EXECUTION VERSION
Exhibit 10.5
$1,270,000,000
CREDIT AGREEMENT
among
CINEMARK HOLDINGS, INC.,
as the Parent
CINEMARK, INC.,
as Holdings,
CNMK HOLDING, INC.,
as Intermediate Holdings,
CINEMARK USA, INC.,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
LEHMAN BROTHERS INC.
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Joint Lead Arrangers and Joint Bookrunners,
MORGAN STANLEY SENIOR FUNDING, INC.,
as Syndication Agent,
BNP PARIBAS
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agents,
and
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of October 5, 2006
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
SECTION 1. DEFINITIONS
|
|
|
1
|
|
|
|
1.1
|
|
Defined Terms
|
|
|
1
|
|
|
|
1.2
|
|
Other Definitional Provisions
|
|
|
31
|
|
|
|
|
|
|
|
|
|
|
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
|
|
|
32
|
|
|
|
2.1
|
|
Term Loan Commitments
|
|
|
32
|
|
|
|
2.2
|
|
Procedure for Term Loan Borrowing
|
|
|
32
|
|
|
|
2.3
|
|
Repayment of Term Loans
|
|
|
33
|
|
|
|
2.4
|
|
Revolving Credit Commitments
|
|
|
34
|
|
|
|
2.5
|
|
Procedure for Revolving Credit Borrowing
|
|
|
34
|
|
|
|
2.6
|
|
Repayment of Loans; Evidence of Debt
|
|
|
34
|
|
|
|
2.7
|
|
Commitment Fees, etc.
|
|
|
35
|
|
|
|
2.8
|
|
Termination or Reduction of Revolving Credit Commitments
|
|
|
36
|
|
|
|
2.9
|
|
Optional Prepayments
|
|
|
36
|
|
|
|
2.10
|
|
Mandatory Prepayments
|
|
|
36
|
|
|
|
2.11
|
|
Conversion and Continuation Options
|
|
|
37
|
|
|
|
2.12
|
|
Minimum Amounts and Maximum Number of Eurodollar Tranches
|
|
|
38
|
|
|
|
2.13
|
|
Interest Rates and Payment Dates
|
|
|
38
|
|
|
|
2.14
|
|
Computation of Interest and Fees
|
|
|
39
|
|
|
|
2.15
|
|
Inability to Determine Interest Rate
|
|
|
39
|
|
|
|
2.16
|
|
Pro Rata Treatment and Payments
|
|
|
40
|
|
|
|
2.17
|
|
Requirements of Law
|
|
|
41
|
|
|
|
2.18
|
|
Taxes
|
|
|
43
|
|
|
|
2.19
|
|
Indemnity
|
|
|
44
|
|
|
|
2.20
|
|
Illegality
|
|
|
45
|
|
|
|
2.21
|
|
Change of Lending Office
|
|
|
45
|
|
|
|
2.22
|
|
Replacement of Lenders under Certain Circumstances
|
|
|
45
|
|
|
|
2.23
|
|
Addition of Peso Subfacility
|
|
|
46
|
|
|
|
|
|
|
|
|
|
|
SECTION 3. LETTERS OF CREDIT
|
|
|
47
|
|
|
|
3.1
|
|
L/C Commitment
|
|
|
47
|
|
|
|
3.2
|
|
Procedure for Issuance of Letter of Credit
|
|
|
48
|
|
|
|
3.3
|
|
Fees and Other Charges
|
|
|
48
|
|
|
|
3.4
|
|
L/C Participations
|
|
|
48
|
|
|
|
3.5
|
|
Reimbursement Obligation of the Borrower
|
|
|
49
|
|
|
|
3.6
|
|
Obligations Absolute
|
|
|
50
|
|
|
|
3.7
|
|
Letter of Credit Payments
|
|
|
50
|
|
|
|
3.8
|
|
Applications
|
|
|
50
|
|
|
|
|
|
|
|
|
|
|
SECTION 4. REPRESENTATIONS AND WARRANTIES
|
|
|
51
|
|
|
|
4.1
|
|
Financial Condition
|
|
|
51
|
|
|
|
4.2
|
|
No Change
|
|
|
52
|
|
|
|
4.3
|
|
Corporate Existence; Compliance with Law
|
|
|
52
|
|
-i-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
4.4
|
|
Corporate Power; Authorization; Enforceable Obligations
|
|
|
52
|
|
|
|
4.5
|
|
No Legal Bar
|
|
|
53
|
|
|
|
4.6
|
|
No Material Litigation
|
|
|
53
|
|
|
|
4.7
|
|
No Default
|
|
|
53
|
|
|
|
4.8
|
|
Ownership of Property; Liens
|
|
|
53
|
|
|
|
4.9
|
|
Intellectual Property
|
|
|
53
|
|
|
|
4.10
|
|
Taxes
|
|
|
54
|
|
|
|
4.11
|
|
Federal Regulations
|
|
|
54
|
|
|
|
4.12
|
|
Labor Matters
|
|
|
54
|
|
|
|
4.13
|
|
ERISA
|
|
|
54
|
|
|
|
4.14
|
|
Investment Company Act; Other Regulations
|
|
|
55
|
|
|
|
4.15
|
|
Subsidiaries
|
|
|
55
|
|
|
|
4.16
|
|
Use of Proceeds
|
|
|
55
|
|
|
|
4.17
|
|
Environmental Matters
|
|
|
55
|
|
|
|
4.18
|
|
Accuracy of Information, etc.
|
|
|
56
|
|
|
|
4.19
|
|
Security Documents
|
|
|
57
|
|
|
|
4.20
|
|
Solvency
|
|
|
57
|
|
|
|
4.21
|
|
Senior Indebtedness
|
|
|
57
|
|
|
|
4.22
|
|
Regulation H
|
|
|
57
|
|
|
|
|
|
|
|
|
|
|
SECTION 5. CONDITIONS PRECEDENT
|
|
|
58
|
|
|
|
5.1
|
|
Conditions to Initial Extension of Credit
|
|
|
58
|
|
|
|
5.2
|
|
Conditions to Each Extension of Credit
|
|
|
63
|
|
|
|
|
|
|
|
|
|
|
SECTION 6. AFFIRMATIVE COVENANTS
|
|
|
63
|
|
|
|
6.1
|
|
Financial Statements
|
|
|
63
|
|
|
|
6.2
|
|
Certificates; Other Information
|
|
|
64
|
|
|
|
6.3
|
|
Payment of Obligations
|
|
|
66
|
|
|
|
6.4
|
|
Conduct of Business and Maintenance of Existence; Compliance
|
|
|
66
|
|
|
|
6.5
|
|
Maintenance of Property; Insurance
|
|
|
66
|
|
|
|
6.6
|
|
Inspection of Property; Books and Records; Discussions
|
|
|
66
|
|
|
|
6.7
|
|
Notices
|
|
|
67
|
|
|
|
6.8
|
|
Environmental Laws
|
|
|
67
|
|
|
|
6.9
|
|
Additional Collateral, etc.
