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EXHIBIT 10.3
$75,000,000
TERM LOAN CREDIT AGREEMENT
dated as of
February 25, 1999
among
CARMIKE CINEMAS, INC.,
The Lenders Listed Herein
WACHOVIA BANK, N.A.,
as Administrative Agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P,
as Syndication Agent,
and
FIRST UNION NATIONAL BANK,
as Documentation Agent
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...................................................................................1
Section I.1. Definitions...............................................................................1
Section I.2. Accounting Terms and Determinations......................................................20
Section I.3. Use of Defined Terms.....................................................................20
Section I.4. Terminology..............................................................................20
Section I.5. References...............................................................................20
ARTICLE II THE CREDITS..................................................................................20
Section II.1. Commitments to Make Loans................................................................20
Section II.2. Method of Borrowing Loans................................................................21
Section II.3. Notes....................................................................................22
Section II.4. Maturity of Loans........................................................................23
Section II.5. Interest Rates...........................................................................23
Section II.6. Fees.....................................................................................25
Section II.7. Prepayment Premium.......................................................................26
Section II.8. Termination of Commitments...............................................................26
Section II.9. Optional Prepayments.....................................................................26
Section II.10. Mandatory Prepayments....................................................................26
Section II.11. General Provisions as to Payments........................................................27
Section II.12. Computation of Interest and Fees.........................................................29
ARTICLE III CONDITIONS TO BORROWINGS.....................................................................29
Section III.1. Conditions Precedent to Effectiveness....................................................29
ARTICLE IV REPRESENTATIONS AND WARRANTIES...............................................................31
Section IV.1. Corporate Existence and Power............................................................31
Section IV.2. Corporate and Governmental Authorization; No Contravention...............................31
Section IV.3. Binding Effect...........................................................................31
Section IV.4. Financial Information....................................................................31
Section IV.5. Litigation...............................................................................32
Section IV.6. Compliance with ERISA....................................................................32
Section IV.7. Taxes....................................................................................32
Section IV.8. Subsidiaries.............................................................................32
Section IV.9. Not an Investment Company................................................................32
Section IV.10. Public Utility Holding Company Act.......................................................33
Section IV.11. Ownership of Property; Liens.............................................................33
Section IV.12. No Default...............................................................................33
Section IV.13. Full Disclosure..........................................................................33
Section IV.14. Environmental Matters...................................................................33
Section IV.15. Compliance with Laws.....................................................................34
Section IV.16. Capital Stock............................................................................34
Section IV.17. Margin Stock.............................................................................34
Section IV.18. Insolvency...............................................................................34
ARTICLE V COVENANTS....................................................................................34
Section V.1. Information..............................................................................34
Section V.2. Inspection of Property, Books and Records................................................36
Section V.3 Ratio of Consolidated Senior Funded Debt to Consolidated Cash Flow.......................36
Section V.4. Ratio of Consolidated Funded Debt to Consolidated Cash Flow..............................36
Section V.5. Restricted Payments......................................................................37
Section V.6. Fixed Charge Coverage....................................................................37
Section V.7. Adjusted Fixed Charge Coverage...........................................................37
Section V.8. Negative Pledge..........................................................................37
Section V.9. Maintenance of Existence.................................................................38
Section V.10. Dissolution..............................................................................39
Section V.11. Consolidations, Mergers and Sales of Assets..............................................39
Section V.12. Use of Proceeds..........................................................................39
Section V.13. Compliance with Laws; Payment of Taxes...................................................39
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Section V.14. Insurance................................................................................40
Section V.15. Change in Fiscal Year....................................................................40
Section V.16. Maintenance of Property..................................................................40
Section V.17. Environmental Notices....................................................................40
Section V.18. Environmental Matters....................................................................40
Section V.19. Environmental Release....................................................................40
Section V.20. Additional Covenants, Etc................................................................40
Section V.21. Investments..............................................................................42
Section V.22. Guaranty of Subsidiaries.................................................................42
Section V.23. Limitation on Consolidated Funded Debt...................................................42
Section V.24. Subordinated Debt........................................................................43
ARTICLE VI DEFAULTS....................................................................................43
Section VI.1. Events of Default........................................................................43
Section VI.2. Notice of Default........................................................................45
ARTICLE VII THE AGENT ..................................................................................46
Section VII.1. Appointment, Powers and Immunities.......................................................46
Section VII.2. Reliance by Administrative Agent.........................................................46
Section VII.3. Defaults.................................................................................47
Section VII.4. Rights of Administrative Agent and Its Affiliates as a Lender............................47
Section VII.5. Indemnification..........................................................................47
Section VII.6. CONSEQUENTIAL DAMAGES....................................................................48
Section VII.7. Payee of Note Treated as Owner...........................................................48
Section VII.8. Non-Reliance on Administrative Agent and Other Lenders...................................48
Section VII.9 Failure to Act...........................................................................48
Section VII.10. Resignation or Removal of Administrative Agent..........................................49
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION.......................................................49
Section VIII.1. Basis for Determining Interest Rate Inadequate or Unfair................................49
Section VIII.2. Illegality..............................................................................49
Section VIII.3. Increased Cost and Reduced Return.......................................................50
Section VIII.4. Base Rate Loans Substituted for Euro-Dollar Loans.......................................51
Section VIII.5. Compensation............................................................................52
Section VIII.6. Replacement of Lender...................................................................52
ARTICLE IX MISCELLANEOUS...............................................................................53
Section IX.1. Notices..................................................................................53
Section IX.2. No Waivers...............................................................................53
Section IX.3. Expenses; Documentary Taxes; Indemnification.............................................53
Section IX.4. Setoffs; Sharing of Set-Offs.............................................................54
Section IX.5. Amendments and Waivers...................................................................55
Section IX.6. Margin Stock Collateral..................................................................56
Section IX.7. Successors and Assigns...................................................................56
Section IX.8. Confidentiality..........................................................................58
Section IX.9. Representation by Lenders................................................................59
Section IX.10. Obligations Several......................................................................59
Section IX.11. Survival of Certain Obligations..........................................................59
Section IX.12. New York Law.............................................................................59
Section IX.13. Severability.............................................................................59
Section IX.14. Interest.................................................................................59
Section IX.15. Interpretation...........................................................................59
Section IX.16. Consent to Jurisdiction..................................................................60
Section IX.17. ▇▇▇▇▇ Filing.............................................................................60
Section IX.18. Counterparts.............................................................................60
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TERM LOAN CREDIT AGREEMENT
TERM LOAN CREDIT AGREEMENT dated as of February 25, 1999, among
CARMIKE CINEMAS, INC., a Delaware corporation, the LENDERS listed on the
signature pages hereof, WACHOVIA BANK, N.A., as Administrative Agent, ▇▇▇▇▇▇▇
SACHS CREDIT PARTNERS L.P., as Syndication Agent and FIRST UNION NATIONAL BANK,
as Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section I. 1. Definitions. The terms as defined in this Section
1.01 shall, for all purposes of this Agreement and any amendment hereto (except
as herein otherwise expressly provided or unless the context otherwise
requires), have the meanings set forth herein:
"Adjusted Cash Flow" means, for any period, Consolidated
Operating Income for such period, plus, to the extent deducted in determining
the amount thereof, (i) Rental Obligations (less any principal portion of any
Off-Balance Sheet Lease), (ii) depreciation and amortization, and (iii) any
aggregate net income during such period arising from the sale, exchange or
other distribution of capital assets, provided that the total amount so
included pursuant to this clause (iii) shall not exceed 5% of Consolidated
Operating Income for such period, provided further, however, that, in
calculating Adjusted Cash Flow for any such period, any acquisition or
disposition of assets that shall have occurred during such period will be
deemed to have occurred at the beginning of such period; and (iv) with respect
to any Off-Balance Sheet Property which was acquired or ground-leased by any
entity acting in the capacity of landlord (or in any functionally similar
capacity to a landlord) under any Off-Balance Sheet Lease within the 12-month
period ending on the date of determination of Consolidated Cash Flow, Adjusted
Cash Flow shall include Theatre-Level EBITDA for such Off-Balance Sheet
Property and shall be determined with respect to such Off-Balance Sheet
Property on the basis of actual Theatre-Level EBITDA within such period and
projected Theatre-Level EBITDA for the remainder of such period (with such
projections being based on the average Theatre-Level EBITDA of comparable
theater properties of the Borrower which were operated during the entire
12-month period).
"Adjusted Fixed Charges" means, for any period, without
duplication, the sum for such period of (i) Fixed Charges, plus (ii) all
dividends paid by the Borrower, plus (iii) the aggregate amount paid, or
required to be paid, in cash by the Borrower and its Subsidiaries in respect of
income taxes (including deferred taxes), plus (iv) all scheduled payments of
principal made by the Borrower or any Subsidiary with respect to Consolidated
Funded Debt (excluding principal payments on the Senior Notes and payments on
the Loans hereunder).
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.05(c).
"Administrative Agent" means Wachovia Bank, N.A., a national
banking
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association organized under the laws of the United States of America, in its
capacity as administrative agent for the Lenders hereunder, and its successors
and permitted assigns in such capacity.
"Administrative Agent's Letter Agreement" means the letter
agreement dated January 12, 1999, between the Borrower and the Administrative
Agent relating to the structure of the Loans, and certain fees payable by the
Borrower to the Administrative Agent, together with all amendments and
modifications thereto.
"Affiliate" of any Person means (i) any other Person which
directly, or indirectly through one or more intermediaries, controls such
Person, (ii) any other Person which directly, or indirectly through one or more
intermediaries, is controlled by or is under common control with such Person,
or (iii) any other Person of which such Person owns, directly or indirectly,
20% or more of the common stock or equivalent equity interests. As used herein,
the term "control" means possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agents" means the Administrative Agent, the Documentation
Agent, and the Syndication Agent.
"Agreement" means this Term Loan Credit Agreement, together
with all amendments and supplements hereto.
"Anniversary Date" means the date one year after the
Effective Date.
"Applicable Margin" has the meaning set forth in Section
2.05(a).
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and
Acceptance executed in accordance with Section 9.07(c) substantially in the
form attached hereto as Exhibit B.
"Authority" has the meaning set forth in Section 8.02.
"Base Rate" means for any Base Rate Loan for any day, the
rate per annum equal to the higher as of such day of (i) the Prime Rate, and
(ii) one-half of one percent above the Federal Funds Rate for such day. For
purposes of determining the Base Rate for any day, changes in the Prime Rate
and the Federal Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate.
"Board of Directors" means the Board of Directors of the
Borrower or a duly authorized committee of directors lawfully exercising the
relevant powers of such Board.
"Borrower" means Carmike Cinemas, Inc., a Delaware
corporation, and its successors and permitted assigns.
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"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower at the same time by the Lenders pursuant to Article II. A
Borrowing is a "Base Rate Borrowing" if such Loans are Base Rate Loans or a
"Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans.
"Capital Lease" as applied to any Person, means any lease of
any property (whether real, personal or mixed) by such Person as lessee which
would, in accordance with GAAP, be required to be classified and accounted for
as a capital lease on the balance sheet of such Person, other than, in the case
of the Borrower or a Subsidiary, any such lease under which the Borrower or a
Wholly-owned Subsidiary is the lessor.
"Capital Lease Obligation" with respect to any Capital Lease,
means the amount of the obligation of the lessee thereunder which would, in
accordance with GAAP, appear on a balance sheet of such lessee (or the notes
thereto) in respect of such Capital Lease.
"Capital Stock" means any capital stock (other than capital
stock which is either (i) mandatorily redeemable or (ii) redeemable at the
option of the holder thereof) of the Borrower or any Subsidiary (to the extent
issued to a Person other than the Borrower), whether common or preferred.
"Cash" means money, currency or a credit balance in a demand,
time, savings, passbook or like account with a bank, savings and loan
association, credit union or like organization, other than an account evidenced
by a negotiable certificate of deposit.
"Cash Equivalents" means, as at any date of determination:
(i) marketable securities (a) issued or directly and unconditionally guaranteed
as to interest and principal by the United States Government or (b) issued by
any agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of acquisition thereof, the highest rating obtainable
from either S&P or ▇▇▇▇▇'▇; (iii) commercial paper maturing no more than one
year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
▇▇▇▇▇'▇; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States or any state
thereof or the District of Columbia that (1) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (2) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; (v) shares of any money market mutual fund that (1) has
at least 95% of its assets invested continuously in the types of investments
referred to in clauses (i), (ii) and (iii) above, (2) has net assets of not
less than $500,000,000 and (3) has the highest rating obtainable from either
S&P or ▇▇▇▇▇'▇.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss.9601 et seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation
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and Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor Federal tax code. Any reference to any provision of the Code
shall also be deemed to be a reference to any successor provision or provisions
thereof.
"Coke Advance" means an advance in the amount of $10,000,000
made by The Coca Cola Company on certain advertising, promotional and incentive
fees anticipated to be earned by the Borrower pursuant to the Amended and
Restated Agreement between them dated December 20, 1998.
"Collateral" means the property of the Borrower and EastWynn,
respectively, in which the Collateral Agent, for the ratable benefit of the
Secured Parties, is granted a security interest pursuant to the Security
Agreement and the Pledge Agreement, to secure the Secured Obligations, for the
ratable benefit of the Secured Parties.
"Collateral Agent" means Wachovia Bank, N.A., in its capacity
as collateral agent under the Collateral Documents.
"Collateral Documents" means the Intercreditor Agreement, the
Pledge Agreement, the Security Agreement and such financing statements as the
Collateral Agent may require to perfect its security interest in the
Collateral.
"Commitment" means, with respect to each Lender, (i) the
amount set forth opposite the name of such Lender on the signature pages
hereof, or (ii) as to any Lender which enters into an Assignment and Acceptance
(whether as transferor Lender or as Assignee thereunder), the amount of such
Lender's Commitment after giving effect to such Assignment and Acceptance.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Cash Flow" means, for any period, the sum of
Consolidated Operating Income of the Borrower, and its Subsidiaries, plus to
the extent deducted in determining such Consolidated Operating Income (i)
depreciation and amortization, and (ii) any aggregate net income during such
period arising from the sale, exchange or other distribution of capital assets,
provided, however, that the total amount so included pursuant to this clause
(ii) shall not exceed 5% of Consolidated Operating Income for such period,
provided further, however, that, in calculating Consolidated Cash Flow for any
such period, any acquisition or disposition of assets that shall have occurred
during such period will be deemed to have occurred at the beginning of such
period; provided further, however, that (x) for purposes of determining the
ratio of Consolidated Funded Debt to Consolidated Cash Flow and the ratio of
Consolidated Senior Funded Debt to Consolidated Cash Flow, all Off-Balance
Sheet Lease Payments made during the relevant period which has been deducted in
computing Consolidated Net Income shall be added back in computing Consolidated
Cash Flow and (y) with respect to any Off-Balance
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Sheet Property which was acquired or ground-leased by any entity acting in the
capacity of landlord (or in any functionally similar capacity to a landlord)
under any Off-Balance Sheet Lease within the 12-month period ending on the date
of determination of Consolidated Cash Flow, Consolidated Cash Flow shall
include Theatre-Level EBITDA for such Off-Balance Sheet Property and shall be
determined with respect to such Off-Balance Sheet Property on the basis of
actual Theatre-Level EBITDA within such period and projected Theatre-Level
EBITDA for the remainder of such period (with such projections being based on
the average Theatre-Level EBITDA of comparable theater properties of the
Borrower which were operated during the entire 12-month period).
"Consolidated Current Assets" means, as at any date of
determination, the total assets of the Borrower and its Consolidated
Subsidiaries on a consolidated basis which may properly be classified as
current assets in conformity with GAAP, excluding Cash and Cash Equivalents.
"Consolidated Current Liabilities" means, at any date of
determination, the total liabilities of the Borrower and its Consolidated
Subsidiaries on a consolidated basis which may properly be classified as
current liabilities in conformity with GAAP (but excluding current maturities
of long-term debt of the Borrower and its Consolidated Subsidiaries determined
in accordance with GAAP).
"Consolidated Funded Debt" means at any date the Funded Debt
of the Borrower and its Subsidiaries, determined on a consolidated basis as of
such date.
"Consolidated Net Income" means for any period, the net
income (or deficit) of the Borrower and its Subsidiaries for such period in
question (taken as a cumulative whole) after deducting, without duplication,
all operating expenses, provisions for all taxes and reserves (including
reserves for deferred income taxes) and all other proper deductions, all
determined in accordance with GAAP on a consolidated basis, after eliminating
material inter-company items in accordance with GAAP and after deducting
portions of income properly attributable to outside minority interests, if any,
in Subsidiaries; provided however, that there shall be excluded (a) any income
or deficit of any other Person accrued prior to the date it becomes a
Subsidiary or merges into or consolidates with the Borrower or another
Subsidiary, (b) the net income in excess of an amount equal to 5% of
Consolidated Net Income for such period before giving effect to this clause (b)
(or deficit) of any Person (other than a Subsidiary) in which the Borrower or
any Subsidiary has any ownership interest, except to the extent that any such
income has been actually received by the Borrower or such Subsidiary in the
form of cash dividends or similar distributions, and provided that the
resulting income is generated by lines of businesses substantially similar to
those of the Borrower and its Subsidiaries taken as a whole during the fiscal
year ended December 31, 1998, (c) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
income accrued during such period, (d) any deferred credit or amortization
thereof from the acquisition of any properties or assets of any Person, (e) any
aggregate net income (but not any aggregate net loss) during such period
arising from the sale, exchange or other distribution of capital assets (such
term to include all fixed assets, whether tangible or intangible, all inventory
sold in conjunction with the disposition of fixed assets and all securities) to
the extent the aggregate gains from such transactions exceed losses from such
transactions, (f) any impact on the income statement resulting from any
write-up of any assets after the Effective Date, (g) any items properly
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classified as extraordinary in accordance with GAAP, (h) proceeds of life
insurance policies to the extent such proceeds exceed premiums paid to maintain
such life insurance policies, (i) any portion of the net income of a Subsidiary
which is unavailable for the payment of dividends to the Borrower or a
Subsidiary, (j) any gain arising from the acquisition of any debt securities
for a cost less than principal and accrued interest, (k) in the case of a
successor to the Borrower by permitted consolidation or merger or transfer of
assets pursuant to Section 5.12, any earnings, of such successor or transferee
prior to the consolidation, merger or transfer of assets, (1) any earnings on
any Investments of the Borrower or any Subsidiary except to the extent that
such earnings are received by the Borrower or such Subsidiary as cash, provided
that earnings which would otherwise be excluded from Consolidated Net Income
pursuant to the preceding provisions of this clause (1) shall be included in
Consolidated Net Income but only to the extent that such earnings are
attributable to the net income of any Person (other than a Subsidiary) in which
the Borrower or any Subsidiary has any ownership interest and such net income
is not otherwise excluded from Consolidated Net Income by virtue of clause (b)
of this definition and (m) the Restructuring and Impairment Charges for 1998.
