FOURTH AMENDMENT
THIS FOURTH AMENDMENT, dated as of March 29, 2000 (this "AMENDMENT"), is
among AMC ENTERTAINMENT INC., a Delaware corporation (the "BORROWER"), and the
Lenders (as defined below) signatories hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, certain financial institutions from time to time
parties thereto (collectively, the "LENDERS"), The Bank of Nova Scotia as
administrative agent for the Lenders (the "ADMINISTRATIVE AGENT") and Bank of
America National Trust and Savings Association as documentation agent (the
"DOCUMENTATION AGENT") are parties to the Amended and Restated Credit Agreement,
dated as of April 10, 1997 ( as further amended, supplemented, amended and
restated or otherwise modified prior to the date hereof, the "EXISTING CREDIT
AGREEMENT"); and
WHEREAS, the Borrower has requested that the Lenders amend the Existing
Credit Agreement in certain respects, as described below; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions set
forth herein, to amend the Existing Credit Agreement as set forth below (the
Existing Credit Agreement, as amended by this Amendment, being referred to as
the "CREDIT AGREEMENT");
NOW, THEREFORE, in consideration of the agreements herein contained, and
for other valuable consideration receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows.
PART I
DEFINITIONS
SUBPART 1.1. DEFINITIONS. Terms for which meanings are provided in the
Existing Credit greement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment with such meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Fourth Amendment
Effective Date (as defined in SUBPART 3.1), the Existing Credit Agreement is
hereby amended in accordance with this Part.
SUBPART 2.1. AMENDMENTS TO ARTICLE I. Article I of the Existing Credit
Agreement is hereby amended as set forth in this SUBPART 2.1.
(a) The following new definitions are added to Section 1.1 of the
Existing Credit Agreement in their appropriate alphabetical order:
"FOURTH AMENDMENT" means the Fourth Amendment, dated as of March
29, 2000, among the Borrower and the Lenders party thereto.
"FOURTH AMENDMENT EFFECTIVE DATE" is defined in Subpart 3.1 of
the Fourth Amendment.
"INTERNATIONAL ASSETS" means (a) theatres located outside the
United States and Canada and (b) Capital Stock of Persons (other than
AMC Entertainment International, Inc., a Delaware corporation) which
own or operate theatres located outside the United States and Canada,
in each case together with all property and assets which are a part of
or related to such theatres, including but not limited to cash,
accounts receivable, real estate, leases, tenant improvements,
furniture, fixtures and equipment, net of any accounts payable,
accrued expenses and other current and long-term liabilities related
to such theatres.
"PERMITTED JOINT VENTURE" means any joint venture entered into by
the Borrower or any of its Subsidiaries with one or more third parties
during the 2001 Fiscal Year (i) to which the Borrower or its
Subsidiaries shall have contributed certain International Assets and
(ii) of which the Borrower shall own at least 33% (but not more than
50%) of the outstanding Capital Stock.
(b) The definition of "Annualized EBITDA" contained in Section 1.1 of
the Existing Credit Agreement is amended to read in its entirety as
follows:
"ANNUALIZED EBITDA" means, for the Borrower and its Consolidated
Subsidiaries, as of the last day of any Fiscal Quarter (computed for
the period consisting of such Fiscal Quarter and each of the three
immediately preceding
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Fiscal Quarters), Consolidated EBITDA adjusted as follows: (a)
Annualized EBITDA during any applicable period attributable to a
particular theatre which was (i) permanently closed for business
or disposed of during a Fiscal Quarter or (ii) acquired by the
Borrower or a Consolidated Subsidiary during a Fiscal Quarter,
shall be determined on a PRO FORMA basis as if such closure,
disposition or acquisition had occurred on the first day of the
most recently completed period of four full Fiscal Quarters; and
(b) for purposes of calculating Annualized EBITDA, Consolidated
Net Income shall be determined without giving effect to (i) costs
incurred in connection with the permanent closing or disposition
of any theatre during any applicable period, (ii) non-recurring
expenses or charges (without duplication with any such expenses or
charges already excluded in determining Consolidated EBITDA)
incurred during the 2000 and 2001 Fiscal Years in connection with
the corporate restructuring of the Borrower and its Consolidated
Subsidiaries announced September 30, 1999 or incurred during the
2001 Fiscal Year in connection with the closing of any office
located outside of Kansas City, Missouri, in an aggregate amount
not to exceed $10,000,000, (iii) costs incurred in connection with
any newly opened theatre prior to such opening, or (iv) gains or
losses incurred in connection with any Asset Sale.
