Execution Copy
U.S. $425,000,000
CREDIT AGREEMENT,
dated as of December 27, 1995
among
AMC ENTERTAINMENT INC.,
as the Borrower,
THE BANK OF NOVA SCOTIA,
as Administrative Agent,
CHEMICAL BANK,
as Syndication Agent,
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Documentation Agent,
and
VARIOUS FINANCIAL INSTITUTIONS,
as Lenders
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . 2
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Use of Defined Terms. . . . . . . . . . . . . . . . . . . . 27
1.3 Accounting and Financial Determinations . . . . . . . . . . 27
ARTICLE II
COMMITMENTS. . . . . . . . . . . . . . 27
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . 27
2.2 Total Commitment Amount; Reduction of Total
Commitment Amount . . . . . . . . . . . . . . . . . . . . 28
2.2.1 Total Commitment Amount. . . . . . . . . . . . . . 28
2.2.2 Reduction of Total Commitment Amount . . . . . . . 28
2.3 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.4 Termination . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE III
LOANS AND NOTES. . . . . . . . . . . . . 30
3.1 Borrowing Procedure . . . . . . . . . . . . . . . . . . . . 30
3.2 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.3 Principal Payments and Prepayments. . . . . . . . . . . . . 31
3.4 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.5 Post-Maturity Rates . . . . . . . . . . . . . . . . . . . . 32
3.6 Payment Dates . . . . . . . . . . . . . . . . . . . . . . . 33
3.7 Payments, Computations, etc.. . . . . . . . . . . . . . . . 33
3.8 Proration of Payments . . . . . . . . . . . . . . . . . . . 34
3.9 Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE IV
BASE RATE AND FIXED RATE OPTIONS FOR THE LOANS . . . . . 35
4.1 Elections . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.2 Fixed Rate Lending Unlawful . . . . . . . . . . . . . . . . 37
4.3 Deposits Unavailable. . . . . . . . . . . . . . . . . . . . 38
4.4 Capital Adequacy; Increased Costs, etc. . . . . . . . . . . 38
4.5 Funding Losses. . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE V
CONDITIONS TO BORROWING. . . . . . . . . . . 40
5.1 Conditions to Initial Borrowing . . . . . . . . . . . . . . 40
5.1.1 Resolutions, etc.. . . . . . . . . . . . . . . . . 40
5.1.2 Delivery of Notes. . . . . . . . . . . . . . . . . 41
5.1.3 Opinion of Counsel . . . . . . . . . . . . . . . . 41
5.1.4 Closing Fees, Expenses, etc. . . . . . . . . . . . 41
5.1.5 Significant Subsidiary Guaranty. . . . . . . . . . 41
5.1.6 Satisfactory Legal Form. . . . . . . . . . . . . . 41
5.1.7 Compliance with Warranties, Non-Default,
etc. . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.1.8 Tender Offers. . . . . . . . . . . . . . . . . . . 42
5.1.9 Consent Solicitations.. . . . . . . . . . . . . . 42
5.1.10 AMC Loan Agreement. . . . . . . . . . . . . . . . 43
5.1.11 Financial Information . . . . . . . . . . . . . . 43
5.1.12 Litigation. . . . . . . . . . . . . . . . . . . . 44
5.2 All Loans . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.2.1 Compliance with Warranties, Non-Default,
etc. . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.2.2 Absence of Litigation, etc.. . . . . . . . . . . . 44
5.2.3 Loan Request . . . . . . . . . . . . . . . . . . . 44
ARTICLE VI
WARRANTIES, ETC.. . . . . . . . . . . . . 45
6.1 Organization, Power, Authority, etc.. . . . . . . . . . . . 45
6.2 Due Authorization . . . . . . . . . . . . . . . . . . . . . 45
6.3 Validity, etc.. . . . . . . . . . . . . . . . . . . . . . . 45
6.4 Financial Information . . . . . . . . . . . . . . . . . . . 46
6.5 Absence of Certain Defaults . . . . . . . . . . . . . . . . 46
6.6 Litigation, etc.. . . . . . . . . . . . . . . . . . . . . . 46
6.7 Use of Proceeds; Regulation U . . . . . . . . . . . . . . . 46
6.8 Government Regulation . . . . . . . . . . . . . . . . . . . 47
6.9 Certain Contractual Obligations or Organic
Documents . . . . . . . . . . . . . . . . . . . . . . . . 47
6.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.11 Employee Benefit Plans . . . . . . . . . . . . . . . . . . 47
6.12 Labor Controversies. . . . . . . . . . . . . . . . . . . . 48
6.13 Subsidiaries and Significant Subsidiaries. . . . . . . . . 48
6.14 Intellectual Property. . . . . . . . . . . . . . . . . . . 48
6.15 Ownership of Properties; Liens . . . . . . . . . . . . . . 48
6.16 Accuracy of Information. . . . . . . . . . . . . . . . . . 48
6.17 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.18 Refinancing Transactions . . . . . . . . . . . . . . . . . 49
6.19 Environmental Warranties . . . . . . . . . . . . . . . . . 49
6.20 Restrictions on or Relating to Subsidiaries. . . . . . . . 51
ARTICLE VII
COVENANTS . . . . . . . . . . . . . . 51
7.1 Certain Affirmative Covenants . . . . . . . . . . . . . . . 51
7.1.1 Financial Information, etc.. . . . . . . . . . . . 51
7.1.2 Maintenance of Existences; Ownership of
AMC Capital Stock; Asset Ownership.. . . . . . . . . . 53
7.1.3 Foreign Qualification. . . . . . . . . . . . . . . 53
7.1.4 Payment of Taxes, etc. . . . . . . . . . . . . . . 53
7.1.5 Insurance. . . . . . . . . . . . . . . . . . . . . 54
7.1.6 Notice of Default, Litigation, etc.. . . . . . . . 54
7.1.7 Performance of Loan Documents. . . . . . . . . . . 55
7.1.8 Books and Records. . . . . . . . . . . . . . . . . 55
7.1.9 Significant Subsidiary Guaranty; Pledge of
Shares of Significant Subsidiaries; Pledge of
Intercompany Indebtedness. . . . . . . . . . . . . . . 55
7.1.10 Environmental Covenant. . . . . . . . . . . . . . 56
7.2 Certain Negative Covenants. . . . . . . . . . . . . . . . . 57
7.2.1 Indebtedness for Borrowed Money. . . . . . . . . . 57
7.2.2 Liens. . . . . . . . . . . . . . . . . . . . . . . 58
7.2.3 Financial Condition. . . . . . . . . . . . . . . . 59
7.2.4 Capital Expenditures.. . . . . . . . . . . . . . . 60
7.2.5 Take or Pay Contracts. . . . . . . . . . . . . . . 61
7.2.6 Consolidation, Merger, etc.. . . . . . . . . . . . 61
7.2.7 Modification, etc. of Subordinated Debt. . . . . . 61
7.2.8 Transactions with Affiliates.. . . . . . . . . . . 61
7.2.9 Sale or Discount of Receivables. . . . . . . . . . 62
7.2.10 Limitation on Certain Payments;
Limitation on Restriction of Subsidiary
Dividends and Distributions. . . . . . . . . . . . . . 62
7.2.11 Inconsistent Agreements . . . . . . . . . . . . . 62
7.2.12 Investments . . . . . . . . . . . . . . . . . . . 62
7.2.13 Guaranties. . . . . . . . . . . . . . . . . . . . 64
7.2.14 Business Activities . . . . . . . . . . . . . . . 65
7.2.15 Asset Sales . . . . . . . . . . . . . . . . . . . 65
7.2.16 Limitation on Issuances of Guaranties of
Indebtedness.. . . . . . . . . . . . . . . . . . . . . 65
7.2.17 Negative Pledges. . . . . . . . . . . . . . . . 66
7.2.18 Fiscal Year . . . . . . . . . . . . . . . . . . . 66
ARTICLE VIII
EVENTS OF DEFAULT . . . . . . . . . . . . 66
8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . 66
8.1.1 Non-Payment of Liabilities . . . . . . . . . . . . 66
8.1.2 Non-Performance of Certain Covenants . . . . . . . 66
8.1.3 Non-Performance of Other Obligations . . . . . . . 66
8.1.4 Bankruptcy, Insolvency, etc. . . . . . . . . . . . 67
8.1.5 Certain Defaults on Other Indebtedness,
Leases or Preferred Stock. . . . . . . . . . . . . . . 67
8.1.6 Change in Control. . . . . . . . . . . . . . . . . 68
8.1.7 Breach of Warranty . . . . . . . . . . . . . . . . 68
8.1.8 ERISA. . . . . . . . . . . . . . . . . . . . . . . 68
8.1.9 Judgments. . . . . . . . . . . . . . . . . . . . . 69
8.1.10 Loan Documents. . . . . . . . . . . . . . . . . . 69
8.2 Action if Bankruptcy. . . . . . . . . . . . . . . . . . . . 69
8.3 Action if Other Event of Default. . . . . . . . . . . . . . 69
ARTICLE IX
THE AGENTS . . . . . . . . . . . . . . 70
9.1 Actions . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9.2 Funding Reliance, etc.. . . . . . . . . . . . . . . . . . . 71
9.3 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . 71
9.4 Successor . . . . . . . . . . . . . . . . . . . . . . . . . 72
9.5 Loans by the Agents . . . . . . . . . . . . . . . . . . . . 72
9.6 Credit Decisions. . . . . . . . . . . . . . . . . . . . . . 72
9.7 Copies, etc . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . 73
10.1 Waivers, Amendments, etc.. . . . . . . . . . . . . . . . . 73
10.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.3 Costs and Expenses . . . . . . . . . . . . . . . . . . . . 74
10.4 Indemnification. . . . . . . . . . . . . . . . . . . . . . 75
10.5 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.6 Severability . . . . . . . . . . . . . . . . . . . . . . . 76
10.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.8 Execution in Counterparts; Effectiveness . . . . . . . . . 76
10.9 Governing Law; Entire Agreement. . . . . . . . . . . . . . 76
10.10 Successors and Assigns. . . . . . . . . . . . . . . . . . 77
10.11 Sale and Transfers, etc., of Loans and Notes;
Participations in Loans and Notes . . . . . . . . . . . . 77
10.12 Other Transactions. . . . . . . . . . . . . . . . . . . . 79
10.13 Collateral. . . . . . . . . . . . . . . . . . . . . . . . 79
10.14 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . 79
10.15 Consent to Jurisdiction and Service of Process. . . . . . 79
10.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . 80
SCHEDULE I Lenders
SCHEDULE II Unrestricted Subsidiaries
EXHIBIT A Disclosure Schedule
EXHIBIT B Form of Loan Request
EXHIBIT C Form of Continuation/Conversion Notice
EXHIBIT D Form of Compliance Certificate
EXHIBIT E Form of Significant Subsidiary Guaranty
EXHIBIT F Form of Opinion of Counsel to the Borrower and each
Significant Subsidiary
EXHIBIT G Form of Applicable Margin Determination Ratio Certificate
EXHIBIT H Form of Note
EXHIBIT I Form of Pledge Agreement
EXHIBIT J Form of Subsidiary Pledge Agreement
EXHIBIT K Form of Assignment Agreement
EXHIBIT L Form of Intercompany Note
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 27, 1995, is
among AMC ENTERTAINMENT INC., a Delaware corporation (the
"Borrower"), the undersigned financial institutions
(collectively, the "Lenders" and individually, each a "Lender"),
THE BANK OF NOVA SCOTIA, a Canadian chartered bank acting through
its Atlanta agency ("BNS"), as administrative agent (in such
capacity, together with its successors and assigns in such
capacity, the "Administrative Agent"), CHEMICAL BANK, a New York
banking corporation, as syndication agent (in such capacity,
together with its successors and assigns in such capacity, the
"Syndication Agent"), and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, a national banking association, as
documentation agent (in such capacity, together with its
successors and assigns in such capacity, the "Documentation
Agent").
W I T N E S S E T H:
WHEREAS, the Borrower is engaged through various
Subsidiaries and Unrestricted Subsidiaries in the theatrical
exhibition industry;
WHEREAS, the Borrower desires to obtain Commitments from the
Lenders pursuant to which Loans, in a maximum aggregate principal
amount at any one time outstanding not to exceed $425,000,000,
will be made to the Borrower from time to time prior to the
Commitment Termination Date;
WHEREAS, the Lenders are willing, on the terms and
conditions hereinafter set forth (including Article V), to extend
such Commitments and make such Loans to the Borrower; and
WHEREAS, the proceeds of such Loans will be used to finance
a portion of tender offers by the Borrower to repurchase its
$100,000,000 11-7/8% Senior Notes due 2000 (the "Senior Notes")
and its $100,000,000 12-5/8% Senior Subordinated Notes due 2002
(the "Subordinated Notes"), to repay all outstanding Indebtedness
of Borrower's Subsidiary, American Multi-Cinema, Inc., a Missouri
corporation ("AMC"), under its First Amended and Restated Loan
Agreement dated as of August 10, 1992 and amended and restated as
of June 14, 1994 (the "AMC Loan Agreement") and for general
corporate purposes of the Borrower and its Subsidiaries.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. The following terms (whether
or not underscored) when used in this Agreement, including its
preamble and recitals, shall, except where the context otherwise
requires, have the following meanings (such definitions to be
equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Affected Lender" means a Lender that notifies the
Administrative Agent under Section 4.2 or Section 4.3 that it is
so affected.
"Affiliate" of any Person means any other Person which,
directly or indirectly, controls or is controlled by or under
common control with such Person (excluding any trustee under, or
any committee with responsibility for administering, any
Multiemployer Plan or Pension Plan). A Person shall be deemed to
be "controlled by" any other Person if such other Person
possesses, directly or indirectly, power:
(a) to vote 10% or more of the securities having ordinary
voting power for the election of directors, general partners or
managers of such Person; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the
Documentation Agent and the Syndication Agent.
"Agreement" means, at any date, this Credit Agreement as
originally in effect on the Effective Date, and as thereafter
from time to time amended, supplemented or otherwise modified and
in effect on such date.
"AMC" is defined in the recitals.
"AMC Film Marketing" means AMC Film Marketing, Inc., a
Missouri corporation.
"AMC Loan Agreement" is defined in the recitals.
"AMC Philadelphia" means AMC Philadelphia, Inc., a Delaware
corporation.
"Applicable Margin" means, for any Loan, the amount
indicated below for each type of Loan based upon the Applicable
Margin Determination Ratio as computed on the Applicable Margin
Determination Ratio Certificate most recently submitted pursuant
to Section 7.1.1(f):
LIBO Base
Applicable Margin Rate Rate
Determination Ratio Loans Loans
Greater than or equal to 4.00 1.500% 0.500%
Greater than or equal to 3.50
and less than 4.00 1.250% 0.250%
Greater than or equal to 3.00
and less than 3.50 1.000% 0.125%
Greater than or equal to 2.50
and less than 3.00 0.875% 0.000%
Greater than or equal to 2.00
and less than 2.50 0.750% 0.000%
Less than 2.00 0.500% 0.000%.
"Applicable Margin Determination Ratio" means, at any date,
the ratio of:
(a) Net Indebtedness of the Borrower and its
Consolidated Subsidiaries as computed on the Applicable
Margin Determination Ratio Certificate then most recently
submitted pursuant to Section 7.1.1(f);
to
(b) Consolidated EBITDA of the Borrower and its
Consolidated Subsidiaries for the prior four Fiscal Quarters
ending on the last day of the Fiscal Quarter preceding such
date as computed on the most recent Applicable Margin
Determination Ratio Certificate delivered pursuant to
Section 7.1.1(f).
"Applicable Margin Determination Ratio Certificate" means a
certificate duly executed by an Authorized Officer of the
Borrower substantially in the form of Exhibit G hereto, with
required insertions.
"Approval" means each and every approval, consent, filing
and registration by or with any Federal, state or other
regulatory authority necessary to authorize or permit the
execution, delivery or performance of this Agreement, the Notes
or any other Loan Document or for the validity or enforceability
hereof or thereof.
"Asset Sale" means any direct or indirect sale, conveyance,
transfer, lease or other disposition to any Person (including any
Unrestricted Subsidiary) other than the Borrower, a Guarantor or
a Wholly-Owned Subsidiary in one transaction or a series of
related transactions, of (i) any Capital Stock of any Subsidiary
of the Borrower or (ii) any other property or asset of the
Borrower or any Subsidiary of the Borrower other than, in each
case, (x) sales of Capital Stock of Unrestricted Subsidiaries,
(y) Investments in Unrestricted Subsidiaries permitted by Section
7.2.12(vi) and (z) sales of property or assets in the ordinary
course of business.
"Assignees" is defined in Section 10.11(b).
"Assignment Agreement" means an Assignment Agreement in
substantially the form of Exhibit J hereto.
"Authorized Officer" means, relative to any Loan Party,
those of its officers whose signatures and incumbency shall have
been certified to the Administrative Agent and the Lenders
pursuant to Section 5.1.1 or otherwise in a manner satisfactory
to the Administration Agent.
"Base Rate" means at any time the greater of (i) the rate of
interest most recently announced by BNS in Atlanta as its base
rate (of which announcements the Administrative Agent shall give
notice promptly to the Lenders and to the Borrower) and (ii) the
Federal Funds Rate plus 0.50%. The Base Rate is not necessarily
intended to be the lowest rate of interest charged by BNS in
connection with extensions of credit. Changes in the rate of
interest on any Loan maintained as a Base Rate Loan shall take
effect simultaneously with each change in the Base Rate.
"Base Rate Loan" is defined in Section 4.1.
"BNS" is defined in the preamble.
"Borrower" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the
case of Fixed Rate Loans, having the same Interest Period made by
all Lenders on the same Business Day and pursuant to the same
Loan Request in accordance with Section 3.1.
"Budco" means Budco Theatres, Inc., a Pennsylvania
corporation.
"Business Day" means:
(a) any day which is neither a Saturday or Sunday nor
a legal holiday in the States of New York, Missouri or
Georgia on which banks are authorized or required to be
closed in New York City, Kansas City (Mo.) or Atlanta; and
(b) relative to the date of
(i) making or continuing any portion of any Loans
as, or converting any portion of any Loans from or
into, Fixed Rate Loans,
(ii) making any payment or prepayment of
principal of or payment of interest on the portion of
the principal amount of the Loans being maintained as
Fixed Rate Loans, and
(iii) the Borrower giving any notice (or the
number of Business Days to elapse prior to the
effectiveness thereof) in connection with any matter
referred to in clause (b)(i) or (b)(ii),
a banking business day of BNS at, and on which dealings in
Dollars are carried on in the interbank eurodollar market
of, BNS's LIBOR Office.
"Capital Expenditures" means, with respect to any Person for
any period, the aggregate amount of all expenditures during such
period which are required to be included in property, plant or
equipment or a similar fixed asset account on a consolidated
balance sheet of such Person and its Subsidiaries prepared in
accordance with GAAP (excluding assets acquired pursuant to
Capitalized Lease Obligations and all capitalized interest).
"Capital Stock" means, with respect to any Person, any and
all shares, partnership interests, participations, rights in, or
other equivalents (however designated and whether voting or non-voting)
of such Person's capital stock or such other equity
interests, whether outstanding on the Effective Date or issued
after such date, and any and all rights, warrants or options
exchangeable for or convertible into such capital stock or such
other equity interests, including all Preferred Stock of such
Person.
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement
conveying the right to use) any property (whether real, personal
or mixed) that is required to be classified and accounted for as
a capital lease obligation under GAAP, and, for the purposes of
this Agreement, the amount of such obligation at any date shall
be the capitalized amount thereof at such date, determined in
accordance with GAAP.
"Cash Equivalents" means, at any time: (i) any evidence of
Indebtedness with a maturity of 360 days or less issued or
directly and fully guaranteed or insured by the United States or
any agency, instrumentality, state or political subdivision
thereof which is rated "A-1" or better by Standard & Poor's
Ratings Group; (ii) certificates of deposit or bankers'
acceptances with a maturity of 360 days or less of, or dollar
deposits in, any financial institution that is a member of the
Federal Reserve System having combined capital and surplus and
undivided profits of not less than $500,000,000; (iii) commercial
paper with a maturity of 270 days or less issued by a corporation
(other than an Affiliate of the Borrower) organized under the
laws of any state of the United States or the District of
Columbia and rated at least A-1 (or its equivalent) by Standard &
Poor's Ratings Group or at least Prime-1 (or its equivalent) by
▇▇▇▇▇'▇ Investors Service, Inc.; (iv) money market mutual funds
registered with the SEC meeting the requirements of Rule 2a-7
promulgated under the Investment Company Act of 1940, as amended;
and (v) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States
or issued by any agency thereof and backed by the full faith and
credit of the government of the United States, in each case
maturing within one year from the date of acquisition, provided
that the terms of such agreements comply with the guidelines set
forth in the Federal Financial Agreements of Depository
Institutions with Securities Dealers and Others, as adopted by
the Comptroller of the Currency.
"Cash Flow Coverage Ratio" means, as of the end of any
Fiscal Quarter, the ratio of (x) Consolidated EBITDA for the
Borrower and its Consolidated Subsidiaries for the four most
recent Fiscal Quarters ended on such date to (y) the sum of (i)
Consolidated Interest Expense for such four Fiscal Quarters, plus
(ii) the current portion of Indebtedness with an original
maturity exceeding one year (other than the portion of the
Liabilities to be paid in connection with the scheduled reduction
of the Total Commitment Amount on the Commitment Termination
Date) as of the last day of such Fiscal Quarter, plus (iii) the
amount of all cash dividends on Capital Stock paid by the
Borrower or Subsidiaries to Persons other than the Borrower, any
Guarantor or any Wholly-Owned Subsidiary during such period, plus
(iv) amounts paid by the Borrower, or Subsidiaries to Persons
other than the Borrower, any Guarantor or any Wholly-Owned
Subsidiary in respect of optional repurchases and redemptions of
Subordinated Debt (other than the Subordinated Notes) and Capital
Stock during such four Fiscal Quarters (provided, that there
shall be excluded from this clause (iv) all amounts paid by AMC
Philadelphia to H. ▇▇▇▇▇▇ ▇▇▇▇▇ or his estate ("▇▇▇▇▇") to
repurchase all of the shares held by ▇▇▇▇▇ in AMC Philadelphia in
any optional repurchase of such shares by AMC Philadelphia, but
only to the extent that the purchase price paid by AMC
Philadelphia therefor is not greater than the purchase price that
AMC Philadelphia would be obligated to pay in the event of the
exercise by ▇▇▇▇▇ of his right to require AMC Philadelphia to
repurchase such stock pursuant to Section 5 of the Stockholders'
Agreement dated December 30, 1986 among AMC, AMC Philadelphia and
▇▇▇▇▇, assuming such mandatory repurchase occurred at the same
time as such optional repurchase), plus (v) amounts paid during
such four Fiscal Quarters with respect to Capitalized Lease
Obligations attributable to principal (without duplication of
amounts in clause (ii) above).
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Change in Control" means:
(a) the direct or indirect sale, lease, exchange or
other transfer of all or substantially all of the assets of
the Borrower to any Person or entity or group of Persons or
entities acting in concert as a partnership or other "group"
(a "Group of Persons") with the effect that the ▇▇▇▇▇▇▇
Interests are the beneficial owners (within the meaning of
the Exchange Act as in effect on the Effective Date) of less
than 50% of the votes eligible to be cast on any matter of
the then outstanding Voting Stock of the resulting,
surviving or transferee Person or Persons;
(b) the merger or consolidation of the Borrower with
or into another corporation with the effect that the ▇▇▇▇▇▇▇
Interests are the beneficial owners (within the meaning of
the Exchange Act as in effect on the Effective Date) of less
than 50% of the votes eligible to be cast on any matter of
the then outstanding Voting Stock of the surviving
corporation of such merger or the corporation resulting from
such consolidation;
(c) the replacement of a majority of the Board of
Directors of the Borrower, over a two-year period, from the
directors who constituted the Board of Directors of the
Borrower at the beginning of such period, which replacement
shall not have been approved by the Board of Directors of
the Borrower (or replacement directors approved by the Board
of Directors of the Borrower), as constituted at the
beginning of such period;
(d) a Person or Group of Persons other than the
▇▇▇▇▇▇▇ Interests shall, as a result of a tender or exchange
offer, open market purchases, privately negotiated
purchases, merger or consolidation or otherwise, have become
the beneficial owner (within the meaning of Rule 13d-3 under
the Exchange Act) of Voting Stock of the Borrower (on a
fully-diluted basis) having 33-1/3% of the votes eligible to
be cast on any matter by such Voting Stock; or
(e) for so long as either the Senior Note Indenture or
the Subordinated Note Indenture shall be in effect, any
other "Change of Control" (as defined in the Senior Note
Indenture or the Subordinated Note Indenture).
It is understood that, for purposes of determining the votes
eligible to be cast by any Voting Stock of the Borrower, in all
matters in which the Borrower's Class B Stock, par value $0.66-2/3
per share ("Class B Stock"), and Common Stock, par value
$0.66-2/3 per share ("Common Stock"), are entitled to vote
together as a single class, on the date hereof each outstanding
share of Common Stock has one vote and each outstanding share of
Class B Stock has ten votes.
"Commitment" means, relative to any Lender, such Lender's
obligation to make Loans pursuant to Section 2.1.
"Commitment Termination Date" means the earliest of
(a) December 27, 2002;
(b) five Business Days after notice is given by the
Borrower to the Administrative Agent for purposes of
designating a Commitment Termination Date pursuant to this
clause, provided that, on such designated Commitment
Termination Date, no Loans are outstanding;
(c) immediately and without further action upon the
occurrence of any Default described in Section 8.1.4 with
respect to the Borrower or any Significant Subsidiary;
(d) immediately when any other Event of Default shall
have occurred and be continuing and either the Loans shall
be declared to be due and payable pursuant to Section 8.3
or, in the absence of such declaration, the giving of notice
by the Administrative Agent, acting at the direction of the
Required Lenders, to the Borrower that the Commitments have
been terminated;
(e) any date that the Total Commitment Amount is
reduced to zero pursuant to Section 2.2.2; and
(f) immediately and without further action upon the
occurrence of a Change in Control.
"Compliance Certificate" means a certificate duly executed
by the chief executive or financial Authorized Officer of the
Borrower in the form of Exhibit D hereto, with appropriate
insertions, together with such changes as the Required Lenders
may from time to time request for purposes of monitoring the
Borrower's compliance herewith.
"Consent Solicitation Documents" means the Senior Note
Consent Solicitation Documents and the Subordinated Note Consent
Solicitation Documents.
"Consent Solicitations" means the Senior Note Consent
Solicitation and the Subordinated Note Consent Solicitation.
"Consolidated EBITDA" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such
period increased (to the extent deducted in determining
Consolidated Net Income) by the sum of: (i) all income taxes of
such Person and its Subsidiaries paid or accrued in accordance
with GAAP for such period (other than income taxes attributable
to extraordinary, unusual or non-recurring gains or losses); (ii)
Consolidated Interest Expense of such Person and its Subsidiaries
for such period; (iii) depreciation expense of such Person and
its Subsidiaries for such period; (iv) amortization expense of
such Person and its Subsidiaries for such period including
amortization of capitalized debt issuance costs; and (v) any
other non-cash charges of such Person and its Subsidiaries for
such period (including non-cash expenses recognized in accordance
with Financial Accounting Standard Number 106), all determined on
a consolidated basis in accordance with GAAP; provided, however,
that, for purposes of this definition, all transactions involving
the acquisition of any Person by another Person shall be
accounted for on a "pooling of interests" basis and not as a
purchase.
"Consolidated Interest Expense" means, with respect to any
Person for any period, without duplication, (i) the sum of (a)
the cash and non-cash interest expense of such Person and its
Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP consistently applied, including (v)
capitalized interest, (w) any amortization of debt discount, (x)
the net cost under Interest Rate Protection Obligations
(including any amortization of discounts), (y) the interest
portion of any deferred payment obligation and (z) all accrued
interest, and (b) the aggregate amount of the interest component
of Capitalized Lease Obligations paid, accrued and/or scheduled
to be paid or accrued by such Person and its Subsidiaries during
such period as determined on a consolidated basis in accordance
with GAAP consistently applied less (ii) the interest income
(exclusive of deferred financing fees) of such Person and its
Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP consistently applied.
"Consolidated Net Income" means, with respect to any Person,
for any period, the consolidated net income (or loss) of such
Person and its Subsidiaries for such period as determined in
accordance with GAAP, adjusted, to the extent included in
calculating such net income, by excluding all extraordinary gains
or losses (net of reasonable fees and expenses relating to the
transaction giving rise thereto) of such Person and its
Subsidiaries; provided, that for purposes of calculating
"Consolidated Net Income" for purposes of Section 7.2.12(vi),
there shall be excluded net income (or loss) of any Person
combined with such Person or one of its Subsidiaries on a
"pooling of interests" basis attributable to any period prior to
the date of such combination.
"Consolidated Subsidiary" of any Person means, at any time,
every Subsidiary which is included as a consolidated subsidiary
of such Person in the financial statements contained in the then
most recent annual or periodic report filed by such Person with
the SEC on Form 10-K, 10-Q or 8-K pursuant to the Exchange Act,
as then in effect (or any comparable forms or under similar
Federal statutes then in force), and in the most recent financial
statements of such Person furnished to the stockholders of such
Person and certified by the independent certified public
accountants of such Person.
"Continuation/Conversion Notice" means a notice of
continuation or conversion and certificate duly executed by any
Authorized Officer of the Borrower substantially in the form of
Exhibit C hereto.
"Contractual Obligation" means, relative to any Person, any
provision of any security issued by such Person or of any
Instrument or undertaking to which such Person is a party or by
which it or any of its property is bound.
"Credit Exposure" is defined in Section 10.11(a).
"Currency Hedging Obligations" means the obligations of any
Person pursuant to an arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Default" means any Event of Default or any condition or
event which, after notice or lapse of time or both, would
constitute an Event of Default.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Exhibit A, as it may be amended, supplemented, or
otherwise modified from time to time by the Borrower with the
consent of the Required Lenders.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which, by its terms (or by the terms
of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund or otherwise,
or is exchangeable for Indebtedness (other than Subordinated
Debt), or is redeemable at the option of the holder thereof, in
whole or in part.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United
States.
"Domestic Office" means, relative to any Lender, the office
of such Lender designated as such in Schedule I hereto or
designated in an Assignment Agreement or such other office of
such Lender (or any successor or assign of such Lender) within
the United States of America as may be designated from time to
time by notice from such Lender to the Borrower and the
Administrative Agent.
"▇▇▇▇▇▇▇ Interests" means (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, his spouse
and any of his lineal descendants and their respective spouses
(collectively, the "▇▇▇▇▇▇▇ Family") and any Affiliate of any
member of the ▇▇▇▇▇▇▇ Family, (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇'▇ estate,
or any trust established by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, during any period
of administration prior to the distribution of assets to
beneficiaries who are Persons described in clause (iii) below,
(iii) any trust which is solely for the benefit of one or more
members of the ▇▇▇▇▇▇▇ Family (whether or not any member of the
▇▇▇▇▇▇▇ Family is a trustee of such trust) or solely for the
benefit of one or more charitable organizations or solely for the
benefit of a combination of members of the ▇▇▇▇▇▇▇ Family and one
or more charitable organizations and (iv) any Subsidiary, any
employee stock purchase plan, stock option plan or other stock
incentive plan or program, retirement plan or automatic
reinvestment plan or any substantially similar plan of the
Borrower or any Subsidiary or any Person holding securities of
the Borrower for or pursuant to the terms of any such employee
benefit plan; provided, that if any lender or other Person shall
foreclose on or otherwise realize upon or exercise any remedy
with respect to any security interest in or Lien on any
securities of the Borrower held by any Person listed in this
clause (iv), then such securities shall no longer be deemed to be
held by ▇▇▇▇▇▇▇ Interests.
"Effective Date" means the date this Agreement becomes
effective pursuant to Section 10.8.
"Environmental Laws" means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and
guidelines (including consent decrees and administrative orders)
relating to public health and safety and protection of the
environment.
"Equipment Notes" means installment purchase obligations
evidenced by a note, bond, debenture or other evidence of
Indebtedness issued or entered into in connection with the
acquisition of fixtures, furniture or equipment by the Borrower
or a Subsidiary of the Borrower in the ordinary course of
business and used or useable by the Borrower and its Subsidiaries
in the business of the Borrower and its Subsidiaries and required
to be classified and accounted for as indebtedness in accordance
with GAAP.
"ERISA" is defined in Section 6.11.
"Event of Default" is defined in Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Fair Market Value" means, with respect to any asset or
property, the price that could be negotiated in an arm's length
free market transaction, for cash, between a willing seller and a
willing buyer, neither of whom is under undue pressure or
compulsion to complete the transaction. Fair Market Value shall
be determined by the Board of Directors of the Borrower acting in
good faith.
"Federal Funds Rate" means, for any day, a fluctuating
interest rate per annum equal to
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which
is a Business Day, the average of the quotations for such
day on such transactions received by BNS from three federal
funds brokers of recognized standing selected by it.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of 52/53 weeks ending on the
Thursday closest to March 31; references to a Fiscal Year with a
number corresponding to any calendar year (e.g., the "1995 Fiscal
Year") refer to the Fiscal Year ending on the Thursday closest to
March 31 occurring during such calendar year.
"Fixed Rate Loan" is defined in Section 4.1.
"Free Cash Flow" as of any date means (i) Consolidated
EBITDA, minus (ii) Consolidated Interest Expense, minus (iii) all
Capital Expenditures actually made and all Investments (other
than Investments in Cash Equivalents permitted by Section
7.2.12(iv)) made in Special Entities by the Borrower and its
Subsidiaries (without double-counting Investments made in Special
Entities with Capital Expenditures made by such Special Entities
with the proceeds of such Investments) (provided, that (A) with
respect to any Investment in a Special Entity made after the
Effective Date (x) upon any return of cash with respect to such
Investment, an amount equal to the lesser of the return of cash
with respect to such Investment and the initial amount of such
Investment, in either case, less the cost of disposition of such
Investment, shall reduce the amount of Investments made in
Special Entities for purposes of this clause (iii) and (y) if any
such Special Entity subsequently becomes a Guarantor, the amount
of any Investment not previously applied pursuant to clause (x)
above to reduce the amount of Investments made in Special
Entities pursuant to this clause (iii) shall reduce the amount of
Investments made in Special Entities for purposes of this clause
(iii) and (B) any Capital Expenditures made with respect to
property sold by the Borrower or its Subsidiaries in a manner
permitted under this Agreement and contemporaneously leased back
to the Borrower or the applicable Subsidiary on fair market terms
shall reduce the amount of Capital Expenditures made for purposes
of this clause (iii)) minus (iv) all taxes paid in cash, in each
case, from the Effective Date to the date of determination.