"Consolidated Net Worth" means as of any date of
determination (a) the sum of (i) the net book value (after deducting related
depreciation, obsolescence, amortization, valuation and other proper reserves
other than any such reserve maintained in accordance with GAAP in connection
with the use of the last-in-first-out method of inventory valuation) at which
the assets of the Borrower and its Subsidiaries would be shown on a
consolidated balance sheet at such date prepared in accordance with GAAP, but
excluding any amount on account of write-ups of assets after the date of the
most recent audited financial statements delivered pursuant to Section 5.01,
and (ii) the net book value of all Off-Balance Sheet Property minus (b) the
amount at which the consolidated liabilities of the Borrower and its
Subsidiaries (other than capital stock and surplus) would be shown on such
balance sheet, and including as liabilities all reserves for contingencies and
other potential liabilities and all minority interests in Subsidiaries.
"Consolidated Operating Income" means, for any period,
Consolidated Net Income for such period plus, to the extent deducted in
determining the amount thereof, (i) the aggregate amount paid, or required to
be paid, in cash by the Borrower and its Subsidiaries in respect of income
taxes (including deferred taxes) during such period plus (ii) Interest Expense.
"Consolidated Senior Funded Debt" means at any date the sum
of: (i) Consolidated Funded Debt, minus (ii) the Subordinated Debt.
"Consolidated Total Capitalization" means, at any time, the
sum of: (i) Consolidated Net Worth, and (ii) Consolidated Funded Debt.
"Consolidated Working Capital" means, as at any date of
determination, the excess of Consolidated Current Assets over Consolidated
Current Liabilities.
"Consolidated Working Capital Adjustment" means, for any
period on a consolidated basis, the amount (which may be a negative number) by
which Consolidated Working Capital as of the beginning of such period exceeds
(or is less than) Consolidated Working Capital as of the end of such period.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of Exhibit I to be executed by the
Borrower and by the
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Guarantors which are Subsidiaries on the Effective Date and by each of the
Guarantors which becomes a Subsidiary after the Effective Date pursuant to
Section 5.22(a).
"Control" means legal and beneficial ownership of that
percentage of Voting Stock which enables the owner thereof to elect a majority
of the corporate directors (or persons performing similar functions) of the
Borrower.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Current Debt" means as at any date of determination all Debt
for borrowed money maturing or payable on demand or within one year from the
date of the creation thereof including any Debt that is by its terms or by the
terms of any instrument or agreement relating thereto directly or indirectly
renewable or extendible, at the option of the debtor, to a date beyond such
year, including any outstanding amounts of any revolving credit facility, but
excluding any fixed or contingent payments maturing or required to be made not
more than one year after such date in respect of the principal and premium, if
any, on any Funded Debt. Any Debt that is extended or renewed shall be deemed
to have been created at the date of such extension or renewal.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under Capital
Leases, (v) all obligations of such Person to reimburse any bank or other
Person in respect of amounts payable under a banker's acceptance, (vi) all
Redeemable Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all obligations (absolute or contingent) of such Person to
reimburse any bank or other Person in respect of amounts paid under a letter of
credit or similar instrument, (viii) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by such Person,
and (ix) all Debt of others Guaranteed by such Person. In determining the Debt
and assets of any Person, no effect shall be given to deposits, trust
arrangements or similar arrangements which, in accordance with GAAP, extinguish
Debt for which such Person remains legally liable, except Debt shall not
include the promissory note of the Borrower in a principal amount not to exceed
$3,622,974 and bearing interest at the rate of 10.083% per annum payable to
Columbus Bank and Trust Company, and any extensions and renewals thereof,
provided the proceeds of such promissory note are used to pay the full purchase
price of a certificate of deposit (the "IRB Certificate of Deposit"), such
promissory note (and any such extension or renewal thereof) is secured by the
pledge of such IRB Certificate of Deposit issued by Columbus Bank and Trust
Company in an amount and bearing interest at a rate sufficient to pay all
obligations under such promissory note, such promissory note is nonrecourse to
the Borrower or to any Subsidiary except to such IRB Certificate of Deposit and
the obligation under such promissory note is not, in accordance with GAAP, to
be classified on its balance sheet as debt.
"Debt Rating" means the rating of the Subordinated Debt by
Moody's and S&P.
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"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the then highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
"Dividends" means for any period the sum of all dividends
paid or declared during such period in respect of any Capital Stock and
Redeemable Preferred Stock (other than dividends paid or payable in the form of
additional Capital Stock).
"Documentation Agent" means First Union National Bank, , a
national banking association organized under the laws of the United States of
America, in its capacity as documentation agent for the Lenders hereunder, and
its successors and permitted assigns in such capacity.
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized or
required by law to close.
"EastWynn" means EastWynn Theaters, Inc., an Alabama
corporation, and its successors.
"EastWynn Guaranty Obligations" means the obligations of
EastWynn under (i) the Guaranty, (ii) the "Guaranty", as defined in the Lease,
and (iii) the "Guaranty", as defined in the Revolver Credit Agreement.
"Effective Date" has the meaning specified in Section 3.01.
"Environmental Authority" means any federal, state or local
government that exercises any form of jurisdiction or authority under any
Environmental Law.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Law.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Laws, whether or not entered upon consent, or written agreements with an
Environmental Authority arising from or in any way associated with a
noncompliance with, or liability or claim arising under, any Environmental Law.
"Environmental Laws" means any and all federal, state and
local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, licenses or other governmental restrictions relating to the
environment or to emissions, discharges or releases of
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pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes into the environment,
including, without limitation, ambient air, surface water, groundwater or land,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial, toxic
or hazardous substances or wastes or the clean-up or other remediation thereof.
"Environmental Liability" shall mean any liability
whatsoever, whenever and by whomever asserted (whether absolute or contingent,
matured or unmatured) including, without limitation, any cost (including costs
of investigation), damage (including without limitation, damages for personal
injury or death, consequential damages and natural resource damages), penalty,
fine or order, expense, fee (including reasonable attorneys' fees and
consulting fees), or disbursement resulting from or related to a violation of
any Environmental Law or any remedial or response obligation arising under any
Environmental Law, or otherwise arising contractually with any party or entity
or by operation of any law relating to any Hazardous Material for which the
Borrower is responsible.
"Environmental Notices" means notice from any Environmental
Authority of an alleged noncompliance with or liability under any Environmental
Law, including without limitation any complaints, citations, demands or
requests from any Environmental Authority or from any other person or entity
for correction of any violation of any Environmental Law or any investigations
concerning any violation of any Environmental Law.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from any Environmental Law.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.05(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Cash Flow" means, without duplication, for any Fiscal
Year, the sum for such Fiscal Year of: (a) Adjusted Cash Flow (excluding,
however, any amount described in clause (iv) of the definition thereof), minus
(b) capital expenditures, minus (c) Rental Obligations, minus (d) Interest
Expense, minus (e) all principal paid by the Borrower or any Subsidiary with
respect to Consolidated Funded Debt, minus (f) any positive Working Capital
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Adjustment, plus (g) any negative Working Capital Adjustment and minus (h) all
income taxes actually paid in cash.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to Wachovia on such day on
such transactions as determined by the Administrative Agent.
"Financing" shall mean (i) any transaction or series of
transactions for the incurrence by the Borrower of any Debt or for the
establishment of a commitment to make advances which would constitute Debt of
the Borrower, which Debt is not by its terms subordinate and junior to other
Debt of the Borrower, (ii) an obligation incurred in a transaction or series of
transactions in which assets of the Borrower are sold and leased back, or (iii)
a sale of accounts or other receivables or any interest therein, other than a
sale or transfer of accounts or receivables attendant to a sale permitted
hereunder of an operating division; provided that Capital Leases and Capital
Lease Obligations shall be excluded from this definition.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Charges" for any period, means without duplication,
the sum of (i) the aggregate amount of Interest Expense during such period plus
(ii) the aggregate amount of Rental Obligations (less any principal portion of
any Off-Balance Sheet Lease) for such period.
"Funded Debt" of any Person means (i) all Debt of such Person
which in accordance with GAAP would be classified on a balance sheet of such
Person as of such date as long-term debt, and including in any event all Debt
of such Person, whether secured or unsecured, having a final maturity (or
which, pursuant to its terms, is renewable or extendible at the option of such
Person for a period ending) more than one year after the date of the creation
thereof (including any portion thereof which is on such date included in
current liabilities of such Person) plus (ii) all Current Debt of such Person;
it being understood and agreed that, with respect to the Borrower, the term
"Funded Debt" shall include, in addition to all Debt which would otherwise be
included pursuant to the foregoing definition, but without duplication, (x) all
Unescrowed Off-Balance Sheet Lease Indebtedness, (y) the Off-Balance Sheet
Lease Equity Amounts and (z) the Subordinated Debt, but with respect to the
Borrower, the term "Funded Debt" shall not include the Coke Advance.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
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"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" means each Person which is a Subsidiary as of
the Effective Date and any Person which becomes a Subsidiary after the
Effective Date.
"Guaranty" means the Guaranty Agreement of even date herewith
in substantially the form of Exhibit H to be executed by the Guarantors which
are Subsidiaries on the Effective Date and by each Person which becomes a
Subsidiary after the Effective Date pursuant to Section 5.22(a), for the
benefit of the Administrative Agent and the Lenders.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss.6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b) any
"hazardous substance", "pollutant" or "contaminant", as defined in CERCLA, or
in any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976,
or in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Installment Payment Date" means each March 31, June 30,
September 30 and December 31.
"Interest Expense" for any period, means the aggregate amount
(determined in accordance with GAAP on a consolidated basis after eliminating
all intercompany items) of all interest accrued (whether or not actually paid)
by the Borrower and its Subsidiaries during such period in respect of Debt of
the Borrower and its Subsidiaries (including Capital Lease Obligations),
provided that the term "Interest Expense" shall (i) include, without
limitation, net amounts paid or accrued during such period in connection with
interest rate protection products (including, without limitation, interest rate
swaps, caps, floors and collars), amortized (if appropriate under GAAP)
appropriately over the term of the applicable Debt, any amortized discount in
respect of Debt issued at a discount and any fees or commissions payable in
connection with any letters of credit, the portion of any Capital Lease
Obligation allocable to interest in accordance with GAAP, the amount of
interest costs incurred by any Person during any period that is capitalized in
accordance with GAAP and is not included as an interest cost in calculating
Consolidated Net Income for such period, and (ii) shall exclude all costs
associated
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with the prepayment of fixed-rate debt.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(1) any Interest Period (subject to clause (c) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business Day;
(2) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall, subject
to clause (c) below, end on the last Euro-Dollar Business Day of the
appropriate subsequent calendar month; and
(3) no Interest Period may be selected which would end after the
Maturity Date.
(2) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending on the first day after the
date of such Borrowing which is the last day of a Fiscal Quarter; provided
that:
(1) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be extended
to the next succeeding Domestic Business Day; and
(2) no Interest Period may end after the Maturity Date.
"Interest Rate Protection Agreement" means an interest rate
hedging or protection agreement entered into by and between the Borrower and a
Lender or a Revolver Bank, or an Affiliate of either, together with all
exhibits, schedules, extensions, renewals, amendments, substitutions and
replacements thereto and thereof.
"Intercreditor Agreement" means an intercreditor agreement
acceptable to the Collateral Agent and the Secured Parties, setting forth,
among other things, the appointment of the Collateral Agent and its rights,
duties and obligations, indemnification provisions for the Collateral Agent,
provisions for the administration and sharing of the Collateral, for the giving
of certain notices, as to voting rights and as to enforcement actions with
respect to the Collateral, as it may hereafter be amended or supplemented from
time to time.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of assets, Debt or securities of such Person,
capital contribution to such Person, loan or advance to such Person, making of
a time deposit with such Person, Guarantee or assumption of any Debt of such
Person or otherwise; excluding, however, the acquisition of (i) "Leased
Property", as defined in the Lease, (ii) leases and/or real property acquired
by the Borrower or any of its Subsidiaries for the purpose of developing movie
theatres and (iii)
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equipment or inventory in the ordinary course of business.
"LC Agent" means the "Agent", as that term is defined in the
Reimbursement Agreement.
"LC Lenders" means the "Lenders", as that term is defined in
the Reimbursement Agreement.
"Lease" means the Amended and Restated Master Lease dated
January 29, 1999 between Movieplex Realty Leasing, L.L.C., as Landlord, and the
Borrower, as Tenant, as it may hereafter be amended or supplemented from time
to time.
"Lender" means each bank or financial institution listed on
the signature pages hereof as having a Commitment, and its successors and
assigns.
"Lending Office" means, as to each Lender, its office located
at its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such
Lender may hereafter designate as its Lending Office by notice to the Borrower
and the Administrative Agent.
"Lien" means, with respect to any asset, any mortgage, deed
to secure debt, deed of trust, lien, pledge, charge, security interest,
security title, preferential arrangement which has the practical effect of
constituting a security interest or encumbrance, servitude or encumbrance of
any kind in respect of such asset to secure or assure payment of a Debt or a
Guarantee, whether by consensual agreement or by operation of statute or other
law, or by any agreement, contingent or otherwise, to provide any of the
foregoing. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement relating to such
asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan and Loans
means Base Rate Loans or Euro-Dollar Loans, or any or all of them, as the
context shall require.
"Loan Documents" means this Agreement, the Notes, the
Guaranty, the Contribution Agreement, the Collateral Documents, any other
document evidencing, relating to or securing the Loans, and any other document
or instrument delivered from time to time in connection with this Agreement,
the Notes, the Guaranty, the Contribution Agreement, the Collateral Documents
or the Loans, as such documents and instruments may be amended or supplemented
from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.05(c).
"Maintenance Capital Expenditures" means expenditures of the
Borrower and its Subsidiaries which are (i) capitalized on the books of the
Borrower and its Subsidiaries in accordance with GAAP and (ii) incurred for the
purpose of maintaining existing Properties (but not for major renovations of or
new improvements to existing Properties or acquisition of new Properties).
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"Margin Stock" means "margin stock" as defined in Regulation
T, U or X of the Board of Governors of the Federal Reserve System, as in effect
from time to time, together with all official rulings and interpretations
issued thereunder.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any
of (a) the financial condition, operations, business, properties or prospects
of the Borrower and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Administrative Agent or the Lenders under the Loan Documents,
or the ability of the Borrower to perform its obligations under the Loan
Documents to which it is a party, as applicable, or (c) the legality, validity
or enforceability of any Loan Document.
"Maturity Date" means March 30, 2005.
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, in each case as set forth in a
statement in reasonable detail delivered by the respective Borrower to the
Administrative Agent:
(i) with respect to the disposition of assets (including
in connection with sale/leaseback transactions, but excluding sales of
inventory in the ordinary course of business) by any Borrower or
Subsidiary, the excess, if any, of (1) the cash proceeds received in
connection with such disposition over (2) the sum of (A) the principal
amount of any Debt (other than payments on the Secured Obligations
required by Section 2.10) which is secured by such asset and which is
required to be repaid in connection with the disposition thereof, plus
(B) the reasonable out-of-pocket expenses incurred by such Borrower or
such Subsidiary, as the case may be, in connection with such
disposition, plus (C) so long as no Event of Default is in existence,
provision for taxes, including income taxes, attributable to the
disposition of such asset, less (D) cash proceeds in an amount equal
to an aggregate of $3,000,000 from all such dispositions of assets in
the Fiscal Year in which the relevant disposition of assets occurs;
(ii) with respect to any cash proceeds received by any
Borrower or a Subsidiary from the issuance of any Capital Stock (other
than cash proceeds received by a Subsidiary from the sale of Capital
Stock to the Borrower or to another Subsidiary or received in
connection with any sale under the Borrower's stock option plans for
the benefit of officers, employees and directors or used to pay the
repurchase price of stock held by any of them pursuant to any such
plans), all such cash proceeds, after deducting therefrom all
reasonable and customary costs and expenses incurred by such Borrower
or Subsidiary directly in connection with the issuance of such Capital
Stock;
(iii) with respect to any cash proceeds received in
respect of the incurrence of the
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Subordinated Debt (other than the $200,000,000 in Subordinated Debt
described in Section 5.25(b)), all such cash proceeds; and
(iv) with respect to any proceeds or awards from any
casualty to or condemnation of any of the Properties, the excess, if
any, of (1) the cash proceeds received in connection with such
casualty or condemnation award over (2) the sum of (A) the principal
amount of any Debt (other than payments on the Secured Obligations
required by Section 2.10) which is secured by such Property and which
is required to be repaid in connection with the disposition thereof,
plus (B) the reasonable out-of-pocket expenses incurred by such
Borrower or such Subsidiary, as the case may be, in connection with
the collection of such proceeds, less (C) the amount which the
Borrower estimates it will expend to restore or replace such Property;
less (D) cash proceeds in an amount equal to an aggregate of
$1,000,000 from all such casualties and condemnation awards in the
Fiscal Year in which the relevant casualty or condemnation award
occurs.