|
|
|
68
|
|
|
|
6.10
|
|
Further Assurances
|
|
|
70
|
|
|
|
6.11
|
|
Designation of Restricted and Unrestricted Subsidiaries
|
|
|
70
|
|
|
|
6.12
|
|
Maintenance of Separate Existence
|
|
|
70
|
|
|
|
6.13
|
|
Maintenance of Fee Owned Properties
|
|
|
72
|
|
|
|
6.14
|
|
Post-Closing Date Mortgaged Properties
|
|
|
73
|
|
|
|
6.15
|
|
Specified Leasehold Mortgaged Properties
|
|
|
73
|
|
|
|
|
|
|
|
|
|
|
SECTION 7. NEGATIVE COVENANTS
|
|
|
73
|
|
|
|
7.1
|
|
Consolidated Net Senior Secured Leverage Ratio
|
|
|
73
|
|
|
|
7.2
|
|
Limitation on Indebtedness
|
|
|
73
|
|
|
|
7.3
|
|
Limitation on Liens
|
|
|
77
|
|
|
|
7.4
|
|
Limitation on Fundamental Changes
|
|
|
80
|
|
-ii-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
7.5
|
|
Limitation on Disposition of Property
|
|
|
81
|
|
|
|
7.6
|
|
Limitation on Restricted Payments
|
|
|
82
|
|
|
|
7.7
|
|
Limitation on Capital Expenditures
|
|
|
84
|
|
|
|
7.8
|
|
Limitation on Investments
|
|
|
85
|
|
|
|
7.9
|
|
Limitation on Optional Payments and Modifications of Debt Instruments, etc.
|
|
|
86
|
|
|
|
7.10
|
|
Limitation on Transactions with Affiliates
|
|
|
87
|
|
|
|
7.11
|
|
Limitation on Sales and Leasebacks
|
|
|
88
|
|
|
|
7.12
|
|
Limitation on Changes in Fiscal Periods
|
|
|
88
|
|
|
|
7.13
|
|
Limitation on Negative Pledge Clauses
|
|
|
88
|
|
|
|
7.14
|
|
Limitation on Restrictions on Subsidiary Distributions
|
|
|
89
|
|
|
|
7.15
|
|
Limitation on Lines of Business
|
|
|
90
|
|
|
|
7.16
|
|
Limitation on Activities of the Parent, Holdings and Intermediate Holdings
|
|
|
90
|
|
|
|
7.17
|
|
Limitation on Hedge Agreements
|
|
|
92
|
|
|
|
7.18
|
|
Limitation on New Leases
|
|
|
92
|
|
|
|
7.19
|
|
Limitations on Activities of Class II Restricted Subsidiaries and Unrestricted Subsidiaries
|
|
|
92
|
|
|
|
7.20
|
|
Amendments to Acquisition Documentation
|
|
|
92
|
|
|
|
|
|
|
|
|
|
|
SECTION 8. EVENTS OF DEFAULT
|
|
|
93
|
|
|
|
8.1
|
|
Events of Default
|
|
|
93
|
|
|
|
8.2
|
|
Borrowers Right to Cure
|
|
|
96
|
|
|
|
|
|
|
|
|
|
|
SECTION 9. THE AGENTS
|
|
|
97
|
|
|
|
9.1
|
|
Appointment
|
|
|
97
|
|
|
|
9.2
|
|
Delegation of Duties
|
|
|
97
|
|
|
|
9.3
|
|
Exculpatory Provisions
|
|
|
97
|
|
|
|
9.4
|
|
Reliance by Agents
|
|
|
97
|
|
|
|
9.5
|
|
Notice of Default
|
|
|
98
|
|
|
|
9.6
|
|
Non-Reliance on Agents and Other Lenders
|
|
|
98
|
|
|
|
9.7
|
|
Indemnification
|
|
|
99
|
|
|
|
9.8
|
|
Agent in Its Individual Capacity
|
|
|
99
|
|
|
|
9.9
|
|
Successor Agents
|
|
|
99
|
|
|
|
9.10
|
|
Authorization to Release Liens and Guarantees
|
|
|
100
|
|
|
|
9.11
|
|
The Arrangers; the Syndication Agent; the Co-Documentation Agent
|
|
|
100
|
|
|
|
|
|
|
|
|
|
|
SECTION 10. MISCELLANEOUS
|
|
|
100
|
|
|
|
10.1
|
|
Amendments and Waivers
|
|
|
100
|
|
|
|
10.2
|
|
Notices
|
|
|
102
|
|
|
|
10.3
|
|
No Waiver; Cumulative Remedies
|
|
|
104
|
|
|
|
10.4
|
|
Survival of Representations and Warranties
|
|
|
104
|
|
|
|
10.5
|
|
Payment of Expenses
|
|
|
104
|
|
|
|
10.6
|
|
Successors and Assigns; Participations and Assignments
|
|
|
106
|
|
|
|
10.7
|
|
Adjustments; Set-off
|
|
|
109
|
|
|
|
10.8
|
|
Counterparts
|
|
|
110
|
|
|
|
10.9
|
|
Severability
|
|
|
110
|
|
|
|
10.10
|
|
Integration
|
|
|
110
|
|
-iii-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
10.11
|
|
GOVERNING LAW
|
|
|
110
|
|
|
|
10.12
|
|
Submission To Jurisdiction; Waivers
|
|
|
110
|
|
|
|
10.13
|
|
Acknowledgments
|
|
|
111
|
|
|
|
10.14
|
|
Confidentiality
|
|
|
111
|
|
|
|
10.15
|
|
Release of Collateral and Guarantee Obligations
|
|
|
112
|
|
|
|
10.16
|
|
Accounting Changes
|
|
|
113
|
|
|
|
10.17
|
|
Delivery of Lender Addenda
|
|
|
113
|
|
|
|
10.18
|
|
WAIVERS OF JURY TRIAL
|
|
|
113
|
|
-iv-
ANNEXES:
|
|
|
A
|
|
Pricing Grid
|
|
|
|
SCHEDULES:
|
|
|
|
|
|
1.1A
|
|
Existing Letters of Credit
|
1.1B
|
|
Mortgaged Properties
|
4.4
|
|
Consents, Authorizations, Filings and Notices
|
4.6
|
|
Litigation
|
4.13
|
|
ERISA
|
4.15(a)
|
|
Subsidiaries
|
4.15(b)
|
|
Agreements Affecting Capital Stock
|
4.19(a)
|
|
UCC Filing Jurisdictions
|
4.19(b)
|
|
Mortgage Filing Jurisdictions
|
5.1(k)
|
|
Local Counsel Opinions
|
6.9
|
|
Real Property Valuation
|
6.15
|
|
Specified Leasehold Mortgaged Property
|
7.2(d)
|
|
Existing Indebtedness
|
7.2(k)
|
|
Class II Restricted Subsidiary Intercompany Indebtedness
|
7.3(f)
|
|
Existing Liens
|
7.5(k)
|
|
Permitted Dispositions
|
7.11
|
|
Sale and Leaseback Real Property
|
|
|
|
EXHIBITS:
|
|
|
|
|
|
A
|
|
Form of Guarantee and Collateral Agreement
|
B
|
|
Form of Compliance Certificate
|
C
|
|
Form of Closing Certificate
|
D
|
|
Form of Mortgage
|
E
|
|
Form of Assignment and Acceptance
|
F-1
|
|
Form of Legal Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
|
F-2
|
|
Form of Legal Opinion of Local Counsel
|
G-1
|
|
Form of Term Note
|
G-2
|
|
Form of Revolving Credit Note
|
H
|
|
Form of Exemption Certificate
|
I
|
|
Form of Lender Addendum
|
J
|
|
Form of Borrowing Notice
|
-v-
CREDIT AGREEMENT, dated as of October 5, 2006, among CINEMARK HOLDINGS, INC., a Delaware
corporation (together with any of its permitted successors and assigns, the
Parent
),
CINEMARK, INC., a Delaware corporation (together with any of its permitted successors and assigns,
Holdings
), CNMK HOLDING, INC., a Delaware corporation, CINEMARK USA, INC., a Texas
corporation (together with any of its permitted successors and assigns, the
Borrower
),
the several banks and other financial institutions or entities from time to time parties to this
Agreement (the
Lenders
), LEHMAN BROTHERS INC. (
LBI
) and MORGAN STANLEY SENIOR
FUNDING, INC. (
Morgan Stanley
), as joint lead arrangers and joint bookrunners (in such
capacities, the
Arrangers
), MORGAN STANLEY SENIOR FUNDING, INC., as syndication agent (in
such capacity, the
Syndication Agent
), BNP PARIBAS and GENERAL ELECTRIC CAPITAL
CORPORATION, as co-documentation agents (in such capacity, the
Co-Documentation Agents
),
and LEHMAN COMMERCIAL PAPER INC., as administrative agent (in such capacity, the
Administrative Agent
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Parent and the Borrower are parties to that certain Stock Purchase Agreement
dated as of August 7, 2006 by and among the Parent, the Borrower, Century Theatres, Inc. (the
Target
) and certain affiliates of the Target (together with any amendments, supplements
or other modifications permitted hereunder, the
Acquisition Agreement
) pursuant to which
the Borrower will acquire, by purchase or contribution, all of the issued and outstanding capital
stock of the Target;
WHEREAS, the Borrower has requested that simultaneously with the consummation of the
Acquisition, the Lenders extend credit to the Borrower in the form of (i) Term Loans (as this and
other capitalized terms used in these preliminary statements are defined in Section 1.1 below) in
an initial aggregate amount of $1,120,000,000 and (ii) a Revolving Credit Facility in an initial
aggregate amount of $150,000,000;
WHEREAS, the proceeds of the Term Loans made on the Closing Date will be used to finance the
Acquisition, to repay in full all amounts outstanding under the Existing Credit Agreement and the
Target Credit Agreement and to pay related fees and expenses (collectively, the
Transactions
);
WHEREAS, the proceeds of the Revolving Credit Loans will be used for general corporate
purposes of the Borrower and its Subsidiaries;
WHEREAS, the Lenders have indicated their willingness to lend on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective
meanings set forth in this Section 1.1.