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System (or any successor).
"Funded Debt" is defined in Section 2.2.2(d).
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the
accounting profession of the United States, which are applicable
as of the date of determination.
"Group of Persons" is defined in the definition of "Change
in Control".
"Guarantor" means a Subsidiary that has executed a
counterpart of the Significant Subsidiary Guaranty pursuant to
Section 7.1.9.
"Guaranty" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or
is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to
assure a creditor against loss) the debt, obligation or other
liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of
any other Person. The amount of the obligor's obligation under
any guaranty shall (subject to any limitation set forth therein)
be deemed to be the outstanding principal amount (or maximum
outstanding principal amount, if larger) of the debt, obligation
or other liability thereby guaranteed.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within
the meaning of any other applicable federal, state or local
law, regulation, ordinance or requirement (including consent
decrees and administrative orders) relating to or imposing
liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"herein", "hereof", "hereto", "hereunder" and similar terms
refer to this Agreement and not to any particular Section or
provision of this Agreement.
"Impermissible Qualification" means, relative to the opinion
by independent public accountants as to any financial statement
of the Borrower, any qualification or exception to such opinion
that:
(a) is of a "going concern" or similar nature;
(b) relates to the limited scope of examination of
matters relevant to such financial information; or
(c) relates to the treatment or classification of any
item in such financial statement and which, as a condition
to its removal, would require an adjustment to such item the
effect of which would be to cause a default of any
obligations under Section 7.2.3.
"including" means including without limiting the generality
of any description preceding such term.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all obligations for borrowed money, (ii) all
obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations and
Equipment Notes, (iv) all obligations under or in respect of
Currency Hedging Obligations and Interest Rate Protection
Obligations of such Person, (v) all obligations issued or assumed
as the deferred purchase price of property, all conditional sale
obligations (as determined under GAAP) and all obligations under
any title retention agreement, (vi) all obligations issued or
contracted for as payment in consideration of the purchase by
such Person of the stock or substantially all the assets of
another Person or a merger or consolidation, (vii) all
obligations for the reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit transactions,
(viii) all obligations of the type referred to in clauses (i)
through (vii) above of other Persons and all dividends of other
Persons for the payment of which, in either case, such Person is
directly or indirectly responsible or liable as obligor,
guarantor or otherwise, and (ix) all obligations of the type
referred to in clauses (i) through (viii) above of other Persons
which are secured by any Lien on any property or asset of such
Person, the amount of such obligation being deemed to be the
lesser of the value of such property or asset or the amount of
the obligation so secured; provided, however, that "Indebtedness"
shall not include any Non-Recourse Indebtedness, any obligations
under any operating leases (as determined under GAAP), trade
accounts payable arising in the ordinary course of business and
trade letters of credit issued in support of trade accounts
payable arising in the ordinary course of business.
"Indemnified Liabilities" is defined in Section 10.4.
"Instrument" means any document or writing (whether by
formal agreement, letter or otherwise) under which any obligation
is evidenced, assumed or undertaken, or any right to any Lien is
granted or perfected.
"Interest Period" means, relative to any Fixed Rate Loan,
the period which shall begin on (and include) the date on which
such Fixed Rate Loan is made or continued as, or converted into,
a Fixed Rate Loan pursuant to Section 4.1, and, unless the final
maturity of such Fixed Rate Loan is accelerated, shall end on
(but exclude) the day which numerically corresponds to such date
one, two, three or six months thereafter, in either case as the
Borrower may select in its relevant notice pursuant to Section
4.1; provided, however, that:
(a) the Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have
expiration dates occurring on more than eight different
dates;
(b) absent such selection, the Borrower shall be
deemed to have selected an Interest Period of one month,
provided, that if another duration shall be required in
order to comply with clause (a), such Loan shall be a Base
Rate Loan for such duration;
(c) if there exists no numerically corresponding day
in such month, such Interest Period shall end on the last
Business Day of such month;
(d) if such Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall
end on the Business Day next following such numerically
corresponding day (unless such next following Business Day
is the first Business Day of a calendar month, in which case
such Interest Period shall end on the preceding Business
Day); and
(e) no Interest Period shall end later than December
27, 2002.
"Interest Rate Protection Obligations" means the obligations
of any Person pursuant to any arrangement with any other Person
whereby, directly or indirectly, such Person is entitled to
receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a
stated notional amount in exchange for periodic payments made by
such Person calculated by applying a fixed or a floating rate of
interest on the same notional amount and shall include interest
rate swaps, caps, floors, collars and similar agreements.
"Investment" by any Person means any direct or indirect
loan, advance or other extension of credit or capital
contribution to (by means of transfers of cash or other property
to others or payments for property or services for the account or
use of others, or otherwise), or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or
evidences of Indebtedness issued by, any other Person. The term
"Investment" shall not include any Guaranty or any payment under
a lease to which such Person is a lessee, including prepaid rent;
provided, however, that if and to the extent that any payment is
made under any Guaranty permitted by Section 7.2.13(i) or (ii),
each such payment shall constitute an "Investment" hereunder.
"Lender" is defined in the preamble.
"Lender Parties" is defined in Section 10.4.
"Liabilities" means all obligations (monetary or otherwise)
of the Borrower or any other Loan Party under this Agreement, the
Notes and each other Loan Document, whether for principal,
interest, costs, fees, expenses or otherwise, and all other
obligations of the Borrower or any other Loan Party to the Agents
or the Lenders, howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter
existing or due or to become due.
"LIBO Rate" means, with respect to any Fixed Rate Loan for
any Interest Period, the rate per annum determined by the
Administrative Agent at which dollar deposits in immediately
available funds are offered to BNS's LIBOR Office two Business
Days prior to the beginning of such Interest Period by prime
banks in the interbank eurodollar market as at or about the
relevant local time of such LIBOR Office, for delivery on the
first day of such Interest Period, for the number of days
comprised therein and in an amount equal to the amount of the
Fixed Rate Loans for such Interest Period. "Relevant local time"
shall mean 11:00 a.m., local time, in London, England, when the
LIBOR Office selected by the Administrative Agent to determine
the LIBO Rate is located in Europe, or 10:00 a.m., Nassau,
Bahamas time, when such LIBOR Office is located in North America.
"LIBO Rate (Reserve Adjusted)" means, relative to any
portion of a Loan to be made, continued or maintained as, or
converted into, a Fixed Rate Loan for any Interest Period, a rate
per annum (rounded upwards, if necessary, to the nearest 1/16th
of 1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1 - LIBOR Reserve Percentage.
The Administrative Agent shall determine the LIBO Rate (Reserve
Adjusted) for each Interest Period, applicable to Fixed Rate
Loans comprising all or part of any Borrowing, conversion or
continuation and promptly notify the Borrower thereof (which
determination shall, in the absence of demonstrable error, be
conclusive on the Borrower) and, if requested by the Borrower,
deliver a statement showing the computation used by the
Administrative Agent in determining any such rate.
"LIBOR Office" means, relative to any Lender, the office of
such Lender designated as such in Schedule I hereto or designated
in an Assignment Agreement or such other domestic or foreign
office or offices of such Lender (as designated from time to time
by notice from such Lender to the Borrower and the Administrative
Agent).
"LIBOR Reserve Percentage" means, relative to each Interest
Period, a percentage (expressed as a decimal) equal to the daily
average during such Interest Period of the percentages in effect
on each day of such Interest Period, as prescribed by the F.R.S.
Board, for determining the maximum reserve requirements
applicable to "Eurocurrency Liabilities" pursuant to Regulation D
or any other applicable regulation of the F.R.S. Board which
prescribes reserve requirements applicable to "Eurocurrency
Liabilities" as presently defined in Regulation D as applicable
to any Lender or any participant of such Lender with respect to
such participation.
"Lien" means any mortgage, lien (statutory or other),
pledge, security interest, encumbrance, claim, hypothecation,
assignment for security, deposit arrangement or preference or
other security agreement of any kind or nature whatsoever. A
Person shall be deemed to own subject to a Lien any property
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 Indebtedness
of such Person. The right of a distributor to the return of its
film held by a Person under a film licensing agreement is not a
Lien as used herein. Unless an operating lease is intended as
security, reservation of title thereunder by the lessor and the
interest of the lessee therein are not Liens as used herein.
"Loan Document" means this Agreement and each Instrument
from time to time executed and delivered to the Administrative
Agent or any Lender pursuant hereto, whether or not mentioned
herein, including the Notes, the Significant Subsidiary Guaranty,
any Guaranty delivered to the Administrative Agent pursuant to
Section 7.2.16, any Pledge Agreement and each Subsidiary Pledge
Agreement.
"Loan Party" means the Borrower, each Guarantor and any
other party (other than any Agent or Lender) that executes and
delivers a Loan Document.
"Loan Request" means, for a particular Loan, a loan request
respecting such Loan and certificate duly executed by any
Authorized Officer of the Borrower substantially in the form of
Exhibit B hereto.
"Loans" is defined in Section 2.1.
"Materially Adverse Effect" means, relative to any
occurrence of whatever nature (including any adverse
determination in any litigation, arbitration or governmental
investigation or proceeding), a materially adverse effect, on a
consolidated basis for the Borrower and its Subsidiaries taken as
a whole, in accordance with GAAP (i) on the financial condition,
operations, properties or business of the Borrower and its
Subsidiaries, (ii) on the ability of the Borrower or any other
Loan Party to perform any of its payment or other material
obligations under this Agreement or any Loan Document or (iii) on
the value of, or on the ability of the Administrative Agent to
realize on, any collateral security for the Liabilities.
"Maturity" means, relative to any Loan, the date on which
such Loan is stated to be due and payable, in whole or in part
(in accordance with the Note evidencing such Loan, this Agreement
or otherwise), or such earlier date when such Loan (or any
portion thereof) shall be or become due and payable, in whole or
in part, in accordance with the terms of this Agreement, whether
by required prepayment, declaration or otherwise.
"Multiemployer Plan" means a pension plan described in ERISA
section 4001(a)(3) to which the Borrower or any Subsidiary is, or
within the six years preceding the date of this Agreement has
been, obligated to contribute.
"Net Cash Proceeds" means, (i) with respect to any Asset
Sale, the proceeds thereof in the form of cash or Cash
Equivalents, including payments in respect of deferred payment
obligations when received in the form of cash or Cash Equivalents
(except to the extent that such obligations with respect to
Indebtedness are financed or sold with recourse to the Borrower
or any of its Subsidiaries) net of (a) brokerage commissions and
other reasonable fees and expenses (including reasonable fees and
expenses of counsel and investment bankers) related to such Asset
Sale, (b) provisions for all taxes payable as a result of such
Asset Sale, (c) payments made to retire Indebtedness secured by
the current assets subject to such Asset Sale to the extent
required pursuant to the terms of such Indebtedness and (d)
amounts required to be paid to any Person (other than the
Borrower or any Subsidiary of the Borrower) having a beneficial
interest in the assets subject to the Asset Sale, and (ii) with
respect to any incurrence of Indebtedness by Borrower or any
Subsidiary, the proceeds thereof in cash or Cash Equivalents net
of underwriting discount, private placement fees and other
reasonable fees and expenses (including reasonable fees and
expenses of counsel and investment bankers) related to such
incurrence of Indebtedness.
"Net Indebtedness" means, with respect to the Borrower at
any time, (i) the outstanding principal amount of Indebtedness of
Borrower and its Consolidated Subsidiaries (determined on a
consolidated basis) as of such time minus (ii) cash and Cash
Equivalents of the Borrower and its Consolidated Subsidiaries
(determined on a consolidated basis) at such time.
"Net Indebtedness to Consolidated EBITDA Ratio" means, as of
the last day of any Fiscal Quarter, the ratio of (i) Net
Indebtedness of the Borrower and its Consolidated Subsidiaries as
of such date to (ii) Consolidated EBITDA for the Borrower and its
Consolidated Subsidiaries for the four most recent Fiscal
Quarters ended on such date.
"Non-Recourse Indebtedness" means Indebtedness as to which
(i) neither the Borrower nor any of its Subsidiaries (a) provides
credit support (including any undertaking, agreement or
instrument which would constitute Indebtedness), (b) is directly
or indirectly liable or (c) constitutes the lender (in each case,
other than pursuant to and in compliance with Section 7.2.12) and
(ii) no default with respect to such Indebtedness (including any
rights which the holders thereof may have to take enforcement
action against the relevant Unrestricted Subsidiary or its
assets) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Borrower or its
Subsidiaries (other than Non-Recourse Indebtedness) to declare a
default on such other Indebtedness or cause the payment thereof
to be accelerated or payable prior to its stated maturity;
provided, however, that notwithstanding the foregoing, Guaranties
permitted by Section 7.2.13(i)(z) of Capitalized Lease
Obligations shall not cause such Capitalized Lease Obligations to
not be Non-Recourse Indebtedness.
"Note" means a promissory note of Borrower delivered to each
Lender substantially in the form of Exhibit H hereto (as such
promissory note may be amended, endorsed or otherwise modified
from time to time) and all other promissory notes accepted from
time to time in substitution, replacement or renewal therefor.
"Organic Document" means, relative to any Person, its
certificate of incorporation, certificate of limited partnership,
limited liability company operating agreement, partnership
agreement, and/or by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its
authorized Capital Stock.
"Participant" is defined in Section 10.11(a).
"PBGC" means the Pension Benefit Guaranty Corporation, a
United States corporation, and any entity succeeding to any or
all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is
defined in section 3(2) of ERISA, which is subject to Title IV of
ERISA (other than a Multiemployer Plan), and to which the
Borrower or any Subsidiary may have any liability, including any
liability by reason of having been a substantial employer within
the meaning of section 4063 of ERISA at any time during the six
years preceding this Agreement, or by reason of being deemed to
be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage
set forth opposite its name on Schedule I hereto or in an
Assignment Agreement, as such percentage may be adjusted from
time to time.
"Person" means any natural person, corporation, partnership,
limited liability company, firm, association, trust, government,
governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Pledge Agreement" means a Pledge Agreement between the
Borrower and the Administrative Agent substantially in the form
of Exhibit I hereto, as amended, supplemented or otherwise
modified from time to time.
"Preferred Stock" means, with respect to any Person, any
Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or
as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over
Capital Stock of any other class of such Person.
"Refinancing Transactions" means each of the Tender Offers,
the Consent Solicitations and the termination of the AMC Loan
Agreement.
"Refinancing Transaction Documents" means the Tender Offer
Documents, the Consent Solicitation Documents and all documents
necessary to terminate the AMC Loan Agreement.
"Regulatory Change" means, relative to any Lender, any
change after the date hereof in any (or the adoption hereafter of
any new):
(a) United States Federal or state law or foreign law
applicable to such Lender; or
(b) rule, regulation, interpretation, directive or
request (whether or not having the force of law) applying to
such Lender of any court or governmental authority charged
with the interpretation or administration of any law
referred to in clause (a) or of any fiscal, monetary or
other authority having jurisdiction over such Lender.
"Release" means a "release", as such term is defined in
CERCLA.
"Reportable Event" is defined in Section 6.11.
"Required Lenders" means, at any time, Lenders holding at
least 51% of the then aggregate outstanding principal amount of
Loans or, if no such principal amount is outstanding, Lenders
having, in the aggregate, a Percentage of 51% or more of the
Total Commitment Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
as in effect from time to time.
"SEC" means the Securities and Exchange Commission (or any
governmental body or agency succeeding to the functions of such
Commission).
"Senior Note Consent Solicitation" means the solicitation by
the Borrower of Senior Note Consents to amend the Senior Note
Indenture.
"Senior Note Consent Solicitation Documents" means each of
the documents distributed to the holders of the Senior Notes or
entered into by the Borrower or any of such holders in connection
with the consummation of the Senior Note Consent Solicitation
including the Senior Note Consents and the Senior Note
Supplemental Indenture.
"Senior Note Consents" means each written consent permitting
the Borrower to enter into the Senior Note Supplemental Indenture
from a holder of one or more Senior Notes.
"Senior Note Indenture" means the Indenture dated as of
August 1, 1992, pursuant to which the Senior Notes were issued,
among the Borrower, the guarantors named therein and the Senior
Note Trustee, as amended, supplemented or otherwise modified and
in effect on the date hereof.
"Senior Note Supplemental Indenture" means the Supplemental
Indenture with respect to the Senior Note Indenture to be
executed by the Borrower, the guarantors named in the Senior Note
Indenture and the Senior Note Trustee on or prior to the date of
the initial Borrowing.
"Senior Note Tender Offer" means the offer by the Borrower
to purchase for cash all of the Senior Notes, to be effected
pursuant to the Senior Note Tender Offer Documents.
"Senior Note Tender Offer Documents" means the offer to
purchase distributed by the Borrower in connection with the
Senior Note Tender Offer, all amendments and exhibits thereto,
and all related documents filed with the SEC or distributed to
the holders of the Senior Notes in connection with the Senior
Note Tender Offer.
"Senior Note Trustee" means United States Trust Company of
New York, in its capacity as trustee under the Senior Note
Indenture, or any successor trustee appointed in accordance with
the Senior Note Indenture.
"Senior Notes" is defined in the recitals.
"Significant Subsidiary" means AMC, AMC Film Marketing, AMC
Philadelphia, AMC Realty, Inc., a Delaware corporation,
Conservco, Inc., a Missouri corporation, Budco, AMC Canton
Realty, Inc., a Delaware corporation, Concord Cinema, Inc., a
Delaware corporation, and any other Wholly-Owned Subsidiary whose
assets exceed 5% of the consolidated assets of the Borrower and
its Consolidated Subsidiaries or any other Wholly-Owned
Subsidiary so designated by the Borrower after the Effective
Date.
"Significant Subsidiary Guaranty" means that certain
guaranty, executed by each Person that is a Significant
Subsidiary on the Effective Date, each other Significant
Subsidiary required to execute the same pursuant to Section 7.1.9
and any other Person that executes the same, substantially in the
form of Exhibit E hereto (as such may be amended, supplemented or
otherwise modified and in effect from time to time).
"Special Entity" means any Unrestricted Subsidiary and any
other Person that is not a Guarantor or a Wholly-Owned
Subsidiary.
"Subordinated Debt" means the Subordinated Notes and
Guaranties thereof as provided in the Subordinated Note Indenture
and all other unsecured Indebtedness of the Borrower or any
Guarantor for money borrowed
(A) (i) which is subordinated in right of
payment to the Liabilities (including any extensions or
increases thereof and including all interest thereon
accruing after the commencement of any proceedings
referred to in Section 8.1.4) pursuant to subordination
terms no less favorable to the Agents and Lenders than
the subordination terms governing the Subordinated
Notes pursuant to the Subordinated Note Indenture,
(ii) which has a scheduled maturity of, and has
no payments of principal or payments to any sinking or
similar fund scheduled earlier than, one year after the
date set forth in clause (a) of the definition of
"Commitment Termination Date", and
(iii) which is subject to such other terms and
provisions (including acceleration, covenant and
default provisions) that are less restrictive to the
Borrower and its Subsidiaries than the terms and
provisions of this Agreement and the other Loan
Documents (provided, that the terms governing such
Subordinated Debt shall not include any cross-default
provisions, but only cross-acceleration provisions);
or
(B) (i) which is subordinated in right of payment
to the Liabilities (including any extensions or
increases thereof and including all interest thereon
accruing after the commencement of any proceedings
referred to in Section 8.1.4) pursuant to subordination
terms (x) substantially similar to the subordination
terms governing the Subordinated Notes pursuant to the
Subordinated Note Indenture, or (y) prevalent in the
market for similar types of transactions at the time
such Subordinated Debt is issued,
(ii) which has a scheduled maturity of, and has
no payments of principal or payments to any sinking or
similar fund scheduled earlier than, one year after the
date set forth in clause (a) of the definition of
"Commitment Termination Date", and
(iii) which in any event is subject to, and is
only entitled to the benefits of, such terms and
provisions (including acceleration, interest rate,
sinking fund, covenant and default) satisfactory in
form and substance to the Administrative Agent and
which has terms of payment and holders satisfactory to
the Administrative Agent, in each case as evidenced by
its written approval thereof.
"Subordinated Note Consent Solicitation" means the
solicitation by the Borrower of Subordinated Note Consents to
amend the Subordinated Note Indenture.
"Subordinated Note Consent Solicitation Documents" means
each of the documents distributed to the holders of Subordinated
Notes or entered into by the Borrower or any of such holders in
connection with the consummation of the Subordinated Note Consent
Solicitation including the Subordinated Note Consents and the
Subordinated Note Supplemental Indenture.
"Subordinated Note Consents" means each written consent
permitting the Borrower to enter into the Subordinated Note
Supplemental Indenture from a holder of one or more Subordinated
Notes.
"Subordinated Note Indenture" means the Indenture dated as
of August 1, 1992, pursuant to which the Subordinated Notes were
issued, among the Borrower, the guarantors named therein and the
Subordinated Note Trustee, as amended, supplemented or otherwise
modified and in effect on the date hereof.
"Subordinated Note Supplemental Indenture" means the
Supplemental Indenture with respect to the Subordinated Note
Indenture to be executed by the Borrower, the guarantors named in
the Subordinated Note Indenture and the Subordinated Note Trustee
on or prior to the date of the initial Borrowing.
"Subordinated Note Tender Offer" means the offer by the
Borrower to purchase for cash all of the Subordinated Notes, to
be effected pursuant to the Subordinated Note Tender Offer
Documents.
"Subordinated Note Tender Offer Documents" means the offer
to purchase distributed by the Borrower in connection with the
Subordinated Note Tender Offer, all amendments and exhibits
thereto, and all related documents filed with the SEC or
distributed to the holders of Subordinated Notes in connection
with the Subordinated Note Tender Offer.
"Subordinated Note Trustee" means The Bank of New York, in
its capacity as trustee under the Subordinated Note Indenture, or
any successor trustee appointed in accordance with the
Subordinated Note Indenture.
"Subordinated Notes" is defined in the recitals.
"Subsidiary" of any Person means (i) any corporation of
which more than 50% of the outstanding shares of Capital Stock of
which having ordinary voting power for the election of directors
is owned directly or indirectly by such Person, and (ii) any
partnership, limited liability company, association, joint
venture or other entity in which such Person, directly or
indirectly, has more than a 50% equity interest, and, except as
otherwise indicated herein, references to Subsidiaries shall
refer to Subsidiaries of the Borrower. Notwithstanding the
foregoing, for purposes of the Loan Documents, an Unrestricted
Subsidiary shall not be deemed a Subsidiary of the Borrower other
than for purposes of the definition of "Unrestricted Subsidiary,"
unless the Borrower shall have designated in writing to the
Administrative Agent an Unrestricted Subsidiary as a Subsidiary.
A designation of an Unrestricted Subsidiary as a Subsidiary may
not thereafter be rescinded.
"Subsidiary Pledge Agreement" means a Subsidiary Pledge
Agreement between a Significant Subsidiary that is a Wholly-Owned
Subsidiary and the Administrative Agent substantially in the form
of Exhibit J hereto, as amended, supplemented or otherwise
modified from time to time.
"Syndication Agent" is defined in the preamble.
"Taxes" is defined in Section 3.10.
"Tender Offer Documents" means the Senior Note Tender Offer
Documents and the Subordinated Note Tender Offer Documents.
"Tender Offers" means each of the Senior Note Tender Offer
and the Subordinated Note Tender Offer.
"Total Commitment Amount" is defined in Section 2.2.1.
"TPI" means TPI Enterprises, Inc.
"TPIE" means TPI Entertainment, Inc.
"Transferee" is defined in Section 10.11(c).
"type" means, relative to the outstanding principal amount
of all or any portion of a Loan, the portion thereof, if any,
being maintained as a Base Rate Loan or a Fixed Rate Loan.
"Unfunded Benefit Liabilities" means, with respect to any
Pension Plan at any time, the amount of unfunded benefit
liabilities as determined under ERISA section 4001(a)(18).
"United States" or "U.S." means the United States of
America, its fifty States and the District of Columbia.
"Unrestricted Subsidiary" means a Subsidiary of the Borrower
designated in writing to the Administrative Agent (i) whose
properties and assets, to the extent they secure Indebtedness,
secure only Non-Recourse Indebtedness, (ii) that has no
Indebtedness other than Non-Recourse Indebtedness and (iii) that
has no Subsidiaries. Notwithstanding the foregoing, no
Subsidiary may be designated an Unrestricted Subsidiary by the
Borrower if at the time of such designation it is a Significant
Subsidiary.
"Voting Stock" of any Person means outstanding securities of
all classes of such Person ordinarily (and apart from rights
accruing under special circumstances) having the right to elect
directors.
"Welfare Plan" means a "welfare plan", as such term is
defined in section 3(1) of ERISA.
"Wholly-Owned Subsidiary" means any Subsidiary of the
Borrower of which 100% of the outstanding Capital Stock is owned
by the Borrower or another Wholly-Owned Subsidiary of the
Borrower, except for (i) directors' qualifying shares and (ii)
Preferred Stock which (x) is not convertible into any other class
of Capital Stock and (y) has no right to vote on or consent to
any matter except (1) as expressly required by law and (2) the
right to appoint a director in the event of a default in the
payment of dividends or distributions thereunder (it being
understood that if any right described in this clause (2) becomes
exercisable, any Subsidiary affected by such right shall no
longer constitute a Wholly-Owned Subsidiary).
SECTION 1.2 Use of Defined Terms. Terms for which meanings
are provided in this Agreement shall, unless otherwise defined or
the context otherwise requires, have such meanings when used in
the Exhibits hereto, each Note, each Loan Request, Continuation/
Conversion Notice, Compliance Certificate, notice and other
communication delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION 1.3 Accounting and Financial Determinations. Where
the character or amount of any asset or liability or item of
income or expense is required to be determined, or any accounting
computation is required to be made, for the purpose of this
Agreement (including Section 7.2.3), such determination or
calculation shall, to the extent applicable and except as
otherwise specified in this Agreement, be made in accordance with
GAAP as used in, and consistently applied with, the financial
statements referred to in Section 6.4.
ARTICLE II
COMMITMENTS
SECTION 2.1 Commitments. Subject to the terms and
conditions of this Agreement (including Article V), each Lender
severally and for itself alone agrees that it will, from time to
time on any Business Day occurring during the period commencing
on the Effective Date and continuing to (but not including) the
Commitment Termination Date, make loans (relative to each Lender,
its "Loans") to the Borrower equal to its Percentage of the
aggregate amount of the Borrowing requested from all Lenders on
each such Business Day; provided, however, that no Lender shall
be permitted (in the case of clause (a) below) or required to
make any Loan if, after giving effect thereto, the aggregate
principal amount of all Loans outstanding at any one time from
(a) all Lenders would exceed the Total Commitment
Amount; or
(b) such Lender would exceed its Percentage of the
Total Commitment Amount.
Subject to the terms hereof, the Borrower may from time to time
prior to the Commitment Termination Date borrow, prepay and
reborrow amounts pursuant to the Commitments.
SECTION 2.2 Total Commitment Amount; Reduction of Total
Commitment Amount.
SECTION 2.2.1 Total Commitment Amount. The aggregate
amount (the "Total Commitment Amount") of all Commitments on any
date on or prior to the Commitment Termination Date shall be
$425,000,000, subject to reduction as provided in Section 2.2.2.
SECTION 2.2.2 Reduction of Total Commitment Amount. The
Total Commitment Amount is subject to permanent reduction from
time to time pursuant to this Section 2.2.2.
(a) Voluntary Reductions. The Borrower may, from time
to time, on not less than three Business Days' prior notice
to the Administrative Agent, voluntarily reduce the Total
Commitment Amount; provided that all partial reductions of
such amount shall be in a minimum amount of $5,000,000 or
any larger integral multiple of $1,000,000.
(b) Scheduled Mandatory Reductions. On each date set
forth below, the Total Commitment Amount shall automatically
and permanently be reduced by the amount set forth opposite
such date:
Date Amount
September 30, 2001 $25,000,000
December 31, 2001 $25,000,000
March 31, 2002 $25,000,000
June 30, 2002 $25,000,000
September 30, 2002 $50,000,000
Commitment Termination Date $275,000,000.
Voluntary reductions of the Total Commitment Amount pursuant
to Section 2.2.2(a) and mandatory reductions of the Total
Commitment Amount pursuant to Sections 2.2.2(c) and (d)
shall diminish the amount of scheduled reductions to the
Total Commitment Amount thereafter occurring pursuant to
this Section 2.2.2(b) in inverse order of scheduled
occurrence.
(c) Mandatory Reductions with Net Cash Proceeds of
Asset Sales. The Total Commitment Amount shall be reduced
by an amount equal to the Net Cash Proceeds of all Asset
Sales; provided, that the foregoing shall not apply to (i)
Asset Sales that result in Net Cash Proceeds of less than
$2,500,000 in a single transaction or a series of related
transactions, (ii) Net Cash Proceeds that are reinvested
within 360 days after the related Asset Sale in assets of a
kind used or useable in lines of business permitted by
Section 7.2.14, (iii) Net Cash Proceeds resulting from sales
of Investments permitted under Section 7.2.12(iv), (iv) Net
Cash Proceeds resulting from any Asset Sale if the assets
sold in such Asset Sale are contemporaneously leased back to
the Borrower or the applicable Subsidiary on fair market
terms pursuant to an operating lease (as determined under
GAAP as of the date such lease is entered into) (it being
understood that the Total Commitment Amount shall be reduced
by the Net Cash Proceeds of any Asset Sale of assets which
are leased back pursuant to a lease giving rise to a
Capitalized Lease Obligation) or (v) Net Cash Proceeds
resulting from sales of Capital Stock of Subsidiaries so
long as no Event of Default exists at the time of such Asset
Sale or would result therefrom. It is understood and agreed
that any Net Cash Proceeds held by the Borrower pending
reinvestment or application hereunder shall be invested in
Investments permitted under Section 7.2.12(iv) while so
held, to the extent practicable.
(d) Mandatory Reductions Resulting from Receipt of Net
Cash Proceeds of Senior Debt Incurrences. The Total
Commitment Amount shall be reduced by an amount equal to the
Net Cash Proceeds of all Funded Debt (other than
Subordinated Debt) incurred after the Effective Date by the
Borrower and its Subsidiaries; provided, however, that the
Total Commitment Amount shall not be so reduced to the
extent that the aggregate principal amount of all such
Funded Debt incurred by the Borrower and its Subsidiaries
does not exceed at any one time outstanding the difference
obtained by subtracting (x) the aggregate principal amount
of all Senior Notes not purchased by the Borrower pursuant
to the Senior Note Tender Offer less the aggregate principal
amount of all Senior Notes redeemed or repurchased by the
Borrower subsequent to the Senior Note Tender Offer (it
being understood that prior to the consummation of the
Senior Note Tender Offer this clause (x) shall be deemed to
be zero) from (y) $40,000,000. When used in this Section
2.2.2(d), "Funded Debt" means all Indebtedness of the
Borrower and its Subsidiaries (other than Indebtedness
permitted under Section 7.2.1(iii)) (i) for borrowed money,
(ii) evidenced by bonds, debentures, notes or other similar
instruments and (iii) in respect of all obligations for the
reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction.
SECTION 2.3 Fees. The Borrower agrees to pay the
Administrative Agent for the account of each Lender, for the
period (including any portion thereof when its Commitment is
suspended by reason of the Borrower's inability to satisfy any
condition of Article V) commencing on the Effective Date and
continuing through the Commitment Termination Date, a commitment
fee at the per annum rate specified in the table below opposite
the Applicable Margin Determination Ratio computed in the
Applicable Margin Determination Ratio Certificate then most
recently delivered on the daily average of the excess of such
Lender's Percentage times the Total Commitment Amount over the
outstanding principal amount of such Lender's Loans. Such
commitment fees shall be payable by the Borrower in arrears to
each Lender on the last day of each Fiscal Quarter for the Fiscal
Quarter then ended (or, if such day is not a Business Day, on the
next succeeding Business Day), commencing with the first such day
following the Effective Date, and on the Commitment Termination
Date.
Applicable Margin Determination Ratio Rate
Greater than or equal to 3.00 0.375%
Less than 3.00 0.250%.
SECTION 2.4 Termination. The Commitments shall terminate
and each Lender shall be relieved of its obligations to make any
Loan on the Commitment Termination Date.
ARTICLE III
LOANS AND NOTES
SECTION 3.1 Borrowing Procedure. By furnishing a Loan
Request to the Administrative Agent on or before 11:00 a.m.,
Atlanta time, on not less than three (or on the same day in the
case of a Base Rate Loan) nor more than five Business Days'
notice before the date of any Borrowing requested in such Loan
Request, the Borrower may from time to time irrevocably request
that Loans constituting a Borrowing be made by all Lenders in the
aggregate in a minimum amount of $5,000,000 or any larger
integral multiple of $1,000,000. Subject to the terms and
conditions of this Agreement, each Borrowing shall be made on the
Business Day, and shall be comprised of the type of Loans,
specified in the Loan Request therefor. On such Business Day and
subject to such terms and conditions, each Lender shall provide
the Administrative Agent with funds, on or before 11:00 a.m. (or
12:00 noon in the case of a Base Rate Loan), Atlanta time, in an
amount equal to such Lender's Percentage of the requested
Borrowing by transferring same day or immediately available funds
to such account as the Administrative Agent shall specify from
time to time by notice to the Lenders. To the extent funds are
received from the Lenders, on or before 2:30 p.m., Atlanta time,
the Administrative Agent shall make available the proceeds of
each Borrowing by wire transfer of such proceeds to such
transferees, or to such accounts of the Borrower, as the Borrower
shall have specified in the Loan Request therefor. No Lender's
obligation to make any Loan shall be affected by any other
Lender's failure to make any Loan.
SECTION 3.2 Notes. All Loans made by each Lender shall be
evidenced by a Note payable to the order of such Lender in a
maximum principal amount equal to such Lender's Percentage of the
original Total Commitment Amount. The Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Note
(or on a continuation of such grid attached to any such Note and
made a part thereof), which notations, if made, shall evidence,
inter alia, the date of, the outstanding principal of, and the
interest rate (including any conversions thereof pursuant to
Section 4.1) and Interest Period applicable to, the Loans
evidenced thereby. Any such notation on any such grid (or on any
such continuation) indicating the outstanding principal amount of
such Lender's Loans shall be rebuttable presumptive evidence of
the principal amount thereof owing and unpaid, but the failure to
record any such amount on such grid (or on any such continuation)
shall not limit or otherwise affect the obligations of the
Borrower hereunder or under such Note to make payments of
principal of or interest on such Loans when due.