"Notes" means the term promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the obligation of the
Borrower to repay the Loans, together with all amendments, consolidations,
modifications, renewals and supplements thereto and "Note" means any one of
such Notes.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Off-Balance Sheet Lease Equity Amounts" means the aggregate
amount of all capital contributions made from time to time to any entity acting
in the capacity of landlord (or in any functionally similar capacity to a
landlord) under any Off-Balance Sheet Lease by equity holders in such entity.
"Off-Balance Sheet Lease Indebtedness" means the aggregate
principal amount of (and capitalized interest on) all indebtedness incurred or
issued in connection with any Off-Balance Sheet Lease which is secured,
supported or serviced, directly or indirectly, by any payments made by the
Borrower or any Subsidiary.
"Off-Balance Sheet Lease Payments" means, for any period, the
aggregate amount of any rental payments or other similar payments made during
such period in connection with any Off-Balance Sheet Lease.
"Off-Balance Sheet Lease" means the Lease and any other lease
which is treated as a lease for accounting purposes and as a financing
instrument for property law and bankruptcy purposes, and in respect of which
transaction any Off-Balance Sheet Lease Indebtedness is issued or incurred.
"Off-Balance Sheet Property" means any property subject to an
Off-Balance Sheet Lease.
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Operating Lease" means a lease (including an Off-Balance
Sheet Lease) of real or personal property other than, in the case of the
Borrower or a Subsidiary, (a) any such lease
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under which the Borrower or a Wholly-Owned Subsidiary is the lessor and (b) any
Capital Lease.
"Original Agreement" has the meaning set forth in the
preamble.
"Participant" has the meaning set forth in Section 9.07(b).
"▇▇▇▇▇▇▇ Family" means any or all of ▇. ▇. ▇▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇, or trusts to which one or more of the foregoing are the sole
beneficiaries.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership
(including without limitation, a joint venture), an unincorporated association,
a trust or any other entity or organization, including, but not limited to, a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a
member of the Controlled Group for employees of any member of the Controlled
Group or (ii) maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an obligation
to make contributions or has within the preceding 5 plan years made
contributions.
"Pledge Agreement" means a Pledge Agreement in form and
substance satisfactory to the Administrative Agent and the Collateral Agent
pursuant to which the Borrower pledges and grants a first priority perfected
security interest in the capital stock of all Subsidiaries to the Collateral
Agent, for the ratable benefit of the Secured Parties, to secure the Secured
Obligations, as it may hereafter be amended or supplemented from time to time.
"Preferred Stock" means, as applied to any corporation, shares
of such corporation which are entitled to preference or priority over any other
shares of such corporation in respect of either the payment of dividends or the
distribution of assets upon liquidation.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased under a
ground lease or otherwise used or occupied by the Borrower or any Subsidiary,
wherever located.
"Rate Determination Date" has the meaning set forth in
Section 2.05(a).
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior to the
Maturity Date either (i) mandatorily redeemable (by sinking fund or similar
payments or otherwise) or (ii) redeemable at the option of the holder thereof.
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"Refunding Loan" means a new Loan made on the day on which an
outstanding Loan is maturing or a Base Rate Borrowing is being converted to a
Euro-Dollar Borrowing, to the extent that the proceeds thereof are used
entirely for the purpose of paying such maturing Loan or Loan being converted.
"Reimbursement Agreement" means that certain Reimbursement
Agreement dated as of November 20, 1997, among Movieplex Realty Leasing,
L.L.C., the LC Agent and the LC Lenders, as amended by First Amendment to
Reimbursement Agreement dated as of January 29, 1999, and as it may hereafter
be amended or supplemented from time to time.
"Related Fund" means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in bank loans and
is advised or managed by the same investment advisor as such Lender.
"Rental Obligations" means for any period, the total amount
(whether or not designated as rentals or additional or supplemental rentals)
payable by the Borrower or any Subsidiary under any Operating Lease during such
period (in each case exclusive of amounts so payable on account of maintenance,
repairs, insurance, taxes, assessments and other similar charges); if and to
the extent that the amount of any Rental Obligation during any future period is
not definitely determinable under the Operating Lease in question, the amount
of such Rental Obligation shall be estimated in such reasonable manner as the
Board of Directors in good faith may determine.
"Required Lenders" means at any time Lenders having at least
51% of the aggregate amount of the Commitments or, if the Commitments are no
longer in effect, Lenders holding at least 51% of the aggregate outstanding
principal amount of the Loans.
"Responsible Officer" means the chief financial officer or
the chief executive officer of the Borrower.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock or the Capital Stock
of any Subsidiary which is not a Wholly-Owned Subsidiary (except (x) dividends
payable solely in shares of such Capital Stock, (y) dividends payable on Capital
Stock of such Subsidiaries which are payable pro rata to all of the owners of
such Capital Stock, and (z) dividends payable to the Borrower or a Guarantor) or
(ii) any payment on account of the purchase, redemption, retirement or
acquisition of (a) any shares of the Borrower's or any such Subsidiary's Capital
Stock (except shares acquired upon the conversion thereof into other shares of
its Capital Stock) or (b) any option, warrant or other right to acquire shares
of the Borrower's or any such Subsidiary's Capital Stock.
"Restructuring and Impairment Charges for 1998" means the
following charges to be taken by the Borrower for the fourth Fiscal Quarter of
its 1998 fiscal year: (i) a restructuring charge in the amount of approximately
$33,000,000 and (ii) impairment of asset value charge in the amount of
approximately $37,000,000 to $41,000,000.
"Revolver Agent" means Wachovia Bank, N.A., as Agent, under
the Revolver Credit Agreement.
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"Revolver Banks" means the "Banks", as defined in the
Revolver Credit Agreement.
"Revolver Commitments" means the Commitments of the Revolver
Banks under the Revolver Credit Agreement.
"Revolver Credit Agreement" means the Amended and Restated
Credit Agreement among Carmike Cinemas, Inc., the banks listed therein, and
Wachovia Bank, N.A. as Agent dated as of January 29, 1999.
"Revolving Loan" means, collectively, the loans in the
aggregate amount of up to $275,000,000, made from time to time by the Revolver
Banks pursuant to the Revolver Credit Agreement.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.
"Secured Obligations" means: (i) the obligations of the
Borrower under (x) this Agreement, (y) the Lease and the Lessee Undertaking and
(z) the Revolver Credit Agreement; (ii) the EastWynn Guaranty Obligations; and
(iii) the actual (as distinguished from notional) liability of the Borrower to
any Lender or Revolver Bank, or Affiliate or either, under any Interest Rate
Protection Agreement with any such Lender, Revolver Bank or Affiliate.
"Secured Parties" means (i) the Administrative Agent and the
Lenders, and, with respect to any Interest Rate Protection with an Affiliate of
a Lender, such Affiliate, (ii) the LC Agent (as assignee of the Landlord, for
the ratable benefit of the LC Lenders) and the LC Lenders and (iii) the
Revolver Administrative Agent and the Revolver Banks, and with respect to any
Interest Rate Protection with an Affiliate of a Revolver Bank, such Affiliate.
"Security Agreement" means a Security Agreement in form and
substance satisfactory to the Administrative Agent and the Collateral Agent
pursuant to which each of the Borrower and EastWynn grants a first priority,
perfected security interest in all personal property owned by it, including,
without limitation, all equipment, fixtures, accounts, chattel paper,
instruments, inventory and general intangibles, to the Collateral Agent, for
the ratable benefit of the Secured Parties, to secure the Secured Obligations,
as it may hereafter be amended or supplemented from time to time.
"Senior Notes" means, collectively, the 10.53% Senior Notes
due 2005 in the outstanding principal amount of approximately $47,700,000, the
7.90% Senior Notes due 2002 in the outstanding principal amount of
approximately $14,300,000 and the 7.52% Senior Notes due 2003 in the
outstanding principal amount of approximately $17,900,000.
"Subordinated Debt" means up to $350,000,000 in Debt of the
Borrower evidenced by Subordinated Notes.
"Subordinated Debt Documents" means the Subordinated Notes,
the Subordinated Debt Indenture and the Subsidiary Guarantees described in the
Subordinated Debt Offering Circular.
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"Subordinated Debt Indenture" means the Indenture described
in the Subordinated Debt Offering Circular among the Borrower, the Guarantors
parties thereto described in the Subordinated Debt Offering Circular and The
Bank of New York, as Trustee.
"Subordinated Debt Offering Circular" means the Offering
Circular dated January 27, 1999 pertaining to the issuance of $200,000,000 of
Subordinated Notes and contemplating the subsequent issuance of up to an
additional $150,000,000 of Subordinated Notes, pursuant to the Subordinated
Debt Indenture.
"Subordinated Notes" means the 9.375% Senior Subordinated
Notes having a maturity not earlier than June 1, 2009 which are described in
the Subordinated Debt Offering Circular (including any "Exchange Notes" issued
under the Subordinated Debt Indenture) and which are subordinated in right of
payment to the payment of the obligations of the Borrower under this Agreement
and the Revolver Credit Agreement pursuant to the subordination provisions
described in the Subordinated Debt Offering Circular.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Borrower.
"Syndication Agent" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.,
a NEW YORK limited partnership, in its capacity as syndication agent for the
Lenders hereunder, and its successors and permitted assigns in such capacity.
"Theater-Level EBITDA" means with respect to any Off-Balance
Sheet Property, operating income derived therefrom, without provision for any
interest, taxes related to income, depreciation, amortization and corporate
general and administrative expenses.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.07(d).
"Unescrowed Off-Balance Sheet Lease Indebtedness" means the
aggregate amount of all Off-Balance Sheet Lease Indebtedness minus the
aggregate amount of any Off-Balance Sheet Lease Indebtedness being held in an
escrow fund pending expenditure with respect to the property or asset being
financed in connection with the Off-Balance Sheet Lease with respect to which
such Off-Balance Sheet Lease Indebtedness was issued or incurred.
"Voting Stock" means capital stock of a corporation the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect the corporate directors (or persons performing similar functions).
"Wachovia" means Wachovia Bank, N.A., a national banking
association and its successors.
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"Wholly-Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Borrower.
Section I.2. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made,
and all financial statements required to be delivered hereunder shall be
prepared in accordance with GAAP, applied on a basis consistent (except for
changes concurred in by the Borrower's independent public accountants or
otherwise required by a change in GAAP) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Lenders, unless with respect to any such change
concurred in by the Borrower's independent public accountants or required by
GAAP, in determining compliance with any of the provisions of this Agreement or
any of the other Loan Documents: (i) the Borrower shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements, or (ii) the Required Lenders shall so object in writing
within 30 days after the delivery of such financial statements, in either of
which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 5.01 hereof, shall mean
the financial statements referred to in Section 4.04); provided that, if either
the Borrower or the Required Lenders shall so object, then the Borrower and the
Lenders shall negotiate in good faith to modify the relevant covenants set
forth in Article V in order to appropriately reflect such changes in GAAP and,
in the event such covenants are so modified, upon execution of an amendment to
this Agreement effectuating such modification, the related changes in GAAP will
be effective for calculation and reporting purposes under this Agreement.
Section I.3. Use of Defined Terms. All terms defined in this
Agreement shall have the same meanings when used in any of the other Loan
Documents, unless otherwise defined therein or unless the context shall
otherwise require.
Section I.4. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
Section I.5. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", and
"Sections" are references to articles, exhibits, schedules and sections hereof.
ARTICLE II
THE CREDITS
Section II.1. Commitments to Make Loans. Each Lender
severally agrees, on the terms and conditions set forth herein, to make Loans
to the Borrower on or about the Effective Date in the amount of its Commitment;
provided that all advances of the Loans by the Lenders
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shall be made in a single funding on or about the Effective Date (when all
conditions have been satisfied), in an aggregate amount not to exceed the
aggregate Commitments, and thereafter, all Loans shall be made only as
Refunding Loans. Each Euro-Dollar Borrowing under this Section shall be in an
aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000
(except that any such Euro-Dollar Borrowing may be in the amount of the Unused
Commitments) and shall be made from the several Lenders ratably in proportion
to their respective Commitments. Each Base Rate Borrowing under this Section
shall be in an aggregate principal amount of $1,000,000 or any larger multiple
of $100,000 (except that any such Base Rate Borrowing may be in the amount of
the Unused Commitments) and shall be made from the several Lenders ratably in
proportion to their respective Commitments. Once repaid, Borrowings may not be
reborrowed pursuant hereto except as Refunding Loans.
Section II.2. Method of Borrowing Loans.
(1) The Borrower shall give the Administrative Agent notice in
the form attached hereto as Exhibit G (a "Notice of Borrowing") prior to 11:00
A.M. (Atlanta, Georgia time) on the Domestic Business Day of each Base Rate
Borrowing and at least 3 Euro-Dollar Business Days before each Euro-Dollar
Borrowing, specifying:
(1) the date of such Borrowing, which shall be
a Domestic Business Day in the case of a Base Rate Borrowing
or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing,
(2) the aggregate amount of such Borrowing,
(3) whether the Loans comprising such Borrowing
are to be Base Rate Loans or Euro-Dollar Loans, and
(4) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period.
(2) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Lender of the contents thereof and of such
Lender's ratable share of such Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(3) Not later than 11:00 A.M. (Atlanta, Georgia time) on the date
of each Euro-Dollar Borrowing, and not later than 2:00 P.M. (Atlanta, Georgia
time) on the date of each Base Rate Borrowing, each Lender shall (except as
provided in subSection (d) of this Section) make available its ratable share of
such Borrowing, in Federal or other funds immediately available in Atlanta,
Georgia, to the Administrative Agent at its address referred to in or specified
pursuant to Section 9.01. Unless the Administrative Agent determines that any
applicable condition specified in Article III has not been satisfied, the
Administrative Agent will make the funds so received from the Lenders available
to the Borrower at the Administrative Agent's aforesaid address. Unless the
Administrative Agent receives notice from a Lender, at the Administrative
Agent's address referred to in Section 9.01, no later than 4:00 P.M. (local
time at such address) on the Domestic Business Day before the date of a
Euro-Dollar Borrowing, and no later than 1:00 P.M. (local time at such address)
on the Domestic Business Day of a Base Rate Borrowing,
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stating that such Lender will not make a Loan in connection with such
Borrowing, the Administrative Agent shall be entitled to assume that such
Lender will make a Loan in connection with such Borrowing and, in reliance on
such assumption, the Administrative Agent may (but shall not be obligated to)
make available such Lender's ratable share of such Borrowing to the Borrower
for the account of such Lender. If the Administrative Agent makes such Lender's
ratable share available to the Borrower and such Lender does not in fact make
its ratable share of such Borrowing available on such date, the Administrative
Agent shall be entitled to recover such Lender's ratable share from such Lender
or the Borrower (and for such purpose shall be entitled to charge such amount
to any account of the Borrower maintained with the Administrative Agent),
together with interest thereon for each day during the period from the date of
such Borrowing until such sum shall be paid in full at a rate per annum equal
to the rate at which the Administrative Agent determines that it obtained (or
could have obtained) overnight Federal funds to cover such amount for each such
day during such period, provided that any such payment by the Borrower of such
Lender's ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Lender. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Loan included in such Borrowing for
purposes of this Agreement.
(4) All Loans other than the initial advance of the Loan shall be
made as Refunding Loans.
(5) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not
have been cured or waived in writing.
(6) In the event that a Notice of Borrowing fails to specify
whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, such Loans shall be made as Base Rate Loans. If the Borrower
is otherwise entitled under this Agreement to repay any Loans maturing at the
end of an Interest Period applicable thereto with the proceeds of a new
Borrowing, and the Borrower fails to repay such Loans using its own moneys and
fails to give a Notice of Borrowing in connection with such new Borrowing, a
new Borrowing shall be deemed to be made on the date such Loans mature in an
amount equal to the principal amount of the Loans so maturing, and the Loans
comprising such new Borrowing shall be Base Rate Loans.
(7) Notwithstanding anything to the contrary contained herein,
(i) there shall not be more than 7 different Interest Periods outstanding at
the same time (for which purpose Interest Periods described in different
numbered clauses of the definition of the term "Interest Period" shall be
deemed to be different Interest Periods even if they are coterminous) and (ii)
the proceeds of any Base Rate Borrowing shall be applied first to repay the
unpaid principal amount of all Base Rate Loans (if any) outstanding immediately
before such Base Rate Borrowing.
Section II.3. Notes.
(1) The Loans of each Lender shall be evidenced by a single Note
payable to the order of such Lender for the account of its Lending Office in an
amount equal to the original principal amount of such Lender's Commitment.
(2) Upon receipt of each Lender's Notes pursuant to Section 3.01,
the Administrative
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Agent shall deliver such Notes to such Lender. Each Lender shall record, and
prior to any transfer of its Notes shall endorse on the schedule forming a part
thereof appropriate notations to evidence, the date, amount and maturity of,
and effective interest rate for, each Loan made by it, the date and amount of
each payment of principal made by the Borrower with respect thereto and whether
such Loan is a Base Rate Loan or Euro-Dollar Loan, and such schedule shall
constitute rebuttable presumptive evidence of the principal amount owing and
unpaid on such Lender's Notes; provided that the failure of any Lender to make,
or any error in making, any such recordation or endorsement shall not affect
the obligation of the Borrower hereunder or under the Notes or the ability of
any Lender to assign its Notes. Each Lender is hereby irrevocably authorized by
the Borrower so to endorse its Notes and to attach to and make a part of any
Note a continuation of any such schedule as and when required.