2
Acquisition
: as defined in Section 5.1(b).
Acquisition Agreement
: as defined in the recitals hereto.
Acquisition Documentation
: collectively, the Acquisition Agreement and all
schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms
thereof or entered into in connection therewith.
Adjustment Date
: as defined in the Pricing Grid.
Administrative Agent
: as defined in the preamble hereto.
Affiliate
: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, control of a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election of directors (or
individuals performing similar functions) of such Person or (b) direct or cause the direction of
the management and policies of such Person, whether by contract or otherwise.
Agents
: the collective reference to the Syndication Agent, the Co-Documentation
Agents and the Administrative Agent.
Aggregate Exposure
: with respect to any Lender at any time, an amount equal to (a)
until the Closing Date, the aggregate amount of such Lenders Commitments at such time and (b)
thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lenders Term Loans
and (ii) the amount of such Lenders Revolving Credit Commitment then in effect or, if the
Revolving Credit Commitments have been terminated, the amount of such Lenders Revolving Extensions
of Credit then outstanding.
Aggregate Exposure Percentage
: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lenders Aggregate Exposure at such time to the sum of the
Aggregate Exposures of all Lenders at such time.
Agreement
: this Credit Agreement, as amended, supplemented or otherwise modified
from time to time.
Annualized Theatre
: for any period, any newly constructed theatre owned, operated
or managed by the Borrower or any of its Restricted Subsidiaries which has completed at least one
full quarter of operations as of the last day of such period, but less than four full quarters of
operations as of the last day of such period, in each case as identified to the Administrative
Agent.
Applicable Amount
: as of any date of determination (the
Determination
Date
), the amount (but in no event less than zero) equal to (a) the sum of (i) the aggregate
amount of cash and the fair market value of non-cash items received by the Parent or the
Borrower as common equity after the Closing Date and on or prior to such Determination Date,
(ii) the amount of the net reduction after the Closing Date and on or prior to such Determination
Date, in Investments held by the Parent, Holdings, Intermediate Holdings, the Borrower and its
3
Class I Restricted Subsidiaries in Class II Restricted Subsidiaries, Unrestricted Subsidiaries and
other entities that are not Class I Restricted Subsidiaries made after the Closing Date resulting
from proceeds realized on the sale or other Disposition of such Investments, proceeds representing
the return of capital, including redemptions, dividends and distributions, the amount of all
guarantees released, all payments of principal of, or interest on, Indebtedness and other
obligations that constitute such Investments, and the fair market value (not in excess of the
amount previously subtracted under clause (b)(ii) below) of any Unrestricted Subsidiary
redesignated as a Class I Restricted Subsidiary, (iii) Consolidated EBITDA minus two times
Consolidated Interest Expense, in each case in this clause (iii) for the fiscal quarter in which
the Closing Date occurs and for each full fiscal quarter completed since the Closing Date and prior
to the Determination Date for which financial statements have been delivered pursuant to Section
6.1(a)or 6.1(b), as applicable, (iv) to the extent deducted in computing the Consolidated EBITDA
specified in clause (iii) above and not included in clause (ii) above, any net gains on sales of
assets outside the ordinary course of business (including, without limitation, any such gains that
are extraordinary gains), (v) $150,000,000 and (vi) (A) in the case of expenditures made pursuant
to Sections 7.7(c) and 7.8(h) and the designation on or after the Closing Date of any Class I
Restricted Subsidiaries of the Parent as Unrestricted Subsidiaries, $275,000,000 in the aggregate,
and (B) in the case of expenditures made pursuant to Sections 7.9(a)(i) and 7.9(a)(ii),
$200,000,000 in the aggregate,
minus
(b) the sum of (i) the portion of such sum expended on
and after the Closing Date and on or prior to such Determination Date pursuant to Sections 7.6(j),
7.7(c), 7.8(h), 7.9(a)(i) and 7.9(a)(ii) and (ii) the fair market value (as of the date of such
designation) of any Class I Restricted Subsidiaries of the Parent designated as Unrestricted
Subsidiaries on or after the Closing Date. Expenditures made pursuant to Sections 7.7(c), 7.8(h),
7.9(a)(i) and 7.9(a)(ii) and in connection with the designation of a Class I Restricted Subsidiary
as an Unrestricted Subsidiary shall be deemed to utilize the amounts in clause (vi)(A) above or
(vi)(B) above, as applicable, prior to utilization of the amounts in clauses (i) through (v) above.
Applicable Consolidated EBITDA Amount
: on any date of determination, an amount
equal to the product of (x) Consolidated EBITDA for the Fiscal Year ended immediately prior to such
date of determination for which financial statements have been delivered pursuant to Section 6.1(a)
multiplied
by (y) the Capital Expenditure Percentage for the Fiscal Year in which such
determination date occurs.
Applicable Margin
: for each Type of Loan under each Facility, the rate per annum
set forth opposite such Facility under the relevant column heading below:
|
|
|
|
|
|
|
|
|
|
|
Base Rate Loans
|
|
Eurodollar Loans
|
Term Loan Facility
|
|
|
1.00
|
%
|
|
|
2.00
|
%
|
Revolving Credit Facility
|
|
|
1.00
|
%
|
|
|
2.00
|
%
|
provided
that, from and after the first Adjustment Date occurring after the completion of
two full fiscal quarters of the Borrower after the Closing Date, the Applicable Margin with respect
to the Loans will be determined pursuant to the Pricing Grid.
