection with the preparation of this Agreement and the other Loan Documents,
any waiver or consent hereunder or thereunder or any amendment hereof or thereof
or any Default or alleged Default hereunder or thereunder and (ii) if a Default
occurs, all out-of-pocket expenses incurred by the Agent or any Bank, including
fees and disbursements of counsel, in connection with such Default and
collection and other enforcement proceedings resulting therefrom, including
out-of-pocket expenses incurred in enforcing this Agreement and the other Loan
Documents.
(2) The Borrower shall indemnify the Agent and each Bank
against any transfer taxes, documentary taxes, assessments or charges made by
any Authority by reason of the execution and delivery of this Agreement or the
other Loan Documents.
(3) The Borrower shall indemnify the Agent, the Banks and each
Affiliate thereof and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses, liabilities,
claims or damages to which any of them may become subject, insofar as such
losses, liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension of credit by any
Bank hereunder or breach by the Borrower of this Agreement or any other Loan
Document or from investigation, litigation (including, without limitation, any
actions taken by the Agent or any of the Banks to enforce this Agreement or any
of the other Loan Documents) or other proceeding (including, without limitation,
any threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse the Agent and each Bank, and each Affiliate thereof and
their respective directors, officers, employees and agents, upon demand for any
expenses (including, without limitation, legal fees) incurred in connection with
any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified.
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Section IX.4. Setoffs; Sharing of Set-Offs.
(1) The Borrower hereby grants to each Bank, as security for
the full and punctual payment and performance of the obligations of the Borrower
under this Agreement, a continuing lien on and security interest in all deposits
and other sums credited by or due from such Bank to the Borrower or subject to
withdrawal by the Borrower; and regardless of the adequacy of any collateral or
other means of obtaining repayment of such obligations, each Bank may at any
time upon or after the occurrence of any Event of Default, and without notice to
the Borrower, set off the whole or any portion or portions of any or all such
deposits and other sums against such obligations, whether or not any other
Person or Persons could also withdraw money therefrom.
(2) Each Bank agrees that if it shall, by exercising any right
of set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest owing with respect to the Notes held
by it which is greater than the proportion received by any other Bank in respect
of the aggregate amount of all principal and interest owing with respect to the
Notes held by such other Bank, the Bank receiving such proportionately greater
payment shall purchase such participations in the Notes held by the other Banks
owing to such other Banks, and/or such other adjustments shall be made, as may
be required so that all such payments of principal and interest with respect to
the Notes held by the Banks owing to such other Banks shall be shared by the
Banks pro rata; provided that (i) nothing in this Section shall impair the right
of any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness under the Notes, and (ii) if all or any
portion of such payment received by the purchasing Bank is thereafter recovered
from such purchasing Bank, such purchase from each other Bank shall be rescinded
and such other Bank shall repay to the purchasing Bank the purchase price of
such participation to the extent of such recovery together with an amount equal
to such other Bank's ratable share (according to the proportion of (x) the
amount of such other Bank's required repayment to (y) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. The
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
(3) Notwithstanding the foregoing, it is hereby expressly
agreed that neither the Agent nor any Bank shall have any lien or security
interest in, or right to set-off against, any amount held for the Borrower (i)
by the Agent's or such Bank's Affiliates, including, but not limited to, Trustco
Capital Management, Inc. and Synovus Securities, Inc., or (ii) in any corporate
custody account or similar account maintained at any Bank in a trust capacity,
in either case as security for or for application to the Loans or other
obligations owing to the Agent, or such Bank under this Agreement or the Loan
Documents; provided, however, that nothing contained in this subSection (c)
shall in any way be construed as limiting the ability of any such Affiliate of
the Agent or any Bank to set-off against the Borrower's accounts for any amount
owing to such Affiliate or such Bank arising other than under this Agreement and
the Loan Documents.
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Section IX.5. Amendments and Waivers.