Section II.4. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing,
but may be repaid through a Refunding Loan, except to the extent of any
installment payment required pursuant to the next succeeding sentence.
Quarterly installment payments on the Loans shall be made on each of the
Installment Payment Dates set forth below in the aggregate principal amount set
forth below for such Installment Payment Date, together with interest thereon
and any amount payable pursuant to Section 8.05(a):
Installment Payment Date Installment Principal Amount
------------------------ ----------------------------
June 30, 1999 through
December 31, 2002 $ 187,500
March 31, 2003 and
June 30, 2003 $ 2,500,000
September 30, 2003 through
March 31, 2004 $ 5,000,000
June 30, 2004 and
September 30, 2004 $10,000,000
December 31, 2004 $15,000,000
March 31, 2005 $17,188,500
Section II.5. Interest Rates.
(1) "Applicable Margin" shall be determined quarterly based upon
the ratio of Consolidated Funded Debt to Consolidated Cash Flow (calculated as
of the last day of each Fiscal Quarter for the period of 4 consecutive Fiscal
Quarters then ended), as follows:
-------------------------------------------------------------------------------------------
Ratio of Consolidated Funded Debt to Base Rate Loans Euro-Dollar
Consolidated Cash Flow --------------- Loans
------------------------------------ -----------
-------------------------------------------------------------------------------------------
Greater than or equal to 5.0 2.00% 3.00%
-------------------------------------------------------------------------------------------
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-------------------------------------------------------------------------------------------
Ratio of Consolidated Funded Debt to Base Rate Loans Euro-Dollar
Consolidated Cash Flow --------------- Loans
------------------------------------ -----------
-------------------------------------------------------------------------------------------
Greater than or equal to 4.0 but less than 5.0 1.75% 2.75%
-------------------------------------------------------------------------------------------
Less than 4.0 1.50% 2.50%
-------------------------------------------------------------------------------------------
The Applicable Margin shall be determined effective as of each date (herein,
the "Rate Determination Date") which is 50 days after the last day of the final
Fiscal Quarter in the period for which the foregoing ratio is being determined,
and the Applicable Margin so determined shall remain effective from such Rate
Determination Date until the date which is 50 days after the last day of the
Fiscal Quarter in which such Rate Determination Date falls (which latter date
shall be a new Rate Determination Date); provided that (i) for the period from
and including the Effective Date to but excluding the Rate Determination Date
next following the Effective Date, the Applicable Margin shall be (A) 1.75% for
Base Rate Loans and (B) 2.75% for Euro-Dollar Loans, (ii) in the case of
Applicable Margins determined for the fourth and final Fiscal Quarter of a
Fiscal Year, the Rate Determination Date shall be the date which is 95 days
after the last day of such final Fiscal Quarter and such Applicable Margins
shall be determined based upon the annual audited financial statements for the
Fiscal Year ended on the last day of such final Fiscal Quarter, and (iii) if on
any Rate Determination Date the Borrower shall have failed to deliver to the
Lenders the financial statements required to be delivered pursuant to Section
5.01 with respect to the Fiscal Quarter most recently ended prior to such Rate
Determination Date (or, in the case of annual audited financial statements,
with respect to the Fiscal Year which includes such final Fiscal Quarter), then
for the period beginning on such Rate Determination Date and ending on the
earlier of (x) the next Rate Determination Date (on which the Applicable Margin
shall again be determined pursuant to this paragraph) and (y) the date on which
the Borrower shall deliver to the Lenders the financial statements to be
delivered pursuant to Section 5.01(b) with respect to such Fiscal Quarter (in
the case of a failure to deliver quarterly unaudited financial statements) or
the date on which the Borrower shall deliver to the Lenders the annual audited
financial statements to be delivered pursuant to Section 5.01(a) with respect
to the Fiscal Year which includes such final Fiscal Quarter (in the case of a
failure to deliver annual audited financial statements), the Applicable Margin
shall be determined as if the ratio of Consolidated Funded Debt to Consolidated
Cash Flow was more than 5.0 at all times during such period. Any change in the
Applicable Margin on any Rate Determination Date shall result in a
corresponding change, effective on and as of such Rate Determination Date, in
the interest rate applicable to each Loan outstanding on such Rate
Determination Date, provided that (i) for Euro-Dollar Loans, changes in the
Applicable Margin shall only be effective for Interest Periods commencing on or
after the Rate Determination Date, and (ii) no Applicable Margin shall be
decreased pursuant to this Section 2.05 if an Event of Default is in existence
on the Rate Determination Date.
(2) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(3) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount
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thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the sum of the Applicable Margin plus the applicable Adjusted London
Interbank Offered Rate for such Interest Period; provided that if any
Euro-Dollar Loan shall, as a result of clause (1)(c) of the definition of
Interest Period, have an Interest Period of less than one month, such
Euro-Dollar Loan shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than 3 months, at intervals of 3 months after the first day
thereof. Any overdue principal of and, to the extent permitted by applicable
law, overdue interest on any Euro-Dollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to
any Interest Period means a rate per annum equal to the quotient obtained
(rounded upward, if necessary, to the next higher 1/100th of 1%) by dividing
(i) the applicable London Interbank Offered Rate for such Interest Period by
(ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan the
rate per annum determined on the basis of the rate for deposits in Dollars of
amounts equal or comparable to the principal amount of such Euro-Dollar Loan
offered for a term comparable to such Interest Period, which rate appears on
Page "3750" of the Telerate Service (or such other page as may replace page
3750 of that service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying London interbank
offered rates for deposits in Dollars), determined as of 1:00 P.M. (Atlanta,
Georgia time), 2 Euro-Dollar Business Days prior to the first day of such
Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents). The
Adjusted London Interbank Offered Rate shall be adjusted automatically on and
as of the effective date of any change in the Euro-Dollar Reserve Percentage.
(4) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Lenders by telecopy of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(5) After the occurrence and during the continuance of a Default,
the principal amount of the Loans (and, to the extent permitted by applicable
law, all accrued interest thereon) may, at the election of the Required
Lenders, bear interest at the Default Rate.
Section II.6. Fees.
(1) On the Effective Date, the Borrower shall pay to the
Administrative Agent, for
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the ratable account of each Lender a fee in an amount equal to 0.25% of such
Lender's Commitment.
(2) The Borrower shall pay to the Administrative Agent, for the
account and sole benefit of the Administrative Agent, such fees and other
amounts at such times as set forth in the Administrative Agent's Letter
Agreement.
Section II.7. Prepayment Premium. In the event of any
voluntary or mandatory prepayment of principal prior to the Anniversary Date,
the Borrower shall pay, in addition to any other amounts due hereunder, to the
Administrative Agent for the ratable benefit of the Lenders a prepayment fee
equal to 1% of the principal prepaid.
Section II.8. Termination of Commitments. The Commitments
shall terminate on the Maturity Date and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
Section II.9. Optional Prepayments.
(1) The Borrower may, upon at least 1 Domestic Business Day's
notice to the Administrative Agent, prepay any Base Rate Borrowing in whole at
any time, or from time to time in part in amounts aggregating at least
$1,000,000, or any larger multiple of $100,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Base Rate
Loans of the several Lenders included in such Base Rate Borrowing.
(2) Except as provided in Sections 2.01 and 8.02, the Borrower
may prepay all or any portion of the principal amount of any Euro-Dollar Loan
prior to the maturity thereof only upon (i) at least 3 Euro-Dollar Business
Days' notice to the Administrative Agent, (ii) compliance with the provisions
of Sections 2.07 and 8.05, and (iii) payment of an administrative fee of $250
to the Administrative Agent (which fee shall be retained by the Administrative
Agent).
(3) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Lender of the
contents thereof and of such Lender's ratable share of such prepayment and such
notice shall not thereafter be revocable by the Borrower.
Section II.10. Mandatory Prepayments.
The Borrower shall repay or prepay (i) Revolving Loans in an
amount equal to 100% of the proceeds of the first Borrowing hereunder, (ii)
Loans and the Revolving Loan in an amount equal to 50% of other Net Cash
Proceeds and (iii) Loans and the Revolving Loan in amount equal to 50% of any
Excess Cash Flow. Prepayments pursuant to the foregoing clause (i) shall be
made on the date of receipt of the proceeds of the Borrowing Loan. Payments
pursuant to the foregoing clause (ii) shall be made within 15 Business Days
after the receipt of Net Cash Proceeds (except that prepayments from proceeds
of Subordinated Debt shall be made on the date of receipt of such proceeds);
provided, that amounts not included in Net Cash Proceeds pursuant to clause
(iv)(C) of the definition thereof which have not been used or committed to be
used within 180 days from the casualty or condemnation of such Property to
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restore or replace the relevant Property shall be paid on such 180th day.
Payments pursuant to the foregoing clause (iii) shall be made on the date the
Borrower furnishes its annual financial statements to the Lenders pursuant to
Section 5.01(a) (or on the date such statements are required to be so furnished
pursuant to such section, if they have not been furnished by such date).
Prepayments pursuant to the foregoing clause (i) shall be made to the Revolver
Agent, for the ratable account of the Revolver Banks. Prepayments pursuant to
the foregoing clauses (ii) and (iii) shall be made to the Administrative Agent
and to the Revolver Agent, for the ratable account of the Revolver Banks and
the Lenders, based on the aggregate amount of the Revolver Commitments and the
aggregate principal balance of the Loans as of the time of the payment;
provided, that:
(1) any Lender (a "Declining Lender") may, by notice to
the Administrative Agent, decline to accept any
particular prepayment pursuant to this Section 2.10,
in which event the amount of any prepayment
otherwise payable to such Declining Lender shall be
paid to the Revolver Agent for the ratable account
of the Revolver Banks, subject to the provisions of
subclause (2) below; and
(2) from and after the date that the Revolver
Commitments have been reduced to $150,000,000 by
payments made pursuant to the foregoing clauses (ii)
and (iii) in accordance with Section 2.08 of the
Revolver Credit Agreement, such repayments or
prepayments shall be made solely to the Lenders,
other than any Lenders which are Declining Lenders
with respect thereto (and the amount of any
prepayment otherwise payable to a Declining Lenders
shall be not be subject to prepayment pursuant to
this Section 2.08, except as provided in subclause
(2) below), until the Loans are paid in full, and
(3) notwithstanding the reduction of the Revolver
Commitments to $150,000,000 by prepayments pursuant
to the foregoing clauses (ii) and (iii) in
accordance with Section 2.08 of the Revolving Credit
Agreement, but only with respect to any sale of
Collateral, to the extent of any Net Cash Proceeds
from such sale which are not used to purchase
replacement Collateral having equal or greater value
and are not paid to the Declining Lenders pursuant
to subclause (2) above shall be used to prepay the
Revolving Loans, and the Revolver Commitments shall
be reduced by the amount of such prepayments in
accordance with the terms of the Revolver Credit
Agreement.
All prepayments made for the account of the Lenders pursuant to this Section
2.10 shall be accompanied by any amount required to be paid pursuant to
Sections 207 and 8.05(a), and shall be applied in installments of principal in
the inverse order of maturity.
Section II.11. General Provisions as to Payments.
(1) The Borrower shall make each payment of principal of, and
interest on, the Loans and of commitment fees hereunder without set-off or
counterclaim, not later than 11:00 A.M. (Atlanta, Georgia time) on the date
when due, in Federal or other funds immediately available in
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Atlanta, Georgia, to the Administrative Agent at its address referred to in
Section 9.01. The Administrative Agent will promptly distribute to each Lender
its ratable share of each such payment received by the Administrative Agent for
the account of the Lenders.
(2) Whenever any payment of principal of, or interest on, the
Base Rate Loans or the fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(3) Each payment or prepayment of Loans shall be applied by the
Administrative Agent to repay or prepay ratably the Loans of the several
Lenders in the following order of priority:
(1) first, to Euro-Dollar Loans maturing on the
date of such payment or prepayment;
(2) second, to Base Rate Loans maturing on or
after the date of such payment or prepayment (in the direct
order of maturity); and
(3) third, to Euro-Dollar Loans maturing after
the date of such payment or prepayment (in direct order of
maturity).
(d) Each Lender shall, prior to the due date of any payments
under the Notes, execute and deliver to the Borrower and the Administrative
Agent, one or more (as the Borrower or the Administrative Agent may reasonably
request) (i) either (x) if such Lender is organized under the laws of a
jurisdiction other than the United States or a State thereof, then (x) if such
Lender is a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (A)
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) United States Internal Revenue
Service Form W-8, or successor applicable form, as the case may be or, if such
Lender is not a "bank" within the meaning of section 881(c)(3)(A) of the Code
and is claiming exemption from U.S. Federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio interest",
a Form W-8, or any subsequent versions thereof or successors thereto (and, if
such Lender delivers a Form W-8, a certificate representing that such Lender is
not a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to any Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Lender claiming complete exemption from, or a reduced
rate of, U.S. Federal withholding tax on payments of interest by the Borrower
under this Agreement and the other Loan Documents; or (y) if such Lender is
organized under the laws of the United States or a State thereof, then United
States Internal Revenue Service Form W-9, or successor applicable form, as the
case may be, and (ii) copies of replacements of any such forms on or before the
date that any such forms expire or
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after the occurrence of any event requiring a change in the most recent form
previously delivered by it hereunder. Each Person that shall become a Lender
shall, upon the effectiveness of the related transfer, be required to provide
all of the forms required pursuant to this Section 2.11(d).
Section II.12. Computation of Interest and Fees. Interest on
Base Rate Loans based on the Base Rate shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day). Interest on Euro-Dollar Loans shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed, calculated as to each Interest Period from and including the
first day thereof to but excluding the last day thereof. Commitment fees and
any other fees payable hereunder shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
Section III.1. Conditions Precedent to Effectiveness. This
Agreement shall become effective on and as of the first date on which the
following conditions precedent have been satisfied (the "Effective Date"):
(1) receipt by the Administrative Agent from each of the parties
hereto of either (i) a duly executed counterpart of this Agreement signed by
such party or (ii) a facsimile transmission stating that such party has duly
executed a counterpart of this Agreement and sent such counterpart to the
Administrative Agent;
(2) receipt by the Administrative Agent of either (i) a duly
executed counterpart of each of the Loan Documents signed by each of the
parties thereto or (ii) a facsimile transmission stating that such party has
duly executed a counterpart of such Loan Document and sent such counterpart to
the Administrative Agent;
(3) receipt by the Administrative Agent of an opinion (together
with any opinions of local counsel relied on therein) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
counsel for the Borrower and the Guarantors, dated as of the Effective Date,
substantially in the form and substance delivered by such counsel in connection
with the Original Agreement and covering such additional matters relating to
the transactions contemplated hereby as the Administrative Agent or any Lender
may reasonably request;
(4) receipt by the Administrative Agent of an opinion of ▇▇▇▇▇,
Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Administrative Agent, dated as of
the Effective Date, substantially in the form of Exhibit C hereto and covering
such additional matters relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request;
(5) receipt by the Administrative Agent of a certificate (the
"Closing Certificate"), dated the Effective Date, substantially in the form of
Exhibit D hereto, signed by a principal financial officer of the Borrower, to
the effect that (i) no Default has occurred and is continuing on the Effective
Date and (ii) the representations and warranties of the Borrower contained in
Article IV are true on and as of the Effective Date;
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(6) receipt by the Administrative Agent of all documents which
the Administrative Agent or any Lender may reasonably request relating to the
existence of the Borrower and each Guarantor, the corporate authority for and
the validity of this Agreement, the Guaranty and any other matters relevant
hereto, all in form and substance satisfactory to the Administrative Agent,
including without limitation a certificate of incumbency of the Borrower and
each Guarantor (the "Officer's Certificate"), signed by the Secretary or an
Assistant Secretary of the Borrower or each Guarantor, substantially in the
form of Exhibit E hereto, certifying as to the names, true signatures and
incumbency of the officer or officers of the Borrower or each Guarantor
authorized to execute and deliver the Loan Documents to which the Borrower or
each Guarantor is a party, and certified copies of the following items: (i) the
Certificate or Articles of Incorporation of the Borrower and each Guarantor,
(ii) the Bylaws of the Borrower and each Guarantor, (iii) a certificate of the
Secretary of State of the State of Delaware as to the good standing of the
Borrower as a Delaware corporation and similar certificates for each Guarantor
from its jurisdiction of incorporation, and (iv) the action taken by the Board
of Directors of the Borrower and each Guarantor authorizing the Borrower's and
Guarantors' execution, delivery and performance of this Agreement and the other
Loan Documents to which the Borrower and each Guarantor is a party;
(7) receipt by the Administrative Agent from each of the
Guarantors as of the Effective Date of a duly executed counterpart of the
Guaranty signed by such Guarantor and from the Borrower and each of the
Guarantors as of the Effective Date of a duly executed counterpart of the
Contribution Agreement signed by the Borrower and such Guarantors;
(8) receipt by the Administrative Agent of the commitment fee
pursuant to Section 2.06(a) and other fees payable on the Effective Date in
accordance with the Administrative Agent's Letter Agreement;
(9) receipt by the Administrative Agent of evidence satisfactory
to it of execution and delivery of (A) the Lease and the First Amendment to the
Reimbursement Agreement as contemplated in an engagement letter dated January
12, 1999, between Carmike Cinemas, Inc., Movieplex Realty Leasing, L.L.C. and
Wachovia Bank, N.A, and (B) the Revolver Credit Agreement as contemplated in an
engagement letter dated January 12, 1999, between Carmike Cinemas, Inc., and
Wachovia Bank, N.A.;
(10) the Borrower shall have issued the Subordinated Debt on terms
satisfactory to the Agents and received net cash proceeds of at least
$200,000,000 from such issuance;
(11) the Subordinated Debt shall have received a Debt Rating of B-
or higher by S&P and B3 or higher by ▇▇▇▇▇'▇;
(12) the Administrative Agent and the Lenders shall have received
Uniform Commercial Code searches satisfactory to the Administrative Agent and
the Lenders for all locations presently occupied or used by the Borrower and
its Subsidiaries;
(13) delivery to the Collateral Agent of the capital stock of all
Subsidiaries and blank stock powers satisfactory in form and substance to the
Collateral Agent;
(14) the execution and delivery of financing statements
satisfactory in form and
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substance to the Collateral Agent; and
(15) evidence satisfactory to the Administrative Agent of payment
in full and cancellation of the Senior Notes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section IV.1. Corporate Existence and Power. The Borrower is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, unless the failure to be so qualified or to have
such corporate powers or governmental licenses, authorizations, consents or
approvals would not have a Material Adverse Effect.