SECTION 3.3 Principal Payments and Prepayments. The
Borrower will repay the outstanding principal amount of the Notes
on or before the Commitment Termination Date. In addition, the
Borrower:
(a) may make a voluntary prepayment in part in an
aggregate principal amount of not less than $5,000,000 or
any larger integral multiple of $1,000,000, or in full of
the outstanding principal amount of the Loans from time to
time at any time upon at least three Business Days' prior
notice (or same day notice in the case of a Base Rate Loan)
to the Administrative Agent; and
(b) shall, on each date when any reduction in the
Total Commitment Amount shall become effective pursuant to
Section 2.2.2, make a mandatory prepayment of all Loans
equal to the excess, if any, of the outstanding principal
amount of all Loans over the Total Commitment Amount as so
reduced.
Each prepayment of any Loans made pursuant to this Section
shall be without premium or penalty, except as may be required by
Section 4.5. All interest accrued on the principal amount of
Loans prepaid shall be paid on the date of such prepayment. No
voluntary prepayment of principal of the Loans prior to the
Commitment Termination Date shall cause a reduction in the Total
Commitment Amount.
Each prepayment of the Loans shall, except as the Borrower
may otherwise have notified the Administrative Agent, be applied,
to the extent of such prepayment, (x) first, to Base Rate Loans,
and (y) second, to Fixed Rate Loans.
SECTION 3.4 Interest. The Borrower agrees to pay interest
on the principal amount of the Loans from time to time unpaid
prior to and at Maturity (whether by required prepayment,
declaration or otherwise) at a rate per annum:
(a) on that portion of the Loans being maintained from
time to time as Base Rate Loans, equal to the sum of the
Base Rate from time to time in effect plus the Applicable
Margin, and
(b) on that portion of the Loans being maintained from
time to time as one or more Fixed Rate Loans during each
applicable Interest Period, equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin.
SECTION 3.5 Post-Maturity Rates. After the Maturity of
all or any portion of the principal amount of the Loans or after
any other Liabilities shall have become due (whether by
acceleration or otherwise), the Borrower shall pay interest
(after as well as before judgment) on the principal amount of all
types of Loans so matured or on such other Liabilities, as the
case may be, at a rate per annum which is determined by
increasing each of the Applicable Margins set forth in clauses
(a) and (b) of Section 3.4 by 2% per annum for Loans so matured
and, to the extent permitted by applicable law, at a rate per
annum equal to the Base Rate plus 3.125% for such other
Liabilities.
SECTION 3.6 Payment Dates. Interest accrued on the Loans
prior to Maturity (as aforesaid) shall be payable, without
duplication:
(a) on that portion of the Loans being maintained as
Base Rate Loans, on the last day of each month (or, if such
day is not a Business Day, on the next succeeding Business
Day);
(b) on that portion of the Loans being maintained as
one or more Fixed Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period
shall exceed three months, on the three-month anniversary of
the first day of such Interest Period); and
(c) on that portion of the Loans being converted into
a Base Rate Loan or a Fixed Rate Loan on a day when interest
would not otherwise have been payable pursuant to clause (a)
or (b), on the date of such conversion.
Interest on the Loans and other monetary Liabilities shall be
payable at Maturity (as aforesaid) and, thereafter, on demand.
SECTION 3.7 Payments, Computations, etc. Unless otherwise
expressly provided herein, all payments by the Borrower pursuant
to this Agreement, the Notes or any other Loan Document, whether
in respect of principal or interest, shall be made by the
Borrower to the Administrative Agent for the account of the
Lenders pro rata according to their respective unpaid principal
amounts. The payment of all fees referred to in Section 2.3
shall be made by the Borrower to the Administrative Agent for the
account of the Lenders entitled thereto pro rata according to
their Percentages. All other amounts payable to any Agent or
Lender under this Agreement or any other Loan Document shall be
paid to the Administrative Agent for the account of the Person
entitled thereto. All such payments required to be made to the
Administrative Agent shall be made, without set-off, deduction or
counterclaim, not later than 12:00 noon, Atlanta time, on the
date due, in same day or immediately available funds, to such
account as the Administrative Agent shall specify from time to
time by notice to the Borrower. Funds received after that time
shall be deemed to have been received by the Administrative Agent
on the next following Business Day. The Administrative Agent
shall promptly remit in same day or immediately available funds
to each Lender its share, if any, of such payments received by
the Administrative Agent for the account of such Lender. All
interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last
day) occurring during the period for which such interest or fee
is payable over a year comprised of 360 days. Whenever any
payment to be made shall otherwise be due on a day which is not a
Business Day, such payment shall (except as otherwise required by
clause (d) of the definition of the term "Interest Period" with
respect to payments then due of principal of or interest on any
Notes being maintained as Fixed Rate Loans) be made on the next
succeeding Business Day and such extension of time shall be
included in computing interest, if any, in connection with such
payment.
SECTION 3.8 Proration of Payments. If any Lender shall
obtain any payment or other recovery (whether voluntary,
involuntary, by application of set-off, or otherwise) on account
of principal of or interest on any Loan (other than pursuant to
the terms of Section 4.4 or 4.5) in excess of its pro rata share
of payments then or therewith obtained by all Lenders upon
principal of and interest on all Loans, such Lender shall
purchase from the other Lenders such participations in Loans held
by them as shall be necessary to cause such purchasing Lender to
share the excess payment or other recovery ratably with each of
them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such
purchasing Lender, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but
without interest. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section may, to the fullest extent permitted by law, exercise all
its rights of payment (including pursuant to Section 3.9) with
respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the
Lenders entitled under this Section to share in the benefits of
any recovery on such secured claim.
SECTION 3.9 Setoff. In addition to and not in limitation
of any rights of any Lender under applicable law, each Lender
shall, upon the occurrence of any Default described in Section
8.1.4 or upon the occurrence of any Event of Default, have the
right to set off, appropriate and apply to the payment of the
Liabilities owing to it any and all balances, credits, deposits,
accounts or moneys of the Borrower then maintained with such
Lender; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 3.8.
SECTION 3.10 Taxes. All payments by the Borrower of
principal of, and interest on, the Loans and all other amounts
payable hereunder shall be made free and clear of and without
deduction for any present or future income, stamp or other taxes,
fees, duties, withholding or other charges of any nature
whatsoever imposed by any taxing authority, other than taxes
imposed on or measured by any Lender's net income or receipts
(such non-excluded items being hereinafter referred to as
"Taxes"). In the event that any withholding or deduction from
any payment to be made by the Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Borrower will:
(a) pay to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing such payment to such
authority; and
(c) pay to the Administrative Agent for the account of
the Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received by
each Lender, after giving effect to any credit against Taxes
received by each such Lender as a result of such withholding
or deduction, will equal the full amount such Lender would
have received had no such withholding or deduction been
required. Each such Lender shall determine such additional
amount or amounts payable to it (which determination shall,
in the absence of demonstrable error, be conclusive and
binding on the Borrower).
Upon the request of the Borrower, each Lender that is organized
under the laws of a jurisdiction other than the United States or
any state thereof shall, prior to the due date of any payments
under the Notes, execute and deliver to the Borrower, on or about
the first scheduled payment date in each Fiscal Year, a United
States Internal Revenue Service Form 1001 or Form 4224 (or any
successor form), appropriately completed.
ARTICLE IV
BASE RATE AND FIXED RATE
OPTIONS FOR THE LOANS
SECTION 4.1 Elections. The Loans comprising any Borrowing
may be made as a loan having a fluctuating rate of interest
determined by reference to the Base Rate ("Base Rate Loans") or,
at the Borrower's election made in accordance with this Section,
as a loan (a "Fixed Rate Loan") having for each particular
Interest Period a fixed rate of interest determined by reference
to the LIBO Rate (Reserve Adjusted), as specified in the Loan
Request for such Loan. The Borrower may from time to time
irrevocably elect by delivering to the Administrative Agent a
Continuation/Conversion Notice, on not less than one (or not less
than three if a Loan is to be continued as, or converted into, a
Fixed Rate Loan) nor more than five Business Days' notice:
(a) that all, or any portion in a minimum amount of
$5,000,000 or any larger integral multiple of $1,000,000, of
the outstanding principal amount of any Borrowing be
converted from Base Rate Loans into Fixed Rate Loans or from
Fixed Rate Loans into Base Rate Loans; and
(b) on the expiration of the Interest Period
applicable to any Fixed Rate Loans, that all, or any portion
in a minimum amount of $5,000,000 or any larger integral
multiple of $1,000,000, of the outstanding principal amount
of such Fixed Rate Loans be continued as Fixed Rate Loans or
be converted into Base Rate Loans (in the absence of the
delivery of a Continuation/Conversion Notice pursuant to
this clause, the Borrower will be deemed to have requested
that such Fixed Rate Loans be converted into Base Rate
Loans);
provided, however, that:
(i) no portion of the outstanding principal amount of
any Loans may be continued as, or be converted into, Fixed
Rate Loans if, after giving effect to such action, the
Interest Period applicable thereto shall extend beyond the
date of any prepayment required by Section 3.3, unless a
sufficient principal amount of other Loans are being
maintained as Base Rate Loans to permit such prepayment to
be applied in full to such Base Rate Loans;
(ii) no portion of the outstanding principal amount of
any Loans may be continued as, or be converted into, a Fixed
Rate Loan when any Default has occurred and is continuing;
and
(iii) no portion of the outstanding principal amount
of any Loans may be made or continued as, or be converted
into, Base Rate Loans or Fixed Rate Loans unless, after
giving effect to such action, the principal amount of Loans
of each type outstanding from each Lender then being so
made, continued or converted shall be equal to such Lender's
Percentage of the outstanding principal amount of all Loans
then being so made, continued or converted.
Each Continuation/Conversion Notice requesting that all, or any
portion, of the principal amount of the Loans be continued as, or
be converted into, Fixed Rate Loans shall specify the duration of
the Interest Period commencing upon such continuation or
conversion.
Each Lender may, if it so elects, fulfill its commitment to
make or maintain any portion of the principal amount of a Loan
as, or to convert any portion of the principal amount of a Loan
into, one or more Fixed Rate Loans by causing a foreign branch or
Affiliate of such Lender to make or maintain any such Fixed Rate
Loan; provided, however, that in such event such Fixed Rate Loan
shall be deemed to have been made by such Lender, and the
obligation of the Borrower to repay such Fixed Rate Loan shall
nevertheless be to such Lender and shall be deemed to be held by
it, to the extent of such Fixed Rate Loan, for the account of
such foreign branch or Affiliate.
The Borrower understands that, if it elects that any portion
of the principal amount of a Borrowing be made, continued as or
be converted into, a Fixed Rate Loan, each Lender may (while
being entitled to fund all or any portion of such Fixed Rate Loan
as it may see fit) wish to be able to fund such Fixed Rate Loan
by purchasing Dollar deposits in its LIBOR Office's interbank
eurodollar market. Accordingly, in connection with any
determination to be made for purposes of Section 4.2, 4.3, 4.4 or
4.5, it shall be conclusively assumed that such Lender has
elected to fund all Fixed Rate Loans by purchasing Dollar
deposits in such interbank eurodollar market.
SECTION 4.2 Fixed Rate Lending Unlawful. If as the result
of any Regulatory Change any Affected Lender shall determine
(which determination shall, in the absence of demonstrable error,
be conclusive and binding on the Borrower) that it is unlawful
for the Affected Lender to make, continue or maintain a Loan as,
or to convert a Loan into, one or more Fixed Rate Loans, the
obligation of the Affected Lender under Section 4.1 to make,
continue or maintain any portion of the principal amount of a
Loan as, or to convert such Loan into, one or more Fixed Rate
Loans shall, upon such determination (and telephonic notice
thereof confirmed in writing to the Administrative Agent and the
Borrower), forthwith terminate, and the Administrative Agent
shall, by telephonic notice confirmed in writing to the Borrower
and each Lender, declare that such obligation has so terminated,
and any portion of the principal amount of a Loan then maintained
as one or more Fixed Rate Loans by the Affected Lender shall
automatically convert into a Base Rate Loan. If circumstances
subsequently change so that the Affected Lender shall determine
that it is no longer so affected, the obligation of the Affected
Lender under Section 4.1 to make or continue Loans as, or to
convert Loans into, Fixed Rate Loans shall, upon such
determination (and telephonic notice thereof confirmed in writing
to the Administrative Agent and the Borrower), forthwith be
reinstated, and the Administrative Agent shall, by notice to the
Borrower and each Lender, declare that such obligation has been
so reinstated.
SECTION 4.3 Deposits Unavailable. If prior to the date on
which all or any portion of the principal amount of any Loan is
to be made, continued as, or be converted into, a Fixed Rate
Loan, any Affected Lender or the Administrative Agent shall
determine for any reason whatsoever (which determination shall,
in the absence of demonstrable error, be conclusive and binding
on the Borrower) that:
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Affected
Lender in its relevant market; or
(b) by reason of circumstances affecting BNS in its
relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to Fixed
Rate Loans;
the Administrative Agent (after receipt of notice from the
Affected Lender, in the case of clause (a) above) shall promptly
give telephonic notice of such determination confirmed in writing
to each Lender and the Borrower, and:
(i) the obligation under Section 4.1 of the Affected
Lender (in the case of clause (a) above) or all Lenders (in
the case of clause (b) above) to make, continue any portion
of the principal amount of a Loan as, or to convert a Loan
into, one or more Fixed Rate Loans shall, upon such
notification, forthwith terminate; and
(ii) the portion of all Loans then maintained as Fixed
Rate Loans by the Affected Lender (in the case of clause (a)
above) or all Lenders (in the case of clause (b) above)
shall on the expiration of the Interest Period applicable
thereto automatically convert into Base Rate Loans.
If circumstances subsequently change so that the Administrative
Agent or the Affected Lender, as the case may be, shall no longer
be so affected, the Administrative Agent shall promptly give
telephonic notice thereof confirmed in writing to the Borrower
and each of the Lenders, and the obligations of the Affected
Lender or all Lenders, as the case may be, under Section 4.1 to
make or continue Loans as, or convert Loans into, Fixed Rate
Loans shall be reinstated, and the Administrative Agent shall, by
notice to the Borrower and each Lender, declare that such
obligations have been so reinstated.
SECTION 4.4 Capital Adequacy; Increased Costs, etc. The
Borrower further agrees to reimburse each Lender for any increase
in the cost to such Lender of making, continuing or maintaining
(or of its obligation to make, continue or maintain) any portion
of the principal amount of any of its Loans as, or of converting
(or of its obligation to convert) any portion of the principal
amount of any of its Loans into, Fixed Rate Loans and for any
reduction in the amount of any sum receivable by such Lender
hereunder in respect of making, continuing or maintaining any
portion of the principal amount of any of its Loans as, or
converting any portion of the principal amount of any Loans into,
Fixed Rate Loans, in either case, from time to time by reason of:
(a) to the extent not included in the calculation of
the LIBO Rate (Reserve Adjusted), the adoption or compliance
with any capital adequacy, reserve, special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, such Lender, under or
pursuant to any law, treaty, rule, regulation (including any
F.R.S. Board Regulation) or requirement in effect on the
date hereof or as the result of any Regulatory Change; or
(b) any Regulatory Change which shall subject such
Lender to any tax (other than taxes on net income or
receipts), levy, impost, charge, fee, duty, deduction or
withholding of any kind whatsoever or change the taxation of
any Loan made or maintained as a Fixed Rate Loan and the
interest thereon (other than any change which affects, and
to the extent that it affects, the taxation of net income or
receipts).
In any such event, such Lender shall promptly notify the
Administrative Agent and the Borrower thereof stating the reasons
therefor and the additional amount required fully to compensate
such Lender for such increased cost or reduced amount. Such
additional amounts shall be payable on demand after receipt of
such notice. A statement as to any such increased cost or
reduced amount or any change therein (including calculations
thereof in reasonable detail) shall be submitted by such Lender
to the Administrative Agent and the Borrower and shall, in the
absence of demonstrable error, be conclusive and binding on the
Borrower.
SECTION 4.5 Funding Losses. In the event any Lender shall
incur any loss or expense (including any loss or expense incurred
by reason of the liquidation, or reemployment of deposits or
other funds acquired by such Lender to make, continue or maintain
any portion of the principal amount of any Loan as, or to convert
any portion of the principal amount of any Loan into, a Fixed
Rate Loan) as a result of:
(a) payment or prepayment of the principal amount of
any Fixed Rate Loan on a date other than the scheduled last
day of the Interest Period applicable thereto, whether
pursuant to Section 3.3 or otherwise;
(b) any conversion of all or any portion of the
outstanding principal amount of any Fixed Rate Loan to a
Base Rate Loan pursuant to Section 4.1 prior to the
expiration of the Interest Period then applicable thereto;
or
(c) a Loan not being made, continued as, or converted
into, a Fixed Rate Loan in accordance with a Loan Request or
the Continuation/Conversion Notice given therefor (other
than as the result of a default by such Lender in complying
with such Loan Request or such Continuation/Conversion
Notice);
then, upon the request of such Lender to the Borrower (with
copies to the Administrative Agent), the Borrower shall pay
directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss
or expense. A certificate as to any such loss or expense
(including calculations thereof in reasonable detail) shall be
submitted by the Lender to the Administrative Agent and the
Borrower and shall, in the absence of demonstrable error, be
conclusive on the Borrower.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1 Conditions to Initial Borrowing. The
obligations of the Lenders to fund the initial Borrowing shall be
subject to the prior or concurrent satisfaction of each of the
following conditions:
SECTION 5.1.1 Resolutions, etc. The Administrative Agent
shall have received:
(a) a certificate, dated the date of the initial
Borrowing, of the Secretary or an Assistant Secretary of the
Borrower and each other Loan Party as to
(i) resolutions of its Board of Directors then in
full force and effect authorizing the execution,
delivery and performance of the Loan Documents to be
executed by it hereunder, and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to this
Agreement and each Loan Document executed by it;
upon which certificate the Administrative Agent and each
Lender may conclusively rely until the Administrative Agent
shall have received a further certificate of the Secretary
or an Assistant Secretary of such Loan Party cancelling or
amending such prior certificate; and
(b) such other documents (certified if requested) as
the Administrative Agent or the Required Lenders may
reasonably request, as soon as practicable after the
execution of this Agreement, with respect to any Organic
Document, Contractual Obligation or Approval.
SECTION 5.1.2 Delivery of Notes. The Borrower shall have
delivered to the Administrative Agent, for the account of each
Lender, a Note, dated the date of the initial Borrowing, duly
executed and delivered and conforming to the requirements of
Section 3.2.
SECTION 5.1.3 Opinion of Counsel. The Administrative Agent
shall have received an opinion, dated the date of the initial
Borrowing, addressed to the Administrative Agent and all Lenders
from Gage & ▇▇▇▇▇▇ ▇.▇., counsel to the Borrower and each
Significant Subsidiary, substantially in the form of Exhibit F
hereto.
SECTION 5.1.4 Closing Fees, Expenses, etc. The
Administrative Agent shall have received for its own account, or
for the account of each Lender, as the case may be, all fees and
expenses due and payable pursuant to Section 2.3 or Section 10.3,
if then invoiced.
SECTION 5.1.5 Significant Subsidiary Guaranty. The
Administrative Agent shall have received the Significant
Subsidiary Guaranty, dated the date of the initial Borrowing,
duly executed by each Person that is a Significant Subsidiary as
of the date of the initial Borrowing.
SECTION 5.1.6 Satisfactory Legal Form. All documents
executed or submitted pursuant hereto by or on behalf of the
Borrower and each Significant Subsidiary shall be satisfactory in
form and substance to the Administrative Agent and its counsel;
the Administrative Agent and its counsel shall have received all
information, and such counterpart originals or such certified or
other copies of such materials, as the Administrative Agent or
its counsel may request; and all legal matters incident to the
transactions contemplated by this Agreement shall be satisfactory
to counsel to the Administrative Agent.
SECTION 5.1.7 Compliance with Warranties, Non-Default, etc.
The representations and warranties set forth in Article VI shall
have been true and correct as of the date initially made, and on
the date (and after giving effect to the incurrence) of the
initial Borrowing:
(a) such representations and warranties shall be true
and correct with the same effect as if then made;
(b) no Default shall have then occurred and be
continuing; and
(c) since March 30, 1995 there shall have been no
occurrence (other than changes that are seasonal in nature)
which, individually or in the aggregate, would reasonably be
expected to have a Materially Adverse Effect.
SECTION 5.1.8 Tender Offers. The Borrower shall have
accepted for payment and paid for not less than $80,000,000 of
the outstanding principal amount of the Senior Notes pursuant to
the Senior Note Tender Offer and each of the conditions precedent
to the purchases pursuant thereto shall have been satisfied to
the satisfaction of the Administrative Agent and the Required
Lenders. The Borrower shall have accepted for payment and paid
for not less than $51,000,000 of the outstanding principal amount
of the Subordinated Notes pursuant to the Subordinated Note
Tender Offer and each of the conditions precedent to the
purchases pursuant thereto shall have been satisfied to the
satisfaction of the Administrative Agent and the Required
Lenders. All terms and conditions of the Tender Offers shall be
satisfactory to the Administrative Agent and the Required Lenders
(including the maximum tender price and all fees and commissions
paid to any information agent, solicitation agent, dealer manager
or Person performing any similar role) (it being understood that
all terms and conditions in the Tender Offer Documents delivered
to the Agents and the Banks prior to the date hereof are
satisfactory) and each Tender Offer shall comply with the Tender
Offer Documents applicable thereto and all applicable laws
(including Rule 14e-1 under the Exchange Act and other Federal
and state securities laws and regulations). There shall have
been delivered to the Administrative Agent true and correct
copies of all Tender Offer Documents, all of which shall be in
form and substance satisfactory to the Administrative Agent and
the Required Lenders.
SECTION 5.1.9 Consent Solicitations. (a) The Borrower
shall have received sufficient Senior Note Consents pursuant to
the Senior Note Consent Solicitation to authorize the execution
and delivery of the Senior Note Supplemental Indenture and the
Senior Note Supplemental Indenture shall have been duly executed
and delivered by the Borrower, all guarantors of the Senior Notes
and the Senior Note Trustee and all conditions to be
effectiveness thereof shall have been satisfied.
(b) The Borrower shall have received sufficient
Subordinated Note Consents pursuant to the Subordinated Note
Consent Solicitation to authorize the execution and delivery of
the Subordinated Note Supplemental Indenture and the Subordinated
Note Supplemental Indenture shall have been duly executed and
delivered by the Borrower, all guarantors of the Subordinated
Notes and the Subordinated Note Trustee and all conditions to the
effectiveness thereof shall have been satisfied.
(c) All terms and conditions of each Consent Solicitation,
the Senior Note Supplemental Indenture and the Subordinated Note
Supplemental Indenture (including the amendments to the Senior
Note Indenture effected pursuant to the Senior Note Supplemental
Indenture and the amendments to the Subordinated Note Indenture
effected pursuant to the Subordinated Note Supplemental
Indenture) shall be satisfactory to the Administrative Agent and
the Required Lenders and in compliance with the Consent
Solicitation Documents applicable thereto and all applicable laws
(including Federal and state securities laws).
(d) There shall have been delivered to the Administrative
Agent true and correct copies of all Consent Solicitation
Documents (including executed versions of the Senior Note
Supplemental Indenture and the Subordinated Note Supplemental
Indenture), all of which shall be in form and substance
satisfactory to the Administrative Agent and the Required
Lenders.
(e) The Administrative Agent shall have received evidence
in form and substance satisfactory to the Administrative Agent
and the Required Lenders that all the matters set forth in the
foregoing clauses (a) through (d) of this Section 5.1.9 have been
satisfied on or prior to the date of the initial Borrowing.
SECTION 5.1.10 AMC Loan Agreement. The Administrative
Agent shall have received evidence satisfactory to it that all
Indebtedness of AMC outstanding under the AMC Loan Agreement has
been paid in full and that the AMC Loan Agreement has been
terminated.
SECTION 5.1.11 Financial Information. Each Agent and each
Lender shall have received (i) a balance sheet at the close of
Borrower's Fiscal Year ended March 30, 1995, together with
statements of operations, shareholders' equity and cash flows for
such Fiscal Year, for the Borrower and its Consolidated
Subsidiaries certified without Impermissible Qualification by
Coopers & ▇▇▇▇▇▇▇ LLP and (ii) a balance sheet at the close of
Borrower's Fiscal Quarter ended September 28, 1995, together with
statements of operations, shareholders' equity and cash flows for
the period commencing at the close of the previous Fiscal Year
and ending at the close of such Fiscal Quarter, for the Borrower
and its Consolidated Subsidiaries certified by the chief
accounting or financial Authorized Officer of the Borrower.
SECTION 5.1.12 Litigation. No judgment, order or
injunction prohibiting or imposing material adverse conditions
upon any of the Refinancing Transactions shall exist. No
litigation, arbitration or governmental investigation or
proceeding shall be pending which seeks to enjoin the Refinancing
Transactions or any other transactions contemplated hereby or
purports to affect the legality, validity or enforceability of
this Agreement, any other Loan Document or the Senior Note
Supplemental Indenture or the Subordinated Note Supplemental
Indenture.
SECTION 5.2 All Loans. The obligations of the Lenders to
make any Loan (including the initial Loans) shall also be subject
to the satisfaction of each of the conditions precedent set forth
in Sections 5.2.1 through 5.2.3.
SECTION 5.2.1 Compliance with Warranties, Non-Default, etc.
The representations and warranties set forth in Article VI shall
have been true and correct as of the date initially made, and on
the date (and after giving effect to the incurrence) of such
Loan:
(a) such representations and warranties shall be true
and correct with the same effect as if then made;
(b) no Default shall have then occurred and be
continuing; and
(c) since March 30, 1995 there shall have been no
occurrence (other than changes that are seasonal in nature)
which, individually or in the aggregate, would reasonably be
expected to have a Materially Adverse Effect.
SECTION 5.2.2 Absence of Litigation, etc. No labor
controversy, litigation, arbitration or governmental
investigation or proceeding shall be pending or, to the knowledge
of the Borrower, threatened against the Borrower or any
Subsidiary which was not disclosed by the Borrower to the Lenders
pursuant to Section 6.6 or 6.12 (or prior to the date of the
Loans most recently made hereunder, if any, pursuant to Section
7.1.6), and no development shall have occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding so disclosed, which, in either event,
would reasonably be expected to have a Materially Adverse Effect.
SECTION 5.2.3 Loan Request. The Administrative Agent shall
have received a Loan Request for such Borrowing.
ARTICLE VI
WARRANTIES, ETC.
In order to induce the Lenders and the Agents to enter into
this Agreement and to make Loans hereunder, the Borrower
represents and warrants to each Agent and each Lender as follows:
SECTION 6.1 Organization, Power, Authority, etc. Each Loan
Party is a corporation validly organized and existing and in good
standing under the laws of the state of its incorporation, is
duly qualified to do business and in good standing as a foreign
corporation in each jurisdiction where the nature of its business
makes such qualification necessary and where the failure to so
qualify would reasonably be expected to have a Materially Adverse
Effect and has full power and authority to own and hold under
lease its property and conduct its business substantially as
presently conducted by it. Each Loan Party has full power and
authority to enter into and to perform its obligations under this
Agreement and each Loan Document to which each is a party and, in
the case of Borrower, to borrow the Loans hereunder.
SECTION 6.2 Due Authorization. The execution and delivery
by each Loan Party of each Loan Document to which it is a party,
the performance by each Loan Party of its respective obligations
under each such Loan Document and the borrowings hereunder by the
Borrower have been duly authorized by all necessary corporate
action, do not require any Approval, do not and will not conflict
with, result in any violation of, or constitute any default
under, any provision of any Organic Document or material
Contractual Obligation (except as disclosed in Item 1 ("Material
Contractual Obligations") of Exhibit A) of such Loan Party (or
any other material Contractual Obligation) or any present law or
governmental regulation or court decree or order applicable to
any Loan Party and will not result in or require the creation or
imposition of any Lien on any of the properties of any Loan Party
pursuant to the provisions of any Contractual Obligation, other
than Liens in favor of the Administrative Agent and the Lenders
pursuant to the Loan Documents.
SECTION 6.3 Validity, etc. This Agreement is, and each
other Loan Document executed by any Loan Party will on the due
execution and delivery thereof by such Loan Party be, the legal,
valid and binding obligation of such Loan Party enforceable in
accordance with its terms, subject, as to enforcement, only to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws at the time in effect affecting the enforceability
of the rights of creditors generally, and by general equitable
principles which may limit the right to obtain the remedy of
specific performance of executory covenants.
SECTION 6.4 Financial Information. All balance sheets, the
statements of operations, of shareholders' equity and of cash
flows and other financial information of the Borrower which have
been or shall hereafter be furnished by or on behalf of the
Borrower to the Lenders for the purposes of or in connection with
this Agreement or any transaction contemplated hereby pursuant to
Section 5.1.11, Section 7.1.1(a) or Section 7.1.1(b) (except
Section 7.1.1(a)(iii)) (including the financial information
referred to below) have been or will be prepared in accordance
with GAAP consistently applied throughout the periods involved
(except as disclosed therein) and do or will present fairly the
consolidated financial condition of the Persons covered thereby
as at the dates thereof and the results of their operations for
the periods then ended, including the consolidated balance sheet
at March 30, 1995, and the consolidated statements of earnings,
of shareholders' equity and of cash flows, for the Fiscal Year
then ended, of the Borrower and its Consolidated Subsidiaries.
Since March 30, 1995, there has been no occurrence (other than
changes that are seasonal in nature) which, individually or in
the aggregate, would reasonably be expected to have a Materially
Adverse Effect.
SECTION 6.5 Absence of Certain Defaults. Neither the
Borrower nor any Subsidiary is in default: (a) in the payment of
(or in the performance of any material obligation applicable to)
any Indebtedness outstanding in a principal amount exceeding
$6,500,000; or (b) under any law, governmental regulation, court
decree or order which would reasonably be expected to have a
Materially Adverse Effect.
SECTION 6.6 Litigation, etc. Except as described in Item 2
("Litigation") of Exhibit A, no litigation, arbitration or
governmental investigation or proceeding against the Borrower or
any Subsidiary or to which any of the properties of any thereof
is subject is pending or, to the best knowledge of the Borrower,
threatened (i) which, if adversely determined, would result in a
liability not covered by insurance in excess of $6,500,000 or
(ii) which purports to affect the legality, validity or
enforceability of this Agreement, the other Loan Documents or the
transactions contemplated hereby or thereby.
SECTION 6.7 Use of Proceeds; Regulation U.
(a) The proceeds of the Loans will be used for the purposes
specified in the recitals.
(b) The Borrower is not engaged principally, or as one of
its important activities, in the business of extending credit for
the purpose of purchasing or carrying margin stock, and less than
25% of the assets of the Borrower consists of margin stock. No
part of the proceeds of any Loan will be used, directly or
indirectly, to purchase or carry any margin stock or to extend
credit for the purpose of purchasing or carrying any margin
stock. If requested by the Administrative Agent, the Borrower
will furnish a statement to the foregoing effect in conformity
with the requirements of Federal Reserve Form U-1 to each Lender.
Terms for which meanings are provided in Regulation U of the
F.R.S. Board or any regulations substituted therefor, as from
time to time in effect, are used in this Section with such
meanings.
SECTION 6.8 Government Regulation. Neither the Borrower
nor any Subsidiary nor any Unrestricted Subsidiary is an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended, or 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",
within the meaning of the Public Utility Holding Company Act of
1935, as amended, or a "public utility" within the meaning of the
Federal Power Act, as amended.
SECTION 6.9 Certain Contractual Obligations or Organic
Documents. Neither the Borrower nor any Subsidiary is a party or
subject to any Contractual Obligation or Organic Document which
would reasonably be expected to have a Materially Adverse Effect.
SECTION 6.10 Taxes. The Borrower and all Subsidiaries have
filed all tax returns and reports required by law to have been
filed by them and have paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which
are being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP have been set
aside on their books.
SECTION 6.11 Employee Benefit Plans. Each Pension Plan
complies in all material respects with all applicable
requirements of law and regulations, and, except as set forth in
Item 3 of Exhibit A, no "Reportable Event", such term being used
herein with the meaning provided for it in section 4043 of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), has occurred with respect to any Pension Plan which
constitutes an Event of Default of the type described in Section
8.1.8. No steps have been taken to terminate any Pension Plan
where the Unfunded Benefit Liabilities on the date of such
termination or the date of the institution of such steps exceed
$6,500,000, and neither the Borrower nor any Subsidiary or
Unrestricted Subsidiary has withdrawn or partially withdrawn from
any Multiemployer Plan or initiated steps to do so where as a
result thereof the Borrower or Subsidiary or Unrestricted
Subsidiary could be required to make withdrawal liability
payments in excess of $6,500,000. No contribution failure has
occurred with respect to any Pension Plan sufficient to give rise
to a lien under section 302(f) of ERISA. Neither the Borrower
nor any Subsidiary or Unrestricted Subsidiary has any contingent
liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage
described in Part 6 of title I of ERISA, except as listed on Item
3 of Exhibit A.
SECTION 6.12 Labor Controversies. There are no labor
controversies pending or, to the best of the Borrower's
knowledge, threatened against the Borrower or any Subsidiary,
which would reasonably be expected to have a Materially Adverse
Effect.
SECTION 6.13 Subsidiaries and Significant Subsidiaries.
The Borrower has no Subsidiaries or Significant Subsidiaries
except those identified in Item 4 ("Existing Subsidiaries and
Significant Subsidiaries") of Exhibit A and those disclosed to
the Agents and Lenders pursuant to Section 7.1.1(d). All
Unrestricted Subsidiaries existing on the Effective Date are
listed on Schedule II hereto.
SECTION 6.14 Intellectual Property. The Borrower owns and
possesses or has a license or other right to use all such
patents, patent rights, trademarks, trademark rights, trade
names, trade name rights, service marks, service ▇▇▇▇ rights and
copyrights as the Borrower considers necessary for the conduct of
the businesses of the Borrower or Subsidiaries as now conducted
without any infringement upon rights of others which would
reasonably be expected to have a Materially Adverse Effect.
There is no individual patent, patent license, trademark,
trademark license, trade name, trade name license, copyright or
copyright license used by the Borrower in the conduct of its
business the loss of which would reasonably be expected to have a
Materially Adverse Effect except as may be disclosed in Item 5
("Material Intellectual Property") of Exhibit A.
SECTION 6.15 Ownership of Properties; Liens. Each of
Borrower and each Subsidiary has good and marketable title to or
good leasehold interests in all of its material properties and
assets, real and personal, of any nature whatsoever, free and
clear of all Liens except as permitted pursuant to Section 7.2.2.