(1) Any provision of this Agreement, the Notes or any other
Loan Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Banks (and,
if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) change the Commitment of any Bank or subject any Bank to any additional
obligation (provided that an Assignment and Acceptance executed in connection
with an assignment effected pursuant to, and in compliance with, Section 9.07(c)
shall not be deemed to be a violation of this clause (i)), (ii) change the
principal of or rate of interest on any Loan or any fees hereunder, (iii) change
the date fixed for any payment of principal of or interest on any Loan or any
fees hereunder, (iv) change the amount of principal, interest or fees due on any
date fixed for the payment thereof, (v) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Notes, or the percentage of
Banks, which shall be required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement, (vi) change the
manner of application of any payments made under this Agreement or the Notes,
(vii) change this Section 9.05(a), (viii) change the definition of "Required
Banks", (ix) release any Guarantor from its obligations under the Guaranty
(other than any release of a Guarantor pursuant to Section 5.22(d)) or (x)
release any Collateral (other than any release of Collateral pursuant to Section
5.11 or pursuant to the Intercreditor Agreement).
(2) The Borrower will not solicit, request or negotiate for or
with respect to any proposed waiver or amendment of any of the provisions of
this Agreement from or with any Bank, except on terms fully disclosed to the
Agent (which terms the Agent shall be authorized to disclose to the Banks).
Executed or true and correct copies of any waiver or consent effected pursuant
to the provisions of this Agreement shall be delivered by the Borrower to the
Agent (for delivery to each Bank) forthwith following the date on which the same
shall have been executed and delivered by the requisite percentage of Banks. The
Borrower will not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
Section IX.6. Margin Stock Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
Section IX.7. Successors and Assigns.
(1) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided that, except as provided in paragraph (g) of this Section, the
Borrower may not assign or otherwise transfer any of its rights under this
Agreement.
(2) Any Bank may at any time sell to one or more Persons (each
a "Participant") participating interests in any Loan owing to such Bank, any
Note held by such Bank, any Commitment hereunder or any other interest of such
Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under
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this Agreement shall remain unchanged, such Bank shall remain solely responsible
for the performance thereof, such Bank shall remain the holder of any such Note
for all purposes under this Agreement, and the Borrower and the Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. In no event shall a Bank
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Bank may agree that it will
not (except as provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of or interest on
the related Loan or Loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related Loan or Loans, (iii) the change of the principal of the related Loan
or Loans, or (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) commitment fee
is payable hereunder from the rate at which the Participant is entitled to
receive interest or commitment fee (as the case may be) in respect of such
participation. Each Bank selling a participating interest in any Loan, Note,
Commitment or other interest under this Agreement shall, within 10 Domestic
Business Days of such sale, provide the Borrower and the Agent with written
notification stating that such sale has occurred and identifying the Participant
and the interest purchased by such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Article VIII with respect to
its participation in Loans outstanding from time to time, subject to the
provisions of Section 9.07(e).
(3) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or a proportionate part of all,
of its rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume all such rights and obligations,
pursuant to an Assignment and Acceptance in the form attached hereto as Exhibit
B, executed by such Assignee, such transferor Bank and the Agent (and, in the
case of (x) an Assignee that is not then a Bank or an Affiliate of a Bank; and
(y) an assignment not made during the existence of an Event of Default, by the
Borrower); provided that
(i) no interest may be sold by a Bank pursuant to this
paragraph (c) unless the Assignee shall agree to assume ratably
equivalent portions of the transferor Bank's Commitment (provided that
the Borrower and the Agent may waive the requirement contained in this
clause (i)),
(ii) no interest may be sold by a Bank pursuant to this
paragraph (c) to any Assignee that is not then a Bank or an Affiliate
of a Bank without the consent of the Borrower, which consent shall not
be unreasonably withheld (provided that (1) the Borrower's consent
shall not be necessary with respect to any assignment made during the
existence of an Event of Default, and (2) it shall not constitute the
unreasonable withholding of consent if the Borrower shall decline to
consent because (x) the Borrower makes a reasonable determination that
it is materially more likely that the proposed Assignee will be
entitled to compensation, or to a greater amount of compensation, than
the transferor Bank, or (y) the proposed Assignee is a competitor, or
an Affiliate of a competitor, of the Borrower or any Subsidiary), and
(iii) the minimum amount of any Commitment, and the minimum
aggregate principal amount of Loans, that may be so assigned by any
transferor Bank shall be $5,000,000 (provided that (1) a Bank may
assign all of its Commitment and its Loans even if the amount of its
Commitment and the aggregate principal amount of its Loans
57
61
is less than $5,000,000, and (2) the Agent and the Borrower may waive
the requirement contained in this clause (iii) without the consent of
any Bank).