Section IV.2. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of, or filing with, any
governmental body, agency or official (other than the filing of this Agreement
with the Securities and Exchange Commission), (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Subsidiaries, and (v) do not result in the creation
or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
Section IV.3. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the Notes and the other Loan Documents, when executed and delivered
in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower enforceable in accordance with their respective
terms, provided that the enforceability hereof and thereof is subject in each
case to general principles of equity and to bankruptcy, insolvency and similar
laws affecting the enforcement of creditors' rights generally.
Section IV.4. Financial Information.
(1) The consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 1997 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended,
reported on by Ernst & Young, copies of which have been delivered to each of
the Lenders, and the unaudited consolidated financial statements of the
Borrower and its Subsidiaries for the interim period ended September 30, 1998,
copies of which have been delivered to each of the Lenders, fairly present, in
conformity with GAAP, the consolidated financial position of the Borrower and
its Subsidiaries as of such dates and their consolidated results of operations
and cash flows for such periods stated.
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(2) Since December 31, 1997. there has been no event, act,
condition or occurrence having a Material Adverse Effect (and the
Administrative Agent and the Lenders acknowledge that the Restructuring and
Impairment Charges for 1998 do not have such an effect).
Section IV.5. Litigation. On the Effective Date, there is no
action, suit or proceeding pending, or to the knowledge of the Borrower
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official which
could have a Material Adverse Effect or which in any manner draws into question
the validity or enforceability of, or could impair the ability of the Borrower
to perform its obligations under, this Agreement, the Notes or any of the other
Loan Documents.
Section IV.6. Compliance with ERISA.
(1) The Borrower and each member of the Controlled Group have
fulfilled their obligations under the minimum funding standards of ERISA and
the Code with respect to each Plan and are in compliance in all material
respects with the presently applicable provisions of ERISA and the Code, and
have not incurred any liability to the PBGC or a Plan under Title IV of ERISA.
(2) On the Effective Date, neither the Borrower nor any member of
the Controlled Group is or ever has been obligated to contribute to any
Multiemployer Plan.
Section Taxes. There have been filed on behalf of the
Borrower and its Subsidiaries all Federal, state and local income, material
excise, material property and other material tax returns which are required to
be filed by them and all taxes due pursuant to such returns or pursuant to any
assessment received by or on behalf of the Borrower or any Subsidiary have been
paid prior to the same becoming delinquent, other than (i) those presently
payable without penalty or interest and (ii) those being contested in good
faith by appropriate proceedings with respect to which adequate reserves have
been established in accordance with GAAP. The charges, accruals and reserves on
the books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate. As of the
Effective Date, United States income tax returns of the Borrower and its
Subsidiaries (other than Westwynn Theatres, Inc.) have been examined and closed
through the Fiscal Year ended December 31, 1993.
Section IV.8. Subsidiaries. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
to transact business in every jurisdiction where, by the nature of its
business, such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, unless the failure to be so qualified or to
have such corporate powers or governmental licenses, authorizations, consents
or approvals would not have a Material Adverse Effect. As of the Effective
Date, the Borrower has no Subsidiaries except those Subsidiaries listed on
Schedule 4.08, which accurately sets forth each such Subsidiary's complete name
and jurisdiction of incorporation.
Section IV.9. Not an Investment Company. Neither the Borrower
nor any of its Subsidiaries is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
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Section IV.10. Public Utility Holding Company Act. Neither
the Borrower nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
Section IV.11. Ownership of Property; Liens. Each of the
Borrower and its Subsidiaries has title to its properties sufficient for the
conduct of its business, and none of such property is subject to any Lien
except as permitted in Section 5.07.
Section IV.12. No Default. Neither the Borrower nor any of
its Subsidiaries is in Default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which could have or cause a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
Section IV.13. Full Disclosure. All information heretofore
furnished by the Borrower to the Administrative Agent or any Lender for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is as of the Effective Date, and all such information
hereafter furnished by the Borrower to the Administrative Agent or any Lender
will be, true, accurate and complete in every material respect or based on
reasonable estimates on the date as of which such information is stated or
certified. As of the Effective Date, the Borrower has disclosed to the Lenders
in writing any and all facts which could have or cause a Material Adverse
Effect.
Section IV.14. Environmental Matters.
(1) Except as otherwise provided in Exhibit 4.14A, (1) neither
the Borrower nor any Subsidiary is subject to Environmental Liabilities which
could cause a Material Adverse Effect, (2) to the best of the Borrower's
knowledge, neither the Borrower nor any Subsidiary has been designated a
potentially responsible party under CERCLA or under any state statute similar
to CERCLA, and (3) to the best of the Borrower's knowledge, none of the
Properties has been identified on any current National Priorities List or
CERCLIS List.
(2) Except as otherwise provided in Exhibit 4.14(B), to the best
of the Borrower's knowledge, (1) the Borrower, and each of its Subsidiaries,
have used, managed, stored and otherwise handled Hazardous Materials at the
Properties in compliance with applicable Environmental Laws, excluding any
violation of Environmental Laws which did not cause a Material Adverse Effect,
and (2) neither the Borrower nor any Subsidiary has caused an Environmental
Release of Hazardous Materials into the subsurface soil or groundwater
underlying the Properties which could reasonably be expected to cause a
Material Adverse Effect.
(3) Except as otherwise provided in Exhibit 4.14(C), to the best
of the Borrower's knowledge, the Borrower and each of its Subsidiaries maintain
all Environmental Authorizations necessary for the conduct of their respective
businesses and are in compliance with all Environmental Laws applicable to the
operation of the Properties and their respective businesses,
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excluding any omission of Environmental Authorizations or violation of
Environmental Laws which could not reasonably be expected to cause a Material
Adverse Effect.
Section IV.15. Compliance with Laws. The Borrower and each
Subsidiary is in compliance with all applicable laws, including, without
limitation, all Environmental Laws, except where any failure to comply with any
such laws would not, alone or in the aggregate, have a Material Adverse Effect.
Section IV.16. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws; provided that this
representation shall not extend to any violation of applicable laws in
connection with any such issuance occurring by reason of the action or inaction
of any Person other than the Borrower, any Subsidiary or any Person retained or
employed by the Borrower or any Subsidiary. The issued shares of Capital Stock
of the Borrower's Wholly Owned Subsidiaries are owned by the Borrower free and
clear of any Lien or adverse claim. At least a majority of the issued shares of
capital stock of each of the Borrower's other Subsidiaries (other than Wholly
Owned Subsidiaries) is owned by the Borrower free and clear of any Lien or
adverse claim.
Section IV.17. Margin Stock. Not more than 25% of the
aggregate fair market value of the assets of the Company and its Subsidiaries
which are subject to the provisions of Section 5.08 consists of Margin Stock.
Neither the Borrower nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of purchasing or carrying any
Margin Stock. No part of the proceeds of any Loan will be used for any purpose
which violates, or which is inconsistent with, the provisions of Regulation X.
Section IV.18. Insolvency. After giving effect to the
execution and delivery of the Loan Documents and the making of the Loans under
this Agreement, the Borrower will not be "insolvent," within the meaning of
such term as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of Title 11
of the United States Code or Section 2 of the Uniform Fraudulent Transfer Act,
or any other applicable state law pertaining to fraudulent transfers, as each
may be amended from time to time, or be unable to pay its debts generally as
such debts become due, or have an unreasonably small capital to engage in any
business or transaction, whether current or contemplated.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Note remains unpaid (unless the
Required Lenders consent in writing):
Section V.1. Information. The Borrower will deliver to each
of the Lenders:
(1) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such
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Fiscal Year and the related consolidated statements of income, shareholders'
equity and cash flows for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous fiscal year, all certified by
Ernst & Young or other independent public accountants of nationally recognized
standing, with such certification to be free of exceptions and qualifications
not acceptable to the Required Lenders;
(2) as soon as available and in any event within 45 days after
the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a condensed
consolidated balance sheet of the Borrower and its Subsidiaries as of the end
of such Fiscal Quarter and the related condensed statement of income and
condensed statement of cash flows for such Fiscal Quarter and for the portion
of the Fiscal Year ended at the end of such Fiscal Quarter, setting forth in
each case in comparative form the figures for the corresponding Fiscal Quarter
and the corresponding portion of the previous Fiscal Year, all certified
(subject to normal year-end adjustments) as to fairness of presentation, GAAP
and consistency by the chief financial officer or the chief executive officer
of the Borrower;
(3) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate,
substantially in the form of Exhibit F or in such other form as shall be
mutually satisfactory to the Borrower and the Administrative Agent (a
"Compliance Certificate"), of the chief financial officer or the chief
executive officer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance with
the requirements of Sections 5.03 through 5.08, inclusive, 5.11 and 5.21, on
the date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(4) simultaneously with the delivery of each set of annual
financial statements referred to in clause (a) above, a statement of the firm
of independent public accountants which reported on such statements to the
effect that nothing has come to their attention to cause them to believe that
any Default existed on the date of such financial statements;
(5) within 5 Domestic Business Days after the Borrower becomes
aware of the occurrence of any Default, a certificate of the chief financial
officer or the chief executive officer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or proposes to take
with respect thereto;
(6) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(7) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or monthly reports which the
Borrower shall have filed with the Securities and Exchange Commission;
(8) if and when the Borrower or any member of the Controlled
Group (i) gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
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required to give notice of any such reportable event, a copy of the notice of
such reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA, a
copy of such notice; or (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate or appoint a trustee to administer any Plan, a
copy of such notice;
(9) promptly after the Borrower knows of the commencement
thereof, notice of any litigation, dispute or proceeding involving a claim
against the Borrower and/or any Subsidiary for $1,000,000 or more in excess of
amounts covered in full by applicable insurance;
(10) promptly after the Borrower knows of the existence thereof,
any and all facts which could have or cause a Material Adverse Effect; and
(11) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent, at the request of any Lender, may reasonably request.
Section V.2. Inspection of Property, Books and Records. The
Borrower will (i) keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and will cause each Subsidiary to permit,
representatives of any Lender at such Lender's expense prior to the occurrence
of an Event of Default and at the Borrower's expense after the occurrence of an
Event of Default to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and
to discuss their respective affairs, finances and accounts with their
respective officers, employees and independent public accountants. The Borrower
agrees to cooperate and assist in such visits and inspections, in each case at
such reasonable times and as often as may reasonably be desired.
Section V.3. Ratio of Consolidated Senior Funded Debt to
Consolidated Cash Flow. At the end of each Fiscal Quarter, commencing with the
Fiscal Quarter ending March 31, 1999, the ratio of Consolidated Senior Funded
Debt to Consolidated Cash Flow for the period of 4 consecutive Fiscal Quarters
ending on such date shall not be greater than the applicable ratio provided in
the following table:
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
On or before June 30, 2000 4.00 to 1.0
September 30, 2000, and thereafter 3.75 to 1.0
Section V.4. Ratio of Consolidated Funded Debt to
Consolidated Cash Flow. At the end of each Fiscal Quarter ending as provided in
the following table, the ratio of Consolidated Funded Debt at the end of such
Fiscal Quarter to Consolidated Cash Flow for the period of 4 consecutive Fiscal
Quarters ending on such date shall not be greater than the applicable ratio
provided in the following table:
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
On or before June 30, 2000 6.00 to 1.0
September 30, 2000, and thereafter 5.75 to 1.0
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Section V.5. Restricted Payments. The Borrower will not
declare or make any, or permit any Subsidiary which is not a Wholly-Owned
Subsidiary to make any, Restricted Payment after the Effective Date, if the
aggregate amount of such Restricted Payments made in any consecutive 4 Fiscal
Quarter period would exceed $4,000,000; provided that after giving effect to
the payment of any such Restricted Payments, no Default shall be in existence
or be created thereby.
Section V.6. Fixed Charge Coverage. At the end of each Fiscal
Quarter, commencing with the Fiscal Quarter ending December 31, 1998, the ratio
of (a) Adjusted Cash Flow to (b) Fixed Charges, in each case for the current
Fiscal Quarter and the immediately preceding 3 Fiscal Quarters, shall not be
less than 1.40 to 1.00.
Section V.7. Adjusted Fixed Charge Coverage. At the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 1999,
the ratio of (a) Adjusted Cash Flow minus Maintenance Capital Expenditures to
(b) Adjusted Fixed Charges, in each case for the current Fiscal Quarter and the
immediately preceding 3 Fiscal Quarters, shall not be less than 1.25 to 1.00.
Section V.8. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(1) Liens existing on the date of this Agreement securing Debt
outstanding on the Effective Date in an aggregate principal amount not
exceeding $43,000,000;
(2) any Lien in favor of the Collateral Agent pursuant to the
Collateral Documents;
(3) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring or
constructing such asset, provided that such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion of
construction thereof;
(4) Liens securing Debt owing by any Guarantor to the Borrower;
(5) any Lien arising out of the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses (a) or (c) of this Section, provided that (i) such Debt is not secured
by any additional assets, and (ii) the amount of such Debt secured by any such
Lien is not increased;
(6) any Lien on Margin Stock;
(7) Liens for taxes, assessments or governmental charges or
levies either not yet due or the payment of which is not at the time required
by Section 5.13;
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(8) Liens of landlords, carriers, warehousemen, mechanics,
materialmen and other similar Persons incurred in the ordinary course of
business for sums either not yet due or the payment of which is not at the time
required by Section 5.13;
(9) Liens (other than any Lien created or imposed under ERISA and
Liens on the Collateral) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
(exclusive in any case of obligations incurred in connection with the borrowing
of money or the obtaining of advances of credit);
(10) any attachment or judgment Lien arising in connection with
court proceedings, provided that (i) the execution or other enforcement of such
Lien is effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings diligently conducted,
and (ii) such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made therefor and neither the Borrower's nor
any such Subsidiary's title to or right to use any of its property is impaired
in any material respect by reason of such contest;
(11) easements, licenses, rights-of-way and other rights and
privileges in the nature of easements and similar Liens incidental to the
ownership of property and not incurred in connection with the borrowing of
money or the obtaining of advances of credit, and which do not, individually or
in the aggregate, interfere with the ordinary conduct of the business of the
Borrower or any Subsidiary or materially detract from the value of the
properties subject to any such Liens;
(12) Liens on fixed assets (1) of any Person at the time such
Person becomes a Subsidiary and not created in contemplation of such event, (2)
of any Person existing at the time such Person is merged or consolidated with
or into the Borrower or a Subsidiary and not created in contemplation of such
event and (3) existing prior to the acquisition of such fixed assets by the
Borrower or a Subsidiary and not created in contemplation of such acquisition,
provided that the aggregate principal amount outstanding of Debt secured by
Liens permitted under this paragraph (l) may not exceed at any time 5% of
Consolidated Total Capitalization; and
(13) Liens on assets other than the Collateral not otherwise
permitted by the foregoing clauses of this Section securing Debt (other than
indebtedness represented by the Notes) in an aggregate principal amount at any
time outstanding not to exceed 5% of Consolidated Total Capitalization.
Section V.9. Maintenance of Existence. The Borrower shall,
and shall cause each Subsidiary to, maintain its corporate existence and carry
on its business in substantially the same manner and in substantially the same
fields as such business is now carried on and maintained; provided that (i) the
Borrower and its Subsidiaries may engage in any transaction permitted by
Section 5.10 and (ii) dissolution of any Subsidiary shall not be prohibited by
this Section if all of the assets of such Subsidiary are transferred to the
Borrower or any other Subsidiary following such dissolution.
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Section V.10. Dissolution. The Borrower shall not suffer or
permit dissolution or liquidation either in whole or in part or redeem or
retire any shares of its own stock, except (i) through corporate reorganization
to the extent permitted by Section 5.11, and (ii) through Restricted Payments
permitted by Section 5.05.
Section V.11. Consolidations, Mergers and Sales of Assets.