(c) The definition of "Annualized Theatres" is amended by deleting the
words "newly constructed or" in the first line thereof.
SUBPART 2.2. AMENDMENTS TO ARTICLE VIII. Article VIII of the Existing
Credit Agreement is hereby amended in accordance with this SUBPART 2.2.
(a) Section 8.2.11 of the Existing Credit Agreement is hereby amended
to insert the following words immediately prior to the words "in an amount"
in the fifth line of clause (vi) thereof:
"not otherwise permitted under this SECTION 8.2.11".
(b) Section 8.2.11 of the Existing Credit Agreement is further
amended to (i) delete the word "and" at the end of clause (vii) thereof,
(ii) replace the "." at the end of clause (viii) thereof with "; and", and
(iii) insert a new clause (ix) following clause (viii) thereof to read in
its entirety as follows:
"(ix) so long as immediately before or after giving effect
thereto, no Default shall have occurred and be continuing, Investments
consisting of International Assets in Permitted Joint Ventures;
PROVIDED, that the aggregate net book value of all International
Assets contributed by the Borrower and its Subsidiaries to any
Permitted Joint Venture, plus (without duplication) the amount of Net
Cash Proceeds generated from any Asset Sale permitted under
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SECTION 8.2.14(C), shall not exceed $150,000,000 either
individually or in the aggregate.".
(c) Section 8.2.13 of the Existing Credit Agreement is amended to (i)
delete the word "and" at the beginning of the sixth line thereof following
the second ";" and (ii) insert the following words immediately prior to the
"." at the end of such Section:
"; and Investments in Permitted Joint Ventures.".
(d) Section 8.2.14 of the Existing Agreement is amended to insert a
new clause (c) following clause (b) thereof to read in its entirety as
follows:
"(c) Notwithstanding the provisions of SECTION 8.2.14(A), the
Borrower shall be permitted to engage in one or more Asset Sales
during the 2001 Fiscal Year in which the assets sold or otherwise
disposed of in such Asset Sale consist of International Assets;
PROVIDED, that the Net Cash Proceeds from such Asset Sale, plus
(without duplication) the aggregate fair market value of all assets
contributed by the Borrower to any Permitted Joint Venture permitted
under SECTION 8.2.11(IX), shall not exceed $150,000,000 either
individually or in the aggregate; and, PROVIDED, FURTHER, that any
such Asset Sale shall not be considered as an Asset Sale for purposes
of determining if the $50,000,000 limitation in CLAUSE (Z) of SECTION
8.2.14(A) has been exceeded.".
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. EFFECTIVE DATE AND CONDITIONS. This Amendment shall become
effective on March 30, 2000 (the "FOURTH AMENDMENT EFFECTIVE DATE") upon the
satisfaction of each of the conditions precedent set forth in this PART III.
SUBPART 3.1.1. EXECUTION OF COUNTERPARTS. The Administrative Agent shall
have received counterparts of this Amendment duly executed and delivered on
behalf of the Borrower and the Required Lenders.
SUBPART 3.1.2. RESOLUTIONS. The Administrative Agent shall have received a
certificate, dated the Fourth Amendment Effective Date, of the Secretary or an
Assistant Secretary of the Borrower and each other Loan Party as to:
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(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of the Loan
Documents to be executed hereunder; and
(b) the incumbency and signatures of those of its officers authorized
to act with respect to this Amendment and each Loan Document executed by
it;
upon which certificate the Administrative Agent and each Lender may conclusively
rely until the Administrative Agent shall have received a further certificate of
the Secretary or an Assistant Secretary of such Loan Party canceling or amending
such prior certificate.
SUBPART 3.1.3. AFFIRMATION AND CONSENT. The Administrative Agent shall
have received an affirmation and consent in form and substance satisfactory to
it, duly executed and delivered by each Guarantor.