SECTION 6.16 Accuracy of Information. All factual
information heretofore or contemporaneously furnished by the
Borrower to the Agents or the Lenders in connection with
execution and delivery of this Agreement and the various
transactions contemplated hereby, to the best of the Borrower's
knowledge, has been, and all other such factual information
hereafter furnished by the Borrower to the Agents or the Lenders
will be, true and accurate in every material respect on the date
as of which such information is dated or certified and as of the
date of execution and delivery of this Agreement and not
incomplete by omitting to state any material fact necessary to
make such information not misleading. All projections and pro
forma financial information contained in any materials furnished
by the Borrower or any Subsidiary to the Agents or the Lenders
are based on good faith estimates and assumptions by the
management of the Borrower or the applicable Subsidiary, it being
recognized by the Agents and the Lenders, however, that
projections and statements as to future events are not to be
viewed as fact and that actual results during the period or
periods covered by any such projections or statements may differ
from the projected results and that the differences may be
material.
SECTION 6.17 Solvency. Neither the Borrower nor any of the
Significant Subsidiaries after giving effect to the execution,
delivery and performance of this Agreement and the other Loan
Documents and the consummation of the transactions contemplated
hereby and thereby, is (i) insolvent, (ii) engaged in business
for which any property left with such entity is an unreasonably
small capital or (iii) incurring debts beyond its ability to pay
such debts as they mature. When used herein, "insolvent" means,
with respect to any Person, that such Person has a financial
condition such that the sum of such Person's debts is greater
than the value, both at fair valuation and at present fair
salable value, of such Person's property.
SECTION 6.18 Refinancing Transactions. At the time of
consummation thereof, each Refinancing Transaction shall have
been consummated in accordance with the respective Refinancing
Transaction Documents applicable thereto and in compliance with
all applicable laws (including Rule 14e-1 under the Exchange Act
and all other Federal and state securities laws). At the time of
consummation thereof, all consents and approvals of, and filings
and registrations with, and all other actions in respect of, all
governmental agencies or instrumentalities required in order to
consummate the Refinancing Transactions shall have been obtained,
given, filed or taken and are or will be in full force and
effect. At the time of consummation thereof, there shall not
exist any judgment, order or injunction prohibiting or imposing
material adverse conditions on any of the Refinancing
Transactions. None of the Refinancing Transaction Documents
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
SECTION 6.19 Environmental Warranties. Except as set
forth in Item 6 ("Environmental Matters") of Exhibit A:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its
Subsidiaries have been, and continue to be, owned or leased
by the Borrower and its Subsidiaries in material compliance
with all Environmental Laws;
(b) there have been no past, and there are no pending
or threatened
(i) claims, complaints, notices or requests for
information received by the Borrower or any of its
Subsidiaries with respect to any alleged violation of
any Environmental Law that, singly or in the aggregate,
would reasonably be expected to have a Materially
Adverse Effect, or
(ii) complaints, notices or inquiries to the
Borrower or any of its Subsidiaries regarding potential
liability under any Environmental Law that, singly or
in the aggregate, would reasonably be expected to have
a Materially Adverse Effect;
(c) there have been no Releases of Hazardous Materials
at, on or under any property now or previously owned or
leased by the Borrower or any of its Subsidiaries that,
singly or in the aggregate, have, or may reasonably be
expected to have, a Materially Adverse Effect;
(d) the Borrower and its Subsidiaries have been issued
and are in material compliance with all permits,
certificates, approvals, licenses and other authorizations
relating to environmental matters and necessary for their
businesses;
(e) no property now or previously owned or leased by
the Borrower or any of its Subsidiaries is listed or
proposed for listing (with respect to owned property only)
on the National Priorities List pursuant to CERCLA or, to
the Borrower's best knowledge, on the CERCLIS or on any
similar state list of sites requiring investigation or
clean-up (it being understood that the Borrower will provide
the Administrative Agent and each Lender with a schedule of
all owned properties on any list mentioned above within 30
days after the Effective Date);
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under
any property now or previously owned or leased by the
Borrower or any of its Subsidiaries that, singly or in the
aggregate, have, or may reasonably be expected to have, a
Materially Adverse Effect;
(g) neither Borrower nor any Subsidiary has directly
transported or directly arranged for the transportation of
any Hazardous Material to any location which is listed or
proposed for listing on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state
list or which is the subject of federal, state or local
enforcement actions or other investigations, which may lead
to material claims against the Borrower or such Subsidiary
thereof for any remedial work, damage to natural resources
or personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned or
leased by the Borrower or any Subsidiary that, singly or in
the aggregate, have, or may reasonably be expected to have,
a Materially Adverse Effect; and
(i) no conditions exist at, on or under any property
now or previously owned or leased by the Borrower which,
with the passage of time, or the giving of notice or both,
would give rise to liability under any Environmental Law.
SECTION 6.20 Restrictions on or Relating to Subsidiaries.
There does not exist any encumbrance or restriction on the
ability of any Subsidiary to (a) pay dividends or make any other
distributions on its Capital Stock owned by the Borrower or any
Subsidiary, or pay any Indebtedness owed to the Borrower or any
Subsidiary, (b) make loans or advances to the Borrower or (c)
transfer any of its assets or properties to the Borrower, except
for such encumbrances or restrictions existing by reason of or
under (i) applicable law, (ii) this Agreement or the other Loan
Documents, (iii) prior to the termination thereof, the AMC Loan
Agreement and (iv) prior to the funding of the initial Loans, the
Senior Note Indenture and the Subordinated Note Indenture.
ARTICLE VII
COVENANTS
SECTION 7.1 Certain Affirmative Covenants. The Borrower
agrees with the Agents and the Lenders that, until the
Commitments shall have terminated and all of the Liabilities have
been paid and performed in full, the Borrower will perform the
obligations set forth in this Section 7.1.
SECTION 7.1.1 Financial Information, etc. The Borrower
will furnish, or will cause to be furnished, to the
Administrative Agent and each Lender copies of the following
financial statements, reports and information:
(a) promptly when available and in any event within 90
days after the close of each Fiscal Year
(i) a balance sheet at the close of such Fiscal
Year, and statements of operations, of shareholders'
equity and of cash flows for such Fiscal Year, of the
Borrower and its Consolidated Subsidiaries certified
without Impermissible Qualification by independent
public accountants of recognized standing selected by
the Borrower and reasonably acceptable to the Required
Lenders,
(ii) a Compliance Certificate calculated as of
the close of such Fiscal Year,
(iii) a projected financial statement of the
Borrower and its Consolidated Subsidiaries for the
following Fiscal Year, and
(iv) the report filed by the Borrower with the
SEC on Form 10-K for such Fiscal Year;
(b) promptly when available and in any event within 45
days after the close of each of the first three Fiscal
Quarters of each Fiscal Year
(i) a balance sheet at the close of such Fiscal
Quarter and statements of operations, of income and of
cash flows for the period commencing at the close of
the previous Fiscal Year and ending with the close of
such Fiscal Quarter, of the Borrower and its
Consolidated Subsidiaries certified by the chief
accounting or financial Authorized Officer of the
Borrower,
(ii) a Compliance Certificate calculated as of
the close of such Fiscal Quarter, and
(iii) the report filed by the Borrower with the
SEC on Form 10-Q for each such Fiscal Quarter;
(c) promptly upon receipt thereof and upon request of
the Administrative Agent or any Lender, copies of all
management letters submitted to the Borrower by independent
public accountants in connection with each annual or interim
audit made by such accountants of the books of the Borrower
or any Subsidiary;
(d) promptly upon the incorporation or acquisition
thereof, information regarding the creation or acquisition
of any new Subsidiary;
(e) promptly when available and in any event within
ten days of publication, all material filings with the SEC;
(f) within 45 days after the close of each Fiscal
Quarter, an Applicable Margin Determination Ratio
Certificate; and
(g) such other information with respect to the
financial condition, business, property, assets, revenues
and operations of the Borrower and Subsidiaries as the
Administrative Agent or any Lender may from time to time
reasonably request.
SECTION 7.1.2 Maintenance of Existences; Ownership of AMC
Capital Stock; Asset Ownership.
(a) Except as permitted by Sections 7.2.6 and 7.2.15,
the Borrower will cause to be done at all times all things
necessary to maintain and preserve the corporate (or
partnership, as the case may be) existences of the Borrower
and each Subsidiary, and to comply in all material respects
with all applicable laws, rules, regulations and orders.
(b) The Borrower will continue to own and hold
directly, free and clear of all Liens other than Liens
granted to the Administrative Agent for the benefit of the
Lenders pursuant to the Loan Documents, legal and beneficial
ownership of 100% of the outstanding shares of Capital Stock
of AMC.
(c) The Borrower shall cause at least 75% of the
consolidated assets of the Borrower and its Consolidated
Subsidiaries to be owned legally and beneficially, free and
clear of all Liens other than Liens permitted by Section
7.2.2, by Wholly-Owned Subsidiaries or the Borrower.
SECTION 7.1.3 Foreign Qualification. The Borrower will,
and will cause each Subsidiary to, cause to be done at all times
all things necessary to be duly qualified to do business and in
good standing as a foreign corporation in each jurisdiction where
the nature of its business makes such qualification necessary and
where the failure to so qualify would reasonably be expected to
have a Materially Adverse Effect, and to comply in all material
respects with all applicable laws, rules, regulations and orders.
SECTION 7.1.4 Payment of Taxes, etc. The Borrower will,
and will cause each Subsidiary to, pay and discharge, prior to
becoming delinquent, all federal, state and local taxes,
assessments and other governmental charges or levies against or
on any of its property, as well as claims of any kind which, if
unpaid, might become a Lien in a material amount upon any of its
properties; provided, however, that the foregoing shall not
require the Borrower or any Subsidiary to pay or discharge any
such tax, assessment, charge, levy or Lien so long as it shall
contest the validity thereof in good faith by appropriate
proceedings and shall set aside on its books adequate reserves in
accordance with GAAP with respect thereto.
SECTION 7.1.5 Insurance. The Borrower will, and will cause
each Subsidiary to, maintain or cause to be maintained, with a
company or companies rated A- or better by A.M. Best and Company,
insurance with respect to its properties and business against
such casualties and contingencies and of such types and in such
amounts as is customary in the case of similar businesses and in
any event as required by applicable law and will, upon request of
the Administrative Agent, furnish to the Administrative Agent at
reasonable intervals a certificate of an Authorized Officer of
the Borrower setting forth the nature and extent of all insurance
maintained by the Borrower and its Subsidiaries in accordance
with this Section.
SECTION 7.1.6 Notice of Default, Litigation, etc. The
Borrower will give prompt notice (with a description in
reasonable detail) to the Administrative Agent and each Lender
of:
(a) the occurrence of any Default;
(b) the occurrence of any litigation, arbitration or
governmental investigation or proceeding previously not
disclosed by the Borrower to the Lenders which has been
instituted or, to the knowledge of the Borrower, is
threatened against the Borrower or any Subsidiary or to
which any of their respective properties is subject which if
adversely determined would result in a liability to the
Borrower or any Subsidiary not covered by such Borrower's or
Subsidiary's insurers in excess of $6,500,000;
(c) any material development which shall occur in any
labor controversy, litigation, arbitration or governmental
investigation or proceeding previously disclosed by the
Borrower to the Lenders;
(d) the occurrence of any event which would reasonably
be expected to have a Materially Adverse Effect;
(e) the occurrence of a Reportable Event under, or the
institution of steps by the Borrower or any Subsidiary to
terminate, any Pension Plan, or there is a partial or
complete withdrawal (as described in ERISA section 4203 or
4205) by the Borrower or any Subsidiary from a Multiemployer
Plan where as a result the Borrower or any Subsidiary could
be liable for payments of $500,000 or more; and
(f) the failure to make a required contribution to any
Pension Plan if such failure is sufficient to give rise to a
Lien under section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which could result in
the requirement that the Borrower or any Subsidiary furnish
a bond or other security to the PBGC or such Pension Plan.
SECTION 7.1.7 Performance of Loan Documents. The Borrower
will, and will cause each Loan Party to, perform promptly and
faithfully all of its obligations under each Loan Document
executed by it.
SECTION 7.1.8 Books and Records. The Borrower will, and
will cause each Subsidiary to, keep books and records reflecting
all of its business affairs and transactions in accordance with
GAAP and permit each Lender or any of its representatives, at
reasonable times and intervals and as arranged through the chief
financial officer or chief legal officer of the Borrower, to
visit all of its offices, discuss its financial matters with its
officers and independent accountants, examine (and, at the
expense of the Borrower, photocopy extracts from) any of its
books or other corporate records. The Borrower shall pay the
reasonable fees of such accountants incurred in connection with
the Administrative Agent's exercise of its rights pursuant to
this Section.
SECTION 7.1.9 Significant Subsidiary Guaranty; Pledge of
Shares of Significant Subsidiaries; Pledge of Intercompany
Indebtedness. The Borrower agrees to promptly notify the
Administrative Agent each time a Wholly-Owned Subsidiary becomes
a Significant Subsidiary and to cause such Significant Subsidiary
to deliver to the Administrative Agent a duly executed
counterpart to the Significant Subsidiary Guaranty along with an
opinion of counsel, similar in form and substance to the opinion
respecting the Significant Subsidiary Guaranty delivered pursuant
to Section 5.1.3, as to the due authorization, execution and
delivery of the Significant Subsidiary Guaranty by such
Significant Subsidiary and as to the enforceability of the
Significant Subsidiary Guaranty against such Significant
Subsidiary and a certificate of the type required by Section
5.1.1(a), each in form and substance reasonably acceptable to the
Administrative Agent; provided, however, that a Significant
Subsidiary shall not have to execute a counterpart to the
Significant Subsidiary Guaranty (or deliver such opinion or
certificate) if it has already executed a Guaranty conforming to
the requirements of Section 7.2.16 and such Guaranty is then in
effect. If at any time the Net Indebtedness to Consolidated
EBITDA Ratio exceeds 3.75:1, Borrower shall forthwith (i) pledge
to the Administrative Agent, for its benefit and the ratable
benefit of the Lenders, all of the Capital Stock owned by it of
each of its direct Subsidiaries and all Indebtedness of each
Subsidiary owing to it pursuant to a Pledge Agreement, (ii) cause
all Indebtedness of each Subsidiary or the Borrower owing to the
Borrower or any Subsidiary to be evidenced by a note in
substantially the form of Exhibit L, (iii) cause each Guarantor
to pledge to the Administrative Agent, for its benefit and the
ratable benefit of the Lenders, the Capital Stock of each
Subsidiary owned by such Guarantor and all Indebtedness of the
Borrower or any other Subsidiary owing to such Guarantor,
pursuant to a Subsidiary Pledge Agreement and (iv) deliver, and
shall cause each Guarantor to forthwith deliver, to the
Administrative Agent certificates representing 100% of the issued
and outstanding shares of Capital Stock of each Subsidiary owned
by the Borrower or such Guarantor, accompanied by duly executed
assignments separate from certificate, undated and in blank, and
notes evidencing all Indebtedness referred to above, duly
endorsed to the order of the Administrative Agent, and an opinion
of counsel to each party executing a Pledge Agreement or a
Subsidiary Pledge Agreement, as the case may be, in form and
substance reasonably satisfactory to the Administrative Agent, as
to the due authorization, execution and delivery of such Loan
Document by each party thereto, to the enforceability of such
Loan Document against each such party and to the perfection, free
from adverse claims (in the case of pledged stock) or prior to
other Liens (in the case of pledged notes), of the security
interest granted to the Administrative Agent thereunder (it being
understood that such opinion may contain reasonable exceptions
and assumptions thereto, including exceptions and assumptions
similar to those set forth in the opinion delivered pursuant to
Section 5.1.3). Any such pledge shall be released if at any time
thereafter the Net Indebtedness to Consolidated EBITDA Ratio
shall be less than 3.75:1 for two consecutive Fiscal Quarters and
there shall be no Default that has occurred and is then
continuing, and in the event of such release the immediately
preceding sentence shall again apply.
SECTION 7.1.10 Environmental Covenant. The Borrower will,
and will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and
properties in material compliance with all Environmental
Laws, keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental
matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) immediately notify the Administrative Agent and
provide copies upon receipt of all written claims,
complaints, notices or inquiries relating to the condition
of its facilities and properties or compliance with
Environmental Laws, and shall promptly use its best efforts
to cure and have dismissed with prejudice to the
satisfaction of the Administrative Agent any actions and
proceedings relating to compliance with Environmental Laws;
and
(c) provide such information and certifications as the
Administrative Agent may reasonably request from time to
time to demonstrate compliance with this Section 7.1.10.
SECTION 7.2 Certain Negative Covenants. The Borrower
agrees with the Agents and the Lenders that, until the
Commitments shall have terminated and all of the Liabilities have
been paid and performed in full, the Borrower will perform the
obligations set forth in this Section 7.2.
SECTION 7.2.1 Indebtedness for Borrowed Money. The Borrower
will not, and will not permit any Subsidiary to, incur or permit
to exist any Indebtedness, except that the Borrower may, and may
permit any Subsidiary to, incur or permit to exist any or all of
the following: (i) the Liabilities and Guaranties thereof; (ii)
Subordinated Debt; (iii) Indebtedness of the Borrower, any
Wholly-Owned Subsidiary of the Borrower or any Guarantor owing to
the Borrower, any Wholly-Owned Subsidiary of the Borrower or any
Guarantor; (iv) Indebtedness outstanding on the Effective Date
and listed on Item 7 of Exhibit A and refinancings thereof,
provided that such Indebtedness is not increased as the result of
any such refinancing and that none of the Senior Notes, the
Subordinated Notes nor the AMC Loan Agreement may be refinanced;
(v) Indebtedness of the Borrower or Subsidiaries to Persons other
than the Borrower or any Subsidiary in an aggregate principal
amount not to exceed at any one time outstanding the difference
obtained by subtracting (x) the aggregate principal amount of
Senior Notes not purchased by the Borrower pursuant to the Senior
Note Tender Offer less the aggregate principal amount of Senior
Notes redeemed or otherwise repurchased by the Borrower
subsequent to the Senior Note Tender Offer (it being understood
that prior to the consummation of the Senior Note Tender Offer,
this clause (x) shall be deemed to be zero) from (y) $40,000,000;
(vi) Indebtedness permitted as Investments under Section
7.2.12(v) or (vi); (vii) Interest Rate Protection Obligations
relating to Indebtedness of such Person (which Indebtedness is
otherwise permitted to exist by this Section 7.2.1) to the extent
the notional principal amount of such Interest Rate Protection
Obligations does not exceed the principal amount of Indebtedness
to which such Interest Rate Obligations relate; (viii) contingent
Indebtedness represented by Guaranties permitted under Section
7.2.13; (ix) Capitalized Lease Obligations; and (x) Currency
Hedging Obligations relating to arrangements to protect the
Borrower from fluctuations in currency exchange rates.
SECTION 7.2.2 Liens. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or suffer to
exist any Lien upon any of its property or assets, whether now
owned or hereafter acquired, except that the Borrower may, and
may permit any Subsidiary to, create, incur or suffer to exist
any or all of the following:
(a) Liens in favor of the Administrative Agent and the
Lenders to secure the Liabilities;
(b) Liens which were granted prior to the Effective
Date in (and only in) assets identified in Item 7 ("Ongoing
Indebtedness") and Item 8 ("Liens") of Exhibit A;
(c) Liens in (and only in) stock or assets permitted
to be acquired under the terms of this Agreement granted to
secure Indebtedness at the time of such acquisition (or
within one year thereof) or incurred to finance the
acquisition of such stock or assets, provided that, in
either case, such Indebtedness is permitted under Section
7.2.1(v);
(d) statutory and common law banker's Liens and rights
of setoff on bank deposits;
(e) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter
payable without penalty or being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside
on its books;
(f) Liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary course of
business for sums not overdue or being diligently contested
in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been set
aside on its books;
(g) non-material Liens incurred in the ordinary course
of business in connection with worker's compensation,
unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 30 days
after the entry thereof or with respect to which execution
has been stayed or the payment of which is covered in full
(subject to a customary deductible) by insurance maintained
with insurance companies of the type specified in
Section 7.1.5;
(i) Liens existing on any assets at the date of
acquisition of such assets, which assets are permitted to be
acquired under the terms of this Agreement and are acquired
after the Effective Date;
(j) Liens granted to secure Indebtedness incurred to
refinance any Indebtedness (other than the Senior Notes, the
Subordinated Notes and the AMC Loan Agreement) secured by
Liens permitted by clauses (b), (c) and (i) of this Section
7.2.2 (provided, that such Indebtedness is not increased as
the result of such refinancing and that such Liens attach
only to the same assets subject to Lien prior to the
refinancing);
(k) Liens granted to secure Indebtedness permitted by
Section 7.2.1(v) or in connection with Capitalized Lease
Obligations or operating leases; and
(l) Zoning restrictions, easements, licenses,
covenants, reservations, utility company rights,
restrictions on the use of real property or minor
irregularities of title incident thereto which do not in the
aggregate materially detract from the value of the property
or assets of the Borrower and its Subsidiaries taken as a
whole, or materially impair the operation of their business,
taken as a whole.
SECTION 7.2.3 Financial Condition. The Borrower will not
permit:
(a) the Net Indebtedness to Consolidated EBITDA Ratio
at the end of any Fiscal Quarter ending during any period
set forth below to exceed the ratio set forth below across
from such period:
Period Ratio
Effective Date to December 30, 1999 4.50:1
Thereafter 4.00:1; and
(b) the Cash Flow Coverage Ratio at the end of any
Fiscal Quarter to be less than 1.40:1.
SECTION 7.2.4 Capital Expenditures. The Borrower will not,
and will not permit any Subsidiary to, make, or commit to make by
so designating in writing to the Administrative Agent, any
Capital Expenditure unless such Capital Expenditure, together
with all other such Capital Expenditures made or so committed to
be made by the Borrower and its Subsidiaries in any Fiscal Year
(without double-counting Capital Expenditures so committed to be
made with such Capital Expenditures when actually made), does not
exceed $150,000,000 in such Fiscal Year; provided, however, that
(i) the aggregate amount of Investments in Special Entities
(other than Investments in Cash Equivalents permitted by Section
7.2.12(iv)) made by the Borrower and its Subsidiaries during any
Fiscal Year will be deemed to be Capital Expenditures made in
such Fiscal Year for the purposes of the annual limitation on
Capital Expenditures provided in this Section 7.2.4 (without
double-counting Investments made in Special Entities with Capital
Expenditures made by such Special Entities with the proceeds of
such Investments), (ii) with respect to any Investment in a
Special Entity made after the Effective Date (other than
Investments in Cash Equivalents permitted by Section 7.2.12(iv)),
(x) upon any return of cash in any Fiscal Year with respect to
such Investment, an amount equal to the lesser of the return of
cash with respect to such Investment and the initial amount of
such Investment, in either case, less the cost of disposition of
such Investment, shall be available for additional Investments
and Capital Expenditures in such Fiscal Year in addition to the
annual limitation set forth above and (y) if any such Special
Entity subsequently becomes a Guarantor, the amount of any
Investment not previously made available pursuant to clause
(ii)(x) above in any Fiscal Year shall be available for
additional Investments and Capital Expenditures in the Fiscal
Year that such Special Entity becomes a Guarantor in addition to
the annual limitation set forth above and (iii) to the extent
that Capital Expenditures made or committed to be made pursuant
to this Section 7.2.4 in any Fiscal Year are less than the amount
permitted to be made or committed to be made in such Fiscal Year
(including any carryforward), the amount of the difference, not
to exceed $50,000,000, may be carried forward and used to make
additional Capital Expenditures in subsequent Fiscal Years of the
Borrower (it being understood that any Capital Expenditures made
or committed to be made in any Fiscal Year shall first be applied
to reduce any carryforward from a previous Fiscal Year);
provided, further, however, that any Capital Expenditures made
with the proceeds of Subordinated Debt or with the proceeds of
the issuance of Capital Stock (other than Disqualified Stock)
shall be disregarded for purposes of the limitation on Capital
Expenditures in this Section 7.2.4; and provided, further,
however, that any Capital Expenditures made during any Fiscal
Year that were counted for purposes of the annual limitation on
Capital Expenditures for such Fiscal Year with respect to
property that was subsequently sold by the Borrower or its
Subsidiaries in an Asset Sale permitted by Section 7.2.15 and
contemporaneously leased back to the Borrower or the applicable
Subsidiary on fair market terms pursuant to an operating lease
(as determined under GAAP as of the date such lease is entered
into) shall be added to the amount of Capital Expenditures which
may otherwise be made in the Fiscal Year in which such sale
occurred.
SECTION 7.2.5 Take or Pay Contracts. The Borrower will
not, and will not permit any Subsidiary to, enter into or be a
party to any arrangement for the purchase of materials, supplies,
other property or services if such arrangement by its express
terms requires that payment be made by the Borrower or such
Subsidiary regardless of whether such materials, supplies, other
property or services are delivered or furnished to it.
SECTION 7.2.6 Consolidation, Merger, etc. The Borrower
will not, and will not permit any Subsidiary to, consolidate with
or merge into or with any other Person, or sell, transfer, lease
or sell and lease back or otherwise dispose of all or
substantially all of its assets to any Person, without prior
written consent of the Required Lenders, except: (a) the sale or
other disposition of all or substantially all of the assets of a
Subsidiary to a Guarantor, to a Wholly-Owned Subsidiary or to the
Borrower; (b) the consolidation with or merger into a Guarantor,
a Wholly-Owned Subsidiary or the Borrower of any Subsidiary,
provided that such Guarantor, Wholly-Owned Subsidiary or the
Borrower is the survivor of such consolidation or merger, or, in
the case of mergers or consolidations involving Subsidiaries and
Wholly-Owned Subsidiaries or Guarantors, the surviving entity of
such consolidation or merger thereupon becomes a Guarantor or
Wholly-Owned Subsidiary; and (c) as set forth in Item 9 of the
Disclosure Schedule.
SECTION 7.2.7 Modification, etc. of Subordinated Debt.
Other than pursuant to the Subordinated Note Consent
Solicitation, the Borrower will not amend any term or provision,
including any subordination provision, covenant, event of default
or right of acceleration or any sinking fund provision or term of
required repayment or redemption (except any amendment which
extends the date or reduces the amount of any required repayment
or redemption), contained in or applicable to any Instrument
evidencing or applicable to any Subordinated Debt of the Borrower
or any Significant Subsidiary.
SECTION 7.2.8 Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, enter into, or
cause, suffer or permit to exist any transaction, arrangement or
contract with any of its Affiliates (except for Guarantors and
Wholly-Owned Subsidiaries) which is on terms which are not on an
arm's-length basis.
SECTION 7.2.9 Sale or Discount of Receivables. Except as
permitted by Section 7.2.6, the Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face
value thereof, any of its notes or accounts receivable in an
aggregate amount for all such sales or discounts by the Borrower
and its Subsidiaries in any Fiscal Year in excess of $100,000.
SECTION 7.2.10 Limitation on Certain Payments; Limitation
on Restriction of Subsidiary Dividends and Distributions. If any
Default or Event of Default then exists or would result
therefrom, the Borrower shall not (a) declare or pay any
dividends or other distributions on any of its Capital Stock to
the holders thereof, (b) purchase or redeem any Capital Stock or
any warrants, options or other rights in respect of Capital
Stock, (c) make any other distribution to shareholders as such,
(d) redeem, prepay, defease or repurchase any Subordinated Debt
or any obligations under any Capitalized Lease Obligation or (e)
set aside funds for any of the foregoing. The Borrower will not,
and will not permit any Subsidiary to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Subsidiary
to (a) pay dividends or make other distributions on its Capital
Stock owned by the Borrower or any Subsidiary, or pay any
Indebtedness owed to the Borrower or any Subsidiary, (b) make
loans or advances to the Borrower or (c) transfer any of its
assets or properties to the Borrower, except for such
encumbrances or restrictions existing by reason of or under (i)
applicable law, (ii) this Agreement or the other Loan Documents,
(iii) prior to the termination thereof, the AMC Loan Agreement
and (iv) prior to the funding of the initial Loans, the Senior
Note Indenture and the Subordinated Note Indenture.
SECTION 7.2.11 Inconsistent Agreements. The Borrower will
not, and will not permit any Subsidiary to, enter into any
agreement containing any provision which would be violated or
breached by any borrowing by the Borrower hereunder or by the
performance by the Borrower or any Subsidiary of their respective
obligations hereunder or under any other Loan Document.
SECTION 7.2.12 Investments. The Borrower will not, and
will not permit any Subsidiary to, make or permit to remain
outstanding any Investment in any Person, except that the
Borrower may, and may permit any Subsidiary to, make or permit to
remain outstanding any or all of the following:
(i) Investments outstanding on the Effective Date as
set forth in Item 10 ("Investments") on Exhibit A;
(ii) advances or extensions of credit on terms
customary in the industry in the form of accounts or other
receivables incurred or pre-paid film rentals, and loans and
advances made in settlement of such accounts receivable, all
in the ordinary course of business on a basis consistent
with past practice;
(iii) Investments in the Borrower, any Guarantor or
any Wholly-Owned Subsidiary of the Borrower;
(iv) any Investment in Cash Equivalents, provided
that, in the case of all of the foregoing obligations, they
mature within 12 months of the date of purchase (unless
required to mature earlier pursuant to the definition of
"Cash Equivalents");
(v) so long as no Default or Event of Default has
occurred and is continuing or would result from such
Investment, Investments by the Borrower or any Subsidiary of
the Borrower in another Person, if (x) as a result of such
Investment (A) such other Person becomes a Wholly-Owned
Subsidiary of the Borrower or a Guarantor or (B) such other
Person is merged or consolidated with or into, or transfers
or conveys all or substantially all of its assets to, the
Borrower or a Wholly-Owned Subsidiary of the Borrower or a
Guarantor and (y) such other Person is engaged substantially
only in the lines of business permitted under Section
7.2.14;
(vi) Investments (without double-counting Investments
made by Subsidiaries to the extent that such Investments are
made with the proceeds of Investments by the Borrower or
other Subsidiaries otherwise permitted under this clause
(vi)) by the Borrower or any Subsidiary in an amount not
exceeding in the aggregate from the Effective Date to the
Commitment Termination Date, the sum of (w) $100,000,000
plus (or minus if a negative number) (x) the greater of (i)
25% of Free Cash Flow or (ii) 50% of Consolidated Net Income
(or 100% of Consolidated Net Income if a loss) calculated on
a cumulative basis from the Effective Date to the date of
determination plus (y) the aggregate Net Cash Proceeds from
the issuance or sale of Capital Stock (excluding
Disqualified Stock) of the Borrower to any Person (other
than a Subsidiary) from the Effective Date to the date of
determination plus (z) with respect to any such Investment
made after the Effective Date, an amount equal to the lesser
of the return of cash with respect to any such Investment
and the initial amount of such Investment, in either case,
less the cost of disposition of such Investment;
(vii) loans or advances to employees of the Borrower
or any Subsidiary in the ordinary course of their
businesses, consistent with past practices, not to exceed
$1,000,000 in aggregate amount at any time outstanding; and
(viii) refundable construction advances made with
respect to the construction of motion picture exhibition
theatres in the ordinary course of business on a basis
consistent with past practice.
SECTION 7.2.13 Guaranties. Except as described in Item 11
("Guaranties") of Exhibit A, neither the Borrower nor any
Subsidiary will enter into any Guaranty prior to the Commitment
Termination Date, except that the Borrower and any Subsidiary may
enter into any or all of the following (subject, in the case of
Guaranties of Indebtedness of the Borrower, to Section 7.2.16):
(i) Guaranties relating to (x) operating lease
obligations on which the Borrower or any Subsidiary or
Unrestricted Subsidiary of the Borrower is lessee, (y)
Capitalized Lease Obligations on which the Borrower or any
Subsidiary is lessee and (z) Capitalized Lease Obligations
of any Unrestricted Subsidiary relating to leased property
in service outside the United States;
(ii) Guaranties of operating obligations of any
Subsidiary or Unrestricted Subsidiary, such as construction
agreements in connection with a theater;
(iii) any Significant Subsidiary Guaranty;
(iv) Guaranties by the Borrower or its Subsidiaries
not to exceed $25,000,000 in aggregate amount at any time
outstanding;
(v) contingent obligations arising or existing as the
result of the sale or other disposition of theatres;
(vi) Guaranties by any Significant Subsidiary of the
Senior Notes and the Subordinated Notes (provided that all
such Guaranties of the Subordinated Notes shall be
subordinated to the prior payment in full in cash of the
Liabilities in form and substance satisfactory to the
Administrative Agent); and
(vii) Guaranties by AMC as set forth in (A) that
certain Partnership Interest Purchase Agreement dated May
28, 1993, among AMC certain other parties, TPI and TPIE and
(B) that certain Mutual Release and Indemnification
Agreement dated May 28, 1993 among AMC, TPI and TPIE and
certain other parties.
SECTION 7.2.14 Business Activities. The Borrower will not,
and will not permit any Subsidiary to, engage in any type of
business except the theatrical exhibition, media, communications,
leisure, and entertainment industries; specialty retailing and
food service as they relate to the theater exhibition business;
and real estate and related services related to or necessary to
support the aforementioned activities.
SECTION 7.2.15 Asset Sales. (a) The Borrower shall not,
and shall not permit any Subsidiary to, engage in any Asset Sale
(x) unless at least 85% of the consideration received by the
Borrower or such Subsidiary from such Asset Sale is in cash or
Cash Equivalents, (y) unless the consideration received by the
Borrower or such Subsidiary is at least equal to the Fair Market
Value of the shares or assets sold or otherwise disposed of in
such Asset Sale and (z) if and to the extent that the aggregate
Net Cash Proceeds from all Asset Sales from and after the
Effective Date would be in excess of $50,000,000; provided, that
(i) clauses (x) and (y) of this Section 7.2.15(a) shall not apply
to any Asset Sale where the Fair Market Value of the shares or
assets sold or otherwise disposed of in such Asset Sale is less
than $2,500,000 or to like kind exchanges of theatres for other
theatres, (ii) clause (z) of this Section 7.2.15(a) shall not
apply to any Asset Sale if the assets sold in such Asset Sale are
contemporaneously leased back to the Borrower or the applicable
Subsidiary on fair market terms (whether pursuant to an operating
lease or a lease giving rise to Capitalized Lease Obligations),
(iii) this Section 7.2.15(a) shall not apply to sales of Capital
Stock of Subsidiaries and (iv) for purposes of clause (z) of this
Section 7.2.15(a), the Fair Market Value of property received by
the Borrower or any Subsidiary in any like kind exchange of
theatres for other theatres shall be deemed to be Net Cash
Proceeds from such transaction.