The Borrower will not, nor will it permit any Subsidiary to, consolidate or
merge with or into, or sell, lease or otherwise transfer all or any substantial
part of its assets to, any other Person, or discontinue or eliminate any
business line or segment, provided that (a) the Borrower may merge with another
Person if (i) such Person was organized under the laws of the United States of
America or one of its states, (ii) the Borrower is the corporation surviving
such merger and (iii) immediately after giving effect to such merger, no
Default shall have occurred and be continuing, (b) Subsidiaries of the Borrower
may merge or consolidate with one another or with the Borrower, (c) any
Subsidiary of the Borrower may be merged or consolidated with or into another
Person to consummate an acquisition of such other Person permitted by Section
5.21, provided that the surviving Person shall be a Subsidiary of the Borrower,
(d) the foregoing limitation on the sale, lease or other transfer of assets and
on the discontinuation or elimination of a business line or segment shall not
prohibit (i) the sale, lease or other transfer of assets by a Subsidiary to any
other Subsidiary (other than of Collateral by Eastwynn) or to the Borrower, or
(ii) subject to the mandatory prepayment provisions of Section 2.10, during any
Fiscal Quarter, a transfer of assets in an arm's length transaction for fair
market value or the discontinuance or elimination of a business line or segment
(in a single transaction or in a series of related transactions) unless the
aggregate assets to be so transferred or utilized in a business line or segment
to be so discontinued, when combined with all other assets transferred, and all
other assets utilized in all other business lines or segments discontinued,
during such Fiscal Quarter and the immediately preceding three Fiscal Quarters
(excluding, however, transfers of assets permitted by clause (i) of this
Section) contributed more than 10% of Consolidated Operating Income during the
4 consecutive Fiscal Quarters immediately preceding such Fiscal Quarter, and
(e) subject to the mandatory prepayment provisions of Section 2.10 and to
presentation to the Administrative Agent and the Lenders of a certificate
showing pro forma compliance with the financial covenants contained in this
Agreement after giving effect thereto, the Borrower may enter into
sale/leaseback transactions after the Effective Date in an amount not to exceed
in the aggregate $150,000,000, provided in each of the foregoing such cases no
Default shall be in existence or be created thereby. At the request of the
Borrower, the Collateral Agent shall release any Collateral sold by the
Borrower or Eastwynn in conformity with the foregoing provisions, so long as
any prepayments required by Section 2.10 have been made.
Section V.12. Use of Proceeds. No portion of the proceeds of
the Loans will be used by the Borrower or any Subsidiary for any purpose in
violation of any applicable law or regulation.
Section V.13. Compliance with Laws; Payment of Taxes. The
Borrower will, and will cause each of its Subsidiaries and, in the case of
ERISA, each member of the Controlled Group to, comply in all material respects
with applicable laws (including but not limited to ERISA), regulations and
similar requirements of governmental authorities (including but not limited to
PBGC), except where the necessity of such compliance is being contested in good
faith through appropriate proceedings diligently pursued. The Borrower will,
and will cause
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each of its Subsidiaries to, pay promptly when due all taxes, assessments,
governmental charges, claims for labor, supplies, rent and other obligations
which, if unpaid, might become a lien against the property of the Borrower or
any Subsidiary, except (i) liabilities being contested in good faith by
appropriate proceedings diligently pursued and against which, if requested by
the Administrative Agent, the Borrower shall have set up reserves in accordance
with GAAP and (ii) liabilities the nonpayment of which could have a Material
Adverse Effect.
Section V.14. Insurance. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain (either in the name of the Borrower
or in such Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its Property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or similar
business.
Section V.15. Change in Fiscal Year. The Borrower will not
change its Fiscal Year.
Section V.16. Maintenance of Property. The Borrower shall,
and shall cause each Subsidiary to, maintain all of its material properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted.
Section V.17. Environmental Notices. When a Responsible
Officer or any officer of the Borrower or any Subsidiary responsible for
compliance with Environmental Laws with respect to any Property becomes aware
of (i) an Environmental Liability associated with the Properties which could
cause a Material Adverse Effect, (ii) an Environmental Release at any of the
Properties which could cause a Material Adverse Effect, (iii) the designation
of the Borrower or such Subsidiary as a potentially responsible party under
CERCLA or any state statute similar to CERCLA, or (iv) identification of such
Property on any National Priorities List or CERCLIS List, the Borrower shall
promptly furnish to the Lenders and the Administrative Agent written notice
thereof.
Section V.18. Environmental Matters. The Borrower and its
Subsidiaries will not, and will not knowingly permit any Third Party to, use,
produce, manufacture, process, treat, recycle, generate, store, dispose,
manage, or otherwise handle at the Properties any Hazardous Materials in such a
manner which gives rise to an Environmental Liability which could cause a
Material Adverse Effect.
Section V.19. Environmental Release. Upon the occurrence of
an Environmental Release of Hazardous Materials at any of the Properties of
which Borrower or a Subsidiary becomes aware, Borrower or the Subsidiary shall
comply with any and all notice, investigation, removal and remediation
requirements applicable to the Borrower or Subsidiary under Environmental Laws
with respect to such Environmental Release.
Section V.20. Additional Covenants, Etc. In the event that at
any time this Agreement is in effect or any Note remains unpaid the Borrower
shall enter into any agreement, guarantee, indenture or other instrument
governing, relating to, providing for commitments to advance or guaranteeing
any Financing which exceeds $3,000,000 in aggregate amount (a "New Financing
Agreement") or to amend any terms and conditions applicable to any Financing
which exceeds $3,000,000 in aggregate amount (a "Financing Agreement
Amendment"), which New
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Financing Agreement includes or which Financing Agreement Amendment adds or
modifies Covenants, warranties, representations, defaults or events of default
(or any other type of restriction which would have the practical effect of any
of the foregoing, including, without limitation, any "put" or mandatory
prepayment of all or substantially all of such debt) not substantially as, or
in addition to those, provided in this Agreement or any other Loan Document, or
more favorable to the lender or other counterparty thereunder than those
provided in this Agreement or any other Loan Document (individually an
"Additional Term" and collectively, the "Additional Terms"), the Borrower shall
promptly so notify the Administrative Agent and the Lenders. Thereupon, if the
Administrative Agent shall request by written notice to the Borrower (after a
determination has been made by the Required Lenders that any such New Financing
Agreement or Financing Agreement Amendment contains any provisions which either
individually or in the aggregate are more favorable than one of the provisions
set forth herein), the Borrower, the Administrative Agent and the Lenders shall
enter into an amendment to this Agreement providing for substantially the same
such Additional Terms as those provided for in such New Financing Agreement or
Financing Agreement Amendment, as the case may be, to the extent required and
as may be selected by the Administrative Agent, such amendment to remain in
effect, unless otherwise specified in writing by the Administrative Agent, for
the entire duration of the stated term to maturity of such Financing (to and
including the date to which the same may be extended at the Borrower's option),
notwithstanding that such Financing might be earlier terminated by prepayment,
refinancing, acceleration or otherwise; provided that if any such New Financing
Agreement or the agreement, guarantee, indenture or other instrument amended by
a Financing Agreement Amendment shall be modified, supplemented, amended or
restated so as to modify, amend or eliminate therefrom any such Additional Term
so made a part of this Agreement, then so long as there exists no Default or
Event of Default, the Administrative Agent and the Lenders shall, at the
Borrower's request made within 90 days following the date on which such New
Financing Agreement or the agreement, guarantee, indenture or other instrument
amended by a Financing Agreement Amendment is so modified, supplemented,
amended or restated, amend this Agreement to similarly modify, amend or
eliminate such Additional Term so made a part of this Agreement, provided that
in no event will the Lenders and the Administrative Agent be required to (i)
eliminate any Covenant, representation, warranty, default or event of default
which was set forth in this Agreement on the Effective Date or added to this
Agreement pursuant to an amendment to this Agreement entered into other than
pursuant to this Section, or (ii) modify or amend any Covenant, representation,
warranty, default or event of default which was set forth in this Agreement on
the Effective Date or added to this Agreement pursuant to any amendment to this
Agreement entered into other than pursuant to this Section in a manner such
that such Covenant, representation, warranty, default or event of default is
less favorable to the Lenders or the Administrative Agent than such Covenant,
representation, warranty, default or event of default was on the Effective Date
or the date the same was added to this Agreement pursuant to such an amendment,
as the case may be.
As used in this Section, the term "Covenants" shall mean covenants of
a type similar to those set forth in Article V hereof or which customarily are
described as affirmative, negative or financial covenants, but in no event
shall such term encompass (w) agreements of the Borrower in respect of interest
rate, fees, expenses, yield protection, indemnities, collateral, loan
maturities, prepayment premiums, prepayment prohibitions or "call" protection
or conditions precedent, (x) provisions whereby the Borrower waives rights, (y)
provisions of a type comparable to those contained in Article IX or customarily
included in the miscellaneous Section of a credit agreement or similar
instrument, or (z) definitions to the extent such definitions relate to any of
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the provisions described in the foregoing clauses (w), (x) and (y).
Section V.21. Investments. Neither the Borrower nor any of
its Subsidiaries shall make Investments in any Person except: (a) Investments
in (i) direct obligations of the United States Government maturing within one
year, (ii) certificates of deposit issued by a commercial bank whose credit is
satisfactory to the Administrative Agent, (iii) commercial paper rated A1 or
the equivalent thereof by S&P or P1 or the equivalent thereof by ▇▇▇▇▇'▇ and in
either case maturing within 6 months after the date of acquisition, (iv) tender
bonds the payment of the principal of and interest on which is fully supported
by a letter of credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof by S&P
and Aa or the equivalent thereof by ▇▇▇▇▇'▇, (v) loans or advances to employees
not exceeding $1,000,000 in the aggregate principal amount outstanding at any
time, in each case made in the ordinary course of business and consistent with
practices existing on December 31, 1998, (vi) deposits required by government
agencies or public utilities, and (vii) loans, advances or other Investments to
or in Guarantors; and (b) other Investments which, in the aggregate, do not
exceed 20% of Consolidated Net Worth; provided, however, immediately after
giving effect to the making of any Investment, no Default shall have occurred
and be continuing.
Section V.22. Guaranty of Subsidiaries.
(1) The Borrower shall deliver to the Administrative Agent and
each Lender notice that a Person has become a Subsidiary within 10 days after
the day on which such Person became a Subsidiary. The Borrower shall cause any
Person which becomes a Subsidiary after the Effective Date to become a party
to, and agree to be bound by the terms of, the Guaranty and the Contribution
Agreement pursuant to an instrument in form and substance satisfactory to the
Administrative Agent executed and delivered to the Administrative Agent within
30 days after the day on which such Person became a Subsidiary.
(2) Together with the instrument referred to in Section 5.22(a),
the Borrower shall deliver to the Administrative Agent an opinion of counsel to
such Subsidiary substantially in the form of the opinion delivered pursuant to
Section 3.01(c) (to the extent such opinion includes opinions applicable to the
Guarantors), modified appropriately to refer to such Subsidiary, and the items
specified in Section 3.01(f) (to the extent such items relate to the
Guarantors) for such Subsidiary.
(3) Once any Person becomes a Subsidiary and therefore becomes a
party to the Guaranty Agreement in accordance with Section 5.22(a), such Person
thereafter shall remain a party to the Guaranty Agreement without regard to
whether it thereafter ceases to be a Subsidiary.
(4) If (i) the Borrower and/or any Subsidiary sells all of the
equity interests owned by the Borrower and its Subsidiaries in any Guarantor,
(ii) immediately before and after giving effect to such sale no Default or
Event of Default shall have occurred, and (iii) the Borrower shall have
delivered to the Administrative Agent and the Lenders notice of such sale, then
the Administrative Agent shall release such Guarantor from the Guaranty.
Section V.23. Limitation on Consolidated Funded Debt. Neither
the Borrower nor any Subsidiary will incur, create, assume or suffer to exist
any Consolidated Funded Debt,
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other than (i) Consolidated Funded Debt set forth or reflected on the
consolidated balance sheet of the Borrower and its Subsidiaries for the Fiscal
Quarter ending September 30, 1998 delivered to the Lenders pursuant to Section
4.04(a), (ii) any extension, renewal or refinancing of Consolidated Funded Debt
described in clause (i) of this Section made on terms no less favorable to the
Borrower or such Subsidiary than the terms of the Consolidated Funded Debt
being so extended, renewed or refinanced immediately prior to such extension,
renewal or refinancing, (iii) the Term Loan, (iv) Subordinated Debt, (v) Debt
securing Liens permitted by Section 5.08 and (vi) additional Consolidated
Funded Debt not exceeding at any time an aggregate amount outstanding of
$5,000,000.
Section V.24. Subordinated Debt.
The Borrower shall not (i) amend the terms of any of the
Subordinated Debt Documents, or (ii) make any voluntary or mandatory
redemptions or prepayments (whether upon a change of control or otherwise) with
respect to, or any legal or covenant defeasance of, the Subordinated Debt,
without the consent of the Administrative Agent and the Required Lenders or
(iii) make any payments whatsoever in violation of the subordination provisions
pertaining to the Subordinated Notes.
ARTICLE VI
DEFAULTS
Section VI.1. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(1) the Borrower shall fail to pay when due any principal of any
Loan or shall fail to pay any interest on any Loan within five Domestic
Business Days after such interest shall become due, or shall fail to pay any
fee or other amount payable hereunder within five Domestic Business Days after
such fee or other amount becomes due; or
(2) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.01(e), 5.01(j), 5.02(ii), 5.03 to 5.07, inclusive, 5.09
(as to the Borrower) and 5.10 (as to the Borrower) and 5.12, or Section 5.15,
5.21(b), or 5.23 to 5.24, inclusive;
(3) the Borrower shall fail to observe or perform any covenant or
agreement contained or incorporated by reference in this Agreement (other than
those covered by clause (a) or (b) above) for thirty days after the earlier of
(i) the first day on which the a Responsible Officer has knowledge of such
failure or (ii) written notice thereof has been given to the Borrower by the
Administrative Agent at the request of any Lender; or
(4) any representation, warranty, certification or statement made
or deemed made by the Borrower in Article IV of this Agreement or in any other
Loan Document, certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect or misleading in
any material respect when made (or deemed made); or
(5) the Borrower or any Subsidiary shall fail to make any payment
in respect of Debt or any Off-Balance Sheet Lease Indebtedness in an aggregate
amount in excess of $3,000,000
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outstanding (other than the Notes, but including, without limitation, the
Subordinated Debt and the Term Loan) when due or within any applicable grace
period; or
(6) any event or condition shall occur (other than (i) any
voluntary notice of purchase, payment or prepayment delivered by the Borrower
as Tenant under the Lease which results in any amount which is the subject of
such notice becoming due prior to its scheduled due date, and (ii) any damage,
destruction, other casualty or condemnation which under Article 19 of the Lease
results in any amount payable under the Lease becoming due prior to its
scheduled due date) which results in the termination of any commitment
regarding Debt or acceleration of the maturity of Debt or Off-Balance Sheet
Lease Indebtedness in an aggregate amount in excess of $3,000,000 outstanding
of the Borrower or any Subsidiary or the mandatory prepayment or purchase of
such Debt or Off-Balance Sheet Lease Indebtedness by the Borrower (or its
designee) or such Subsidiary (or its designee) prior to the scheduled maturity
thereof, or enables (with any requirement for the giving of notice or lapse of
time or both, having been satisfied) the holders of such commitment or Debt or
Off-Balance Sheet Lease Indebtedness or any Person acting on such holders'
behalf to terminate such commitment or accelerate the maturity thereof or
require the mandatory prepayment or purchase thereof prior to the scheduled
maturity thereof (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower or any Subsidiary); or
(7) the Borrower or any Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall fail generally, or shall admit in
writing its inability, to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing; or
(8) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Subsidiary under the
federal bankruptcy laws as now or hereafter in effect; or
(9) the Borrower or any member of the Controlled Group shall fail
to pay when due any material amount which it shall have become liable to pay to
the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate
a Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any
member of the Controlled Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate or to cause a trustee to be appointed to administer any such Plan
or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a
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decree adjudicating that any such Plan or Plans must be terminated or the
Borrower or any other member of the Controlled Group shall enter into,
contribute or be obligated to contribute to, terminate or incur any withdrawal
liability with respect to, a Multiemployer Plan; or
(10) one or more judgments or orders for the payment of money in
an aggregate amount in excess of $500,000 shall be rendered against the
Borrower or any Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days; or
(11) a federal tax lien shall be filed against the Borrower under
Section 6323 of the Code or a lien of the PBGC shall be filed against the
Borrower or any Subsidiary under Section 4068 of ERISA and in either case such
lien shall remain undischarged for a period of 25 days after the date of
filing; or
(12) the ▇▇▇▇▇▇▇ Family shall at any time fail to Control the
Borrower; or
(13) the occurrence of any event, act or condition which the
Required Lenders determine either does or has a reasonable probability of
causing a Material Adverse Effect and the failure of the Borrower to cure or
prevent such Material Adverse Effect within 45 days after receipt of notice of
such determination from the Required Lenders, or
(14) any Collateral Document or Guaranty shall cease to be in full
force and effect or the Borrower or EastWynn or any Guarantor, as applicable,
shall deny or disaffirm its obligations thereunder; or
(15) any of the subordination provisions of the Subordinated Notes
shall cease to be in full force and effect or any of the holders of
Subordinated Debt or the Borrower shall deny or disaffirm its obligations
thereunder;
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Lenders, by notice to the Borrower terminate the Commitments
and they shall thereupon terminate, and (ii) if requested by the Required
Lenders, by notice to the Borrower declare the Notes (together with accrued
interest thereon) and all other amounts payable hereunder and under the other
Loan Documents to be, and the Notes (together will all accrued interest
thereon) and all other amounts payable hereunder and under the other Loan
Documents shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided that if any Event of Default specified
in clause (g) or (h) above occurs with respect to the Borrower, without any
notice to the Borrower or any other act by the Administrative Agent or the
Lenders, the Commitments shall thereupon automatically terminate and the Notes
(together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents shall automatically become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
Notwithstanding the foregoing, the Administrative Agent shall have available to
it all other remedies at law or equity, and shall exercise any one or all of
them at the request of the Required Lenders.