4
Application
: an application, in such form as the relevant Issuing Lender may
specify from time to time, requesting such Issuing Lender to issue a Letter of Credit.
Arrangers
: as defined in the preamble hereto.
Asset Sale
: any Disposition of Property or series of related Dispositions of
Property (excluding any such Disposition permitted by clauses (a) through (n) of Section 7.5) which
yields gross proceeds to the Parent, Holdings, Intermediate Holdings, the Borrower or any of its
Class I Restricted Subsidiaries (valued at the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt securities and valued at fair market value as
reasonably determined by the board of directors of the Borrower in the case of other non-cash
proceeds) in excess of $10,000,000.
Assignee
: as defined in Section 10.6(c).
Assignment and Acceptance
: an Assignment and Acceptance, substantially in the form
of Exhibit E.
Assignor
: as defined in Section 10.6(c).
Assumed Loan Amount
: at any time, an amount equal to the sum of (i) the aggregate
unpaid principal amount of the Term Loans then outstanding
plus
(ii) the Total Revolving
Credit Commitments then in effect or, if the Revolving Credit Commitments have been terminated, the
Total Revolving Extensions of Credit then outstanding.
Available Revolving Credit Commitment
: with respect to any Revolving Credit Lender
at any time, an amount equal to the excess, if any, of (a) such Lenders Revolving Credit
Commitment then in effect
over
(b) such Lenders Revolving Extensions of Credit then
outstanding.
Base Rate
: for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day
plus
, in the case of this clause (b),
1
/
2
of 1%. For purposes hereof:
Prime Rate
shall mean the prime lending rate as set forth
on the British Banking Association Telerate Page 5 (or such other comparable page as may, in the
reasonable opinion of the Administrative Agent, replace such page for the purpose of displaying
such rate), as in effect from time to time. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
Base Rate Loans
: Loans for which the applicable rate of interest is based upon the
Base Rate.
Benefitted Lender
: as defined in Section 10.7(a).
Board
: the Board of Governors of the Federal Reserve System of the United States
(or any successor).
5
Borrower
: as defined in the preamble hereto.
Borrowing Date
: any Business Day specified by the Borrower as a date on which the
Borrower requests the relevant Lenders to make Loans hereunder.
Borrowing Notice
: with respect to any request for borrowing of Loans hereunder, a
notice from the Borrower, substantially in the form of, and containing the information prescribed
by, Exhibit J, delivered to the Administrative Agent.
Brazilco
: Cinemark Brasil S.A.
Business Day
: (a) for all purposes other than as covered by clause (b) below, a day
other than a Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to close and (b) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (a) and which is also a day for trading by and between banks in
Dollar deposits in the interbank eurodollar market.
Capital Expenditure Percentage
: (a) 50% during Fiscal Year 2007 and (b) 35% during
each Fiscal Year thereafter.
Capital Expenditures
: for any period, with respect to any Person, the aggregate of
all cash expenditures by such Person for the acquisition or leasing (pursuant to a capital lease
(other than an EITF 97-10 Capital Lease)) of fixed or capital assets or additions to equipment
(including replacements, capitalized repairs and improvements during such period) which are
required to be capitalized under GAAP on a balance sheet of such Person,
provided
that, for
the purposes of Section 7.7, Capital Expenditures shall exclude expenditures associated with
replacements, capitalized repairs and improvements. For the purposes of this definition, the
purchase price of equipment which is purchased by a Person contemporaneously with the trade in of
existing equipment owned by such Person or with insurance proceeds shall be included in the
determination of Capital Expenditures only to the extent of cash paid in excess of the credit
granted with respect to the equipment which is being traded in or the amount of such insurance
proceeds, as the case may be.
Capital Lease Obligations
: with respect to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to
use) real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under GAAP; and,
for the purposes of this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
Capital Stock
: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.
Cash Equivalents
: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States government or issued by any agency thereof
6
and backed by the full
faith and credit of the United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank
deposits having maturities of six months or less from the date of acquisition and demand deposits,
in each case issued by (A) (i) any Lender, (ii) any commercial bank organized under the laws of the
United States of America or any state thereof having combined capital and surplus of not less than
$100,000,000, or (iii) overseas branches of commercial banks incorporated under the laws of the
United States of America, any state thereof, the District of Columbia, Canada or any province or
territory thereof having combined capital and surplus and undivided profits in excess of
$100,000,000 or any commercial bank or similar entity organized under the laws of any other country
that is a member of the Organization of Economic Cooperation and Development (
OECD
) and
has total assets in excess of $100,000,000 or (B) with respect to any Foreign Subsidiary, (i) any
entity described in the foregoing clause (A) or (ii) any commercial bank or similar entity
organized under the laws of the jurisdiction in which such Foreign Subsidiary maintains an office
or engages in business
provided
that, in the case of deposits under this clause (b)(B)(ii),
such deposits are made in the ordinary course of business for cash management purposes; (c)
commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moodys, or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and maturing within nine
months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of clause (b) of this definition, having a term of not more than
30 days with respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of acquisition issued
or fully guaranteed by any state, province, commonwealth or territory of the United States or
Canada, by any political subdivision or taxing authority of any such state, province, commonwealth
or territory or by any foreign government, the securities of which state, province, commonwealth,
territory, political subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moodys; (f) securities with maturities of six months or less from
the date of acquisition backed by standby letters of credit issued by any Lender or any commercial
bank satisfying the requirements of clause (b) of this definition; (g) shares of money market
mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition; and (h) with respect to any Foreign Subsidiary having its
principal operations in Mexico only, (i)
Certificados de la Tesoreria de la Federación (Cetes),
Bonos de Desarrollo del Gobierno Federal (Bondes)
or
Bonos Adjustables del Gobierno Federal
(Adjustabonos),
in each case, issued by the Mexican government, and (ii) any other instruments
issued or guaranteed by Mexico and denominated and payable in Pesos;
provided
, that, in
each case, such investments under this clause (h) are made in the ordinary course of business for
cash management purposes.
Change of Control
: the occurrence of any of the following events:
(a) prior to the consummation of a Qualified IPO, any person or group (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), excluding the Permitted Investors, shall
become, or obtain rights (whether by means or warrants, options or otherwise) to become, the
beneficial owner (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of a greater percentage of the total voting power of all classes of
7
Capital Stock of the Parent entitled to vote generally in the election of directors than the
corresponding percentage thereof then held by the Permitted Investors;
(b) after the consummation of a Qualified IPO, (i) any person or group (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), excluding the Permitted Investors, shall
become, or obtain rights (whether by means or warrants, options or otherwise) to become, the
beneficial owner (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of more than 35% of the voting power of the outstanding common stock of the Parent or
(ii) a majority of the members of the board of directors of the Parent shall not be Continuing
Directors;
(c) (i) at any time prior to the occurrence of the Specified Reorganization (A) the Parent
shall cease to own and control, of record and beneficially, directly, 100% of each class of
outstanding Capital Stock of Holdings free and clear of all Liens, (B) Holdings shall cease to own
and control, of record and beneficially, directly, 100% of each class of outstanding Capital Stock
of Intermediate Holdings free and clear of all Liens and (C) Intermediate Holdings shall cease to
own and control, of record and beneficially, directly, 100% of each class of outstanding Capital
Stock of the Borrower free and clear of all Liens and (ii) at any time after the occurrence of the
Specified Reorganization, any of the Parent, Holdings or Intermediate Holdings shall cease to own
and control, of record and beneficially, directly, 100% of each class of outstanding Capital Stock
of the Borrower free and clear of all Liens (in each case, except Liens permitted under Section
7.3(a) or (h) hereof); or
(d) a Specified Change of Control.