(b) The Net Cash Proceeds of each Asset Sale shall, to the
extent not invested in activities permitted by Section 7.2.14, be
applied pursuant to Sections 2.2.2(c) (subject to the proviso to
the first sentence thereof).
SECTION 7.2.16 Limitation on Issuances of Guaranties of
Indebtedness. The Borrower will not permit any Subsidiary,
directly or indirectly, to guaranty, assume or in any other
manner become liable with respect to any Indebtedness of the
Borrower unless (i) such Subsidiary simultaneously executes and
delivers to the Administrative Agent a Guaranty of the
Liabilities (accompanied by certified resolutions, an incumbency
certificate and an opinion of counsel, as to the due execution
and delivery of such Guaranty by such Subsidiary and as to the
enforceability of such Guaranty against such Subsidiary, all in
form and substance similar to those delivered pursuant to
Sections 5.1.1 and 5.1.3 and reasonably satisfactory to the
Administrative Agent) on the same terms as the Guaranty of such
Indebtedness except that if such Indebtedness is by its terms
subordinated to the Liabilities, any such assumption, Guaranty or
other liability of such Subsidiary with respect to such
Indebtedness shall be subordinated to such Subsidiary's
assumption, Guaranty or other liability with respect to the
Liabilities to the same extent as such Indebtedness is
subordinated to the Liabilities and (ii) such Subsidiary waives
and will not in any manner whatsoever claim or take the benefit
or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Borrower or any other
Subsidiary as a result of any payment by such Subsidiary under
such Guaranty of the Liabilities; provided, that a Subsidiary
shall not have to execute a Guaranty under this Section if it has
already executed a counterpart to the Significant Subsidiary
Guaranty and such Subsidiary's obligations thereunder are then in
effect.
SECTION 7.2.17 Negative Pledges. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into any
agreement (other than this Agreement and the other Loan
Documents) prohibiting the creation or assumption of any Lien
upon its properties, revenues or assets, whether now owned or
hereafter acquired, or the ability of Borrower and its
Subsidiaries to amend or modify this Agreement or any other Loan
Document.
SECTION 7.2.18 Fiscal Year. The Borrower will not change
its Fiscal Year.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Events of Default. The term "Event of Default"
shall mean each of the following events:
SECTION 8.1.1 Non-Payment of Liabilities. The Borrower
shall default in the payment or prepayment when due of any
principal of any Loan, or the Borrower shall default (and such
default shall continue unremedied for a period of three Business
Days) in the payment when due, whether at stated maturity, by
acceleration or otherwise, of interest on any Loan, of any
commitment fee or of any other Liability.
SECTION 8.1.2 Non-Performance of Certain Covenants. The
Borrower shall default in the performance and observance of any
of its obligations under Section 7.1.2(b) or (c), 7.1.9 or 7.2.
SECTION 8.1.3 Non-Performance of Other Obligations. The
Borrower shall default in the due performance and observance of
any other agreement contained herein or in any other Loan
Document, and such default shall continue unremedied for a period
of 30 days after notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender.
SECTION 8.1.4 Bankruptcy, Insolvency, etc. The Borrower or
any Significant Subsidiary or any Guarantor shall become
insolvent or generally fail to pay, or admit in writing its
inability to pay, debts as they become due; or the Borrower or
any Significant Subsidiary or any Guarantor shall apply for,
consent to, or acquiesce in, the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or
such Significant Subsidiary or such Guarantor or any property of
any thereof, or make a general assignment for the benefit of
creditors; or, in the absence of such application, consent or
acquiescence, a trustee, receiver, sequestrator or other
custodian shall be appointed for the Borrower or any Significant
Subsidiary or any Guarantor or for a substantial part of the
property of any thereof and not be discharged within 60 days; or
any bankruptcy, reorganization, debt arrangement, or other case
or proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, shall be
commenced in respect of the Borrower or any Significant
Subsidiary or any Guarantor, and, if such case or proceeding is
not commenced by the Borrower or such Significant Subsidiary or
such Guarantor, such case or proceeding shall be consented to or
acquiesced in by the Borrower or such Significant Subsidiary or
such Guarantor or shall result in the entry of an order for
relief or shall remain for 60 days undismissed; or the Borrower
or any Significant Subsidiary or any Guarantor shall take any
corporate action to authorize, or in furtherance of, any of the
foregoing.
SECTION 8.1.5 Certain Defaults on Other Indebtedness,
Leases or Preferred Stock. Any default shall occur under the
terms applicable to any Indebtedness, operating lease or
Preferred Stock outstanding in a principal amount exceeding
$6,500,000 of the Borrower or any Subsidiary representing any
borrowing or financing or arising under any other lease or
material agreement, and such default shall:
(i) consist of the failure to pay Indebtedness at the
maturity thereof; or
(ii) continue without being cured or waived (so long
as such cure or waiver did not involve any payment of
principal of such Indebtedness or amounts other than
previously-contracted dividends or distributions with
respect to such Preferred Stock) for a period of time
sufficient to permit acceleration of Indebtedness or
mandatory redemption of such Preferred Stock; or
(iii) consist of any default under the terms
applicable to any such capital or operating lease of the
Borrower or any Subsidiary with aggregate remaining lease
payments exceeding $6,500,000 which results in the loss of
use of the property subject to such lease or involves a
default (that is not cured or waived or if cured or waived
involved the payment of an amount in excess of $6,500,000)
under the terms applicable to any such capital or operating
lease of the Borrower or Subsidiary with aggregate remaining
lease payments exceeding $25,000,000; or
(iv) enable the holders of any Preferred Stock to
appoint any members of the board of directors (or similar
governing body) of, or vote on or consent to any matter
(except as expressly provided otherwise by law) concerning,
the Borrower or any Subsidiary.
SECTION 8.1.6 Change in Control. Any Change in Control
shall occur.
SECTION 8.1.7 Breach of Warranty. Any warranty of the
Borrower in any Loan Document or in any writing furnished after
the date of this Agreement by or on behalf of the Borrower to the
Lenders for the purposes of or in connection with this Agreement
is or shall be incorrect in any material respect when made, and
the Borrower shall not have taken corrective measures with
respect thereto satisfactory to the Required Lenders within 30
days after notice thereof to the Borrower by the Administrative
Agent or any Lender.
SECTION 8.1.8 ERISA. Any of the following events shall
occur:
(i) Any Pension Plan shall be terminated (or steps
shall be instituted to effect such termination), but only if
such Pension Plan has any Unfunded Benefit Liabilities at
the date of such termination or the date of the institution
of such steps, as the case may be, in excess of $6,500,000.
(ii) The Borrower or any Subsidiary or Unrestricted
Subsidiary shall withdraw or partially withdraw from a
Multiemployer Plan (or shall institute steps to effect such
withdrawal or partial withdrawal), if as a result thereof
the Borrower or any Subsidiary could be required to make
withdrawal liability payments in excess of $6,500,000 in the
aggregate.
(iii) Any Reportable Event (other than any Reportable
Event as to which the requirement of giving notice to the
PBGC within 30 days has been waived) shall occur with
respect to a Pension Plan, and there shall exist a liability
or obligation of the Borrower or any Subsidiary in excess of
$6,500,000 with respect to such Reportable Event.
(iv) A contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a lien under section
302(f) of ERISA securing an obligation in excess of
$6,500,000.
SECTION 8.1.9 Judgments. A final judgment to the extent
not covered by insurance that, with other such outstanding final
judgments against the Borrower and its Subsidiaries exceeds an
aggregate of $6,500,000 shall be rendered against the Borrower or
any Subsidiary and if, within 60 days after entry thereof, such
judgment shall not have been discharged or otherwise satisfied or
execution thereof stayed pending appeal, or if, within 60 days
after the expiration of any such stay, such judgment shall not
have been discharged or otherwise satisfied.
SECTION 8.1.10 Loan Documents. Any Loan Document shall
cease to be in full force and effect or the Borrower or any other
Loan Party shall assert in writing that such Loan Document or any
term thereof is not the legal, valid and binding obligation of
any Loan Party that is a party thereto.
SECTION 8.2 Action if Bankruptcy. If any Event of Default
described in Section 8.1.4 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the
outstanding principal amount of all outstanding Loans and all
other Liabilities shall automatically be and become immediately
due and payable, without notice or demand.
SECTION 8.3 Action if Other Event of Default. If any Event
of Default (other than an Event of Default described in Section
8.1.4) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Administrative Agent, upon
the direction of the Required Lenders shall, without notice or
demand, declare all or any portion of the outstanding principal
amount of the Loans to be due and payable and any or all other
Liabilities to be due and payable and/or the Commitments (if not
theretofore terminated) to be terminated, whereupon the full
unpaid amount of such Loans and any and all other Liabilities
which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand, or
presentment and/or, as the case may be, the Commitments shall
terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1 Actions. Each Lender hereby appoints BNS as
Administrative Agent under and for purposes of this Agreement and
each other Loan Document. Each Lender authorizes the
Administrative Agent to act on behalf of such Lender under this
Agreement and any other Loan Document and, in the absence of
other written instructions from the Required Lenders received
from time to time by the Administrative Agent (with respect to
which the Administrative Agent agrees that it will, subject to
the last two sentences of this Section, comply in good faith
except as otherwise advised by counsel), to exercise such powers
hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and
thereof, together with such powers as may be reasonably
incidental thereto. The parties hereto acknowledge that the
Syndication Agent and the Documentation Agent have no
responsibilities in their capacities as Agents pursuant to any
Loan Document. Each Lender agrees (which agreement shall survive
any termination of this Agreement) to indemnify each Agent, pro
rata according to such Lender's Percentage, from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements of
any kind or nature whatsoever which may at any time be imposed
on, incurred by, or asserted against such Agent in any way
relating to or arising out of this Agreement, the Notes or any
other Loan Document, including the reimbursement of such Agent
for all reasonable out-of-pocket expenses (including reasonable
attorneys' fees) and the reasonably allocated costs of in-house
counsel and legal staff incurred by such Agent hereunder or in
connection herewith or in enforcing the Liabilities of the
Borrower under this Agreement or any other Loan Document, in all
cases as to which such Agent is not reimbursed by the Borrower;
provided that no Lender shall be liable for the payment of any
portion of such Liabilities, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements determined by
a court of competent jurisdiction in a final proceeding to have
resulted solely from such Agent's gross negligence or willful
misconduct. The Administrative Agent shall not be required to
take any action hereunder or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement or any
other Loan Document, unless it is indemnified to its satisfaction
by the Lenders against loss, costs, liability, and expense. If
any indemnity in favor of the Administrative Agent shall become
impaired, it may call for additional indemnity and cease to do
the acts indemnified against until such additional indemnity is
given. If the Administrative Agent has received indemnification
payments from the Borrower and/or the Lenders in an amount equal
to the full amount of all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements specified in the third sentence of this Section 9.1
with respect to a particular matter, then, to the extent any
indemnification payments made by the Lenders pursuant to this
Section 9.1 are subsequently recovered from the Borrower with
respect to such matter, the Administrative Agent will promptly
refund such previously paid indemnity payments to the Lenders,
without interest.
SECTION 9.2 Funding Reliance, etc. Unless the
Administrative Agent shall have been notified by telephone,
confirmed in writing, by any Lender by 5:00 p.m., Atlanta time,
on the day prior to a Borrowing, that such Lender will not make
available the amount which would constitute its Percentage of
such Borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender has made such amount available
to the Administrative Agent and, in reliance upon such
assumption, make available to the Borrower a corresponding
amount. If such amount is made available by such Lender to the
Administrative Agent on a date after the date of such Borrowing,
such Lender shall pay to the Administrative Agent on demand
interest on such amount at the daily average Federal funds rate
quoted by the Administrative Agent for the number of days from
and including the date of such Borrowing to the date on which
such amount becomes immediately available to the Administrative
Agent. A statement of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this paragraph
shall be conclusive, in the absence of demonstrable error. If
such amount is not in fact made available to the Administrative
Agent by such Lender within three Business Days after the date of
such Borrowing, the Administrative Agent shall be entitled to
recover such amount, with interest thereon at the rate per annum
then applicable to the Loans comprising such Borrowing, within
five Business Days after demand, from the Borrower.
SECTION 9.3 Exculpation. None of the Agents nor any of
their respective directors, officers, employees, or agents shall
be liable to any Lender for any action taken or omitted to be
taken by it under this Agreement or any other Loan Document, or
in connection herewith or therewith, except for actions or
omissions to act which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from
such Agent's own willful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor
for the effectiveness, enforceability, validity, or due execution
of this Agreement or any other Loan Document, nor for the
creation, perfection or priority of any Liens purported to be
created by any Loan Document, or the validity, enforceability,
existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by the Borrower of
its obligations hereunder or thereunder. Each Agent shall be
entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement, or writing
which they believe to be genuine and to have been presented by a
proper Person.
SECTION 9.4 Successor. Each Agent may resign as such at
any time upon at least 30 days' prior notice to the Borrower and
all Lenders. If either the Syndication Agent or the
Documentation Agent resigns, no successor shall be appointed. If
the Administrative Agent at any time shall resign, the Required
Lenders may appoint another Lender as a successor Administrative
Agent which shall thereupon become the Administrative Agent
hereunder. If no successor Administrative Agent shall have been
so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be one of
the Lenders or a commercial banking institution organized under
the laws of the United States and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
be entitled to receive from the retiring Administrative Agent
such documents of transfer and assignment as such successor
Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges,
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations under this Agreement, other than liabilities that
have accrued prior to the appointment of such successor
Administrative Agent. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of
this Article IX and Section 10.3 shall continue to inure to its
benefit as to any action taken or omitted to be taken by it while
it was Administrative Agent hereunder.
SECTION 9.5 Loans by the Agents. Each Agent shall have the
same rights and powers with respect to (i) the Loans made by it
or any of its Affiliates, and (ii) the Notes held by it or any of
its Affiliates as any Lender and may exercise the same as if it
were not an Agent. Each Agent and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of
business with, the Borrower or any Subsidiary or Affiliate of the
Borrower as if such Agent was not an Agent hereunder.
SECTION 9.6 Credit Decisions. Each Lender acknowledges
that it has, independently of the Agents and the other Lenders,
and based on the financial information referred to in Section 6.4
and such other documents, information, and investigations as it
has deemed appropriate, made its own credit decision to extend
its Commitment. Each Lender also acknowledges that it will,
independently of the Agents and the other Lenders, and based on
such other documents, information, and investigations as it shall
deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Agreement or
any other Loan Document.
SECTION 9.7 Copies, etc. The Administrative Agent shall
give prompt notice to each Lender of each notice or request
required or permitted to be given to the Administrative Agent by
the Borrower pursuant to the terms of this Agreement (unless
concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each
Instrument received for its account and copies of all other
communications received by the Administrative Agent from the
Borrower for distribution to the Lenders by the Administrative
Agent in accordance with the terms of this Agreement (unless
concurrently delivered to the Lenders by the Borrower).
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Waivers, Amendments, etc. The provisions of
this Agreement and of each other Loan Document may from time to
time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the
Borrower and the Required Lenders; provided, however, that no
such amendment, modification or waiver which would:
(i) modify any requirement hereunder that
any particular action be taken by all the Lenders or by the
Required Lenders, shall be effective unless consented to by
each Lender;
(ii) modify Section 5.1 or this Section 10.1, change
the definition of "Required Lenders," increase the Total
Commitment Amount or the Percentage of any Lender, reduce
any fees described in Article II or extend the Commitment
Termination Date shall be made without the consent of each
Lender;
(iii) amend, modify or release any Guaranty or any
Subsidiary therefrom shall be made without the consent of
each Lender;
(iv) extend the due date for, or reduce the amount of,
any payment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest
on any Loan) shall be made without the consent of the holder
of the Note evidencing such Loan;
(v) release any substantial portion of any collateral
security, except otherwise as specifically provided herein
or in any other Loan Document, shall be made without the
consent of each Lender; or
(vi) affect adversely the interests, rights or
obligations of any Agent in its capacity as Agent shall be
made without consent of such Agent.
No failure or delay on the part of any Agent or any Lender in
exercising any power or right under this Agreement or any other
Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude
any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Borrower in
any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by any Agent or any
Lender under this Agreement or any other Loan Document shall,
except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 10.2 Notices. All notices and other communications
provided to any party hereto under this Agreement or any other
Loan Document shall be in writing or by facsimile and addressed,
delivered or transmitted to it at its address or facsimile number
set forth (x) in the case of the Borrower, below its signature
hereto and (y) in the case of any Agent or any Lender, below its
name on Schedule I hereto or in an Assignment Agreement or, in
any case, at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by pre-paid courier service, shall
be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted.
SECTION 10.3 Costs and Expenses. The Borrower agrees to
pay all reasonable expenses of the Administrative Agent for the
structuring and syndication of the credit facilities set forth in
this Agreement, for the negotiation, preparation, execution, and
delivery of this Agreement and each other Loan Document,
including schedules and exhibits (including the allocated costs
and expenses of in-house counsel and legal staff), and any
amendments, waivers, consents, supplements, or other
modifications to this Agreement or any other Loan Document as may
from time to time hereafter be required (including the reasonable
fees and expenses of counsel for the Administrative Agent from
time to time incurred in connection therewith and the allocated
costs of in-house counsel and legal staff), whether or not the
transactions contemplated hereby are consummated, and all costs
in connection with the perfection and administration of any Lien
granted pursuant to any Loan Document, and to pay all expenses of
the Administrative Agent (including reasonable fees and expenses
of counsel to the Administrative Agent and the allocated costs of
in-house counsel and legal staff) incurred in connection with the
preparation and review of the form of any Instrument relevant to
this Agreement or any other Loan Document and the consideration
of legal questions relevant hereto and thereto or to any
restructuring or "work-out" of any Liabilities. The Borrower
also agrees to reimburse each Lender upon demand for all
reasonable out-of-pocket expenses (including attorneys' fees and
legal expenses and allocated costs of in-house counsel and legal
staff) incurred by such Lender in enforcing the obligations of
any Loan Party under this Agreement or any other Loan Document.
SECTION 10.4 Indemnification. In consideration of the
execution and delivery of this Agreement by each Lender and the
extension of the Commitments, the Borrower hereby indemnifies,
exonerates and holds each Agent and each Lender and each of its
officers, directors, employees, and agents (the "Lender Parties")
free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and
expenses actually incurred in connection therewith (irrespective
of whether such Lender Party is a party to the action for which
indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (the "Indemnified
Liabilities"), incurred by the Lender Parties or any of them as a
result of, or arising out of, or relating to
(i) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds
of any Loan;
(ii) the entering into and performance of this
Agreement and any other Loan Document by any of the Lender
Parties; or
(iii) any investigation, litigation, or proceeding
related to any acquisition or proposed acquisition by the
Borrower or any Subsidiary of all or any portion of the
stock or all or substantially all the assets of any Person,
whether or not such Agent or such Lender is party thereto,
except for any such Indemnified Liabilities arising for the
account of a particular Lender Party by reason of the relevant
Lender Party's breach of this Agreement or of any Loan Document
or gross negligence or willful misconduct, and if and to the
extent that the foregoing undertaking may be unenforceable for
any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable
law.
SECTION 10.5 Survival. The obligations of the Borrower
under Sections 4.4, 4.5, 10.3, and 10.4, and the obligations of
the Lenders under Section 9.1, shall in each case survive any
termination of this Agreement, the payment in full of the
Liabilities and the termination of the Commitments. The
representations and warranties made by each Loan Party in this
Agreement and in each other Loan Document shall survive the
execution and delivery of this Agreement and each such other Loan
Document.
SECTION 10.6 Severability. Any provision of this
Agreement or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Loan Document or
affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 10.7 Headings. The various headings of this
Agreement and of each other Loan Document are inserted for
convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8 Execution in Counterparts; Effectiveness.
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and
all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower and each
Lender (or notice thereof satisfactory to the Administrative
Agent) shall have been lodged with the Administrative Agent and
notice thereof shall have been given by the Administrative Agent
to the Borrower and each Lender.
SECTION 10.9 Governing Law; Entire Agreement. THIS
AGREEMENT, THE NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT, THE NOTES AND THE
OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG
THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
SECTION 10.10 Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided,
however, that (i) the Borrower may not assign or transfer its
rights or obligations hereunder without the prior written consent
of the Administrative Agent and all Lenders and (ii) the rights
of sale, assignment, participation and transfer by the Lenders
are subject to Section 10.11.
SECTION 10.11 Sale and Transfers, etc., of Loans and Notes;
Participations in Loans and Notes.
(a) Each Lender may at any time sell to one or more
banks or other entities ("Participants") participating
interests in all or any portion of its Commitment and Loans
or any other rights or interest of such Lender hereunder (in
respect of any Lender, its "Credit Exposure"). In the event
of any such sale by a Lender of participating interests to a
Participant, such Lender shall notify the Borrower of the
identity of such Participant, such Lender's obligations
under this Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof,
such Lender shall remain the holder of any such Note for all
purposes under this Agreement, and the Borrower and the
Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Except in the
case of the sale of a participation to a Lender or an
Affiliate of a Lender, any participation permitted hereunder
shall be in a minimum amount of at least $5,000,000, and the
relevant participation agreement shall not permit the
Participant to transfer, pledge, assign, sell participations
in or otherwise encumber its portion of the Commitment or
Loans. Each Lender agrees that any agreement between such
Lender and any such Participant in respect of such
participating interest shall not restrict such Lender's
right to agree to any amendment, supplement or modification
to the Agreement or any of the Loan Documents except to
extend the final maturity of any Note, reduce the rate or
extend the time of payment of interest thereon or any fees
owed to the Lenders under this Agreement or any of the Loan
Documents, or reduce the principal amount of any Note or
release any collateral or Guaranty. The Borrower hereby
acknowledges and agrees that any such disposition described
in this Section will give rise to a direct obligation of the
Borrower to the Transferee, and such Participant shall, for
purposes of Sections 3.7, 3.8, 3.9, 3.10, 4.4, and 4.5, be
considered a Lender and may rely on, and possess all rights
under, any opinions, certificates, or other Instruments
delivered under or in connection with this Agreement or any
other Loan Document; provided, however, that the Borrower
shall only be required to deliver information and data
required pursuant to this Agreement to the Lender selling or
granting a participation in (in whole or in part) its Credit
Exposure.
(b) Any Lender may at any time assign and delegate to
one or more banks or other entities ("Assignees") all or any
part of its Credit Exposure, provided that (i) unless
assigned to an Affiliate of such Lender or another Lender,
it assigns all or, if less than all, a portion of its Credit
Exposure in an amount not less than $10,000,000, (ii) each
assignment and delegation shall be of a constant, and not a
varying, percentage of such Lender's Credit Exposure and
(iii) any Assignee (other than an affiliate of such Lender
or another Lender) must be acceptable to the Administrative
Agent and acceptable to the Borrower, whose consent shall
not be unreasonably withheld, and the Administrative Agent's
and Borrower's decisions respecting the same shall be made
promptly; provided, that the Borrower and the Administrative
Agent shall be entitled to continue to deal solely and
directly with the assignor Lender in connection with the
interests so assigned and delegated to the Assignee until a
fee of $3,500 shall have been delivered to the
Administrative Agent by the assignor Lender or the Assignee,
written notice of such assignment and delegation shall have
been given to an Administrative Agent and the Borrower by
the Assignee and such assignor Lender and the Assignee shall
have delivered to the Borrower and the Administrative Agent
an Assignment Agreement, accepted by the Administrative
Agent. Upon receipt of such an Assignment Agreement, the
Administrative Agent shall, if such Assignment Agreement has
been fully executed and completed and the fee referred to
above has been paid, record the information contained
therein in the Administrative Agent's records. From and
after the date the Administrative Agent accepts such
Assignment Agreement, the Assignee shall, to the extent that
rights and obligations hereunder have been assigned and
delegated in connection with such Assignment Agreement, be
deemed automatically to have become a party hereto and shall
have the same rights and benefits of a Lender hereunder and
the assignor Lender, to the extent that rights and
obligations hereunder have been assigned and delegated in
connection with such Assignment Agreement, shall be released
from its obligations hereunder. In the event of any
assignment, the Borrower shall, at its sole cost and
expense, prepare and deliver to the assignor Lender and to
the Assignee new Notes reflecting such assignment.
Notwithstanding the foregoing provisions of this Section
10.11(b), any Lender may at any time assign all or any
portion of its Loans and Note to a Federal Reserve Bank (but
no such assignment shall release any Lender from any of its
obligations hereunder).
(c) Subject to Section 10.16, the Borrower authorizes
each Lender to disclose to any Participant or Assignee
(each, a "Transferee") and any prospective Transferee any
and all financial information in such Lender's possession
concerning the Borrower and any Subsidiary which has been
delivered to such Lender by the Borrower or any Subsidiary
pursuant to this Agreement or which has been delivered to
such Lender by the Borrower or any Subsidiary in connection
with such Lender's credit evaluation of the Borrower or any
Subsidiary prior to entering into this Agreement.
SECTION 10.12 Other Transactions. Nothing contained herein
shall preclude any Agent or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrower or any of its
Affiliates in which the Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
SECTION 10.13 Collateral. Each of the Lenders represents
to the Agents and each of the other Lenders that it in good faith
is not relying upon any "margin stock" (as defined in Regulation
U of the F.R.S. Board) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 10.14 Waiver of Jury Trial. THE AGENTS, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE AGENTS, THE
LENDERS, OR THE BORROWER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS
AGREEMENT.
SECTION 10.15 Consent to Jurisdiction and Service of
Process. Any judicial proceedings brought against the Borrower
with respect to this Agreement or any other Loan Document may be
brought in any state or federal court of competent jurisdiction
in the State of New York or the State of Missouri, and by the
execution and delivery of this Agreement the Borrower accepts the
nonexclusive jurisdiction of the aforesaid courts. Service of
process may be made by any means authorized by federal law or the
law of New York, or Missouri, as the case may be. A copy of any
such process so served shall be mailed by registered mail to the
Borrower at its address set forth below its signature hereto or
at such other address as may be designated by the Borrower in a
notice to the Lenders. Nothing herein shall limit the right of
the Administrative Agent or any Lender to bring proceedings
against the Borrower in the courts of any other jurisdiction.
SECTION 10.16 Confidentiality. Each Lender and Agent
agrees (on behalf of itself and each of its subsidiaries,
affiliates, directors, officers, employees and representatives)
to use reasonable precautions to keep confidential, in accordance
with customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking
practices, any non-public information supplied to it by the
Borrower pursuant to this Agreement which is identified by the
Borrower as being confidential at the time the same is delivered
to the Lenders or the Agents, provided that nothing herein shall
limit the disclosure of any such information (i) to the extent
required by statute, rule, regulation or judicial process, (ii)
to counsel for any of the Lenders or Agents, (iii) to bank
examiners, auditors, accountants or other professional advisors,
(iv) to the Agents or any other Lender, (v) in connection with
any litigation to which any one or more of the Lenders is a
party, (vi) to any director, officer, employee, subsidiary or
affiliate of any Lender, (vii) to any Transferee (or prospective
Transferee), so long as such Person agrees in writing to be bound
by the terms of this Section 10.16 and (viii) if required or
appropriate in any report, statement or testimony submitted to
any governmental authority having or claiming to have
jurisdiction over such Lender or Agent; and provided finally that
in no event shall any Lender or Agent be obligated or required to
return any materials furnished by the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
AMC ENTERTAINMENT INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial
Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
THE BANK OF NOVA SCOTIA, as
Administrative Agent
By: /s/ F.C.H. ▇▇▇▇▇
Name: F.C.H. ▇▇▇▇▇
Title: Senior Assistant Agent
CHEMICAL BANK, as Syndication
Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Documentation Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ▇▇▇▇▇
Name: F.C.H. ▇▇▇▇▇
Title: Senior Assistant Agent
CHEMICAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Hachiro Hossoda
Name: Hachiro Hossoda
Title: Senior Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ ▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
UNITED STATES NATIONAL BANK OF
OREGON
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
COMERICA BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By: /s/ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Joint General Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN LTD., CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President and
Deputy General Manager
NATWEST BANK N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE SAKURA BANK, LIMITED
By /s/ Hajime Miyagi
Name: Hajime Miyagi
Title: Joint General Manager
THE SUMITOMO TRUST AND BANKING
CO., LTD., NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Manager, Corporate
Finance Department
SCHEDULE I
Lenders
THE BANK OF NOVA SCOTIA Commitment Percentage
$60,000,000 14.11764706%
Domestic Office:
Atlanta Agency
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Attention: Mr. F.C.H. ▇▇▇▇▇,
Senior Assistant Agent
LIBOR Office:
Atlanta Agency
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Attention: Mr. F.C.H. ▇▇▇▇▇,
Senior Assistant Agent
with a copy to:
The Bank of Nova Scotia
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CHEMICAL BANK Commitment Percentage
$45,000,000 10.58823529%
Domestic Office:
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Account Manager
LIBOR Office:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Account Manager
For Credit Information:
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Associate
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION Commitment Percentage
$45,000,000 10.58823529%
Domestic Office:
Payment Service
Operation - Number 5693
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LIBOR Office:
Payment Service
Operation - Number 5693
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For Credit Information:
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Vice President
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10th Floor - Dept. 3283
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THE BANK OF NEW YORK Commitment Percentage
$35,000,000 8.23529412%
Domestic Office:
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LIBOR Office:
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For Credit Information:
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Vice President
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THE MITSUBISHI TRUST AND
BANKING CORPORATION Commitment Percentage
$35,000,000 8.23529412%
Domestic Office:
Loan Ad. Dept.
Assistant Vice President
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or (▇▇▇) ▇▇▇-▇▇▇▇
LIBOR Office:
Loan Ad. Dept.
Assistant Vice President
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For Credit Information:
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Vice President
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CANADIAN IMPERIAL BANK OF Commitment Percentage
COMMERCE $25,000,000 5.88235294%
Domestic Office:
Two Paces West
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Assistant Vice President
LIBOR Office:
Two Paces West
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Assistant Vice President
For Credit Information:
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Associate Director
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA Commitment Percentage
$25,000,000 5.88235294%
Domestic Office:
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LIBOR Office:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
For Credit Information:
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Vice President
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UNITED STATES NATIONAL BANK
OF OREGON Commitment Percentage
$20,000,000 4.70588235%
Domestic Office:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇,
Participation Specialist
LIBOR Office:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇,
Participation Specialist
For Credit Information:
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Vice President
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF CALIFORNIA, N.A. Commitment Percentage
Domestic Office: $15,000,000 3.52941176%
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Attention: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
Banking Assistant
LIBOR Office:
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Attention: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
Banking Assistant
For Credit Information:
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Vice President
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COMERICA BANK Commitment Percentage
$15,000,000 3.52941176%
Domestic Office:
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Mail Code 3269
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇,
Customer Service Representative
LIBOR Office:
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Mail Code 3269
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇,
Customer Service Representative
For Credit Information:
▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Vice President
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Mail Code 3269
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THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH Commitment Percentage
$15,000,000 3.52941176%
Domestic Office:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇,
Credit Administration Dept.
LIBOR Office:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇,
Credit Administration Dept.
For Credit Information:
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Corporate Banking Dept. I
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THE FUJI BANK, LIMITED Commitment Percentage
$15,000,000 3.52941176%
Domestic Office:
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Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇,
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LIBOR Office:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or (▇▇▇) ▇▇▇-▇▇▇▇
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For Credit Information:
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THE INDUSTRIAL BANK OF
JAPAN, LIMITED Commitment Percentage
$15,000,000 3.52941176%
Domestic Office:
New York Branch
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LIBOR Office:
New York Branch
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For Credit Information:
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Emile El-Nems
Media Finance Department
New York Branch
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE LONG-TERM CREDIT BANK OF
JAPAN LTD., CHICAGO BRANCH Commitment Percentage
$15,000,000 3.52941176%
Domestic Office:
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
LIBOR Office:
Suite 800
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
For Credit Information:
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Suite 800
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
NATWEST BANK N.A. Commitment Percentage
$15,000,000 3.52941176%
Domestic Office:
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Yin Kuznizz,
Customer Service Unit
LIBOR Office:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Yin Kuznizz,
Customer Service Unit
For Credit Information:
▇▇▇▇ ▇▇▇▇▇
Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE SAKURA BANK, LIMITED Commitment Percentage
$15,000,000 3.52941176%
Domestic Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇,
Assistant Vice President
LIBOR Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇,
Assistant Vice President
For Credit Information:
▇▇▇▇▇ ▇▇▇▇▇▇
Analyst
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO TRUST AND BANKING
CO., LTD., NEW YORK BRANCH Commitment Percentage
$15,000,000 3.52941176%
Domestic Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
For Credit Information:
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE II
Unrestricted Subsidiaries
None.
EXHIBIT E
SIGNIFICANT SUBSIDIARY GUARANTY
from
the
UNDERSIGNED SUBSIDIARIES
of
AMC ENTERTAINMENT INC.
to
THE BANK OF NOVA SCOTIA,
as Administrative Agent
SIGNIFICANT SUBSIDIARY GUARANTY
THIS GUARANTY, dated as of December 27, 1995 (this
"Guaranty"), is executed by the undersigned in favor of THE BANK
OF NOVA SCOTIA, as Administrative Agent for the Lenders party to
the Credit Agreement referred to below (the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, AMC ENTERTAINMENT INC., a Delaware corporation (the
"Debtor"), has entered into a Credit Agreement, dated as of
December 27, 1995 (together with all amendments and other
modifications, if any, thereafter made thereto, the "Credit
Agreement"), with various financial institutions (herein,
together with their respective successors and assigns,
collectively called the "Lenders" and individually called a
"Lender"), and THE BANK OF NOVA SCOTIA, as Administrative Agent
for the Lenders (the "Administrative Agent"), pursuant to which
the Lenders have agreed to make loans to the Debtor;
WHEREAS, each of the undersigned will benefit from the
making of such loans and is willing to guaranty the Liabilities
(as defined below), as hereinafter set forth;
NOW THEREFORE, FOR VALUE RECEIVED, and in consideration of
any loan or other financial accommodation heretofore or hereafter
at any time made or granted to the Debtor under or in connection
with the Credit Agreement, each of the undersigned hereby jointly
and severally unconditionally guarantees the full and prompt
payment when due, whether by acceleration or otherwise, and at
all times thereafter, of all obligations (monetary or otherwise)
of the Debtor to the Lenders and the Administrative Agent under
or in connection with the Credit Agreement, the Notes (as defined
in the Credit Agreement) and any other Loan Document (as defined
in the Credit Agreement) and all Interest Rate Protection
Obligations (as defined in the Credit Agreement) and Currency
Hedging Obligations (as defined in the Credit Agreement), in each
case howsoever created, arising or evidenced, whether direct or
indirect, primary or secondary, absolute or contingent, joint or
several, or now or hereafter existing or due or to become due
(including in all cases all such amounts which would become due
but for the operation of the automatic stay under Section 362(a)
of the United States Bankruptcy Code, 11 U.S.C. 62(a), and the
operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. 502(b) and 506(b)) (all such
obligations being hereinafter collectively called the
"Liabilities"), under and in connection with the Credit Agreement
and each of the undersigned further agrees to pay all reasonable
expenses (including attorneys' fees and legal expenses) paid or
incurred by the Administrative Agent in endeavoring to collect
the Liabilities, or any part thereof, and in enforcing this
Guaranty.