Upon (A) execution of the Assignment and Acceptance by such transferor Bank,
such Assignee, the Agent and (if applicable) the Borrower, (B) delivery of an
executed copy of the Assignment and Acceptance to the Borrower and the Agent,
(C) payment by such Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such Assignee, and (D)
payment by such transferor Bank to the Agent of a processing and recordation fee
of $500, if the Assignee is a Bank or an Affiliate thereof, or $3,500 in any
other case, such Assignee shall for all purposes be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank under this
Agreement to the same extent as if it were an original party hereto with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by the Borrower, the Banks or the Agent shall
be required. Upon the consummation of any transfer to an Assignee pursuant to
this paragraph (c), the transferor Bank, the Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued to each of
such Assignee and such transferor Bank.
(4) Subject to the provisions of Section 9.08, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial and other information in such Bank's possession concerning the
Borrower which has been delivered to such Bank by the Borrower pursuant to this
Agreement or which has been delivered to such Bank by the Borrower in connection
with such Bank's credit evaluation prior to entering into this Agreement.
(5) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made
with the Borrower's prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Bank to designate a different Lending Office
under certain circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
(6) Anything in this Section 9.07 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and Operating Circular issued by such
Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Bank in accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the assigning
and/or pledging Bank from its obligations hereunder.
Section IX.8. Confidentiality. Each Bank agrees to exercise
its best efforts to keep any information delivered or made available by the
Borrower to it which such Bank knows to be or which is clearly indicated to be
confidential information, confidential from anyone other than persons employed
or retained by such Bank who are or are expected to become engaged in
evaluating, approving, structuring or administering the Loans; provided,
however, that nothing herein shall prevent any Bank from disclosing such
information (i) to any other Bank, (ii) upon
58
62
the order of any court or administrative agency, (iii) to any regulatory agency
or authority having jurisdiction over such Bank, upon the request or demand of
such regulatory agency or authority, (iv) which has been publicly disclosed
(unless such Bank knows such disclosure was made by a Person in violation of a
confidentiality agreement with or confidentiality obligation to the Borrower or
any Subsidiary), (v) to the extent reasonably required in connection with any
litigation to which the Agent, any Bank or their respective Affiliates may be a
party, (vi) to the extent reasonably required in connection with the exercise of
any remedy hereunder, (vii) to such Bank's legal counsel and independent
auditors and (viii) to any actual or proposed Participant, Assignee or other
Transferee of all or part of its rights hereunder which has agreed in writing to
be bound by the provisions of this Section 9.08.
Section IX.9. Representation by Banks. Each Bank hereby
represents that it is a commercial lender or financial institution which makes
loans in the ordinary course of its business and that it will make its Loans
hereunder for its own account in the ordinary course of such business; provided,
however, that, subject to Section 9.07, the disposition of the Note or Notes
held by that Bank shall at all times be within its exclusive control.
Section IX.10. Obligations Several. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the obligations
or commitment of any other Bank hereunder. Nothing contained in this Agreement
and no action taken by the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall, subject to Article VI, be
entitled to protect and enforce its rights arising out of this Agreement or any
other Loan Document and it shall not be necessary for any other Bank to be
joined as an additional party in any proceeding for such purpose.
Section IX.11. Survival of Certain Obligations. Sections
8.03(a), 8.03(b), 8.05 and 9.03 of this Agreement and the obligations of the
Borrower thereunder shall, without duplication, survive and continue to be
enforceable notwithstanding the termination of this Agreement and the
Commitments and the payment in full of the principal of and interest on all
Loans.