Class I Restricted Subsidiary
: any Restricted Subsidiary which is not a Class II
Restricted Subsidiary.
Class II Restricted Subsidiaries
: (a) Cinemark Theatres Canada, Inc., Cinemark
Holdings Mexico, S. de R.L. de C.V., Cinemark de Mexico S.A. de C.V., Cinemark del Norte S.A. de
C.V. and Servicios Cinemark S.A. de C.V. and any Subsidiary of a Class II Restricted Subsidiary
other than an Unrestricted Subsidiary and (b) any Unrestricted Subsidiary designated as a Class II
Restricted Subsidiary in accordance with Section 6.11.
Closing Date
: the date on which the conditions precedent set forth in Section 5.1
shall have been satisfied or waived, which date is October 5, 2006.
Code
: the Internal Revenue Code of 1986, as amended from time to time.
Co-Documentation Agents
: as defined in the preamble hereto.
Collateral
: all Property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.
Commitment
: with respect to any Lender, each of the Term Loan Commitment and the
Revolving Credit Commitment of such Lender.
Commitment Fee
: as defined in Section 2.7.
8
Commitment Fee Rate
: 0.50% per annum;
provided
that the Commitment Fee Rate
shall be 0.375% per annum for any fiscal quarter in which the Consolidated Net Senior Secured
Leverage Ratio as of the last day of such fiscal quarter is less than 2.25 to 1.0.
Commonly Controlled Entity
: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer under Section 414 of the Code.
Compliance Certificate
: a certificate duly executed by a Responsible Officer,
substantially in the form of Exhibit B.
Confidential Information Memorandum
: the Confidential Information Memorandum dated
September 2006 and furnished to the initial Lenders in connection with the syndication of the
Facilities.
Consolidated Current Assets
: at any date, all amounts (other than cash and Cash
Equivalents) that would, in conformity with GAAP, be set forth opposite the caption total current
assets (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted
Subsidiaries at such date.
Consolidated Current Liabilities
: at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption total current liabilities (or any like
caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries at such
date, but excluding (a) the current portion of any Funded Debt of the Borrower and its Restricted
Subsidiaries and (b) without duplication, all Indebtedness consisting of Revolving Credit Loans, to
the extent otherwise included therein.
Consolidated EBITDA
: for any period, without duplication, Consolidated Net Income
for such period (excluding from Annualized Theatres)
plus
, to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum of (a) expenses
for taxes based on income or capital, including franchise and similar taxes, (b) Consolidated
Interest Expense, amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness, (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill)
and organization costs, (e) any extraordinary, unusual or non-recurring expenses (including,
without limitation, expenses for severance, non-recurring retention bonuses, payments to employees
of acquired entities under stock option plans or similar incentive plans such as long term
incentive plans, relocation and restructuring costs related to the Acquisition and acquisitions
after the date hereof) or losses (including, whether or not otherwise includable as a separate item
in the statement of such Consolidated Net Income for such period, (x) net losses on sales of assets
outside of the ordinary course of business and (y) losses or costs arising from lease
dispositions), (f) any call premium (or original issue discount) expenses associated with the
repurchase or repayment of Indebtedness, (g) to the extent actually reimbursed by a third party
(other than the Parent or any of its Subsidiaries) and not otherwise added back in the
computation of Consolidated Net Income, expenses incurred for payments under indemnification
provisions in any agreement for an acquisition or an Asset Sale, (h) management, monitoring,
9
consulting and advisory fees paid to shareholders of the Parent up to an aggregate amount of
$1,000,000 per fiscal year, (i) any other non-cash charges (including foreign exchange losses not
included in operating income but deducted from earnings in determining Consolidated Net Income),
(j) any reasonable expense related to any equity offering, Permitted Acquisition, Investment,
recapitalization, Asset Sale or Indebtedness permitted to be incurred under this Agreement (in each
case, whether or not successful), (k) letter of credit fees and annual agency fees paid to the
Administrative Agent, (l) to the extent covered by insurance under which the insurer has been
properly notified and has not denied or contested coverage, expenses with respect to liability or
casualty events or business interruption and (m) costs incurred in connection with the closing or
Disposition of any theatre or screen within a theatre, and
minus
, to the extent included in
the statement of such Consolidated Net Income for such period, the sum of, (a) any extraordinary,
unusual or non-recurring income or gains (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such period, net gains on sales
of assets outside of the ordinary course of business) and (b) any other non-cash income or gains
(including foreign exchange gains not included in operating income but otherwise included in
earnings in determining Consolidated Net Income) (other than the amortization of prepaid cash
income), all as determined on a consolidated basis, and
plus
, except to the extent already
included in the computation of Consolidated Net Income, any cash dividend paid on the Capital Stock
of NCM Holdings or National CineMedia, LLC (other than any NCM Recapitalization Dividend) during
such period, and
plus
any Pro Forma Cost Savings for such period
minus
any Pro
Forma Cost Savings added to Consolidated EBITDA during any prior period to the extent that such Pro
Forma Cost Savings were not achieved within 18 months of the Closing Date in the case of the
Acquisition and within 18 months of the closing date of any Permitted Acquisition in the case of
such Permitted Acquisition, as applicable;
provided
that for purposes of calculating
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for any period:
(i) the Consolidated EBITDA of any Person or theatre or theatres acquired by the
Borrower or its Restricted Subsidiaries or of any Annualized Theatres during such period
shall be included on a pro forma basis for such period (assuming the consummation of such
acquisition or the operations of such Annualized Theatre and, in any such case, the
incurrence or assumption of any Indebtedness in connection therewith had occurred on the
first day of such period and without giving effect to clause (a) of the proviso set forth in
the definition of Consolidated Net Income in this Section 1.1) if, in the case of an
acquisition of a Person, the consolidated balance sheet of such acquired Person and its
consolidated Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders equity and of
cash flows for the period in respect of which Consolidated EBITDA is to be calculated (x)
have been previously provided to the Administrative Agent and (y) either (1) have been
reported on without a qualification arising out of the scope of the audit by independent
certified public accountants of nationally recognized standing or (2) have been found
reasonably acceptable by the Administrative Agent;
(ii) the Consolidated EBITDA of any Person or theatre or theatres Disposed of by the
Borrower or its Restricted Subsidiaries during such period shall be excluded for
such period (assuming the consummation of such Disposition and the repayment of any
Indebtedness in connection therewith had occurred on the first day of such period); and
10
(iii) any redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary and
any designation of a Restricted Subsidiary as an Unrestricted Subsidiary which occurred
during such period shall be deemed to have occurred on the first day of such period.
Consolidated Interest Expense
: for any period, total cash interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and its Restricted
Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its
Restricted Subsidiaries (including, without limitation, all commissions, discounts and other fees
and charges owed by the Borrower with respect to letters of credit and bankers acceptance
financing and net costs of the Borrower under Hedge Agreements in respect of interest rates to the
extent such net costs are allocable to such period in accordance with GAAP) other than intercompany
Indebtedness owed to Holdings, the Parent, Intermediate Holdings, Borrower or any Restricted
Subsidiary, except to the extent paid in cash by the Borrower or any Restricted Subsidiary to
Holdings, the Parent or Intermediate Holdings.