Each of the undersigned agrees that, in the event of the
dissolution or insolvency of the Debtor or such undersigned, or
the inability or failure of the Debtor or such undersigned to pay
debts as they become due, or an assignment by the Debtor or such
undersigned for the benefit of creditors, or the commencement of
any case or proceeding in respect of the Debtor or such
undersigned under any bankruptcy, insolvency or similar laws, and
if such event shall occur at a time when any of the Liabilities
may not then be due and payable, such undersigned will pay to the
Administrative Agent for the benefit of the Lenders forthwith the
full amount which would be payable hereunder by such undersigned
if all Liabilities were then due and payable.
To secure all obligations of each of the undersigned
hereunder, the Administrative Agent and each Lender shall have a
right to, and may, without demand or notice of any kind, at any
time and from time to time when any amount shall be due and
payable by such undersigned hereunder, set off, appropriate and
apply toward the payment of such amount, in such order of
application as the Administrative Agent or such Lender may elect,
any and all balances, credits, deposits (general or special, time
or demand, provisional or final), accounts or moneys of or in the
name of such undersigned now or hereafter with the Administrative
Agent or such Lender or any agent or bailee for the
Administrative Agent or such Lender.
This Guaranty shall in all respects be a continuing,
absolute and unconditional Guaranty, and shall remain in full
force and effect (notwithstanding, without limitation, the
dissolution of any of the undersigned or that at any time or from
time to time no Liabilities may be outstanding), until all
Commitments (as defined in the Credit Agreement) have terminated
and all Liabilities (including any extensions or renewals of any
thereof) and all interest thereon and all expenses (including
attorneys' fees and legal expenses) paid or incurred by the
Administrative Agent or any Lender in endeavoring to collect the
Liabilities and in enforcing this Guaranty shall have been
finally paid in full.
Each of the undersigned further agrees that, if at any time
all or any part of any payment theretofore applied by the
Administrative Agent or any Lender to any of the Liabilities is
or must be rescinded or returned by the Administrative Agent or
such Lender for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of the
Debtor or any of the undersigned), such Liabilities shall, for
the purposes of this Guaranty, to the extent that such payment is
or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Administrative
Agent or such Lender, and this Guaranty shall continue to be
effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application by the Administrative
Agent or such Lender had not been made.
Each of the undersigned agrees that the Administrative Agent
or any Lender may, from time to time, at its sole discretion and
without notice to the undersigned (or any of them), take any or
all of the following actions without impairing the obligation of
such undersigned under this Guaranty: (a) retain or obtain a
lien upon or a security interest in any property to secure any of
the Liabilities or any obligation hereunder; (b) retain or obtain
the primary or secondary obligation of any obligor or obligors,
in addition to the undersigned, with respect to any of the
Liabilities; (c) extend or renew for one or more periods (whether
or not longer than the original period), alter or exchange any of
the Liabilities, or release or compromise any obligation of any
of the undersigned hereunder or any obligation of any nature of
any other obligor with respect to any of the Liabilities;
(d) release or fail to perfect its lien upon or security interest
in, or impair, surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the
Liabilities or any obligation hereunder, or extend or renew for
one or more periods (whether or not longer than the original
period) or release, compromise, alter or exchange any obligations
of any nature of any obligor with respect to any such property;
and (e) resort to the undersigned (or any of them) for payment of
any of the Liabilities, whether or not the Administrative Agent
or such Lender (i) shall have resorted to any property securing
any of the Liabilities or any obligation hereunder or (ii) shall
have proceeded against any other of the undersigned or any other
obligor primarily or secondarily obligated with respect to any of
the Liabilities (all of the actions referred to in preceding
clauses (i) and (ii) being hereby expressly waived by the
undersigned).
Any amounts received by the Administrative Agent or any
Lender from whatsoever source on account of the Liabilities may
be applied by it toward the payment of the Liabilities.
Until such time as the Lenders shall have received payment
of the full amount of all Liabilities and of all obligations of
the undersigned hereunder and all Commitments have terminated, no
payment made by or for the account of the undersigned (or any of
them) pursuant to this Guaranty shall entitle any of the under-
signed by subrogation or otherwise to any payment by the Debtor
or from or out of any property of the Debtor and none of the
undersigned shall exercise any right or remedy against the Debtor
or any property of the Debtor by reason of any performance by
such undersigned of this Guaranty.
Each of the undersigned hereby expressly waives: (a) notice
of the acceptance by the Administrative Agent or any Lender of
this Guaranty; (b) notice of the existence or creation or
non-payment of all or any of the Liabilities; (c) presentment,
demand, notice of dishonor, protest and all other notices whatso-
ever; and (d) all diligence in collection or protection of or
realization upon the Liabilities or any thereof, any obligation
hereunder, or any security for or guaranty of any of the
foregoing.
The creation or existence, with or without notice to the
undersigned, from time to time of Liabilities in excess of the
amount to which the right of recovery under this Guaranty is
limited shall not in any way affect or impair the rights of the
Administrative Agent or the Lenders and the obligation of the
undersigned under this Guaranty.
The Lenders may, from time to time, without notice to the
undersigned (or any of them), assign or transfer any or all of
the Liabilities or any interest therein; and, notwithstanding any
such assignment or transfer or any subsequent assignment or
transfer thereof, such Liabilities shall be and remain Liabili-
ties for the purposes of this Guaranty, and each and every
immediate and successive assignee or transferee of any of the
Liabilities or of any interest therein shall, to the extent of
the interest of such assignee or transferee in the Liabilities,
be entitled to the benefits of this Guaranty to the same extent
as if such assignee or transferee were a Lender.
No delay on the part of the Administrative Agent or any
Lender in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the
Administrative Agent or any Lender of any right or remedy shall
preclude other or further exercise thereof or the exercise of any
other right or remedy; nor shall any modification or waiver of
any of the provisions of this Guaranty be binding upon the
Administrative Agent or any Lender except as expressly set forth
in a writing duly signed and delivered on behalf of the
Administrative Agent. No action of the Administrative Agent or
any Lender permitted hereunder shall in any way affect or impair
the rights of the Administrative Agent or any Lender and the
obligations of the undersigned under this Guaranty. For the
purposes of this Guaranty, Liabilities shall include all
obligations of the Debtor to the Administrative Agent or any
Lender under and in connection with the Credit Agreement,
notwithstanding any right or power of the Debtor or anyone else
to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or
defense shall affect or impair the obligations of the undersigned
hereunder. The obligations of the undersigned under this
Guaranty shall be absolute and unconditional irrespective of any
circumstance whatsoever which might constitute a legal or
equitable discharge or defense of the undersigned (or any of
them). Each of the undersigned hereby acknowledges that there
are no conditions to the effectiveness of this Guaranty.
Pursuant to the Credit Agreement, (a) this Guaranty has been
delivered to the Administrative Agent and (b) the Administrative
Agent may enforce this Guaranty on behalf of itself and each of
the Lenders. All payments by each of the undersigned pursuant to
this Guaranty shall be made to the Administrative Agent for the
ratable benefit of the Lenders.
Each of the undersigned hereby warrants and represents to
the Administrative Agent and the Lenders that such undersigned
now has and will continue to have independent means of obtaining
information concerning the affairs, financial condition and
business of the Debtor. Neither the Administrative Agent nor any
Lender shall have any duty or responsibility to provide the
undersigned (or any of them) with any credit or other information
concerning the affairs, financial condition or business of the
Debtor which may come into the possession of the Administrative
Agent or any Lender.
The undersigned hereby further warrant and represent to the
Administrative Agent and the Lenders that (a) the execution and
delivery of this Guaranty, and the performance by each of the
undersigned of its obligations hereunder, are within the
corporate right, power, authority and capacity of such
undersigned and have been duly authorized by all necessary
corporate action on the part of such undersigned, (b) this
Guaranty has been duly executed and delivered on behalf of each
of the undersigned and is the legal, valid and binding obligation
of such undersigned, enforceable in accordance with its terms,
subject, as to enforcement, only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws at the time in
effect affecting the enforcement of the rights of creditors
generally, and by general equitable principles which may limit
the right to obtain the remedy of specific performance of
executory covenants, and (c) the making and performance of this
Guaranty do not and will not contravene or conflict with the
charter or by-laws of such undersigned or violate or constitute a
default under any law, any presently existing requirement or
restriction imposed by judicial, arbitral or any governmental
instrumentality or any agreement, instrument or indenture by
which such undersigned is bound.
Anything else in this Guaranty notwithstanding, each of the
undersigned shall be liable under this Guaranty only for the
maximum amount of such liability that can be incurred by such
undersigned without rendering this Guaranty, as it relates to
such undersigned, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any
greater amount; provided, however, that the foregoing limitation
shall not be construed, as between the Lenders and any other
creditor of the Debtor or any of the undersigned whose claim is
subordinated to the claim of the Lenders with respect to the
Liabilities, to adversely affect the extent of such
subordination.
This Guaranty shall be binding upon the undersigned, and
upon the successors and assigns of the undersigned; and to the
extent that the Debtor or any of the undersigned is either a
partnership or a corporation, all references herein to the Debtor
and to such of the undersigned, respectively, shall be deemed to
include any successor or successors, whether immediate or remote,
to such partnership or corporation. The term "undersigned" as
used herein shall mean all parties executing this Guaranty and
each of them, and all such parties shall, subject to the
limitation on right of recovery in the immediately preceding
paragraph, be jointly and severally obligated hereunder.
This Guaranty may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, and
such counterparts shall together constitute one and the same
Guaranty. At any time after the date of this Guaranty, one or
more additional persons or entities may become parties hereto by
executing and delivering to the Administrative Agent a
counterpart of this Guaranty. Immediately upon such execution
and delivery (and without any further action), each such
additional person or entity will become a party to, and will be
bound by all of the terms of, this Guaranty.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. Whenever
possible each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
THE UNDERSIGNED HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH, AND AGREE THAT ANY SUCH ACTION
OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
Each of the undersigned agrees that any judicial proceedings
brought against such undersigned with respect to this Guaranty
may be brought in any state or federal court of competent
jurisdiction in the State of New York and, by the execution and
delivery of this Guaranty, each of the undersigned accepts the
nonexclusive jurisdiction of the aforesaid courts. Service of
process may be made by any means authorized by federal law or the
law of New York, as the case may be. A copy of any such process
so served shall be mailed by registered mail to such undersigned
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇, Attention ▇▇▇▇▇ ▇. ▇▇▇▇▇, the
address, if any, opposite its signature on any counterpart
signature page hereto or at such other address as may be
designated by such undersigned in a notice to the Administrative
Agent. Nothing herein shall limit the right of the
Administrative Agent to bring proceedings against any of the
undersigned in the courts of any other jurisdiction.
SIGNED AND DELIVERED as of this 27th day of December, 1995.
AMERICAN MULTI-CINEMA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
BUDCO THEATRES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
CONCORD CINEMA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
AMC REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
CONSERVCO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
AMC CANTON REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
AMC PHILADELPHIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
AMC FILM MARKETING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
The undersigned is executing a
counterpart hereof for purposes of
becoming a party hereto:
By:
Address: Title:
EXHIBIT I
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
_________ __, _____, is made by AMC ENTERTAINMENT INC., a
Delaware corporation (the "Borrower"), in favor of THE BANK OF
NOVA SCOTIA, as administrative agent (together with any successor
thereto in such capacity, the "Administrative Agent") for each of
the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of
December 27, 1995 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Credit Agreement"), among the Borrower, the various
financial institutions (individually a "Lender" and collectively
the "Lenders") as are, or may from time to time become, parties
thereto and the Administrative Agent, the Lenders have extended
Commitments to make Loans to the Borrower;
WHEREAS, the Borrower is required to execute and deliver
this Pledge Agreement;
WHEREAS, the Borrower has duly authorized the execution,
delivery and performance of this Pledge Agreement; and
NOW THEREFORE, for good and valuable consideration the
receipt of which is hereby acknowledged, and in order to induce
the Lenders to make Loans to the Borrower pursuant to the Credit
Agreement, the Borrower agrees, for the benefit of each Lender
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or
not underscored) when used in this Pledge Agreement, including
its preamble and recitals, shall have the following meanings
(such definitions to be equally applicable to the singular and
plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating
dividends, shares of stock resulting from (or in connection with
the exercise of) stock splits, reclassifications, warrants,
options, non-cash dividends, mergers, consolidations, and all
other distributions (whether similar or dissimilar to the
foregoing) on or with respect to any Pledged Shares or other
shares of capital stock constituting Collateral, but shall not
include Dividends.
"Dividends" means cash dividends and cash distributions with
respect to any Pledged Shares or other Pledged Property made in
the ordinary course of business and not a liquidating dividend.
"Lender" is defined in the first recital.
"Lender Party" means, as the context may require, any Lender
or the Administrative Agent and each of its respective
successors, transferees and assigns.
"Lenders" is defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Notes" is defined in Section 2.1(a).
"Pledged Property" means all Pledged Shares and all Pledged
Notes now or from time to time hereafter delivered by the
Borrower to the Administrative Agent for the purpose of pledge
under this Pledge Agreement or any other Loan Document, and all
proceeds of any of the foregoing.
"Pledged Shares" is defined in Section 2.1(b).
"U.C.C." means the Uniform Commercial Code as in effect in
the State of New York.
SECTION 1.2 Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in
this Pledge Agreement, including its preamble and recitals, have
the meanings provided in the Credit Agreement.
SECTION 1.3 U.C.C. Definitions. Unless otherwise defined
herein or the context otherwise requires, terms for which
meanings are provided in the U.C.C. are used in this Pledge
Agreement, including its preamble and recitals, with such
meanings.
ARTICLE II
PLEDGE
SECTION 2.1 Grant of Security Interest. The Borrower
hereby pledges, hypothecates, assigns, charges, mortgages,
delivers, and transfers to the Administrative Agent, for its
benefit and the ratable benefit of each of the Lender Parties,
and hereby grants to the Administrative Agent, for its benefit
and the ratable benefit of the Lender Parties, a continuing
security interest in, all of the following property, now or
hereafter existing or acquired (the "Collateral"):
(a) all promissory notes evidencing Indebtedness of
each Subsidiary owing to the Borrower (the "Pledged Notes");
(b) all issued and outstanding shares of or other
equity interests in Capital Stock held beneficially or of
record by the Borrower of each direct Subsidiary of the
Borrower (the "Pledged Shares");
(c) all other Pledged Property, whether now or
hereafter delivered to the Administrative Agent in
connection with this Pledge Agreement;
(d) all Dividends, Distributions, interest and other
payments and rights with respect to any Pledged Property;
and
(e) all proceeds of any of the foregoing.
SECTION 2.2 Security for Liabilities. This Pledge
Agreement secures the payment in full of all Liabilities now or
hereafter existing under the Credit Agreement, the Notes and each
other Loan Document to which the Borrower is or may become a
party, whether for principal, interest, costs, fees, expenses or
otherwise.
SECTION 2.3 Delivery of Pledged Property. All certificates
or instruments representing or evidencing any Collateral,
including all Pledged Shares and all Pledged Notes, shall be
delivered to and held by or on behalf of (and, in the case of the
Pledged Notes, endorsed to the order of) the Administrative Agent
pursuant hereto, shall be in suitable form for transfer by
delivery, and shall be accompanied by all necessary instruments
of transfer or assignment, duly executed in blank.
SECTION 2.4 Dividends on Pledged Shares and Payments on
Pledged Notes. In the event that any Dividend is to be paid on
any Pledged Share or any payment of principal or interest is to
be made on any Pledged Note at a time when no Default or Event of
Default has occurred and is continuing, such Dividend or payment
may be paid directly to the Borrower, and upon such payment to
the Borrower the security interest therein granted under this
Pledge Agreement shall terminate. If any such Default or Event
of Default has occurred and is continuing, then any such Dividend
or payment shall be paid directly to the Administrative Agent.
SECTION 2.5 Continuing Security Interest. This Pledge
Agreement shall create a continuing security interest in the
Collateral and shall
(a) remain in full force and effect until payment in
full of all Liabilities and the termination of all
Commitments,
(b) be binding upon the Borrower and its successors,
transferees and assigns, and
(c) inure, together with the rights and remedies of
the Administrative Agent hereunder, to the benefit of the
Administrative Agent and each other Lender Party.
Without limiting the foregoing clause (c), any Lender may assign
or otherwise transfer (in whole or in part) any Note or Loan held
by it to any other Person or entity, and such other Person or
entity shall thereupon become vested with all the rights and
benefits in respect thereof granted to such Lender under any Loan
Document (including this Pledge Agreement) or otherwise, subject,
however, to any contrary provisions in such assignment or
transfer, and to the provisions of Section 10.11(b) and Article
IX of the Credit Agreement.
SECTION 2.6 Termination of Security Interest; Release of
Collateral. Upon the payment in full of all Liabilities and the
termination of all Commitments, the security interest granted
herein shall terminate and all rights to the Collateral shall
revert to the Borrower. Further, the Administrative Agent shall
release any of the Collateral in accordance with Section 7.1.9 of
the Credit Agreement and may release any of the Collateral with
the prior written consent of all Lenders. Upon any such
termination or release of Collateral, the Administrative Agent
will, at the Borrower's sole expense, deliver to the Borrower,
without any representation, warranty or recourse of any kind
whatsoever, all certificates and instruments representing or
evidencing all Pledged Shares and all Pledged Notes, together
with all other Collateral held by the Administrative Agent
hereunder, and execute and deliver to the Borrower such documents
as the Borrower shall reasonably request to evidence such
termination or release.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Warranties, etc. The Borrower represents and
warrants to each Lender Party, as at the date of each pledge and
delivery hereunder (including each pledge and delivery of Pledged
Shares and each pledge and delivery of a Pledged Note) by the
Borrower to the Administrative Agent of any Collateral, as set
forth in this Article.
SECTION 3.1.1. Ownership, No Liens, etc. The Borrower is
the legal and beneficial owner of, and has good and marketable
title to (and has full right and authority to pledge and assign)
the Collateral, free and clear of all liens, security interests,
options or other charges or encumbrances, except any lien or
security interest granted pursuant hereto in favor of the
Administrative Agent.
SECTION 3.1.2. Valid Security Interest. The delivery of
the Collateral to the Administrative Agent and the filing of
appropriate U.C.C. financing statements is effective to create a
valid, perfected, first priority security interest in the
Collateral and all proceeds thereof, securing the Liabilities.
No further filing or other action will be necessary to perfect or
protect such security interest.
SECTION 3.1.3. As to Pledged Shares. In the case of any
Pledged Shares constituting such Collateral, all of such Pledged
Shares are duly authorized and validly issued, fully paid, and
non-assessable, and constitute all of the issued and outstanding
shares of capital stock or other equity interest held
beneficially or of record by the Borrower of each of the
Borrower's direct Subsidiaries.
SECTION 3.1.4. As to Pledged Notes. In the case of each
Pledged Note, all of such Pledged Notes have been duly
authorized, executed, endorsed, issued and delivered, and are the
legal, valid and binding obligation of the issuers thereof, and
are not in default.
SECTION 3.1.5. Authorization, Approval, etc. No authoriza-
tion, approval, or other action by, and no notice to or filing
with, any governmental authority, regulatory body or any other
Person is required either
(a) for the pledge by the Borrower of any Collateral
pursuant to this Pledge Agreement or for the execution,
delivery, and performance of this Pledge Agreement by the
Borrower, or
(b) for the exercise by the Administrative Agent of
the voting or other rights provided for in this Pledge
Agreement, or, except with respect to any Pledged Shares, as
may be required in connection with a disposition of such
Pledged Shares by laws affecting the offering and sale of
securities generally, the remedies in respect of the
Collateral pursuant to this Pledge Agreement.
SECTION 3.1.6. Compliance with Laws. The Borrower is in
compliance with the requirements of all applicable laws, rules,
regulations and orders of every governmental authority, the non-compliance with
which might have a Materially Adverse Effect.
SECTION 3.1.7. Address. The address of the location of the
records of the Borrower concerning the Collateral and the address
of the Borrower's chief executive office is as set forth below
its signature hereto.
ARTICLE IV
COVENANTS
SECTION 4.1 Protect Collateral; Further Assurances, etc.
The Borrower will not sell, assign, transfer, pledge, or encumber
in any other manner the Collateral (except in favor of the
Administrative Agent hereunder or as permitted under the Credit
Agreement). The Borrower will warrant and defend the right and
title herein granted unto the Administrative Agent in and to the
Collateral (and all right, title, and interest represented by the
Collateral) against the claims and demands of all Persons
whomsoever. The Borrower agrees that at any time, and from time
to time, at the expense of the Borrower, the Borrower will
promptly execute and deliver all further Instruments, and take
all further action, that may be necessary or desirable, or that
the Administrative Agent may reasonably request, in order to
perfect and protect any security interest granted or purported to
be granted hereby or to enable the Administrative Agent to
exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
SECTION 4.2 Stock Powers, etc. The Borrower agrees that
all Pledged Shares (and all other shares of capital stock con-
stituting Collateral) delivered by the Borrower pursuant to this
Pledge Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer
acceptable to the Administrative Agent. The Borrower will, from
time to time upon the request of the Administrative Agent,
promptly deliver to the Administrative Agent such stock powers,
instruments, and similar documents, satisfactory in form and
substance to the Administrative Agent, with respect to the
Collateral as the Administrative Agent may reasonably request and
will, from time to time upon the request of the Administrative
Agent after the occurrence of any Event of Default, promptly
transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated
by the Administrative Agent.
SECTION 4.3 Continuous Pledge. Subject to Sections 2.4 and
2.6, the Borrower will, at all times, keep pledged to the
Administrative Agent pursuant hereto all Pledged Shares and all
other shares of capital stock constituting Collateral, all
Dividends and Distributions with respect thereto, all Pledged
Notes, all interest, principal and other proceeds received by the
Administrative Agent with respect to the Pledged Notes, and all
other Collateral and other securities, instruments, proceeds, and
rights from time to time received by or distributable to the
Borrower in respect of any Collateral.
SECTION 4.4 Voting Rights; Dividends, etc. The Borrower
agrees:
(a) after any Default or Event of Default shall have
occurred and be continuing, promptly upon receipt thereof by
the Borrower and without any request therefor by the
Administrative Agent, to deliver (properly endorsed where
required hereby or requested by the Administrative Agent) to
the Administrative Agent all Dividends, Distributions, all
interest, all principal, all other cash payments, and all
proceeds of the Collateral, all of which shall be held by
the Administrative Agent as additional Collateral for use in
accordance with Section 6.3; and
(b) after any Event of Default shall have occurred and
be continuing and the Administrative Agent has notified the
Borrower of the Administrative Agent's intention to exercise
its voting power under this Section 4.4(b)
(i) the Administrative Agent may exercise (to
the exclusion of the Borrower) the voting power and all
other incidental rights of ownership with respect to
any Pledged Shares or other shares of capital stock
constituting Collateral and the Borrower hereby grants
the Administrative Agent an irrevocable proxy,
exercisable under such circumstances, to vote the
Pledged Shares and such other Collateral; and
(ii) promptly to deliver to the Administrative
Agent such additional proxies and other documents as
may be necessary to allow the Administrative Agent to
exercise such voting power.
All Dividends, Distributions, interest, principal, cash payments
and proceeds which may at any time and from time to time be held
by the Borrower but which the Borrower is then obligated to
deliver to the Administrative Agent, shall, until delivery to the
Administrative Agent, be held by the Borrower separate and apart
from its other property in trust for the Administrative Agent.
The Administrative Agent agrees that unless an Event of Default
shall have occurred and be continuing and the Administrative
Agent shall have given the notice referred to in Section 4.4(b),
the Borrower shall have the exclusive voting power with respect
to any shares of capital stock (including any of the Pledged
Shares) constituting Collateral and the Administrative Agent
shall, upon the written request of the Borrower, promptly deliver
such proxies and other documents, if any, as shall be reasonably
requested by the Borrower which are necessary to allow the
Borrower to exercise voting power with respect to any such share
of capital stock (including any of the Pledged Shares)
constituting Collateral; provided, however, that no vote shall be
cast, or consent, waiver, or ratification given, or action taken
by the Borrower that would impair any Collateral or be
inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge
Agreement).
SECTION 4.5 Additional Undertakings. The Borrower will
not, without the prior written consent of the Administrative
Agent:
(a) enter into any agreement amending, supplementing
or waiving any provision of any Pledged Note (including any
underlying Instrument pursuant to which such Pledged Note is
issued) or compromising or releasing or extending the time
for payment of any obligation of the maker thereof; or
(b) take or omit to take any action the taking or the
omission of which would result in any impairment or
alteration of any obligation of the maker of any Pledged
Note or other instrument constituting Collateral.
SECTION 4.6 Offices; Further Assurances. The Borrower
shall keep its chief executive office and the office where it
keeps its records concerning the Collateral at the address set
forth below its signature hereto, or, upon 30 days' prior written
notice to the Administrative Agent, at such other location in
which all actions required by the next sentence have been taken.
The Borrower agrees that, from time to time at its expense, it
will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may request, in order
to perfect, preserve and protect any security interest granted or
purported to be granted hereby or to enable the Administrative
Agent to exercise and enforce its rights and remedies hereunder.
The Borrower hereby authorizes the Administrative Agent to file
one or more financing or continuation statements, and amendments
thereto, without the signature of the Borrower where permitted by
law. A carbon, photographic or other reproduction of this Pledge
Agreement shall be sufficient as a financing statement where
permitted by law.
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1 Administrative Agent Appointed Attorney-in-Fact.
The Borrower hereby irrevocably appoints the
Administrative Agent the Borrower's attorney-in-fact, with full
authority in the place and stead of the Borrower and in the name
of the Borrower or otherwise, at any time that an Event of
Default has occurred and is continuing, to take any action and to
execute any instrument which the Administrative Agent may deem
necessary or advisable to accomplish the purposes of this Pledge
Agreement, including:
(a) to ask, demand, collect, ▇▇▇ for, recover,
compromise, receive and give acquittance and receipts for
moneys due and to become due under or in respect of any of
the Collateral;
(b) to receive, endorse, and collect any drafts or
other instruments, documents and chattel paper, in
connection with clause (a) above; and
(c) to file any claims or take any action or institute
any proceedings which the Administrative Agent may deem
necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the
Administrative Agent with respect to any of the Collateral.
The Borrower hereby acknowledges, consents and agrees that the
power of attorney granted pursuant to this Section is irrevocable
and coupled with an interest.
SECTION 5.2 Administrative Agent May Perform. If the
Borrower fails to perform any agreement contained herein, the
Administrative Agent may itself perform, or cause performance of,
such agreement, and the expenses of the Administrative Agent
incurred in connection therewith shall be payable by the Borrower
pursuant to Section 6.4.
SECTION 5.3 Administrative Agent Has No Duty. The powers
conferred on the Administrative Agent hereunder are solely to
protect its interest (on behalf of the Lender Parties) in the
Collateral and shall not impose any duty on it to exercise any
such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it
hereunder, the Administrative Agent shall have no duty as to any
Collateral or responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Property,
whether or not the Administrative Agent has or is deemed to have
knowledge of such matters, or (b) taking any necessary steps to
preserve rights against prior parties or any other rights
pertaining to any Collateral.
SECTION 5.4 Reasonable Care. The Administrative Agent is
required to exercise reasonable care in the custody and
preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to
have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose
as the Borrower reasonably requests in writing at times other
than upon the occurrence and during the continuance of any Event
of Default, but failure of the Administrative Agent to comply
with any such request at any time shall not in itself be deemed a
failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1 Certain Remedies. If any Event of Default
shall have occurred and be continuing:
(a) The Administrative Agent may exercise in respect
of the Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected
Collateral) and also may, without notice except as specified
below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as
the Administrative Agent may deem commercially reasonable.
The Borrower agrees that, to the extent notice of sale shall
be required by law, at least ten days' prior notice to the
Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall
constitute reasonable notification. The Administrative
Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale
from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral
into the name of the Administrative Agent or its
nominee, with or without disclosing that such
Collateral is subject to the lien and security interest
hereunder,
(ii) notify the parties obligated on any of the
Collateral to make payment to the Administrative Agent
of any amount due or to become due thereunder,
(iii) enforce collection of any of the Collateral
by suit or otherwise, and surrender, release or
exchange all or any part thereof, or compromise or
extend or renew for any period (whether or not longer
than the original period) any obligations of any nature
of any party with respect thereto,
(iv) endorse any checks, drafts, or other
writings in the Borrower's name to allow collection of
the Collateral,
(v) take control of any proceeds of the
Collateral, and
(vi) execute (in the name, place and stead of the
Borrower) endorsements, assignments, stock powers and
other instruments of conveyance or transfer with
respect to all or any of the Collateral.
SECTION 6.2 Compliance with Restrictions. The Borrower
agrees that in any sale of any of the Collateral whenever an
Event of Default shall have occurred and be continuing, the
Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may
be advised by counsel is necessary in order to avoid any
violation of applicable law (including compliance with such
procedures as may restrict the number of prospective bidders and
purchasers, require that such prospective bidders and purchasers
have certain qualifications, and restrict such prospective
bidders and purchasers to persons who will represent and agree
that they are purchasing for their own account for investment and
not with a view to the distribution or resale of such
Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority
or official, and the Borrower further agrees that such compliance
shall not result in such sale being considered or deemed not to
have been made in a commercially reasonable manner, nor shall the
Administrative Agent be liable nor accountable to the Borrower
for any discount allowed by reason of the fact that such
Collateral is sold in compliance with any such limitation or
restriction.
SECTION 6.3 Application of Proceeds. All cash proceeds
received by the Administrative Agent in respect of any sale of,
collection from, or other realization upon, all or any part of
the Collateral may, in the discretion of the Administrative
Agent, be held by the Administrative Agent as additional
collateral security for, or then or at any time thereafter be
applied (after payment of any amounts payable to the
Administrative Agent pursuant to Section 10.3 of the Credit
Agreement and Section 6.4) in whole or in part by the
Administrative Agent against, all or any part of the Liabilities
in such order as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the
Administrative Agent and remaining after payment in full of all
the Liabilities, and the termination of all Commitments, shall be
paid over to the Borrower or to whomsoever may be lawfully
entitled to receive such surplus.
SECTION 6.4 Indemnity and Expenses. The Borrower hereby
indemnifies and holds harmless the Administrative Agent from and
against any and all claims, losses, and liabilities arising out
of or resulting from this Pledge Agreement (including enforcement
of this Pledge Agreement), except claims, losses or liabilities
resulting from the Administrative Agent's gross negligence or
wilful misconduct. Upon demand, the Borrower will pay to the
Administrative Agent the amount of any and all reasonable
expenses, including the reasonable fees and disbursements of its
counsel and of any experts and agents, which the Administrative
Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the
Credit Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of,
or the sale of, collection from, or other realization upon,
any of the Collateral;
(c) the exercise or enforcement of any of the rights
of the Administrative Agent hereunder; or
(d) the failure by the Borrower to perform or observe
any of the provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1 Loan Document. This Pledge Agreement is a
Loan Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and
provisions thereof.
SECTION 7.2 Amendments, etc. No amendment to or waiver of
any provision of this Pledge Agreement nor consent to any
departure by the Borrower herefrom shall in any event be
effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which it is given.
SECTION 7.3 Protection of Collateral. The Administrative
Agent may from time to time, at its option, perform any act which
the Borrower agrees hereunder to perform and which the Borrower
shall fail to perform after being requested in writing so to
perform (it being understood that no such request need be given
after the occurrence and during the continuance of an Event of
Default) and the Administrative Agent may from time to time take
any other action which the Administrative Agent reasonably deems
necessary for the maintenance, preservation or protection of any
of the Collateral or of its security interest therein.
SECTION 7.4 Section Captions. Section captions used in
this Pledge Agreement are for convenience of reference only, and
shall not affect the construction of this Pledge Agreement.
SECTION 7.5 Severability. Whenever possible each provision
of this Pledge Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any
provision of this Pledge Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Pledge Agreement.
SECTION 7.6 Governing Law, Entire Agreement, etc. THIS
PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK. THIS PLEDGE AGREEMENT AND THE OTHER LOAN
DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE
ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
IN WITNESS WHEREOF, the parties hereto have caused this
Pledge Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the day and
year first above written.
AMC ENTERTAINMENT INC.
By
Title:
THE BANK OF NOVA SCOTIA, as
Administrative Agent
By
Title:
ATTACHMENT 1
to
Pledge Agreement
Item A. Pledged Notes
Issuer Description
Item B. Pledged Shares
Issuer Common Stock
Authorized Outstanding % of Shares
Shares Shares Pledged
EXHIBIT J
SUBSIDIARY PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
________ __, ____, is made by [NAME OF SIGNIFICANT SUBSIDIARY], a
______________ (the "Pledgor"), in favor of THE BANK OF NOVA
SCOTIA, as administrative agent (together with any successor
thereto in such capacity, the "Administrative Agent") for each of
the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of
December 27, 1995 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Credit Agreement"), among AMC ENTERTAINMENT INC., a Delaware
corporation (the "Borrower"), the various financial institutions
(individually a "Lender" and collectively the "Lenders") as are,
or may from time to time become, parties thereto and the
Administrative Agent, the Lenders have extended Commitments to
make Loans to the Borrower;
WHEREAS, the Pledgor has guaranteed all obligations of the
Borrower under or in connection with the Credit Agreement
pursuant to a Significant Subsidiary Guaranty dated as of
December 27, 1995 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Guaranty");
WHEREAS, the Pledgor is required to execute and deliver this
Pledge Agreement;
WHEREAS, the Pledgor has duly authorized the execution,
delivery and performance of this Pledge Agreement; and
WHEREAS, it is in the best interests of the Pledgor to
execute this Pledge Agreement inasmuch as the Pledgor will derive
substantial direct and indirect benefits from the Loans made from
time to time to the Borrower by the Lenders pursuant to the
Credit Agreement;
NOW THEREFORE, for good and valuable consideration the
receipt of which is hereby acknowledged, and in order to induce
the Lenders to make Loans to the Borrower pursuant to the Credit
Agreement, the Pledgor agrees, for the benefit of each Lender
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or
not underscored) when used in this Pledge Agreement, including
its preamble and recitals, shall have the following meanings
(such definitions to be equally applicable to the singular and
plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating
dividends, shares of stock resulting from (or in connection with
the exercise of) stock splits, reclassifications, warrants,
options, non-cash dividends, mergers, consolidations, and all
other distributions (whether similar or dissimilar to the
foregoing) on or with respect to any Pledged Shares or other
shares of capital stock constituting Collateral, but shall not
include Dividends.