Section VI.2. Notice of Default. The Administrative Agent
shall give notice to the Borrower of any Default under Section 6.01(c) promptly
upon being requested to do so by any Lender and shall thereupon notify all the
Lenders thereof.
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ARTICLE VII
THE AGENT
Section VII.1. Appointment, Powers and Immunities. (a) Each
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
act as its agent hereunder and under the other Loan Documents with such powers
as are specifically delegated to the Administrative Agent by the terms hereof
and thereof, together with such other powers as are reasonably incidental
thereto. The Administrative Agent: (i) shall have no duties or responsibilities
except as expressly set forth in this Agreement and the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be a
trustee for any Lender; (ii) shall not be responsible to the Lenders for any
recitals, statements, representations or warranties contained in this Agreement
or any other Loan Document, or in any certificate or other document referred to
or provided for in, or received by any Lender under, this Agreement or any
other Loan Document, or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any other document referred to or provided for herein or therein or for any
failure by the Borrower to perform any of its obligations hereunder or
thereunder; (iii) shall not be required to initiate or conduct any litigation
or collection proceedings hereunder or under any other Loan Document except to
the extent requested by the Required Lenders, and then only on terms and
conditions satisfactory to the Administrative Agent, and (iv) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
under any other Loan Document or any other document or instrument referred to
or provided for herein or therein or in connection herewith or therewith,
except for its own gross negligence or willful misconduct. The Administrative
Agent may employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The provisions of this Article VII are solely for
the benefit of the Administrative Agent and the Lenders, and the Borrower shall
not have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement and under
the other Loan Documents, the Administrative Agent shall act solely as agent of
the Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for the Borrower.
The duties of the Administrative Agent shall be ministerial and administrative
in nature, and the Administrative Agent shall not have by reason of this
Agreement or any other Loan Document a fiduciary relationship in respect of any
Lender.
(b) Each Lender hereby designates ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners,
L.P., Syndication Agent, and First Union National Bank, N.A., as Documentation
Agent. The Syndication Agent and the Documentation Agent, in such capacities,
shall have no duties or obligations whatsoever under this Agreement or any
other Loan Document or any other document or any matter related hereto and
thereto, but shall nevertheless be entitled to all the indemnities and other
protection afforded to the Administrative Agent under this Article VII.
Section VII.2. Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely upon any certification, notice
or other communication (including any thereof by telephone, telefax, telegram
or cable) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants or other experts selected
by the
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Administrative Agent. As to any matters not expressly provided for by this
Agreement or any other Loan Document, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
thereunder in accordance with instructions signed by the Required Lenders or
all the Lenders where unanimity is required under this Agreement, and such
instructions of the Required Lenders or all the Lenders where unanimity is
required under this Agreement in any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders.
Section VII.3. Defaults. The Administrative Agent shall not
be deemed to have knowledge of the occurrence of a Default or an Event of
Default (other than the non-payment of principal of or interest on the Loans)
unless the Administrative Agent has received notice from a Lender or the
Borrower specifying such Default or Event of Default and stating that such
notice is a "Notice of Default". In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or an Event of Default,
the Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall give each Lender prompt notice of each non-payment
of principal of or interest on the Loans, whether or not it has received any
notice of the occurrence of such non-payment. The Administrative Agent shall
(subject to Section 9.05) take such action with respect to such Default or
Event of Default as shall be directed by the Required Lenders, provided that,
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
Section VII.4. Rights of Administrative Agent and Its
Affiliates as a Lender. With respect to any Loan made by Wachovia or an
Affiliate of Wachovia, such Affiliate and Wachovia in their capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not an Affiliate of Wachovia
(or in Wachovia's case, acting as the Administrative Agent), and the term
"Bank" or "Banks" shall, unless the context otherwise indicates, include such
Affiliate of Wachovia or Wachovia in its individual capacity. Such Affiliate
and Wachovia may (without having to account therefor to any Lender) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Borrower (and any of its Affiliates) as if they were
not an Affiliate of the Administrative Agent or the Administrative Agent,
respectively; and such Affiliate and Wachovia may accept fees and other
consideration from the Borrower (in addition to any agency fees and arrangement
fees heretofore agreed to between the Borrower and Wachovia) for services in
connection with this Agreement or any other Loan Document or otherwise without
having to account for the same to the Lenders.
Section VII.5. Indemnification. Each Lender severally agrees
to indemnify the Administrative Agent, to the extent the Administrative Agent
shall not have been reimbursed by the Borrower, ratably in accordance with its
Commitment, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, counsel fees and disbursements) or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any other Loan Document or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby
(excluding, unless an Event of Default has occurred and is continuing, the
normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or
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the enforcement of any of the terms hereof or thereof or any such other
documents; provided, however, that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Administrative Agent. If any indemnity furnished to the
Administrative Agent for any purpose shall, in the opinion of the
Administrative Agent, be insufficient or become impaired, the Administrative
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
Section VII.6. CONSEQUENTIAL DAMAGES. THE ADMINISTRATIVE
AGENT SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY LENDER, THE BORROWER OR ANY
OTHER PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
WHICH MAY BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS,
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section VII.7. Payee of Note Treated as Owner. The
Administrative Agent may deem and treat each Person in whose name a Loan is
registered as the owner thereof for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have been filed with
the Administrative Agent and the provisions of Section 9.07(c) have been
satisfied. Any requests, authority or consent of any Person who at the time of
making such request or giving such authority or consent is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of that Note or of any Note or Notes issued in exchange therefor or
replacement thereof.
Section VII.8. Non-Reliance on Administrative Agent and Other
Lenders. Each Lender agrees that it has, independently and without reliance on
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Administrative Agent shall not be required to keep itself (or
any Lender) informed as to the performance or observance by the Borrower of
this Agreement or any of the other Loan Documents or any other document
referred to or provided for herein or therein or to inspect the properties or
books of the Borrower or any other Person. Except for notices, reports and
other documents and information expressly required to be furnished to the
Lenders by the Administrative Agent hereunder or under the other Loan
Documents, the Administrative Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the
affairs, financial condition or business of the Borrower or any other Person
(or any of their Affiliates) which may come into the possession of the
Administrative Agent.
Section VII.9. Failure to Act. Except for action expressly
required of the Administrative Agent hereunder or under the other Loan
Documents, the Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction by the Lenders of their indemnification
obligations under Section 7.05 against any and all liability and expense which
may be incurred by the Administrative Agent by reason of taking, continuing to
take, or failing to take any such action.
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Section VII.10. Resignation or Removal of Administrative
Agent. Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
giving notice thereof to the Lenders and the Borrower and the Administrative
Agent may be removed at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Administrative Agent. 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 notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent. Any successor
Administrative Agent shall be a bank which has a combined capital and surplus
of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent, the
provisions of this Article VII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
Section VIII.1. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any Interest Period in
respect of any Euro-Dollar Loan:
(1) the Administrative Agent determines that deposits in Dollars
(in the applicable amounts) are not being offered in the relevant market for
such Interest Period, or
(2) the Required Lenders advise the Administrative Agent that the
London Interbank Offered Rate as determined by the Administrative Agent will
not adequately and fairly reflect the cost to such Lenders of funding the
Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Lenders, whereupon until the Administrative Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make the Euro-Dollar Loans specified in such
notice shall be suspended. Unless the Borrower notifies the Administrative
Agent at least 2 Domestic Business Days before the date of any Borrowing of
Euro-Dollar Loans for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
Section VIII.2. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof
(any such
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authority, bank or agency being referred to as an "Authority" and any such
event being referred to as a "Change of Law"), or compliance by any Lender (or
its Lending Office) with any request or directive (whether or not having the
force of law) of any Authority shall make it unlawful or impossible for any
Lender (or its Lending Office) to make, maintain or fund its Euro-Dollar Loans
and such Lender shall so notify the Administrative Agent, the Administrative
Agent shall forthwith give notice thereof to the other Lenders and the
Borrower, whereupon until such Lender notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Administrative Agent pursuant to
this Section, such Lender shall designate a different Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender. If such
Lender shall determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Dollar Loans to maturity and shall so specify in
such notice, the Borrower shall, on the later of (i) the date such notice is
received by the Borrower and (ii) the date such Change of Law becomes
applicable, prepay in full the then outstanding principal amount of each
Euro-Dollar Loan of such Lender, together with accrued interest thereon and any
amount due such Lender pursuant to Section 8.05(a). Concurrently with prepaying
each such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an
equal principal amount from such Lender (on which interest and principal shall
be payable contemporaneously with the related Euro-Dollar Loans of the other
Lenders), and such Lender shall make such a Base Rate Loan.
Section VIII.3. Increased Cost and Reduced Return.
(1) If after the date hereof, a Change of Law or compliance by
any Lender (or its Lending Office) with any request or directive (whether or
not having the force of law) of any Authority:
(1) shall subject any Lender (or its Lending
Office) to any tax, duty or other charge with respect to its
Euro-Dollar Loans, its Notes or its obligation to make
Euro-Dollar Loans, or shall change the basis of taxation of
payments to any Lender (or its Lending Office) of the
principal of or interest on its Euro-Dollar Loans or any
other amounts due under this Agreement in respect of its
Euro-Dollar Loans or its obligation to make Euro-Dollar Loans
(except for changes in the rate of tax on the overall net
income of such Lender or its Lending Office imposed by the
jurisdiction in which such Lender's principal executive
office or Lending Office is located); or
(2) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System, but excluding
with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or
credit extended by, any Lender (or its Lending Office); or
(3) shall impose on any Lender (or its Lending
Office) or on
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the United States market for certificates of deposit or the
London interbank market any other condition affecting its
Euro-Dollar Loans, its Notes or its obligation to make
Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Lending Office) of making or maintaining any Euro-Dollar Loan, or to
reduce the amount of any sum received or receivable by such Lender (or its
Lending Office) under this Agreement or under its Notes with respect thereto,
by an amount deemed by such Lender to be material, then, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduction.
(2) If any Lender shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any existing or future law, rule or regulation, or
any change in the interpretation or administration thereof, or compliance by
any Lender (or its Lending Office) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any Authority, has
or would have the effect of reducing the rate of return on such Lender's
capital as a consequence of its obligations hereunder to a level below that
which such Lender could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time, within 15 days after demand by such Lender, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction.
(3) Each Lender shall notify the Borrower of any event occurring
after the date of this Agreement entitling such Lender to compensation under
this Section as promptly as practicable, but in any event within 45 days, after
the officer of such Lender responsible for the business relationship of the
Lender with the Borrower obtains actual knowledge thereof; provided that (i) if
any Lender fails to give such notice within 45 days after such officer obtains
actual knowledge of such an event, such Lender shall with respect to
compensation payable pursuant to this Section in respect of any costs resulting
from such event, only be entitled to payment under this Section for costs
incurred from and after the date 45 days prior to the date that such Lender
does give such notice and (ii) each Lender will designate a different Lending
Office for the Loans of such Lender affected by such event if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole opinion of such Lender, be disadvantageous to such Lender or
contrary to its general lending policies. Each Lender will furnish to the
Borrower a certificate setting forth the basis and amount of each request by
such Lender for compensation under this Section, accompanied by a statement of
an officer of such Lender certifying that such request for compensation is
being made pursuant to a policy adopted by such Lender to seek such
compensation generally from customers similar to the Borrower.
(4) The provisions of this Section 8.03 shall be applicable with
respect to any Participant, Assignee or other Transferee.
Section VIII.4. Base Rate Loans Substituted for Euro-Dollar
Loans. If (i) the obligation of any Lender to make or maintain Euro-Dollar
Loans has been suspended pursuant to Section 8.02 or (ii) any Lender has
demanded compensation under Section 8.03, and the Borrower shall, by at least 5
Euro-Dollar Business Days' prior notice to such Lender through the
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Administrative Agent, have elected that the provisions of this Section shall
apply to such Lender, then, unless and until such Lender notifies the Borrower
that the circumstances giving rise to such suspension or demand for
compensation no longer apply:
(1) all Loans which would otherwise be made by such Lender as
Euro-Dollar Loans shall be made instead as Base Rate Loans (in which case
interest and principal on such Loans shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Lenders), and
(2) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Euro-Dollar Loans shall be applied to repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Lender, the Borrower shall remain liable for, and shall pay
to such Lender as provided herein, all amounts due such Lender under Section
8.03 in respect of the period preceding the date of conversion of such Lender's
Loans resulting from the Borrower's election.
Section VIII.5. Compensation. Upon the request of any Lender,
delivered to the Borrower and the Administrative Agent, the Borrower shall pay
to such Lender such amount or amounts as shall compensate such Lender for any
loss, cost or expense incurred by such Lender as a result of:
(1) any payment or prepayment (pursuant to Section 2.08, Section
2.09, Section 8.02 or otherwise) of a Euro-Dollar Loan on a date other than the
last day of an Interest Period for such Euro-Dollar Loan, as the case may be;
(2) any failure by the Borrower to prepay a Euro-Dollar Loan on
the date for such prepayment specified in the relevant notice of prepayment
hereunder; or
(3) any failure by the Borrower to borrow a Euro-Dollar Loan on
the date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.02;
such compensation to include, without limitation, an amount equal to the
excess, if any, of (x) the amount of interest which would have accrued on the
amount so paid or prepaid or not prepaid or borrowed for the period from the
date of such payment, prepayment or failure to prepay or borrow to the last day
of the then current Interest Period for such Euro-Dollar Loan (or, in the case
of a failure to prepay or borrow, the Interest Period for such Euro-Dollar Loan
which would have commenced on the date of such failure to prepay or borrow) at
the applicable rate of interest for such Euro-Dollar Loan provided for herein
(excluding, however, for purposes of this Section only the Applicable Margin in
determining such rate of interest) over (y) the amount of interest (as
reasonably determined by such Lender) such Lender would have paid on deposits
in Dollars of comparable amounts having terms comparable to such period placed
with it by leading banks in the London interbank market.
Section VIII.6. Replacement of Lender. In the event that any
Lender gives any notice under Section 8.02 resulting in the suspension of its
obligation to make ▇▇▇▇-▇▇▇▇▇▇
▇▇
▇▇
Loans or requests compensation pursuant to Section 8.03, then, so long as the
condition giving rise to such suspension or compensation exists, the Borrower
may designate another bank or financial institution (such bank or financial
institution being herein called a "Replacement Lender") acceptable to the
Administrative Agent (which acceptance will not be unreasonably withheld) and
which is not an Affiliate of the Borrower, to assume such Lender's Commitment
hereunder and to purchase the Loans of such Lender and such Lender's rights
under this Agreement and the Notes held by such Lender, all without recourse to
or representation or warranty by, or expense to, such Lender, for a purchase
price equal to the outstanding principal amount of the Loans payable to such
Lender plus any accrued but unpaid interest on such Loans and accrued but
unpaid fees owing to such Lender plus any amounts payable to such Lender under
Section 8.05 or otherwise owing to such Lender under the Loan Documents, and
upon such assumption, purchase and substitution, and subject to the execution
and delivery to the Administrative Agent by the Replacement Lender of
documentation satisfactory to the Administrative Agent (pursuant to which such
Replacement Lender shall assume the obligations of such original Lender under
this Agreement), the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder. In the event that the Borrower exercises
its rights under the preceding sentence, the Lender against which such rights
were exercised shall no longer be a party hereto or have any rights or
obligations hereunder; provided that the obligations of the Borrower to such
Lender under Article VIII and Section 9.03 with respect to events occurring or
obligations arising before or as a result of such replacement shall survive
such exercise.
ARTICLE IX
MISCELLANEOUS
Section IX.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission or similar writing) and shall be given to such party at its
address or telecopy number set forth on the signature pages hereof or such
other address or telecopy number as such party may hereafter specify for the
purpose by notice to each other party. Each such notice, request or other
communication shall be effective (i) if given by telecopier, when such telecopy
is transmitted to the telecopy number specified in this Section and the
telecopy machine used by the sender provides a written confirmation that such
telecopy has been so transmitted or receipt of such telecopy transmission is
otherwise confirmed, (ii) if given by mail, 72 hours after such communication
is deposited in the mails with first class postage prepaid, addressed as
aforesaid, and (iii) if given by any other means, when delivered at the address
specified in this Section; provided that notices to the Administrative Agent
under Article II or Article VIII shall not be effective until received.
Section IX.2. No Waivers. No failure or delay by the
Administrative Agent or any Lender in exercising any right, power or privilege
hereunder or under any Note or other Loan Document shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section IX.3. Expenses; Documentary Taxes; Indemnification.
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(1) The Borrower shall pay (i) all out-of-pocket expenses of the
Administrative Agent, including fees and disbursements of special counsel for
the Administrative Agent, in connection with the preparation of this Agreement
and the other Loan Documents, any waiver or consent hereunder or thereunder or
any amendment hereof or thereof or any Default or alleged Default hereunder or
thereunder and (ii) if a Default occurs, all out-of-pocket expenses incurred by
the Administrative Agent or any Lender, including fees and disbursements of
counsel, in connection with such Default and collection and other enforcement
proceedings resulting therefrom, including out-of-pocket expenses incurred in
enforcing this Agreement and the other Loan Documents.
(2) The Borrower shall indemnify the Administrative Agent and
each Lender against any transfer taxes, documentary taxes, assessments or
charges made by any Authority by reason of the execution and delivery of this
Agreement or the other Loan Documents.
(3) The Borrower shall indemnify the Administrative Agent, the
Lenders and each Affiliate thereof and their respective directors, officers,
employees and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims or damages to which any of them may become subject,
insofar as such losses, liabilities, claims or damages arise out of or result
from any actual or proposed use by the Borrower of the proceeds of any
extension of credit by any Lender hereunder or breach by the Borrower of this
Agreement or any other Loan Document or from investigation, litigation
(including, without limitation, any actions taken by the Administrative Agent
or any of the Lenders to enforce this Agreement or any of the other Loan
Documents) or other proceeding (including, without limitation, any threatened
investigation or proceeding) relating to the foregoing, and the Borrower shall
reimburse the Administrative Agent and each Lender, and each Affiliate thereof
and their respective directors, officers, employees and agents, upon demand for
any expenses (including, without limitation, legal fees) incurred in connection
with any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified.