Consolidated Net Income
: for any period, the consolidated net income (or loss) of
the Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP;
provided
, that in calculating Consolidated Net Income of the Borrower
and its Restricted Subsidiaries for any period, there shall be excluded (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its Restricted Subsidiaries, (b) the income
(or deficit) of any Person (other than a Restricted Subsidiary of the Borrower) in which the
Borrower or any of its Restricted Subsidiaries has an ownership interest, except to the extent that
any such income is actually received by the Borrower or such Restricted Subsidiary in the form of
dividends or similar distributions or payment of principal or interest of intercompany
Indebtedness, (c) the undistributed earnings of any Restricted Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by such Restricted
Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than
under any Loan Document) or Requirement of Law applicable to such Restricted Subsidiary and (d) the
cumulative effect of a change in accounting principles during such period to the extent included in
Consolidated Net Income. There shall be excluded from Consolidated Net Income for any period the
purchase accounting effects of adjustments to property and equipment, software and other intangible
assets required or permitted by GAAP and related authoritative pronouncements, as a result of the
Acquisition, any acquisition consummated prior to the Closing Date, the Madison Acquisition or any
Permitted Acquisitions.
Consolidated Net Senior Secured Leverage Ratio
: as of the last day of any period of
four consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated Senior Secured Debt
on such day less the aggregate amount of cash and Cash Equivalents owned by the Borrower or any
Restricted Subsidiary on such day (in each case, free and clear of all Liens (other than Liens
permitted under Sections 7.3(a), (h), (j) or (n))) to (b) Consolidated EBITDA for such period.
Consolidated Senior Secured Debt
: all Consolidated Total Debt (excluding Capital
Lease Obligations outstanding on the relevant date of determination in an aggregate
11
amount not to
exceed $200,000,000) that is secured by a Lien on any assets of the Parent, Holdings, Intermediate
Holdings, the Borrower or any of its Restricted Subsidiaries.
Consolidated Senior Secured Leverage Ratio
: as of the last day of any period of
four consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated Senior Secured Debt
on such day to (b) Consolidated EBITDA for such period.
Consolidated Total Debt
: at any date, the aggregate principal amount of all Funded
Debt of the Borrower and its Restricted Subsidiaries at such date, determined on a consolidated
basis in accordance with GAAP.
Consolidated Working Capital
: at any date, the difference of (a) Consolidated
Current Assets on such date
less
(b) Consolidated Current Liabilities on such date.
Continuing Directors
: with respect to any period of two consecutive years,
individuals who at the beginning of such period constituted the board of directors of the Parent
(together with any new directors whose election by such board or whose nomination for election by
the stockholders of the Parent was approved by a vote of at least a majority of the directors of
the Parent then still in office who where either directors at the beginning of such period or whose
election or nomination was previously so approved or is a designee of the Permitted Investors or
was nominated or elected by the Permitted Investors or any of their designees).
Contractual Obligation
: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its Property is bound.
Default
: any of the events specified in Section 8.1, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.
Derivatives Counterparty
: as defined in Section 7.6.
Digital Projector Financing
: financing arrangements in respect of digital projector
equipment for use in the ordinary course of business in theatres owned, leased or operated by the
Borrower and its Restricted Subsidiaries, to the extent such financing arrangements (i) do not
result in the Borrower or any of its Restricted Subsidiaries being or becoming legally liable for
any debt (including, without limitation, principal or interest) incurred to finance the manufacture
or acquisition of such equipment (or involve a transaction that has constructively the same
economic effect as being legally liable for a material portion of such debt), (ii) limit the
Borrowers and its Restricted Subsidiaries payment and other obligations, taken as a whole, with
respect to such equipment to obligations that are not materially more adverse to the Borrower and
its Restricted Subsidiaries than obligations of similarly-situated companies in the movie
exhibition business with respect to similar equipment, and (iii) result in the Borrower being
required to recognize a liability on its consolidated balance sheet in respect of the debt
(including, without limitation, principal or interest) incurred by a third party (other than the
Parent or any of its Subsidiaries) to finance the manufacture and/or acquisition of such equipment
or its replacement cost. Obligations in respect of Digital Projector Financing shall not
constitute Indebtedness and the rights of the owners of such equipment in respect of such
12
equipment shall not constitute a Lien on the assets of the Borrower or any of its Restricted
Subsidiaries.
Disposition
: with respect to any Property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof (but excluding the granting of a
Lien); and the terms
Dispose
and
Disposed of
shall have correlative meanings.
Dollars
and
$
: lawful currency of the United States of America.
Domestic Subsidiary
: any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States of America.
ECF Percentage
: 50%;
provided
that the ECF Percentage shall be reduced to
0% if the Consolidated Senior Secured Leverage Ratio as of the last day of such fiscal year is not
greater than 3.0 to 1.0.
EITF 97-10
: Emerging Issues Task Force Regulation 97-10 and any similar
pronouncement modifying GAAP with respect to the issues addressed in Regulation 97-10.
EITF 97-10 Capital Leases
: any lease that is classified as a capital lease under
GAAP, but which would not be so classified if not for the application of EITF 97-10 and similar
principles.
Environmental Laws
: any and all laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, or other legally enforceable requirements (including, without
limitation, common law) of any international authority, foreign government, the United States, or
any state, local, municipal or other governmental authority, regulating, relating to or imposing
liability or standards of conduct concerning protection of the environment or of human health.
Environmental Permits
: any and all permits, licenses, approvals, registrations,
notifications, exemptions and other authorizations required under any Environmental Law.
ERISA
: the Employee Retirement Income Security Act of 1974, as amended from time to
time.
Eurocurrency Reserve Requirements
: for any day, the aggregate (without duplication)
of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction with respect thereto
dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as
Eurocurrency Liabilities in Regulation D of the Board) maintained by a member bank of the Federal
Reserve System.
Eurodollar Base Rate
: with respect to each day during each Interest Period, the
rate per annum determined on the basis of the rate for deposits in Dollars for a period equal to
such Interest Period commencing on the first day of such Interest Period appearing on Page 3750 of
the Telerate screen as of 11:00 A.M., London time, two Business Days prior to the beginning
of such Interest Period. In the event that such rate does not appear on Page 3750 of the
Telerate
13
screen (or otherwise on such screen), the
Eurodollar Base Rate
for purposes of
this definition shall be determined by reference to such other comparable publicly available
service for displaying eurodollar rates as may be reasonably selected by the Administrative Agent.
Eurodollar Loans
: Loans for which the applicable rate of interest is based upon the
Eurodollar Rate.
Eurodollar Rate
: with respect to each day during each Interest Period, a rate per
annum determined for such day in accordance with the following formula (rounded upward to the
nearest 1/100
th
of 1%):
Eurodollar Base Rate
1.00 Eurocurrency Reserve Requirements
Eurodollar Tranche
: the collective reference to Eurodollar Loans the then current
Interest Periods with respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).