"Dividends" means cash dividends and cash distributions with
respect to any Pledged Shares or other Pledged Property made in
the ordinary course of business and not a liquidating dividend.
"Lender" is defined in the first recital.
"Lender Party" means, as the context may require, any Lender
or the Administrative Agent and each of its respective
successors, transferees and assigns.
"Lenders" is defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Notes" is defined in Section 2.1(a).
"Pledged Property" means all Pledged Shares and all Pledged
Notes now or from time to time hereafter delivered by the Pledgor
to the Administrative Agent for the purpose of pledge under this
Pledge Agreement or any other Loan Document, and all proceeds of
any of the foregoing.
"Pledged Shares" is defined in Section 2.1(b).
"Pledgor" is defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"U.C.C." means the Uniform Commercial Code as in effect in
the State of New York.
SECTION 1.2 Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in
this Pledge Agreement, including its preamble and recitals, have
the meanings provided in the Credit Agreement.
SECTION 1.3 U.C.C. Definitions. Unless otherwise defined
herein or the context otherwise requires, terms for which
meanings are provided in the U.C.C. are used in this Pledge
Agreement, including its preamble and recitals, with such
meanings.
ARTICLE II
PLEDGE
SECTION 2.1 Grant of Security Interest. The Pledgor hereby
pledges, hypothecates, assigns, charges, mortgages, delivers, and
transfers to the Administrative Agent, for its benefit and the
ratable benefit of each of the Lender Parties, and hereby grants
to the Administrative Agent, for its benefit and the ratable
benefit of the Lender Parties, a continuing security interest in,
all of the following property, now or hereafter existing or
acquired (the "Collateral"):
(a) all promissory notes evidencing Indebtedness of
the Borrower and each Subsidiary of the Borrower to the
Pledgor (the "Pledged Notes");
(b) all issued and outstanding shares of or other
equity interests in Capital Stock held beneficially or of
record by the Pledgor of each direct Subsidiary of the
Pledgor (the "Pledged Shares");
(c) all other Pledged Property, whether now or
hereafter delivered to the Administrative Agent in
connection with this Pledge Agreement;
(d) all Dividends, Distributions, interest and other
payments and rights with respect to any Pledged Property;
and
(e) all proceeds of any of the foregoing.
SECTION 2.2 Security for Obligations. This Pledge
Agreement secures the payment in full of all obligations of the
Pledgor now or hereafter existing under the Guaranty, and all
obligations of the Pledgor now or hereafter existing under this
Pledge Agreement and each other Loan Document to which it is or
may become a party (all such obligations of the Pledgor being the
"Secured Obligations").
SECTION 2.3 Delivery of Pledged Property. All certificates
or instruments representing or evidencing any Collateral,
including all Pledged Shares and all Pledged Notes, shall be
delivered to and held by or on behalf of (and, in the case of the
Pledged Notes, endorsed to the order of) the Administrative Agent
pursuant hereto, shall be in suitable form for transfer by
delivery, and shall be accompanied by all necessary instruments
of transfer or assignment, duly executed in blank.
SECTION 2.4 Dividends on Pledged Shares and Payments on
Pledged Notes. In the event that any Dividend is to be paid on
any Pledged Share or any payment of principal or interest is to
be made on any Pledged Note at a time when no Default or Event of
Default has occurred and is continuing, such Dividend or payment
may be paid directly to the Pledgor, and upon payment thereof to
the Pledgor, the security interest therein granted under this
Pledge Agreement shall terminate. If any such Default or Event
of Default has occurred and is continuing, then any such Dividend
or payment shall be paid directly to the Administrative Agent.
SECTION 2.5 Continuing Security Interest. This Pledge
Agreement shall create a continuing security interest in the
Collateral and shall
(a) remain in full force and effect until payment in
full of all Secured Obligations and the termination of all
Commitments,
(b) be binding upon the Pledgor and its successors,
transferees and assigns, and
(c) inure, together with the rights and remedies of
the Administrative Agent hereunder, to the benefit of the
Administrative Agent and each other Lender Party.
Without limiting the foregoing clause (c), any Lender may assign
or otherwise transfer (in whole or in part) any Note or Loan held
by it to any other Person or entity, and such other Person or
entity shall thereupon become vested with all the rights and
benefits in respect thereof granted to such Lender under any Loan
Document (including this Pledge Agreement) or otherwise, subject,
however, to any contrary provisions in such assignment or
transfer, and to the provisions of Section 10.11(b) and Article
IX of the Credit Agreement.
SECTION 2.6 Termination of Security Interest; Release of
Collateral. Upon the payment in full of all Secured Obligations
and the termination of all Commitments, the security interest
granted herein shall terminate and all rights to the Collateral
shall revert to the Pledgor. Further, the Administrative Agent
shall release the Collateral in accordance with Section 7.1.9 of
the Credit Agreement and may release any of the Collateral with
the prior written consent of all Lenders. Upon any such
termination or release of Collateral, the Administrative Agent
will, at the Pledgor's sole expense, deliver to the Pledgor,
without any representation, warranty or recourse of any kind
whatsoever, all certificates and instruments representing or
evidencing all Pledged Shares and all Pledged Notes, together
with all other Collateral held by the Administrative Agent
hereunder, and execute and deliver to the Pledgor such documents
as the Pledgor shall reasonably request to evidence such
termination or release.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Warranties, etc. The Pledgor represents and
warrants to each Lender Party, as at the date of each pledge and
delivery hereunder (including each pledge and delivery of Pledged
Shares and each pledge and delivery of a Pledged Note) by the
Pledgor to the Administrative Agent of any Collateral, as set
forth in this Article.
SECTION 3.1.1. Organization, Power, Authority, Etc. The
Pledgor is a corporation validly organized and existing and in
good standing under the laws of its state of incorporation. The
Pledgor has full power and authority to enter into and perform
its obligations under this Pledge Agreement.
SECTION 3.1.2. Due Authorization. The execution and
delivery by the Pledgor of this Pledge Agreement and the
performance by the Pledgor of its obligations hereunder have been
duly authorized by all necessary corporate action, do not require
any Approval, do not and will not conflict with, result in any
violation of, or constitute any default under, any provision of
any Organic Document or material Contractual Obligation or any
present law or governmental regulation or court decree or order
applicable to any Loan Party and will not result in or require
the creation or imposition of any Lien on any of the properties
of any Loan Party pursuant to the provisions of any Contractual
Obligation, other than the security interest granted to the
Administrative Agent hereunder.
SECTION 3.1.3. Validity, etc. This Pledge Agreement is the
legal, valid and binding obligation of the Pledgor enforceable in
accordance with its terms, subject, as to enforcement, only to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws at the time in effect affecting the enforceability
of the rights of creditors generally, and by general equitable
principles which may limit the right to obtain the remedy of
specific performance of executory covenants.
SECTION 3.1.4. Ownership, No Liens, etc. The Pledgor is the
legal and beneficial owner of, and has good and marketable title
to (and has full right and authority to pledge and assign) the
Collateral, free and clear of all liens, security interests,
options or other charges or encumbrances, except any lien or
security interest granted pursuant hereto in favor of the
Administrative Agent.
SECTION 3.1.5. Valid Security Interest. The delivery of the
Collateral to the Administrative Agent and/or the filing of
appropriate U.C.C. financing statements is effective to create a
valid, perfected, first priority security interest in the
Collateral and all proceeds thereof, securing the Secured
Obligations. No further filing or other action will be necessary
to perfect or protect such security interest.
SECTION 3.1.6. As to Pledged Shares. In the case of any
Pledged Shares constituting such Collateral, all of such Pledged
Shares are duly authorized and validly issued, fully paid, and
non-assessable, and constitute all of the issued and outstanding
shares of capital stock or other equity interest held
beneficially or of record by the Pledgor of each direct
Subsidiary of the Pledgor.
SECTION 3.1.7. As to Pledged Notes. In the case of each
Pledged Note, all of such Pledged Notes have been duly
authorized, executed, endorsed, issued and delivered, and are the
legal, valid and binding obligation of the issuers thereof, and
are not in default.
SECTION 3.1.8. Authorization, Approval, etc. No authoriza-
tion, approval, or other action by, and no notice to or filing
with (other than appropriate U.C.C. financing statements), any
governmental authority, regulatory body or any other Person is
required either
(a) for the pledge by the Pledgor of any Collateral
pursuant to this Pledge Agreement or for the execution,
delivery, and performance of this Pledge Agreement by the
Pledgor, or
(b) for the exercise by the Administrative Agent of
the voting or other rights provided for in this Pledge
Agreement, or, except with respect to any Pledged Shares, as
may be required in connection with a disposition of such
Pledged Shares by laws affecting the offering and sale of
securities generally, the remedies in respect of the
Collateral pursuant to this Pledge Agreement.
SECTION 3.1.9. Compliance with Laws. The Pledgor is in
compliance with the requirements of all applicable laws, rules,
regulations and orders of every governmental authority, the
non-compliance with which might have a Materially Adverse Effect.
SECTION 3.1.10. Address. The address of the location of
the records of the Pledgor concerning the Collateral and the
address of the Pledgor's chief executive office is as set forth
below its signature hereto.
ARTICLE IV
COVENANTS
SECTION 4.1 Protect Collateral; Further Assurances, etc.
The Pledgor will not sell, assign, transfer, pledge, or encumber
in any other manner the Collateral (except in favor of the
Administrative Agent hereunder or as permitted under the Credit
Agreement). The Pledgor will warrant and defend the right and
title herein granted unto the Administrative Agent in and to the
Collateral (and all right, title, and interest represented by the
Collateral) against the claims and demands of all Persons
whomsoever. The Pledgor agrees that at any time, and from time
to time, at the expense of the Pledgor, the Pledgor will promptly
execute and deliver all further Instruments, and take all further
action, that may be necessary or desirable, or that the
Administrative Agent may reasonably request, in order to perfect
and protect any security interest granted or purported to be
granted hereby or to enable the Administrative Agent to exercise
and enforce its rights and remedies hereunder with respect to any
Collateral.
SECTION 4.2 Stock Powers, etc. The Pledgor agrees that all
Pledged Shares (and all other shares of capital stock con-
stituting Collateral) delivered by the Pledgor pursuant to this
Pledge Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer
acceptable to the Administrative Agent. The Pledgor will, from
time to time upon the request of the Administrative Agent,
promptly deliver to the Administrative Agent such stock powers,
instruments, and similar documents, satisfactory in form and
substance to the Administrative Agent, with respect to the
Collateral as the Administrative Agent may reasonably request and
will, from time to time upon the request of the Administrative
Agent after the occurrence of any Event of Default, promptly
transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated
by the Administrative Agent.
SECTION 4.3 Continuous Pledge. Subject to Sections 2.4 and
2.6, the Pledgor will, at all times, keep pledged to the
Administrative Agent pursuant hereto all Pledged Shares and all
other shares of capital stock constituting Collateral, all
Dividends and Distributions with respect thereto, all Pledged
Notes, all interest, principal and other proceeds received by the
Administrative Agent with respect to the Pledged Notes, and all
other Collateral and other securities, instruments, proceeds, and
rights from time to time received by or distributable to the
Pledgor in respect of any Collateral.
SECTION 4.4 Voting Rights; Dividends, etc. The Pledgor
agrees:
(a) after any Default or Event of Default shall have
occurred and be continuing, promptly upon receipt thereof by
the Pledgor and without any request therefor by the
Administrative Agent, to deliver (properly endorsed where
required hereby or requested by the Administrative Agent) to
the Administrative Agent all Dividends, Distributions, all
interest, all principal, all other cash payments, and all
proceeds of the Collateral, all of which shall be held by
the Administrative Agent as additional Collateral for use in
accordance with Section 6.3; and
(b) after any Event of Default shall have occurred and
be continuing and the Administrative Agent has notified the
Pledgor of the Administrative Agent's intention to exercise
its voting power under this Section 4.4(b)
(i) the Administrative Agent may exercise (to the
exclusion of the Pledgor) the voting power and all
other incidental rights of ownership with respect to
any Pledged Shares or other shares of capital stock
constituting Collateral and the Pledgor hereby grants
the Administrative Agent an irrevocable proxy,
exercisable under such circumstances, to vote the
Pledged Shares and such other Collateral; and
(ii) promptly to deliver to the Administrative
Agent such additional proxies and other documents as
may be necessary to allow the Administrative Agent to
exercise such voting power.
All Dividends, Distributions, interest, principal, cash payments,
and proceeds which may at any time and from time to time be held
by the Pledgor but which the Pledgor is then obligated to deliver
to the Administrative Agent, shall, until delivery to the
Administrative Agent, be held by the Pledgor separate and apart
from its other property in trust for the Administrative Agent.
The Administrative Agent agrees that unless an Event of Default
shall have occurred and be continuing and the Administrative
Agent shall have given the notice referred to in Section 4.4(b),
the Pledgor shall have the exclusive voting power with respect to
any shares of capital stock (including any of the Pledged Shares)
constituting Collateral and the Administrative Agent shall, upon
the written request of the Pledgor, promptly deliver such proxies
and other documents, if any, as shall be reasonably requested by
the Pledgor which are necessary to allow the Pledgor to exercise
voting power with respect to any such share of capital stock
(including any of the Pledged Shares) constituting Collateral;
provided, however, that no vote shall be cast, or consent,
waiver, or ratification given, or action taken by the Pledgor
that would impair any Collateral or be inconsistent with or
violate any provision of the Credit Agreement or any other Loan
Document (including this Pledge Agreement).
SECTION 4.5 Additional Undertakings. The Pledgor will not,
without the prior written consent of the Administrative Agent:
(a) enter into any agreement amending, supplementing
or waiving any provision of any Pledged Note (including any
underlying Instrument pursuant to which such Pledged Note is
issued) or compromising or releasing or extending the time
for payment of any obligation of the maker thereof; or
(b) take or omit to take any action the taking or the
omission of which would result in any impairment or
alteration of any obligation of the maker of any Pledged
Note or other instrument constituting Collateral.
SECTION 4.6 Offices; Further Assurances. The Pledgor shall
keep its chief executive office and the office where it keeps its
records concerning the Collateral at the address set forth below
its signature hereto, or, upon 30 days' prior written notice to
the Administrative Agent, at such other location in which all
actions required by the next sentence have been taken. The
Pledgor agrees that, from time to time at its expense, it will
promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may request, in order
to perfect, preserve and protect any security interest granted or
purported to be granted hereby or to enable the Administrative
Agent to exercise and enforce its rights and remedies hereunder.
The Pledgor hereby authorizes the Administrative Agent to file
one or more financing or continuation statements, and amendments
thereto, without the signature of the Pledgor where permitted by
law. A carbon, photographic or other reproduction of this Pledge
Agreement shall be sufficient as a financing statement where
permitted by law.
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1 Administrative Agent Appointed Attorney-in-Fact.
The Pledgor hereby irrevocably appoints the Administrative
Agent the Pledgor's attorney-in-fact, with full authority in the
place and stead of the Pledgor and in the name of the Pledgor or
otherwise, at any time that an Event of Default has occurred and
is continuing, to take any action and to execute any instrument
which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Pledge Agreement, including:
(a) to ask, demand, collect, ▇▇▇ for, recover,
compromise, receive and give acquittance and receipts for
moneys due and to become due under or in respect of any of
the Collateral;
(b) to receive, endorse, and collect any drafts or
other instruments, documents and chattel paper, in
connection with clause (a) above; and
(c) to file any claims or take any action or institute
any proceedings which the Administrative Agent may deem
necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the
Administrative Agent with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the
power of attorney granted pursuant to this Section is irrevocable
and coupled with an interest.
SECTION 5.2 Administrative Agent May Perform. If the
Pledgor fails to perform any agreement contained herein, the
Administrative Agent may itself perform, or cause performance of,
such agreement, and the expenses of the Administrative Agent
incurred in connection therewith shall be payable by the Pledgor
pursuant to Section 6.4.
SECTION 5.3 Administrative Agent Has No Duty. The powers
conferred on the Administrative Agent hereunder are solely to
protect its interest (on behalf of the Lender Parties) in the
Collateral and shall not impose any duty on it to exercise any
such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it
hereunder, the Administrative Agent shall have no duty as to any
Collateral or responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Property,
whether or not the Administrative Agent has or is deemed to have
knowledge of such matters, or (b) taking any necessary steps to
preserve rights against prior parties or any other rights
pertaining to any Collateral.
SECTION 5.4 Reasonable Care. The Administrative Agent is
required to exercise reasonable care in the custody and
preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to
have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose
as the Pledgor reasonably requests in writing at times other than
upon the occurrence and during the continuance of any Event of
Default, but failure of the Administrative Agent to comply with
any such request at any time shall not in itself be deemed a
failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1 Certain Remedies. If any Event of Default
shall have occurred and be continuing:
(a) The Administrative Agent may exercise in respect
of the Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected
Collateral) and also may, without notice except as specified
below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as
the Administrative Agent may deem commercially reasonable.
The Pledgor agrees that, to the extent notice of sale shall
be required by law, at least ten days' prior notice to the
Pledgor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not
be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Administrative Agent
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and
place to which it was so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral
into the name of the Administrative Agent or its
nominee, with or without disclosing that such
Collateral is subject to the lien and security interest
hereunder,
(ii) notify the parties obligated on any of the
Collateral to make payment to the Administrative Agent
of any amount due or to become due thereunder,
(iii) enforce collection of any of the
Collateral by suit or otherwise, and surrender, release
or exchange all or any part thereof, or compromise or
extend or renew for any period (whether or not longer
than the original period) any obligations of any nature
of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings
in the Pledgor's name to allow collection of the
Collateral,
(v) take control of any proceeds of the
Collateral, and
(vi) execute (in the name, place and stead of the
Pledgor) endorsements, assignments, stock powers and
other instruments of conveyance or transfer with
respect to all or any of the Collateral.
SECTION 6.2 Compliance with Restrictions. The Pledgor
agrees that in any sale of any of the Collateral whenever an
Event of Default shall have occurred and be continuing, the
Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may
be advised by counsel is necessary in order to avoid any
violation of applicable law (including compliance with such
procedures as may restrict the number of prospective bidders and
purchasers, require that such prospective bidders and purchasers
have certain qualifications, and restrict such prospective
bidders and purchasers to persons who will represent and agree
that they are purchasing for their own account for investment and
not with a view to the distribution or resale of such
Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority
or official, and the Pledgor further agrees that such compliance
shall not result in such sale being considered or deemed not to
have been made in a commercially reasonable manner, nor shall the
Administrative Agent be liable nor accountable to the Pledgor for
any discount allowed by reason of the fact that such Collateral
is sold in compliance with any such limitation or restriction.
SECTION 6.3 Application of Proceeds. All cash proceeds
received by the Administrative Agent in respect of any sale of,
collection from, or other realization upon, all or any part of
the Collateral may, in the discretion of the Administrative
Agent, be held by the Administrative Agent as additional
collateral security for, or then or at any time thereafter be
applied (after payment of any amounts payable to the
Administrative Agent pursuant to Section 10.3 of the Credit
Agreement and Section 6.4) in whole or in part by the
Administrative Agent against, all or any part of the Secured
Obligations in such order as the Administrative Agent shall
elect.
Any surplus of such cash or cash proceeds held by the
Administrative Agent and remaining after payment in full of all
the Secured Obligations, and the termination of all Commitments,
shall be paid over to the Pledgor or to whomsoever may be
lawfully entitled to receive such surplus.
SECTION 6.4 Indemnity and Expenses. The Pledgor hereby
indemnifies and holds harmless the Administrative Agent from and
against any and all claims, losses, and liabilities arising out
of or resulting from this Pledge Agreement (including enforcement
of this Pledge Agreement), except claims, losses or liabilities
resulting from the Administrative Agent's gross negligence or
wilful misconduct. Upon demand, the Pledgor will pay to the
Administrative Agent the amount of any and all reasonable
expenses, including the reasonable fees and disbursements of its
counsel and of any experts and agents, which the Administrative
Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the
Credit Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of,
or the sale of, collection from, or other realization upon,
any of the Collateral;
(c) the exercise or enforcement of any of the rights
of the Administrative Agent hereunder; or
(d) the failure by the Pledgor to perform or observe
any of the provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1 Loan Document. This Pledge Agreement is a
Loan Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and
provisions thereof.
SECTION 7.2 Amendments, etc. No amendment to or waiver of
any provision of this Pledge Agreement nor consent to any
departure by the Pledgor herefrom shall in any event be effective
unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which it is given.
SECTION 7.3 Protection of Collateral. The Administrative
Agent may from time to time, at its option, perform any act which
the Pledgor agrees hereunder to perform and which the Pledgor
shall fail to perform after being requested in writing so to
perform (it being understood that no such request need be given
after the occurrence and during the continuance of an Event of
Default) and the Administrative Agent may from time to time take
any other action which the Administrative Agent reasonably deems
necessary for the maintenance, preservation or protection of any
of the Collateral or of its security interest therein.
SECTION 7.4 Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing or by
facsimile and, if to the Pledgor, mailed or transmitted or
delivered to it at the address set forth below its signature
hereto, or, if to the Administrative Agent, mailed or delivered
to it, addressed to it at the address of the Administrative Agent
specified in the Credit Agreement or, as to either party, at such
other address or facsimile number as shall be designated by such
party in a written notice to each other party complying as to
delivery with the terms of this Section. Any notice, if mailed
and properly addressed with postage prepaid or properly addressed
and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be
deemed given when received.
SECTION 7.5 Section Captions. Section captions used in
this Pledge Agreement are for convenience of reference only, and
shall not affect the construction of this Pledge Agreement.
SECTION 7.6 Severability. Whenever possible each provision
of this Pledge Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any
provision of this Pledge Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Pledge Agreement.
SECTION 7.7 Governing Law, Entire Agreement, etc. THIS
PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK. THIS PLEDGE AGREEMENT AND THE OTHER LOAN
DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE
ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 7.8 Forum Selection and Consent to Jurisdiction.
Any judicial proceedings brought against the Pledgor with respect
to this Pledge Agreement may be brought in any state or federal
court of competent jurisdiction in the State of New York or the
State of Missouri, and by the execution and delivery of this
Pledge Agreement, the Pledgor accepts the nonexclusive
jurisdiction of the aforesaid courts. Service of process may be
made by any means authorized by federal law or the law of the
State of New York, or Missouri, as the case may be. A copy of
any such process so served shall be mailed by registered mail to
the Pledgor at its address set forth below its signature hereto
or at such other address as may be designated by the Pledgor in a
notice to the Administrative Agent. Nothing herein shall limit
the right of the Administrative Agent to bring proceedings
against the Pledgor in the courts of any other jurisdiction.
SECTION 7.9 Waiver of Jury Trial. THE LENDER PARTIES AND
THE PLEDGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS PLEDGE AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF THE LENDER PARTIES OR THE PLEDGOR. THE PLEDGOR
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF
EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER PARTIES
ENTERING INTO THE CREDIT AGREEMENT AND EACH OTHER SUCH LOAN
DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this
Pledge Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the day and
year first above written.
[NAME OF SIGNIFICANT SUBSIDIARY]
By
Title:
Address:
Facsimile No.:
Attention:
THE BANK OF NOVA SCOTIA, as
Administrative Agent
By
Title:
ATTACHMENT 1
to
Pledge Agreement
Item A. Pledged Notes
Pledged Note Issuer Description
Item B. Pledged Shares
Pledged Share Issuer Common Stock
Authorized Outstanding % of Shares
Shares Shares Pledged
EXHIBIT E
SIGNIFICANT SUBSIDIARY GUARANTY
from
the
UNDERSIGNED SUBSIDIARIES
of
AMC ENTERTAINMENT INC.
to
THE BANK OF NOVA SCOTIA,
as Administrative Agent
SIGNIFICANT SUBSIDIARY GUARANTY
THIS GUARANTY, dated as of December 27, 1995 (this
"Guaranty"), is executed by the undersigned in favor of THE BANK
OF NOVA SCOTIA, as Administrative Agent for the Lenders party to
the Credit Agreement referred to below (the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, AMC ENTERTAINMENT INC., a Delaware corporation (the
"Debtor"), has entered into a Credit Agreement, dated as of
December 27, 1995 (together with all amendments and other
modifications, if any, thereafter made thereto, the "Credit
Agreement"), with various financial institutions (herein,
together with their respective successors and assigns,
collectively called the "Lenders" and individually called a
"Lender"), and THE BANK OF NOVA SCOTIA, as Administrative Agent
for the Lenders (the "Administrative Agent"), pursuant to which
the Lenders have agreed to make loans to the Debtor;
WHEREAS, each of the undersigned will benefit from the
making of such loans and is willing to guaranty the Liabilities
(as defined below), as hereinafter set forth;
NOW THEREFORE, FOR VALUE RECEIVED, and in consideration of
any loan or other financial accommodation heretofore or hereafter
at any time made or granted to the Debtor under or in connection
with the Credit Agreement, each of the undersigned hereby jointly
and severally unconditionally guarantees the full and prompt
payment when due, whether by acceleration or otherwise, and at
all times thereafter, of all obligations (monetary or otherwise)
of the Debtor to the Lenders and the Administrative Agent under
or in connection with the Credit Agreement, the Notes (as defined
in the Credit Agreement) and any other Loan Document (as defined
in the Credit Agreement) and all Interest Rate Protection
Obligations (as defined in the Credit Agreement) and Currency
Hedging Obligations (as defined in the Credit Agreement), in each
case howsoever created, arising or evidenced, whether direct or
indirect, primary or secondary, absolute or contingent, joint or
several, or now or hereafter existing or due or to become due
(including in all cases all such amounts which would become due
but for the operation of the automatic stay under Section 362(a)
of the United States Bankruptcy Code, 11 U.S.C. 362(a), and the
operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. 502(b) and 506(b)) (all such
obligations being hereinafter collectively called the
"Liabilities"), under and in connection with the Credit Agreement
and each of the undersigned further agrees to pay all reasonable
expenses (including attorneys' fees and legal expenses) paid or
incurred by the Administrative Agent in endeavoring to collect
the Liabilities, or any part thereof, and in enforcing this
Guaranty.
Each of the undersigned agrees that, in the event of the
dissolution or insolvency of the Debtor or such undersigned, or
the inability or failure of the Debtor or such undersigned to pay
debts as they become due, or an assignment by the Debtor or such
undersigned for the benefit of creditors, or the commencement of
any case or proceeding in respect of the Debtor or such
undersigned under any bankruptcy, insolvency or similar laws, and
if such event shall occur at a time when any of the Liabilities
may not then be due and payable, such undersigned will pay to the
Administrative Agent for the benefit of the Lenders forthwith the
full amount which would be payable hereunder by such undersigned
if all Liabilities were then due and payable.
To secure all obligations of each of the undersigned
hereunder, the Administrative Agent and each Lender shall have a
right to, and may, without demand or notice of any kind, at any
time and from time to time when any amount shall be due and
payable by such undersigned hereunder, set off, appropriate and
apply toward the payment of such amount, in such order of
application as the Administrative Agent or such Lender may elect,
any and all balances, credits, deposits (general or special, time
or demand, provisional or final), accounts or moneys of or in the
name of such undersigned now or hereafter with the Administrative
Agent or such Lender or any agent or bailee for the
Administrative Agent or such Lender.
This Guaranty shall in all respects be a continuing,
absolute and unconditional Guaranty, and shall remain in full
force and effect (notwithstanding, without limitation, the
dissolution of any of the undersigned or that at any time or from
time to time no Liabilities may be outstanding), until all
Commitments (as defined in the Credit Agreement) have terminated
and all Liabilities (including any extensions or renewals of any
thereof) and all interest thereon and all expenses (including
attorneys' fees and legal expenses) paid or incurred by the
Administrative Agent or any Lender in endeavoring to collect the
Liabilities and in enforcing this Guaranty shall have been
finally paid in full.
Each of the undersigned further agrees that, if at any time
all or any part of any payment theretofore applied by the
Administrative Agent or any Lender to any of the Liabilities is
or must be rescinded or returned by the Administrative Agent or
such Lender for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of the
Debtor or any of the undersigned), such Liabilities shall, for
the purposes of this Guaranty, to the extent that such payment is
or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Administrative
Agent or such Lender, and this Guaranty shall continue to be
effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application by the Administrative
Agent or such Lender had not been made.
Each of the undersigned agrees that the Administrative Agent
or any Lender may, from time to time, at its sole discretion and
without notice to the undersigned (or any of them), take any or
all of the following actions without impairing the obligation of
such undersigned under this Guaranty: (a) retain or obtain a
lien upon or a security interest in any property to secure any of
the Liabilities or any obligation hereunder; (b) retain or obtain
the primary or secondary obligation of any obligor or obligors,
in addition to the undersigned, with respect to any of the
Liabilities; (c) extend or renew for one or more periods (whether
or not longer than the original period), alter or exchange any of
the Liabilities, or release or compromise any obligation of any
of the undersigned hereunder or any obligation of any nature of
any other obligor with respect to any of the Liabilities;
(d) release or fail to perfect its lien upon or security interest
in, or impair, surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the
Liabilities or any obligation hereunder, or extend or renew for
one or more periods (whether or not longer than the original
period) or release, compromise, alter or exchange any obligations
of any nature of any obligor with respect to any such property;
and (e) resort to the undersigned (or any of them) for payment of
any of the Liabilities, whether or not the Administrative Agent
or such Lender (i) shall have resorted to any property securing
any of the Liabilities or any obligation hereunder or (ii) shall
have proceeded against any other of the undersigned or any other
obligor primarily or secondarily obligated with respect to any of
the Liabilities (all of the actions referred to in preceding
clauses (i) and (ii) being hereby expressly waived by the
undersigned).
Any amounts received by the Administrative Agent or any
Lender from whatsoever source on account of the Liabilities may
be applied by it toward the payment of the Liabilities.
Until such time as the Lenders shall have received payment
of the full amount of all Liabilities and of all obligations of
the undersigned hereunder and all Commitments have terminated, no
payment made by or for the account of the undersigned (or any of
them) pursuant to this Guaranty shall entitle any of the under-
signed by subrogation or otherwise to any payment by the Debtor
or from or out of any property of the Debtor and none of the
undersigned shall exercise any right or remedy against the Debtor
or any property of the Debtor by reason of any performance by
such undersigned of this Guaranty.
Each of the undersigned hereby expressly waives: (a) notice
of the acceptance by the Administrative Agent or any Lender of
this Guaranty; (b) notice of the existence or creation or
non-payment of all or any of the Liabilities; (c) presentment,
demand, notice of dishonor, protest and all other notices whatso-
ever; and (d) all diligence in collection or protection of or
realization upon the Liabilities or any thereof, any obligation
hereunder, or any security for or guaranty of any of the
foregoing.
The creation or existence, with or without notice to the
undersigned, from time to time of Liabilities in excess of the
amount to which the right of recovery under this Guaranty is
limited shall not in any way affect or impair the rights of the
Administrative Agent or the Lenders and the obligation of the
undersigned under this Guaranty.
The Lenders may, from time to time, without notice to the
undersigned (or any of them), assign or transfer any or all of
the Liabilities or any interest therein; and, notwithstanding any
such assignment or transfer or any subsequent assignment or
transfer thereof, such Liabilities shall be and remain Liabili-
ties for the purposes of this Guaranty, and each and every
immediate and successive assignee or transferee of any of the
Liabilities or of any interest therein shall, to the extent of
the interest of such assignee or transferee in the Liabilities,
be entitled to the benefits of this Guaranty to the same extent
as if such assignee or transferee were a Lender.
No delay on the part of the Administrative Agent or any
Lender in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the
Administrative Agent or any Lender of any right or remedy shall
preclude other or further exercise thereof or the exercise of any
other right or remedy; nor shall any modification or waiver of
any of the provisions of this Guaranty be binding upon the
Administrative Agent or any Lender except as expressly set forth
in a writing duly signed and delivered on behalf of the
Administrative Agent. No action of the Administrative Agent or
any Lender permitted hereunder shall in any way affect or impair
the rights of the Administrative Agent or any Lender and the
obligations of the undersigned under this Guaranty. For the
purposes of this Guaranty, Liabilities shall include all
obligations of the Debtor to the Administrative Agent or any
Lender under and in connection with the Credit Agreement,
notwithstanding any right or power of the Debtor or anyone else
to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or
defense shall affect or impair the obligations of the undersigned
hereunder. The obligations of the undersigned under this
Guaranty shall be absolute and unconditional irrespective of any
circumstance whatsoever which might constitute a legal or
equitable discharge or defense of the undersigned (or any of
them). Each of the undersigned hereby acknowledges that there
are no conditions to the effectiveness of this Guaranty.
Pursuant to the Credit Agreement, (a) this Guaranty has been
delivered to the Administrative Agent and (b) the Administrative
Agent may enforce this Guaranty on behalf of itself and each of
the Lenders. All payments by each of the undersigned pursuant to
this Guaranty shall be made to the Administrative Agent for the
ratable benefit of the Lenders.
Each of the undersigned hereby warrants and represents to
the Administrative Agent and the Lenders that such undersigned
now has and will continue to have independent means of obtaining
information concerning the affairs, financial condition and
business of the Debtor. Neither the Administrative Agent nor any
Lender shall have any duty or responsibility to provide the
undersigned (or any of them) with any credit or other information
concerning the affairs, financial condition or business of the
Debtor which may come into the possession of the Administrative
Agent or any Lender.
The undersigned hereby further warrant and represent to the
Administrative Agent and the Lenders that (a) the execution and
delivery of this Guaranty, and the performance by each of the
undersigned of its obligations hereunder, are within the
corporate right, power, authority and capacity of such
undersigned and have been duly authorized by all necessary
corporate action on the part of such undersigned, (b) this
Guaranty has been duly executed and delivered on behalf of each
of the undersigned and is the legal, valid and binding obligation
of such undersigned, enforceable in accordance with its terms,
subject, as to enforcement, only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws at the time in
effect affecting the enforcement of the rights of creditors
generally, and by general equitable principles which may limit
the right to obtain the remedy of specific performance of
executory covenants, and (c) the making and performance of this
Guaranty do not and will not contravene or conflict with the
charter or by-laws of such undersigned or violate or constitute a
default under any law, any presently existing requirement or
restriction imposed by judicial, arbitral or any governmental
instrumentality or any agreement, instrument or indenture by
which such undersigned is bound.