SUBPART 3.1.4. AMENDMENT FEE. The Administrative Agent shall have
received an amendment fee (but only for the account of each Lender that has
executed and delivered (including delivery by way of facsimile) a copy of this
Amendment to the attention of ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ at ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (19th floor), telecopy number ▇▇▇-▇▇▇-▇▇▇▇ at
or prior to 3:00 p.m. New York City time on March 29, 2000) in the amount of 5
basis points of such Lender's Commitment.
SUBPART 3.2. LEGAL DETAILS, ETC. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information, and such counterpart originals or such
certified or other copies of such materials, as the Administrative Agent or its
counsel may reasonably request. All legal matters incident to the transactions
contemplated by this Amendment shall be satisfactory to the Administrative Agent
and its counsel.
PART IV
MISCELLANEOUS PROVISIONS
SUBPART 4.1. CROSS-REFERENCES. References in this Amendment to any Part
or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 4.2. LOAN DOCUMENT PURSUANT TO EXISTING CREDIT AGREEMENT. This
Amendment is a Loan Document executed pursuant to the Existing Credit Agreement
and shall be construed, administered and applied in accordance with all of the
terms and provisions of the Existing Credit Agreement.
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SUBPART 4.3. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
SUBPART 4.4. FULL FORCE AND EFFECT; LIMITED AMENDMENT. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Existing Credit Agreement and
the Loan Documents shall remain unchanged and shall continue to be, and shall
remain, in full force and effect in accordance with their respective terms. The
amendments set forth herein shall be limited precisely as provided for herein to
the provisions expressly amended herein and shall not be deemed to be an
amendment to, waiver of, consent to or modification of any other term or
provision of the Existing Credit Agreement, any other Loan Document referred to
therein or herein or of any transaction or further or future action on the part
of the Borrower or any Obligor which would require the consent of the Lenders
under the Existing Credit Agreement or any of the Loan Documents.
SUBPART 4.5. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSES SECTION 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCEPT TO THE EXTENT THE VALIDITY OR
PERFECTION OF A SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK.
SUBPART 4.6. PAYMENT OF FEES AND EXPENSES. The Borrower hereby agrees to
pay and reimburse the Administrative Agent for all its reasonable fees and
expenses incurred in connection with the negotiation, preparation, execution and
delivery of this Amendment and related documents, including all reasonable fees
and disbursements of counsel to the Administrative Agent.
SUBPART 4.7. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts by the parties hereto, each of which counterparts
when so executed shall be an original, but all the counterparts shall together
constitute one and the same agreement.
SUBPART 4.8. REPRESENTATIONS AND WARRANTIES. In order to induce the
Lenders to execute and deliver this Amendment the Borrower hereby represents and
warrants to the Lenders that
(a) the execution, delivery and performance by it of this Amendment
are within its corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) its Organic Documents or (ii)
any law or contractual restriction binding on it;
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(b) no authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by it of this Amendment;
(c) this Amendment constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject,
as to enforceability, to the effect of (i) any applicable bankruptcy,
insolvency, moratorium or similar law affecting creditors' rights
generally, and (ii) the effect of general principles of equity; and
(d) immediately after giving effect to this Amendment, no Default has
occurred and is continuing, and all of the statements set forth in Section
6.2.1 and 6.2.2 of the Existing Credit Agreement are true and correct.
SUBPART 4.9. HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provision hereunder.
[INTENTIONALLY LEFT BLANK - - SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers hereunto duly authorized as of the day and
year first above written.
AMC ENTERTAINMENT INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman & CEO
THE BANK OF NOVA SCOTIA
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
THE BANK OF NEW YORK
By /s/ ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By______________________________
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Director
FIRST UNION NATIONAL BANK
By /s/ unreadable
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
By /s/ ▇▇▇▇ ▇'▇▇▇▇
Title: Vice President
BANK HAPOALIM, B.M.
By______________________________
Title:
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THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By______________________________
Title:
THE SAKURA BANK, LIMITED
By /s/ unreadable
Title: Senior Vice President
STB DELAWARE FUNDING TRUST I
By /s/ unreadable
Title:
10
BANK MUAMALAT MALAYSIA BERHAD
By /s/ unreadable
Title:
THE SUMITOMO BANK, LTD.
By______________________________
Title:
U.S. BANK NATIONAL ASSOCIATION
By______________________________
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate
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