Event of Default
: any of the events specified in Section 8.1,
provided
that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
Excess Cash Flow
: for any Fiscal Year, the difference, if positive, of (a) the sum,
without duplication, of (i) Consolidated Net Income for such Fiscal Year, (ii) the amount of all
non-cash charges (including, without limitation, depreciation and amortization) deducted in
arriving at such Consolidated Net Income, (iii) the amount of the decrease, if any, in Consolidated
Working Capital for such Fiscal Year, (iv) the aggregate net amount of non-cash loss on the
Disposition of Property by the Borrower and its Restricted Subsidiaries during such Fiscal Year
(other than sales of inventory in the ordinary course of business), to the extent deducted in
arriving at such Consolidated Net Income and (v) the net increase during such Fiscal Year (if any)
in deferred tax accounts of the Borrower, but in each case excluding amounts in this clause (a)
attributable to Class II Restricted Subsidiaries to the extent not paid to a Class I Restricted
Subsidiary,
minus
(b) the sum, without duplication, of (i) the amount of all non-cash
credits included in arriving at such Consolidated Net Income, (ii) the aggregate amount of all
principal payments, repurchases, redemptions and defeasances of Funded Debt (including, without
limitation, the Term Loans, but excluding (A) voluntary and mandatory prepayments of the Term Loans
and (B) repayments or prepayments in respect of any revolving credit facility to the extent there
is not an equivalent permanent reduction in commitments thereunder) of the Borrower and its
Restricted Subsidiaries made during such Fiscal Year, (iii) the amount of the increase, if any, in
Consolidated Working Capital for such Fiscal Year, (iv) the aggregate net amount of gain on the
Disposition of Property (including, without limitation, upon the occurrence of a Recovery Event
with respect thereto) by the Borrower and its Restricted Subsidiaries during such Fiscal Year
(other than sales of inventory in the ordinary course of business), to the extent included in
arriving at such Consolidated Net Income, (v) the net decrease during such Fiscal Year (if any) in
deferred tax accounts of the Borrower, (vi) the aggregate amount actually paid by the Borrower and
its Restricted Subsidiaries in cash during such fiscal year on account of Capital Expenditures to
the extent that such Capital Expenditures
were financed directly or indirectly with cash from operations, (vii) Restricted Payments made
14
by the Borrower and its Restricted Subsidiaries in cash to the extent permitted under Section
7.6(c), (d), (e), (g), (h) or (i) and to the extent financed directly or indirectly with cash from
operations, (viii) cash from operations used directly or indirectly to finance Permitted
Acquisitions or Investments under Section 7.8(g), (h), (i), (k) or (m), (ix) letter of credit and
commitment or facility fees (including the Commitment Fee and similar fees in respect of any other
revolving and committed line of credit), (x) cash expenditures made in respect of Hedge Agreements
to the extent not reflected in the computation of Consolidated EBITDA or Consolidated Interest
Expense, (xi) cash payments by the Borrower and its Restricted Subsidiaries during such period in
respect of long-term liabilities of the Borrower and its Restricted Subsidiaries (other than
Indebtedness) to the extent financed directly or indirectly with cash from operations and (xii) the
amount of any proceeds received from either (A) the sale of the Capital Stock of NCM Holdings or
National CineMedia, LLC or (B) the payment of any NCM Recapitalization Dividend.
Excess Cash Flow Application Date
: as defined in Section 2.10(d).
Exchange Act
: the Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder, in each case as amended from time to time.
Excluded Foreign Subsidiaries
: any Foreign Subsidiary in respect of which either
(a) the pledge of all of the Capital Stock of such Subsidiary as Collateral or (b) the guaranteeing
by such Subsidiary of the Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower.
Existing Credit Agreement
: the Amended and Restated Credit Agreement dated as of
April 2, 2004 among Holdings, Intermediate Holdings, the Borrower, the several lenders parties
thereto and Lehman Commercial Paper Inc., as administrative agent, as amended and otherwise
modified prior to the date hereof.
Existing Letters of Credit
: the Letters of Credit listed on
Schedule 1.1A
.
Facility
: each of (a) the Term Loan Commitments and the Term Loans made thereunder
(the
Term Loan Facility
) and (b) the Revolving Credit Commitments and the extensions of
credit made thereunder (the
Revolving Credit Facility
).
Federal Funds Effective Rate
: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
Fiscal Year
: the fiscal year of the Borrower.
Foreign Subsidiary
: any Subsidiary of the Borrower that is not a Domestic
Subsidiary.
15
Funded Debt
: with respect to any Person, all Indebtedness of such Person of the
types described in clauses (a) through (e) of the definition of Indebtedness in this Section,
excluding (i) obligations arising under any EITF 97-10 Capital Leases and (ii) any intercompany
Indebtedness owed to Holdings, the Parent, Intermediate Holdings, the Borrower or a Guarantor.
Funding Office
: the office specified from time to time by the Administrative Agent
as its funding office by notice to the Borrower and the Lenders.
GAAP
: generally accepted accounting principles in the United States of America as
in effect from time to time, subject to Section 10.16.
Governmental Authority
: any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
Guarantee and Collateral Agreement
: the Guarantee and Collateral Agreement to be
executed and delivered by the Parent, Holdings, Intermediate Holdings, the Borrower and each
Subsidiary Guarantor, substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time.
Guarantee Obligation
: as to any Person (the
guaranteeing person
), any
obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit), if to induce the creation of such obligation of such other Person
the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the
primary obligations
) of any other third Person (the
primary
obligor
) in any manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any Property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided
,
however
, that the term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the
stated or determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing
persons maximum reasonably anticipated liability in respect thereof as determined by the Borrower
in good faith.
16
Guarantors
: the collective reference to the Parent, Holdings, Intermediate Holdings
and the Subsidiary Guarantors.
Hedge Agreements
: all interest rate or currency swaps, caps or collar agreements,
foreign exchange agreements, commodity contracts or similar arrangements entered into by the
Borrower or its Restricted Subsidiaries providing for protection against fluctuations in or to
reduce overall costs with respect to interest rates, currency exchange rates, commodity prices or
the exchange of nominal interest obligations, either generally or under specific contingencies.
For avoidance of doubt, Hedge Agreements shall include any interest rate swap or similar agreement
that provides for the payment by the Borrower or any of its Subsidiaries of amounts based upon a
floating rate in exchange for receipt by the Borrower or such Subsidiary of amounts based upon a
fixed rate.
Holdings
: as defined in the preamble hereto.
Indebtedness
: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of Property or services (other than (i) trade payables incurred in the ordinary course of
such Persons business and (ii) any earn-out obligation or post-closing payment adjustments until
such obligation or adjustment becomes a liability on the balance sheet of such Person in accordance
with GAAP), (c) all obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to Property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such Property,
provided
that, in such event, the amount of such
Indebtedness shall be deemed to be the lesser of the value of the Property covered by such
agreement and the aggregate principal amount of such Indebtedness), (e) all Capital Lease
Obligations or Synthetic Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under acceptance, letter of credit or
similar facilities, (g) all obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value (whether on the scheduled date thereof or any earlier
required date) any Capital Stock of such Person on or prior to the date which is six months after
the seventh anniversary of the Closing Date (other than for consideration consisting solely of
common stock of the Parent), (h) all Guarantee Obligations of such Person in respect of obligations
of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred
to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on Property owned by such
Person, whether or not such Person has assumed or become liable for the payment of such obligation
to the extent of the value of the Property subject to such Lien and (j) for the purposes of Section
8.1(e) only, all obligations of such Person in respect of Hedge Agreements.
Indemnified Liabilities
: as defined in Section 10.5.
Indemnitee
: as defined in Section 10.5.
Insolvency
: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.
17
Insolvent
: pertaining to a condition of Insolvency.
Intellectual Property
: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights
to sue at law or in equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
Interest Payment Date
: (a) as to any Base Rate Loan, the last day of each March,
June, September and December to occur while such Loan is outstanding and the final maturity date of
such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or shorter, the
last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof, after the first day
of such Interest Period and the last day of such Interest Period and (d) as to any Loan (other than
any Revolving Credit Loan that is a Base Rate Loan), the date of any repayment or prepayment made
in respect thereof.