Anything else in this Guaranty notwithstanding, each of the
undersigned shall be liable under this Guaranty only for the
maximum amount of such liability that can be incurred by such
undersigned without rendering this Guaranty, as it relates to
such undersigned, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any
greater amount; provided, however, that the foregoing limitation
shall not be construed, as between the Lenders and any other
creditor of the Debtor or any of the undersigned whose claim is
subordinated to the claim of the Lenders with respect to the
Liabilities, to adversely affect the extent of such
subordination.
This Guaranty shall be binding upon the undersigned, and
upon the successors and assigns of the undersigned; and to the
extent that the Debtor or any of the undersigned is either a
partnership or a corporation, all references herein to the Debtor
and to such of the undersigned, respectively, shall be deemed to
include any successor or successors, whether immediate or remote,
to such partnership or corporation. The term "undersigned" as
used herein shall mean all parties executing this Guaranty and
each of them, and all such parties shall, subject to the
limitation on right of recovery in the immediately preceding
paragraph, be jointly and severally obligated hereunder.
This Guaranty may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, and
such counterparts shall together constitute one and the same
Guaranty. At any time after the date of this Guaranty, one or
more additional persons or entities may become parties hereto by
executing and delivering to the Administrative Agent a
counterpart of this Guaranty. Immediately upon such execution
and delivery (and without any further action), each such
additional person or entity will become a party to, and will be
bound by all of the terms of, this Guaranty.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. Whenever
possible each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
THE UNDERSIGNED HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH, AND AGREE THAT ANY SUCH ACTION
OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
Each of the undersigned agrees that any judicial proceedings
brought against such undersigned with respect to this Guaranty
may be brought in any state or federal court of competent
jurisdiction in the State of New York and, by the execution and
delivery of this Guaranty, each of the undersigned accepts the
nonexclusive jurisdiction of the aforesaid courts. Service of
process may be made by any means authorized by federal law or the
law of New York, as the case may be. A copy of any such process
so served shall be mailed by registered mail to such undersigned
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇, Attention ▇▇▇▇▇ ▇. ▇▇▇▇▇, the
address, if any, opposite its signature on any counterpart
signature page hereto or at such other address as may be
designated by such undersigned in a notice to the Administrative
Agent. Nothing herein shall limit the right of the
Administrative Agent to bring proceedings against any of the
undersigned in the courts of any other jurisdiction.
SIGNED AND DELIVERED as of this 27th day of December, 1995.
AMERICAN MULTI-CINEMA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
BUDCO THEATRES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
CONCORD CINEMA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
AMC REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
CONSERVCO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
AMC CANTON REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
AMC PHILADELPHIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
AMC FILM MARKETING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
The undersigned is executing a
counterpart hereof for purposes of
becoming a party hereto:
By:
Address: Title:
AMC ENTERTAINMENT INC.
and
the Guarantors Named Herein
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
FIFTH SUPPLEMENTAL INDENTURE,
Dated as of December 28, 1995,
to
INDENTURE
Dated as of August 1, 1992,
As Supplemented by
THE FIRST SUPPLEMENTAL INDENTURE,
Dated as of March 31, 1993,
and by
THE SECOND SUPPLEMENTAL INDENTURE,
Dated as of May 28, 1993
and by
THE THIRD SUPPLEMENTAL INDENTURE,
Dated as of May 28, 1993,
and by
THE FOURTH SUPPLEMENTAL INDENTURE,
Dated as of March 31, 1994
$100,000,000
11 7/8% Senior Notes Due 2000
FIFTH SUPPLEMENTAL INDENTURE, dated as of December 28, 1995 (the
"Fifth Supplemental Indenture"), among AMC ENTERTAINMENT INC., a Delaware
corporation (the "Company"), AMERICAN MULTI-CINEMA, INC., a Missouri
corporation, AMC REALTY, INC., a Delaware corporation, CONSERVCO, INC., a
Missouri corporation, AMC CANTON REALTY, INC., a Delaware corporation, AMC
PHILADELPHIA, INC., a Delaware corporation, BUDCO THEATRES, INC., a Pennsylvania
corporation, CONCORD CINEMA, INC., a Delaware corporation, and AMC FILM
MARKETING, INC., a Missouri corporation (collectively, the "Guarantors" and each
a "Guarantor"), and UNITED STATES TRUST COMPANY OF NEW YORK, a New York banking
corporation, as Trustee (the "Trustee"), to the Indenture, dated as of August 1,
1992, as supplemented by the First Supplemental Indenture, dated as of March 31,
1993, the Second Supplemental Indenture, dated as of May 28, 1993, the Third
Supplemental Indenture dated as of May 28, 1993, and the Fourth Supplemental
Indenture dated as of March 31, 1994 (collectively, the "Indenture"), among the
Company, as issuer, the Guarantors and the Trustee.
WHEREAS, the Company and the Guarantors are parties to the Indenture,
pursuant to which $100,000,000 aggregate principal amount of 11 % Senior Notes
due 2000 (the "Securities") of the Company were issued; and
WHEREAS, there are now outstanding under the Indenture Securities in
the aggregate principal amount of $100,000,000; and
WHEREAS, pursuant to Section 9.2 of the Indenture, a majority in
aggregate principal amount of the outstanding Securities have consented to the
amendments and modifications contained in this Fifth Supplemental Indenture; and
WHEREAS, the execution and delivery of this Fifth Supplemental
Indenture has been authorized by resolutions of the Board of Directors of each
of the Company and the Guarantors; and
WHEREAS, the Company, the Guarantors and the Trustee each desire to
execute this Fifth Supplemental Indenture to revise the Indenture to modify
Sections 1.1, 1.3, 4.8, 5.1 and 6.1 thereof, and to delete in their entirety
Sections 4.9 through 4.14, inclusive, 4.16 and 4.17 thereof; and
WHEREAS, the Company, the Guarantors and the Trustee each desire that
such modifications and deletions become operative upon the acceptance by the
Company for purchase of all Securities (and related consents) validly tendered
or delivered (and not withdrawn) pursuant to its offer to purchase upon the
terms and subject to the conditions set forth in the Offer to Purchase and
Consent Solicitation dated November 29, 1995, as amended (the "Tender Offer and
Consent Solicitation");
NOW, THEREFORE, in consideration of the above premises, each party
agrees, for the benefit of the other and for the equal and ratable benefit of
the Holders of the Securities, as follows:
Section 1. Definitions in Indenture. All capitalized terms not
defined in this Fifth Supplemental Indenture shall have their respective
meanings set forth in the Indenture.
Section 2. Amendment to SECTION 1.1. The text of Section 1.1 of the
Indenture, captioned "Definitions," is hereby amended as follows:
(a) The following definitions are hereby deleted in their
entirety from the Indenture: "Acquired Indebtedness," "Asset Acquisition,"
"Asset Sale," "Capital Expenditures," "CENI," "Change of Control," "Consolidated
Cash Flow," "Consolidated EBITDA," "Consolidated EBITDA Coverage Ratio,"
"Consolidated Interest Expense," "Consolidated Net Income," "Consolidated Net
Worth," "Disqualified Stock," "EEP," "EEP Junior Subordinated Notes," "EEP
Partnership Agreement," "11 % Debentures," "Investment," "Management Agreement,"
"Net Cash Proceeds," "Non-Recourse Indebtedness," "Permitted Holder," "Permitted
Indebtedness," "Permitted Investments," "Permitted Liens," "Preferred Share
Redemption," "Required Capital Contribution," "Restricted Payment,"
"Securityholders' Portion," "Special Dividend," "13.60% Debenture," "Tri-City
Purchase Agreement" and "Unrestricted Subsidiary."
(b) The definition of "Guarantor Senior Indebtedness" is
amended to be and read in its entirety as follows:
"Guarantor Senior Indebtedness" means, with respect to any
Guarantor, the principal of, premium, if any, and interest on
(including interest accruing subsequent to the occurrence of any event
specified in Sections 6.1(a)(vii) or (viii) relating to such Guarantor
whether or not the claim for such interest is allowed under any
applicable Bankruptcy Code) all obligations of every nature of such
Guarantor under or in respect of up to $40 million in aggregate
principal amount under the Revolving Credit Facility, whether
outstanding on the Issue Date or thereafter incurred without giving
effect to any reduction in the amount of such Indebtedness necessary
to render the obligation of any Guarantor with respect thereto (as
obligor, guarantor or otherwise) not voidable under applicable law
relating to "fraudulent conveyance" or "fraudulent transfer."
Notwithstanding the foregoing, "Guarantor Senior Indebtedness" shall
not include, (a) Indebtedness that is expressly subordinate or junior
in right of payment to any Indebtedness of such Guarantor, (b)
Indebtedness which, when incurred and without respect to any election
under Section 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without
recourse to such Guarantor, and (c) that portion of any Indebtedness
which at the time of its issuance is issued in violation of this
Indenture.
(c) The definition of "Revolving Credit Facility" is amended to
be and read in its entirety as follows:
"Revolving Credit Facility" means the Revolving Credit
Agreement dated as of December 27, 1995, among AMCE, as borrower,
certain of its subsidiaries, as guarantors, and The Bank of Nova
Scotia, Chemical Bank, Bank of America National Trust and Savings
Association and certain other lenders together with the exhibits and
schedules thereto, as the same may be amended, supplemented or
otherwise modified from time to time, and any refinancings,
replacements or renewals thereof.
(d) The definition of "Subsidiary" is amended to be and read in
its entirety as follows:
"Subsidiary" means, with respect to any Person, (i) any
corporation of which the outstanding Capital Stock having at least a
majority of the votes entitled to be cast in the election of directors
shall at the time be owned, directly or indirectly, by such Person, or
(ii) any other Person of which at least a majority of voting interest
is at the time, directly or indirectly, owned by such Person.
Section 3. Amendment to SECTION 1.3. The text of Section 1.3 of the
Indenture, captioned "Rules of Construction," is hereby amended by amending
paragraph (e) of such Section to read in its entirety as follows:
(e) unless otherwise specified herein, all accounting terms
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 as in
effect from time to time and applied on a consistent basis with the
Company's most recent financial statements; and, unless otherwise
specified herein, all accounting determinations of any Person
hereunder shall be made on a consolidated basis in accordance with the
GAAP.
Section 4. Amendment to SECTION 4.8. The text of Section 4.8 of the
Indenture, captioned "Reports," is hereby amended to read in its entirety as
follows:
In accordance with the provisions of TIA 314(a), at any time
that the Company or a Guarantor has a class of securities registered
under the Exchange Act, the Company or such Guarantor, as the case may
be, shall file with the Trustee, within 15 days after it files them
with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) which the
Company or such Guarantor is required to file with the SEC pursuant to
Section 13 or 15 of the Exchange Act. The Company also shall comply
with the other provisions of TIA 314(a).
Section 5. Amendment to SECTION 4.9. Section 4.9 of the Indenture,
entitled "Limitation on Indebtedness," is hereby amended by deleting such
Section 4.9 in its entirety.
Section 6. Amendment to SECTION 4.10. Section 4.10 of the Indenture,
entitled "Limitation on Issuance of Preferred Stock by Subsidiaries," is hereby
amended by deleting such Section 4.10 in its entirety.
Section 7. Amendment to SECTION 4.11. Section 4.11 of the Indenture,
entitled "Limitation on Guarantees by Subsidiaries," is hereby amended by
deleting such Section 4.11 in its entirety.
Section 8. Amendment to SECTION 4.12. Section 4.12 of the Indenture,
entitled "Limitation on Liens," is hereby amended by deleting such Section 4.12
in its entirety.
Section 9. Amendment to SECTION 4.13. Section 4.13 of the Indenture,
entitled "Limitation on Restricted Payments," is hereby amended by deleting such
Section 4.13 in its entirety.
Section 10. Amendment to SECTION 4.14. Section 4.14 of the
Indenture, entitled "Limitation on Certain Sales of Assets and Subsidiary
Stock," is hereby amended by deleting such Section 4.14 in its entirety.
Section 11. Amendment to SECTION 4.16. Section 4.16 of the
Indenture, entitled "Change of Control," is hereby amended by deleting such
Section 4.16 in its entirety.
Section 12. Amendment to SECTION 4.17. Section 4.17 of the
Indenture, entitled "Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries," is hereby amended by deleting such Section 4.17 in its
entirety.
Section 13. Amendment to SECTION 5.1. The text of Section 5.1 of the
Indenture, captioned "When Company May Merge, Etc.," is hereby amended by
amending paragraph (a) of such Section to read in its entirety as follows:
(a) The Company shall not consolidate with or merge with or
into any Person or, directly or indirectly, sell, assign, convey,
lease, transfer or otherwise dispose of all or substantially all of
its properties and assets in a single transaction or through a series
of transactions (including by way of merger or consolidation of the
Company or any of its Subsidiaries) unless:
(i) either (a) the Company shall be the continuing Person,
or (b) the resulting, surviving or transferee Person (the
"surviving entity") shall be a corporation organized and
existing under the laws of the United States, any State thereof
or the District of Columbia;
(ii) the surviving entity shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee, in
form and substance reasonably satisfactory to the Trustee, all
of the obligations of the Company under the Securities and this
Indenture;
(iii) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro
forma basis (including, without limitation, any Indebtedness
incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), no
Default or Event of Default shall have occurred and be
continuing;
(iv) [DELETED]
(v) [DELETED]
(vi) the Company or the surviving entity shall have
delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, sale,
assignment, conveyance, transfer, lease or other disposition
and, if a supplemental indenture is required in connection with
such transaction or series of transactions, such supplemental
indenture, complies with this Section 5.1(a), and that all
conditions precedent provided for in this Indenture relating to
such transaction or series of transactions have been satisfied;
and
(vii) each Guarantor shall, by supplemental indenture,
confirm that its Guarantee shall apply to the Company's or the
surviving entity's obligations under the Securities and this
Indenture, as modified by such supplemental indenture, and
confirm the due and punctual performance of the Guarantee and
every covenant in this Indenture on the part of the Guarantors
to be performed or observed.
Section 14. Amendment to SECTION 6.1. The text of Section 6.1 of the
Indenture, captioned "Events of Default," is hereby amended to read in its
entirety as follows:
(a) An "Event of Default" shall occur if:
(i) a default in the payment of interest on the Securities
when the same becomes due and payable shall have occurred and
any such Default shall have continued for a period of 30 days
(whether or not such payment shall be prohibited by the
subordination provisions of Article X hereof); or
(ii) a default in the payment of the principal of, or
premium, if any, on the Securities when the same becomes due and
payable upon maturity, acceleration, redemption, pursuant to an
offer to purchase required by this Indenture or otherwise shall
have occurred (whether or not such payment shall be prohibited
by the subordination provisions of Article X hereof); or
(iii) a default in the performance of, or breach of, any
covenant of this Indenture (other than defaults specified in
clause (i) or (ii) above) shall have occurred, and such Default
shall have continued for a period of 30 days after written
notice to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal
amount of the outstanding Securities; or
(iv) [DELETED]
(v) [DELETED]
(vi) any provision of Article X shall be declared or
adjudged to be invalid or unenforceable in a judgment, order or
decree which shall either be subject to no further appeal or
shall have remained in effect for a period of 60 days during
which no appeal shall be in effect; or
(vii) the Company, any Guarantor that is a Material
Subsidiary or any other Material Subsidiary of the Company
pursuant to or within the meaning of any Bankruptcy Law:
(V) commences a voluntary case or proceeding,
(W) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(X) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(Y) makes a general assignment for the benefit of its
creditors or
(Z) admits in writing that it generally cannot pay its
debts when such debts become due; or
(viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(X) is for relief against the Company, any Guarantor
that is a Material Subsidiary or any other Material
Subsidiary of the Company in an involuntary case or
proceeding,
(Y) appoints a Custodian of the Company, any
Guarantor that is a Material Subsidiary or any other
Material Subsidiary of the Company for all or substantially
all of its properties, or
(Z) orders the liquidation of the Company, any
Guarantor that is a Material Subsidiary or any other
Material Subsidiary of the Company
and in each case the order or decree remains unstayed and in
effect for 60 days; provided, however, that if the entry of such
order or decree is appealed and dismissed on appeal then the
Event of Default hereunder by reason of the entry of such order
or decree shall be deemed to have been cured.
(b) For purposes of this Section 6.l, the term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator
or similar official charged with maintaining possession or
control over property for one or more creditors.
(c) [DELETED]
(d) Subject to the provisions of Sections 7.1 and 7.2, the
Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a
Trust Officer at the corporate trust office of the Trustee by
the Company, the Paying Agent, any Holder or an agent of any
Holder or unless a Trust Officer otherwise has actual knowledge
thereof.
Section 15. Revision of Form of Notes. Pursuant to Section 9.5 of
the Indenture, paragraph 4 of the Form of Notes will be revised, and paragraph 7
will be deleted, to give effect to the amendments made hereby.
Section 16. Operative Effect of Amendments. Sections 2 through 15
hereof shall not become operative unless and until the acceptance by the Company
of all Securities (and related consents) validly tendered or delivered (and not
withdrawn) pursuant to the Tender Offer and Consent Solicitation, at which time
such Sections shall become operative and shall be in full force and effect.
Section 17. Confirmation of Indenture. The Company and each of the
Guarantors affirms the continuing effect of the Indenture, as supplemented by
this Fifth Supplemental Indenture; and each of the Guarantors affirms the
continuing effect of its guarantee of the obligations of the Company under the
Indenture and the Securities issued under the Indenture.
Section 18. Instrument. From and after the date hereof, the
Indenture, as supplemented by this Fifth Supplemental Indenture, shall be read,
taken and construed as one and the same instrument with respect to the
Securities.
Section 19. Counterparts. This Fifth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 20. Termination. This Fifth Supplemental Indenture shall be
terminated and shall be of no further force and effect if the Tender Offer and
Consent Solicitation is terminated or expires without the purchase of any
Securities by the Company.
Section 21. GOVERNING LAW. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS FIFTH SUPPLEMENTAL
INDENTURE.
Section 22. Trustee Disclaimer. The Trustee accepts the supplement
to the Indenture effected by this Fifth Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby supplemented, but only upon
the terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Indenture hereby supplemented. Except to the extent that they relate to action
taken by the Trustee, the Trustee shall not be responsible in any manner
whatsoever for or with respect to (i) the validity, efficacy or sufficiency of
this Fifth Supplemental Indenture or any of the terms or provisions hereof,
(ii) the proper authorization hereof by the Company and the Guarantors by
corporate action or otherwise, (iii) the due execution hereof by the Company and
the Guarantors, or (iv) the consequences (direct or indirect and whether
deliberate or inadvertent) of any supplement herein provided for, and the
Trustee makes no representation with respect to any such matters.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed, all as of the date first written above.
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC ENTERTAINMENT INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMERICAN MULTI-CINEMA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CONSERVCO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC CANTON REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC PHILADELPHIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
BUDCO THEATRES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CONCORD CINEMA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC FILM MARKETING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
AMC ENTERTAINMENT INC.
and
the Guarantors Named Herein
and
THE BANK OF NEW YORK,
as Trustee
FIFTH SUPPLEMENTAL INDENTURE,
Dated as of December 28, 1995,
to
INDENTURE
Dated as of August 1, 1992,
As Supplemented by
THE FIRST SUPPLEMENTAL INDENTURE,
Dated as of March 31, 1993,
and by
THE SECOND SUPPLEMENTAL INDENTURE,
Dated as of May 28, 1993
and by
THE THIRD SUPPLEMENTAL INDENTURE,
Dated as of May 28, 1993,
and by
THE FOURTH SUPPLEMENTAL INDENTURE,
Dated as of March 31, 1994
$100,000,000
12 5/8% Senior Subordinated Notes Due 2002
FIFTH SUPPLEMENTAL INDENTURE, dated as of December 28, 1995
(the "Fifth Supplemental Indenture"), among AMC ENTERTAINMENT INC., a
Delaware corporation (the "Company"), AMERICAN MULTI-CINEMA, INC., a
Missouri corporation, AMC REALTY, INC., a Delaware corporation,
CONSERVCO, INC., a Missouri corporation, AMC CANTON REALTY, INC., a
Delaware corporation, AMC PHILADELPHIA, INC., a Delaware corporation,
BUDCO THEATRES, INC., a Pennsylvania corporation, CONCORD CINEMA, INC.,
a Delaware corporation, and AMC FILM MARKETING, INC., a Missouri
corporation (collectively, the "Guarantors" and each a "Guarantor"), and
THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the
"Trustee"), to the Indenture, dated as of August 1, 1992, as
supplemented by the First Supplemental Indenture, dated as of March 31,
1993, the Second Supplemental Indenture, dated as of May 28, 1993, the
Third Supplemental Indenture dated as of May 28, 1993, and the Fourth
Supplemental Indenture dated as of March 31, 1994 (collectively, the
"Indenture"), among the Company, as issuer, the Guarantors and the
Trustee.
WHEREAS, the Company and the Guarantors are parties to the
Indenture, pursuant to which $100,000,000 aggregate principal amount of
12 5/8% Senior Subordinated Notes due 2002 (the "Securities") of the
Company were issued; and
WHEREAS, there are now outstanding under the Indenture
Securities in the aggregate principal amount of $100,000,000; and
WHEREAS, pursuant to Section 9.2 of the Indenture, a majority
in aggregate principal amount of the outstanding Securities have
consented to the amendments and modifications contained in this Fifth
Supplemental Indenture; and
WHEREAS, the execution and delivery of this Fifth
Supplemental Indenture has been authorized by resolutions of the Board
of Directors of each of the Company and the Guarantors; and
WHEREAS, the Company, the Guarantors and the Trustee each
desire to execute this Fifth Supplemental Indenture to revise the
Indenture to modify Sections 1.1, 1.3, 4.8, 5.1 and 6.1 thereof, and to
delete in their entirety Sections 4.9 through 4.14, inclusive, 4.16 and
4.17 thereof; and
WHEREAS, the Company, the Guarantors and the Trustee each
desire that such modifications and deletions become operative upon the
acceptance by the Company for purchase of all Securities (and related
consents) validly tendered or delivered (and not withdrawn) pursuant to
its offer to purchase upon the terms and subject to the conditions set
forth in the Offer to Purchase and Consent Solicitation dated November
29, 1995, as amended (the "Tender Offer and Consent Solicitation");
NOW, THEREFORE, in consideration of the above premises, each
party agrees, for the benefit of the other and for the equal and ratable
benefit of the Holders of the Securities, as follows:
Section 1. Definitions in Indenture. All capitalized terms
not defined in this Fifth Supplemental Indenture shall have their
respective meanings set forth in the Indenture.
Section 2. Amendment to SECTION 1.1. The text of Section
1.1 of the Indenture, captioned "Definitions," is hereby amended as
follows:
(a) The following definitions are hereby deleted in
their entirety from the Indenture: "Acquired Indebtedness," "Asset
Acquisition," "Asset Sale," "Capital Expenditures," "CENI," "Change of
Control," "Consolidated Cash Flow," "Consolidated EBITDA," "Consolidated
EBITDA Coverage Ratio," "Consolidated Interest Expense," "Consolidated
Net Income," "Consolidated Net Worth," "Disqualified Stock," "EEP," "EEP
Junior Subordinated Notes," "EEP Partnership Agreement," "11 %
Debentures," "Investment," "Management Agreement," "Net Cash Proceeds,"
"Non-Recourse Indebtedness," "Permitted Holder," "Permitted
Indebtedness," "Permitted Investments," "Permitted Liens," "Preferred
Share Redemption," "Required Capital Contribution," "Restricted
Payment," "Securityholders' Portion," "Special Dividend," "13.60%
Debenture," "Tri-City Purchase Agreement" and "Unrestricted Subsidiary."
(b) The definition of "Revolving Credit Facility" is
amended to be and read in its entirety as follows:
"Revolving Credit Facility" means the Revolving
Credit Agreement dated as of December 27, 1995, among AMCE,
as borrower, certain of its subsidiaries, as guarantors, and
The Bank of Nova Scotia, Chemical Bank, Bank of America
National Trust and Savings Association and certain other
lenders together with the exhibits and schedules thereto, as
the same may be amended, supplemented or otherwise modified
from time to time, and any refinancings, replacements or
renewals thereof.
(c) The definition of "Subsidiary" is amended to be
and read in its entirety as follows:
"Subsidiary" means, with respect to any Person,
(i) any corporation of which the outstanding Capital Stock
having at least a majority of the votes entitled to be cast
in the election of directors shall at the time be owned,
directly or indirectly, by such Person, or (ii) any other
Person of which at least a majority of voting interest is at
the time, directly or indirectly, owned by such Person.
Section 3. Amendment to SECTION 1.3. The text of Section
1.3 of the Indenture, captioned "Rules of Construction," is hereby
amended by amending paragraph (e) of such Section to read in its
entirety as follows:
(e) unless otherwise specified herein, all accounting
terms 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 as in effect from time to
time and applied on a consistent basis with the Company's
most recent financial statements; and, unless otherwise
specified herein, all accounting determinations of any Person
hereunder shall be made on a consolidated basis in accordance
with the GAAP.
Section 4. Amendment to SECTION 4.8. The text of Section
4.8 of the Indenture, captioned "Reports," is hereby amended to read in
its entirety as follows:
In accordance with the provisions of TIA 314(a), at
any time that the Company or a Guarantor has a class of
securities registered under the Exchange Act, the Company or
such Guarantor, as the case may be, shall file with the
Trustee, within 15 days after it files them with the SEC,
copies of the annual reports and of the information,
documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company or such Guarantor is required
to file with the SEC pursuant to Section 13 or 15 of the
Exchange Act. The Company also shall comply with the other
provisions of TIA 314(a).
Section 5. Amendment to SECTION 4.9. Section 4.9 of the
Indenture, entitled "Limitation on Indebtedness," is hereby amended by
deleting such Section 4.9 in its entirety.
Section 6. Amendment to SECTION 4.10. Section 4.10 of the
Indenture, entitled "Limitation on Issuance of Preferred Stock by
Subsidiaries," is hereby amended by deleting such Section 4.10 in its
entirety.
Section 7. Amendment to SECTION 4.11. Section 4.11 of the
Indenture, entitled "Limitation on Guarantees by Subsidiaries," is
hereby amended by deleting such Section 4.11 in its entirety.
Section 8. Amendment to SECTION 4.12. Section 4.12 of the
Indenture, entitled "Limitation on Liens," is hereby amended by deleting
such Section 4.12 in its entirety.
Section 9. Amendment to SECTION 4.13. Section 4.13 of the
Indenture, entitled "Limitation on Restricted Payments," is hereby
amended by deleting such Section 4.13 in its entirety.
Section 10. Amendment to SECTION 4.14. Section 4.14 of the
Indenture, entitled "Limitation on Certain Sales of Assets and
Subsidiary Stock," is hereby amended by deleting such Section 4.14 in
its entirety.
Section 11. Amendment to SECTION 4.16. Section 4.16 of the
Indenture, entitled "Change of Control," is hereby amended by deleting
such Section 4.16 in its entirety.
Section 12. Amendment to SECTION 4.17. Section 4.17 of the
Indenture, entitled "Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries," is hereby amended by deleting such
Section 4.17 in its entirety.
Section 13. Amendment to SECTION 5.1. The text of Section
5.1 of the Indenture, captioned "When Company May Merge, Etc.," is
hereby amended by amending paragraph (a) of such Section to read in its
entirety as follows:
(a) The Company shall not consolidate with or merge
with or into any Person or, directly or indirectly, sell,
assign, convey, lease, transfer or otherwise dispose of all
or substantially all of its properties and assets in a single
transaction or through a series of transactions (including
by way of merger or consolidation of the Company or any of
its Subsidiaries) unless:
(i) either (a) the Company shall be the continuing
Person, or (b) the resulting, surviving or transferee
Person (the "surviving entity") shall be a corporation
organized and existing under the laws of the United
States, any State thereof or the District of Columbia;
(ii) the surviving entity shall expressly assume,
by a supplemental indenture executed and delivered to
the Trustee, in form and substance reasonably
satisfactory to the Trustee, all of the obligations of
the Company under the Securities and this Indenture;
(iii) immediately before and immediately after
giving effect to such transaction or series of
transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to
be incurred in connection with or in respect of such
transaction or series of transactions), no Default or
Event of Default shall have occurred and be continuing;
(iv) [DELETED]
(v) [DELETED]
(vi) the Company or the surviving entity shall
have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition and, if a
supplemental indenture is required in connection with
such transaction or series of transactions, such
supplemental indenture, complies with this Section
5.1(a), and that all conditions precedent provided for
in this Indenture relating to such transaction or
series of transactions have been satisfied; and
(vii) each Guarantor shall, by supplemental
indenture, confirm that its Guarantee shall apply to
the Company's or the surviving entity's obligations
under the Securities and this Indenture, as modified by
such supplemental indenture, and confirm the due and
punctual performance of the Guarantee and every
covenant in this Indenture on the part of the
Guarantors to be performed or observed.
Section 14. Amendment to SECTION 6.1. The text of Section
6.1 of the Indenture, captioned "Events of Default," is hereby amended
to read in its entirety as follows:
(a) An "Event of Default" shall occur if:
(i) a default in the payment of interest on the
Securities when the same becomes due and payable shall
have occurred and any such Default shall have continued
for a period of 30 days (whether or not such payment
shall be prohibited by the provisions of Article X or
the subordination provisions of Article XI hereof); or
(ii) a default in the payment of the principal of,
or premium, if any, on the Securities when the same
becomes due and payable upon maturity, acceleration,
redemption, pursuant to an offer to purchase required
by this Indenture or otherwise shall have occurred
(whether or not such payment shall be prohibited by the
provisions of Article X or the subordination provisions
of Article XI hereof); or
(iii) a default in the performance of, or breach
of, any covenant of this Indenture (other than defaults
specified in clause (i) or (ii) above) shall have
occurred, and such Default shall have continued for a
period of 30 days after written notice to the Company
by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount
of the outstanding Securities; or
(iv) [DELETED]
(v) [DELETED]
(vi) any provision of Article X shall be declared
or adjudged to be invalid or unenforceable in a
judgment, order or decree which shall either be subject
to no further appeal or shall have remained in effect
for a period of 60 days during which no appeal shall be
in effect; or
(vii) the Company, any Guarantor that is a
Material Subsidiary or any other Material Subsidiary of
the Company pursuant to or within the meaning of any
Bankruptcy Law:
(V) commences a voluntary case or
proceeding,
(W) consents to the entry of an order for
relief against it in an involuntary case or
proceeding,
(X) consents to the appointment of a Custo-
dian of it or for all or substantially all of its
property,
(Y) makes a general assignment for the
benefit of its creditors or
(Z) admits in writing that it generally
cannot pay its debts when such debts become due;
or
(viii) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(X) is for relief against the Company, any
Guarantor that is a Material Subsidiary or any
other Material Subsidiary of the Company in an
involuntary case or proceeding,
(Y) appoints a Custodian of the Company, any
Guarantor that is a Material Subsidiary or any
other Material Subsidiary of the Company for all
or substantially all of its properties, or
(Z) orders the liquidation of the Company,
any Guarantor that is a Material Subsidiary or any
other Material Subsidiary of the Company
and in each case the order or decree remains unstayed
and in effect for 60 days; provided, however, that if
the entry of such order or decree is appealed and
dismissed on appeal then the Event of Default hereunder
by reason of the entry of such order or decree shall be
deemed to have been cured.
(b) For purposes of this Section 6.1, the term "Cus-
todian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official charged with maintaining
possession or control over property for one or more
creditors.
(c) [DELETED]
(d) Subject to the provisions of Sections 7.1 and 7.2,
the Trustee shall not be charged with knowledge of any Event
of Default unless written notice thereof shall have been
given to a Trust Officer at the corporate trust office of the
Trustee by the Company, the Paying Agent, any Holder or an
agent of any Holder or unless a Trust Officer otherwise has
actual knowledge thereof.
Section 15. Revision of Form of Notes. Pursuant to Section
9.5 of the Indenture, paragraph 4 of the Notes will be revised, and
paragraph 7 will be deleted, to give effect to the amendments made
hereby.
Section 16. Operative Effect of Amendments. Sections 2
through 15 hereof shall not become operative unless and until the
acceptance by the Company of all Securities (and related consents)
validly tendered or delivered (and not withdrawn) pursuant to the Tender
Offer and Consent Solicitation, at which time such Sections shall become
operative and shall be in full force and effect.
Section 17. Confirmation of Indenture. The Company and each
of the Guarantors affirms the continuing effect of the Indenture, as
supplemented by this Fifth Supplemental Indenture; and each of the
Guarantors affirms the continuing effect of its guarantee of the
obligations of the Company under the Indenture and the Securities issued
under the Indenture.
Section 18. Instrument. From and after the date hereof, the
Indenture, as supplemented by this Fifth Supplemental Indenture, shall
be read, taken and construed as one and the same instrument with respect
to the Securities.
Section 19. Counterparts. This Fifth Supplemental Indenture
may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 20. Termination. This Fifth Supplemental Indenture
shall be terminated and shall be of no further force and effect if the
Tender Offer and Consent Solicitation is terminated or expires without
the purchase of any Securities by the Company.
Section 21. GOVERNING LAW. THIS FIFTH SUPPLEMENTAL
INDENTURE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS FIFTH SUPPLEMENTAL INDENTURE.
Section 22. Trustee Disclaimer. The Trustee accepts the
supplement to the Indenture effected by this Fifth Supplemental
Indenture and agrees to execute the trust created by the Indenture as
hereby supplemented, but only upon the terms and conditions set forth
in the Indenture, including the terms and provisions defining and
limiting the liabilities and responsibilities of the Trustee, which
terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created
by the Indenture hereby supplemented. Except to the extent that they
relate to action taken by the Trustee, the Trustee shall not be
responsible in any manner whatsoever for or with respect to (i) the
validity, efficacy or sufficiency of this Fifth Supplemental Indenture
or any of the terms or provisions hereof, (ii) the proper authorization
hereof by the Company and the Guarantors by corporate action or
otherwise, (iii) the due execution hereof by the Company and the
Guarantors, or (iv) the consequences (direct or indirect and whether
deliberate or inadvertent) of any supplement herein provided for, and
the Trustee makes no representation with respect to any such matters.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed, all as of the date first
written above.
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC ENTERTAINMENT INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and Chief Financial
Officer
ATTEST:
/s/ ▇▇▇▇ Schmazel
THE BANK OF NEW YORK, as
Trustee
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Assistant Vice
President
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMERICAN MULTI-CINEMA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and Chief Financial
Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CONSERVCO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC CANTON REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and
Chief Financial Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC PHILADELPHIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and Chief Financial
Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
BUDCO THEATRES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and Chief Financial
Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CONCORD CINEMA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and Chief Financial
Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AMC FILM MARKETING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and Chief
Financial Officer