Section IX.12. Georgia Law. This Agreement and each Note shall
be construed in accordance with and governed by the law of the State of Georgia.
Section IX.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
Section IX.14. Interest. In no event shall the amount of
interest due or payable hereunder or under the Notes exceed the maximum rate of
interest allowed by applicable law, and in the event any such payment is
inadvertently made to any Bank by the Borrower or inadvertently received by any
Bank, then such excess sum shall be credited as a payment of principal, unless
the Borrower shall notify such Bank in writing that it elects to have such
excess sum returned forthwith. It is the express intent hereof that the Borrower
not pay and the Banks
59
63
not receive, directly or indirectly in any manner whatsoever, interest in excess
of that which may legally be paid by the Borrower under applicable law.
Section IX.15. Interpretation. No provision of this Agreement
or any of the other Loan Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or dictated such provision.
Section IX.16. Consent to Jurisdiction. The Borrower (a)
submits to personal jurisdiction in the State of Georgia, the courts thereof and
the United States District Courts sitting therein, for the enforcement of this
Agreement, the Notes and the other Loan Documents, (b) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (c) agrees that service of
process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrower. Nothing herein contained, however, shall
prevent the Agent from bringing any action or exercising any rights against any
security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
Section IX.17. ▇▇▇▇▇ Filing. Promptly after the Effective
Date, the Agent agrees to deliver to the Borrower a 3 1/2 inch high density
computer disk containing the final form of this Agreement, formatted on
WordPerfect 6.1. After the execution and delivery of any amendment, modification
or supplement to this Agreement, the Agent agrees to deliver to the Borrower,
upon request of the Borrower, a 3 1/2 inch high density computer disk or other
electronic or computer record mutually agreeable to the Borrower and the Agent
containing the final form of such amendment, modification or supplement,
formatted on WordPerfect 6.1 or other software program mutually agreeable to the
Borrower and the Agent.
Section IX.18. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
CARMIKE CINEMAS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
-------------------------
(SEAL)
Title:
Carmike Cinemas, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Senior Vice President and
Chief Financial Officer
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
60
64
COMMITMENTS
$77,500,000 WACHOVIA BANK, N.A., as Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
(SEAL)
Title:
Lending Office
Wachovia Bank, N.A.
Syndication Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Mail Code: GA-0423
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (27th floor)
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
61
65
$55,000,000 FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
(SEAL)
Title:
Lending Office
First Union National Bank - Florida
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
First Union National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
62
66
$42,500,000 SUNTRUST BANK, ATLANTA
By: /s/ J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
(SEAL)
Title:
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
(SEAL)
Title:
Lending Office
SunTrust Bank, Atlanta
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention : J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
63
67
$20,000,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By: /s/ A. Haruyama
--------------------------------------
(SEAL)
Title:
Lending Office
The Long-Term Credit Bank of Japan, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Long-Term Credit Bank of Japan, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
64
68
$12,500,000 THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
(SEAL)
Title:
Lending Office
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
65
69
$12,500,000 FIRST AMERICAN NATIONAL BANK
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
(SEAL)
Title:
Lending Office
First American National Bank
First American Center
Fourth & Union Street, 3rd Floor
Nashville, Tennessee 37238-0310
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
66
70
$12,500,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------
(SEAL)
Title:
Lending Office
The Industrial Bank of Japan, Limited,
Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
67
71
$12,500,000 THE SANWA BANK LIMITED
By: /s/ ▇. ▇▇▇▇▇▇▇▇ Wu
--------------------------------------
(SEAL)
Title:
Lending Office
The Sanwa Bank Limited
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Hara
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Sanwa Bank Limited
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ Wu
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
68
72
$10,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
(SEAL)
Title:
Lending Office
The Bank of Tokyo-Mitsubishi, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
69
73
$10,000,000 COLUMBUS BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
(SEAL)
Title:
Lending Office
Columbus Bank and Trust Company
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
70
74
$10,000,000 HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
(SEAL)
Title:
Lending Office
Hibernia National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------
TOTAL COMMITMENTS:
$275,000,000
71