Section IX.4. Setoffs; Sharing of Set-Offs.
(1) The Borrower hereby grants to each Lender, as security for
the full and punctual payment and performance of the obligations of the
Borrower under this Agreement, a continuing lien on and security interest in
all deposits and other sums credited by or due from such Lender to the Borrower
or subject to withdrawal by the Borrower; and regardless of the adequacy of any
collateral or other means of obtaining repayment of such obligations, each
Lender may at any time upon or after the occurrence of any Event of Default,
and without notice to the Borrower, set off the whole or any portion or
portions of any or all such deposits and other sums against such obligations,
whether or not any other Person or Persons could also withdraw money therefrom.
(2) Each Lender agrees that if it shall, by exercising any right
of set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest owing with respect to the Notes held
by it which is greater than the proportion received by any other Lender in
respect of the aggregate amount of all principal and interest owing with
respect to the Notes held by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other
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Lenders owing to such other Lenders, and/or such other adjustments shall be
made, as may be required so that all such payments of principal and interest
with respect to the Notes held by the Lenders owing to such other Lenders shall
be shared by the Lenders pro rata; provided that (i) nothing in this Section
shall impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to
the payment of indebtedness of the Borrower other than its indebtedness under
the Notes, and (ii) if all or any portion of such payment received by the
purchasing Lender is thereafter recovered from such purchasing Lender, such
purchase from each other Lender shall be rescinded and such other Lender shall
repay to the purchasing Lender the purchase price of such participation to the
extent of such recovery together with an amount equal to such other Lender's
ratable share (according to the proportion of (x) the amount of such other
Lender's required repayment to (y) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of set-off or counterclaim
and other rights with respect to such participation as fully as if such holder
of a participation were a direct creditor of the Borrower in the amount of such
participation.
(3) Notwithstanding the foregoing, it is hereby expressly agreed
that neither the Administrative Agent nor any Lender shall have any lien or
security interest in, or right to set-off against, any amount held for the
Borrower (i) by the Administrative Agent's or such Lender's Affiliates,
including, but not limited to, Trustco Capital Management, Inc. and Synovus
Securities, Inc., or (ii) in any corporate custody account or similar account
maintained at any Lender in a trust capacity, in either case as security for or
for application to the Loans or other obligations owing to the Administrative
Agent, or such Lender under this Agreement or the Loan Documents; provided,
however, that nothing contained in this subSection (c) shall in any way be
construed as limiting the ability of any such Affiliate of the Administrative
Agent or any Lender to set-off against the Borrower's accounts for any amount
owing to such Affiliate or such Lender arising other than under this Agreement
and the Loan Documents.
Section IX.5. Amendments and Waivers.
(1) Any provision of this Agreement, the Notes or any other Loan
Documents may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Lenders (and, if the
rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that no such amendment or waiver shall, unless
signed by all the Lenders, (i) increase the Commitment of any Lender or subject
any Lender to any additional obligation (provided that an Assignment and
Acceptance executed in connection with an assignment effected pursuant to, and
in compliance with, Section 9.07(c) shall not be deemed to be a violation of
this clause (i)), (ii) reduce the principal of or rate of interest on any Loan
or any fees hereunder, (iii) extend the date fixed for any payment of principal
of or interest on any Loan or any fees hereunder, (iv) reduce the amount of
principal, interest or fees due on any date fixed for the payment thereof, (v)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes, or the percentage of Lenders, which shall be required for
the Lenders or any of them to take any action under this Section or any other
provision of this Agreement, (vi) change the manner of application of any
payments made under this Agreement or the Notes, (vii) change this Section
9.05(a), (viii)
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change the definition of "Required Lenders", (ix) release any Guarantor from
its obligations under the Guaranty (other than any release of a Guarantor
pursuant to Section 5.22(d)) or (x) release any Collateral (other than any
release of Collateral pursuant to Section 5.11 or pursuant to the Intercreditor
Agreement).
(2) The Borrower will not solicit, request or negotiate for or
with respect to any proposed waiver or amendment of any of the provisions of
this Agreement from or with any Lender, except on terms fully disclosed to the
Administrative Agent (which terms the Administrative Agent shall be authorized
to disclose to the Lenders). Executed or true and correct copies of any waiver
or consent effected pursuant to the provisions of this Agreement shall be
delivered by the Borrower to the Administrative Agent (for delivery to each
Lender) forthwith following the date on which the same shall have been executed
and delivered by the requisite percentage of Lenders. The Borrower will not,
directly or indirectly, pay or cause to be paid any remuneration, whether by
way of supplemental or additional interest, fee or otherwise, to any Lender (in
its capacity as such) as consideration for or as an inducement to the entering
into by such Lender of any waiver or amendment of any of the terms and
provisions of this Agreement unless such remuneration is concurrently paid, on
the same terms, ratably to all such Lenders.
Section IX.6. Margin Stock Collateral. Each of the Lenders
represents to the Administrative Agent and each of the other Lenders that it in
good faith is not, directly or indirectly (by negative pledge or otherwise),
relying upon any Margin Stock as collateral in the extension or maintenance of
the credit provided for in this Agreement.
Section IX.7. Successors and Assigns.
(1) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided that, except as provided in paragraph (g) of this Section,
the Borrower may not assign or otherwise transfer any of its rights under this
Agreement.
(2) Any Lender may at any time sell to one or more Persons (each
a "Participant") participating interests in any Loan owing to such Lender, any
Note held by such Lender, any Commitment hereunder or any other interest of
such Lender hereunder. In the event of any such sale by a Lender of a
participating interest to a 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. In no event shall a Lender that sells a participation be obligated
to the Participant to take or refrain from taking any action hereunder except
that such Lender may agree that it will not (except as provided below), without
the consent of the Participant, agree to (i) the extension of any date fixed
for the payment of principal of or interest on the related Loan or Loans, (ii)
the decrease of the amount of any principal, interest or fees due on any date
fixed for the payment thereof with respect to the related Loan or Loans, (iii)
the reduction of the principal of the related Loan or Loans, or (iv) any
decrease in the rate at which either interest is payable thereon or (if the
Participant is entitled to any part thereof) commitment fee is payable
hereunder from the rate at which the Participant is entitled to receive
interest or commitment fee (as the case may be) in
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respect of such participation. The Borrower agrees that each Participant shall
be entitled to the benefits of Article VIII with respect to its participation
in Loans outstanding from time to time, subject to the provisions of Section
9.07(e).
(3) Any Lender may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or a proportionate part of
all, of its rights and obligations under this Agreement, the Notes and the
other Loan Documents, and such Assignee shall assume all such rights and
obligations, pursuant to an Assignment and Acceptance substantially in the form
attached hereto as Exhibit B, executed by such Assignee, such transferor Lender
and the Administrative Agent (and, in the case of (x) an Assignee that is not
then a Lender, an Affiliate of a Lender or a Related Fund of any Lender; and
(y) an assignment not made during the existence of an Event of Default, by the
Borrower); provided that
(i) no interest may be sold by a Lender pursuant to this
paragraph (c) unless the Assignee shall agree to assume ratably
equivalent portions of the transferor Lender's Commitment (provided
that the Borrower and the Administrative Agent may waive the
requirement contained in this clause (i)),
(ii) no interest may be sold by a Lender pursuant to this
paragraph (c) to any Assignee that is not then a Lender, an Affiliate
of a Lender or a Related Fund of any Lender without the consent of the
Borrower, which consent shall not be unreasonably withheld (provided
that (1) the Borrower's consent shall not be necessary with respect to
any assignment made during the existence of an Event of Default, (2)
it shall not constitute the unreasonable withholding of consent if the
Borrower shall decline to consent because (x) the Borrower makes a
reasonable determination that it is materially more likely that the
proposed Assignee will be entitled to compensation, or to a greater
amount of compensation, than the transferor Lender, or (y) the
proposed Assignee is a competitor, or an Affiliate of a competitor, of
the Borrower or any Subsidiary), and (3) Wachovia may at any time and
from time to time, without consent of the Borrower, assign to one or
more Assignees up to $68,750,000 of its Loans and Commitment, and
(iii) the minimum amount of any Commitment, and the
minimum aggregate principal amount of Loans, that may be so assigned
by any transferor Lender shall be $5,000,000 (provided that (1) a
Lender may assign all of its Commitment and its Loans even if the
amount of its Commitment and the aggregate principal amount of its
Loans is less than $5,000,000, (2) the Administrative Agent and the
Borrower may waive the requirement contained in this clause (iii)
without the consent of any Lender, and (3) if the proposed assignment
is to be made to a then existing Lender, an Affiliate of a Lender or a
Related Fund of any Lender, the minimum amount of any Commitment, and
the minimum aggregate principal amount of Loans, so assigned shall be
only $1,000,000).
Upon (A) execution of the Assignment and Acceptance by such transferor Lender,
such Assignee, the Administrative Agent and (if applicable) the Borrower, (B)
delivery of an executed copy of the Assignment and Acceptance to the Borrower
and the Administrative Agent, (C) payment by such Assignee to such transferor
Lender of an amount equal to the purchase price agreed between such transferor
Lender and such Assignee, and (D) payment by such transferor Lender to the
Administrative Agent of a processing and recordation fee of $500, if the
Assignee is an Agent or a Lender, an Affiliate of a Lender or a Related Fund of
any
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61
Lender, or $3,500 in any other case, such Assignee shall for all purposes be a
Lender party to this Agreement and shall have all the rights and obligations of
a Lender under this Agreement to the same extent as if it were an original
party hereto with a Commitment as set forth in such instrument of assumption,
and the transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by the Borrower, the
Lenders or the Administrative Agent shall be required. Upon the consummation of
any transfer to an Assignee pursuant to this paragraph (c), the transferor
Lender, the Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to each of such
Assignee and such transferor Lender.
(4) Subject to the provisions of Section 9.08, the Borrower
authorizes each Lender to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial and other information in such Lender's possession concerning the
Borrower which has been delivered to such Lender by the Borrower pursuant to
this Agreement or which has been delivered to such Lender by the Borrower in
connection with such Lender's credit evaluation prior to entering into this
Agreement.
(5) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Lender would have been entitled
to receive with respect to the rights transferred, unless such transfer is made
with the Borrower's prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Lender to designate a different Lending
Office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
(6) Anything in this Section 9.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any portion of the
Loans and/or obligations owing to it to any Federal Reserve Bank or the United
States Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and Operating Circular issued by such
Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Lender in accordance with the terms of this Agreement shall satisfy the
Borrower's obligations hereunder in respect of such assigned Loans and/or
obligations to the extent of such payment. No such assignment shall release the
assigning and/or pledging Lender from its obligations hereunder.
Section IX.8. Confidentiality. Each Lender agrees to exercise
its best efforts to keep any information delivered or made available by the
Borrower to it which such Lender knows to be or which is clearly indicated to
be confidential information, confidential from anyone other than persons
employed or retained by such Lender who are or are expected to become engaged
in evaluating, approving, structuring or administering the Loans; provided,
however, that nothing herein shall prevent any Lender from disclosing such
information (i) to any other Lender, (ii) upon the order of any court or
administrative agency, (iii) to any regulatory agency or authority having
jurisdiction over such Lender, upon the request or demand of such regulatory
agency or authority, (iv) which has been publicly disclosed (unless such Lender
knows such disclosure was made by a Person in violation of a confidentiality
agreement with or confidentiality obligation to the Borrower or any
Subsidiary), (v) to the extent reasonably required in connection with any
litigation to which the Administrative Agent, any Lender or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Lender's legal counsel
and independent
58
62
auditors and (viii) to any actual or proposed Participant, Assignee or other
Transferee of all or part of its rights hereunder which has agreed in writing
to be bound by the provisions of this Section 9.08.
Section IX.9. Representation by Lenders. Each Lender hereby
represents that it is a commercial lender or financial institution which makes
or invests in loans in the ordinary course of its business and that it will
make its Loans hereunder for its own account in the ordinary course of such
business; provided, however, that, subject to Section 9.07, the disposition of
the Note or Notes held by that Lender shall at all times be within its
exclusive control.
Section IX.10. Obligations Several. The obligations of each
Lender hereunder are several, and no Lender shall be responsible for the
obligations or commitment of any other Lender hereunder. Nothing contained in
this Agreement and no action taken by the Lenders pursuant hereto shall be
deemed to constitute the Lenders to be a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any time hereunder
to each Lender shall be a separate and independent debt, and each Lender shall,
subject to Article VI, be entitled to protect and enforce its rights arising
out of this Agreement or any other Loan Document and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
Section IX.11. Survival of Certain Obligations. Sections
8.03(a), 8.03(b), 8.05 and 9.03 of this Agreement and the obligations of the
Borrower thereunder shall, without duplication, survive and continue to be
enforceable notwithstanding the termination of this Agreement and the
Commitments and the payment in full of the principal of and interest on all
Loans.
Section IX.12. New York Law. This Agreement and each Note
shall be construed in accordance with and governed by the law of the State of
New York.
Section IX.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
Section IX.14. Interest. In no event shall the amount of
interest due or payable hereunder or under the Notes exceed the maximum rate of
interest allowed by applicable law, and in the event any such payment is
inadvertently made to any Lender by the Borrower or inadvertently received by
any Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify such Lender in writing that it elects to have
such excess sum returned forthwith. It is the express intent hereof that the
Borrower not pay and the Lenders not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may legally be paid by the
Borrower under applicable law.
Section IX.15. Interpretation. No provision of this Agreement
or any of the other Loan Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being
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63
deemed to have structured or dictated such provision.
Section IX.16. Consent to Jurisdiction. The Borrower (a)
submits to personal jurisdiction in the State of New York, the courts thereof
and the United States District Courts sitting therein, for the enforcement of
this Agreement, the Notes and the other Loan Documents, (b) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or
venue within the State of New York for the purpose of litigation to enforce
this Agreement, the Notes or the other Loan Documents, and (c) agrees that
service of process may be made upon it in the manner prescribed in Section 9.01
for the giving of notice to the Borrower. Nothing herein contained, however,
shall prevent the Administrative Agent from bringing any action or exercising
any rights against any security and against the Borrower personally, and
against any assets of the Borrower, within any other state or jurisdiction.
Section IX.17. ▇▇▇▇▇ Filing. Promptly after the Effective
Date, the Administrative Agent agrees to deliver to the Borrower a 3 1/2 inch
high density computer disk containing the final form of this Agreement,
formatted on WordPerfect 6.1. After the execution and delivery of any
amendment, modification or supplement to this Agreement, the Administrative
Agent agrees to deliver to the Borrower, upon request of the Borrower, a 3 1/2
inch high density computer disk or other electronic or computer record mutually
agreeable to the Borrower and the Administrative Agent containing the final
form of such amendment, modification or supplement, formatted on WordPerfect
6.1 or other software program mutually agreeable to the Borrower and the
Administrative Agent.
Section IX.18. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
60
64
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, under seal, by their respective authorized officers as of the
day and year first above written.
CARMIKE CINEMAS, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III (SEAL)
--------------------------------
Title:
Carmike Cinemas, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Senior Vice President and
Chief Financial Officer
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
61
65
COMMITMENTS
$36,875,000 WACHOVIA BANK, N.A., as Administrative
Agent and as a Lender
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
------------------------------
Title:
Lending Office
--------------
Wachovia Bank, N.A.
Syndication Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Mail Code: GA-0423
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (27th floor)
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
--------------
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
62
66
$15,625,000 ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P., as
Syndication Agent and as a Lender
By:/s/ ▇.▇. ▇▇▇▇▇ (SEAL)
-----------------------------
Title:
Lending Office
--------------
▇▇▇▇▇▇▇ Sachs Credit Partners L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopier No: 212-357-0932
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
63
67
$4,000,000 FIRST UNION NATIONAL BANK,
as Documentation Agent and as a Lender
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL)
------------------------------
Title:
Lending Office
--------------
First Union National Bank
301 South College, DC-5
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
--------------
First Union National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
64
68
$3,125,000 KZH ING-2 LLC, as a Term Lender
By:/s/ ▇. ▇▇▇▇▇▇
--------------------------------
Title:
Lending Office
--------------
KZH ING-2 LLC
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
65
69
$3,125,000 ARCHIMEDES FUNDING II, LTD., as
a Term Lender
By: ING Capital Advisors, Inc.,
as Collateral Manager
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title:
Lending Office
--------------
ARCHIMEDES FUNDING II, LTD
c/o ING Capital Advisors, Inc.
as Collateral Manager
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
66
70
$2,250,000 FLOATING RATE PORTFOLIO, as
a Term Lender
By: Invesco Senior Secured Management, Inc., as
attorney in fact
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title:
Lending Office
--------------
FLOATING RATE PORTFOLIO
c/o INVESCO Senior Secured
Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
67
71
[INTENTIONALLY LEFT BLANK]
68
72
$5,000,000 OSPREY INVESTMENTS PORTFOLIO, as a Term
Lender
By: Citibank, N.A., as Manager
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Title:
Lending Office:
--------------
OSPREY INVESTMENTS PORTFOLIO
c/o Citibank Global Asset Management
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
69
73
$5,000,000 FRANKLIN FLOATING RATE TRUST,
as a Term Lender
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title:
Lending Office:
--------------
FRANKLIN FLOATING RATE TRUST
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-----------------
TOTAL COMMITMENTS:
$75,000,000
70