Interest Period
: as to any Eurodollar Loan, (a) initially, the period commencing on
the Borrowing Date or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six or (with the consent of all Lenders under the relevant Facility, as
determined by such Lenders in their sole discretion) nine or twelve months thereafter, as selected
by the Borrower in its Borrowing Notice or notice of conversion, as the case may be, given with
respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Eurodollar Loan and ending one, two, three or six or (with the
consent of all Lenders under the relevant Facility, as determined by such Lenders in their sole
discretion) nine or twelve months thereafter, as selected by the Borrower by irrevocable notice to
the Administrative Agent not less than three Business Days prior to the last day of the then
current Interest Period with respect thereto;
provided
that, all of the foregoing
provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the Revolving
Credit Termination Date or beyond the date final payment is due on the Term Loans
shall end on the Revolving Credit Termination Date or such due date, as applicable;
and
(iii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last Business
Day of the calendar month at the end of such Interest Period.
18
Investments
: as defined in Section 7.8.
Intermediate Holdings
: CNMK Holding, Inc., a Delaware corporation, together with
any of its permitted successors and assigns.
Issuing Lender
: any Revolving Credit Lender from time to time designated by the
Borrower as an Issuing Lender with the consent of such Revolving Credit Lender and notice to the
Administrative Agent.
L/C Commitment
: $15,000,000;
provided
, that with the consent of the
relevant Issuing Lender and the consent of the Administrative Agent (such consent not to be
unreasonably withheld), the L/C Commitment may be increased by up to $25,000,000 if it is necessary
to support, with a Letter of Credit issued hereunder, the obligations of the borrower under the
Peso Subfacility or the Third-Party Peso Loans, as the case may be.
L/C Fee Payment Date
: the last day of each March, June, September and December and
the last day of the Revolving Credit Commitment Period.
L/C Obligations
: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5.
L/C Participants
: with respect to any Letter of Credit, the collective reference to
all the Revolving Credit Lenders other than the Issuing Lender that issued such Letter of Credit.
Lehman Entity
: any of Lehman Commercial Paper Inc. or any of its affiliates
(including Syndicated Loan Funding Trust).
Lender Addendum
: with respect to any initial Lender, a Lender Addendum,
substantially in the form of Exhibit I, to be executed and delivered by such Lender on the Closing
Date as provided in Section 10.17.
Lenders
: as defined in the preamble hereto.
Letters of Credit
: as defined in Section 3.1(a).
Lien
: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the foregoing).
Loan
: any loan made by any Lender pursuant to this Agreement.
Loan Documents
: this Agreement, the Security Documents, the Applications and the
Notes.
19
Loan Parties
: the Parent, Holdings, Intermediate Holdings, the Borrower and each
Restricted Subsidiary of the Borrower that is a party to a Loan Document.
Madison Acquisition
: the merger of an entity controlled by the Sponsor with and
into Holdings on April 2, 2004 and the related recapitalization of Holdings.
Majority Facility Lenders
: with respect to any Facility, the holders of more than
50% of (a) in the case of the Term Loan Facility, the aggregate unpaid principal amount of the Term
Loans or (b) in the case of the Revolving Credit Facility, prior to any termination of the
Revolving Credit Commitments, the Total Revolving Commitments (or, if the Revolving Commitments are
no longer in effect, the Total Revolving Extensions of Credit then outstanding).
Majority Revolving Credit Facility Lenders
: the Majority Facility Lenders in
respect of the Revolving Credit Facility.
Material Adverse Effect
: a material adverse effect on (a) the business, assets,
property, operations, condition, financial condition or prospects of Holdings and its Subsidiaries
taken as a whole (after giving effect to the Acquisition) or (b) the validity or enforceability of
this Agreement or any of the other Loan Documents or the material rights or remedies of the Agents
or the Lenders hereunder or thereunder.
Material Environmental Amount
: an amount or amounts payable by the Borrower and/or
any of its Class I Restricted Subsidiaries, in the aggregate in excess of $5,000,000, for: costs to
bring an environmental condition into compliance with any Environmental Laws; costs of any
investigation, and any remediation, of any Material of Environmental Concern; and compensatory
damages (including, without limitation damages to natural resources), punitive damages, fines, and
penalties pursuant to any Environmental Law.
Materials of Environmental Concern
: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde
insulation, asbestos, pollutants, contaminants, radioactivity, and any other substances, whether or
not any such substance is defined as hazardous or toxic under any Environmental Law, that is
regulated pursuant to or could give rise to liability under any Environmental Law.
Mitchell Family
: (a) Lee Roy Mitchell or Tandy Mitchell, or any descendent of Lee
Roy Mitchell or the spouse of such descendent, the estate of Lee Roy Mitchell, Tandy Mitchell, any
descendent of Lee Roy Mitchell or the spouse of such descendent (each, a
Mitchell
), (b)
any trust or other arrangement for the benefit of a Mitchell, any trust established by a Mitchell
or any trustee, custodian, fiduciary or foundation which will hold the common stock of the Parent
for charitable purposes or for the benefit of any Mitchell and (c) any Person at least 80%
beneficially owned and controlled by one or more Mitchells.
Moodys
: Moodys Investor Services, Inc.
Mortgaged Properties
: (a) the real properties listed on
Schedule 1.1B
, as
to which the Administrative Agent for the benefit of the Secured Parties has been or shall be
20
granted a Lien pursuant to one or more Mortgages, with a notation for each Post-Closing Date
Mortgaged Property and each Specified Leasehold Mortgaged Property and (b) any real property or
leasehold interest acquired or leased after the Closing Date by any Loan Party which is required to
be pledged to the Administrative Agent pursuant to Section 6.9(b).
Mortgages
: each of the mortgages and deeds of trust made by any Loan Party in favor
of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit D (with such changes thereto as shall be advisable under the
law of the jurisdiction in which such mortgage or deed of trust is to be recorded), in each case,
as the same may be amended, supplemented or otherwise modified from time to time.
Multiemployer Plan
: a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
National CineMedia, LLC
: National CineMedia, LLC, a Delaware limited liability
company, together with any of its permitted successors and assigns.
NCM Holdings
: a Delaware entity to be formed that will be the holding company for
National CineMedia, LLC, together with any of its permitted successors and assigns.
NCM Recapitalization Dividend
: any dividend paid to Holdings, Intermediate Holdings
or the Borrower or any of its Restricted Subsidiaries out of the net proceeds of Indebtedness
incurred in connection with the recapitalization of NCM Holdings or National CineMedia, LLC.
Net Cash Proceeds
: (a) in connection with any Asset Sale, any Recovery Event or any
Sale and Leaseback Transaction permitted by Section 7.11, the proceeds thereof in the form of cash
and Cash Equivalents (including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise,
but only as and when received), net of attorneys fees, accountants fees, investment banking fees,
amounts required to be applied to the repayment of Indebtedness existing prior to such transaction
secured by a Lien permitted hereunder on any asset which is the subject of such Asset Sale,
Recovery Event or Sale and Leaseback Transaction (other than any Lien pursuant to a Security
Document), all distributions and other payments required to be made pursuant to partnership
agreements, limited liability company organizational documents, joint venture agreements or similar
agreements to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale,
Recovery Event or Sale and Leaseback Transaction, and other arms length costs, fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably estimated to be
payable as a result thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements)
provided
that, such Net Cash Proceeds shall not include any
amounts reserved for purchase price adjustments and post-closing liabilities in connection with any
Asset Sale or Sale and Leaseback Transaction until such amounts have been released or are no longer
reserved and (b) in connection with (i) any Permitted Equity Issuance or the sale of the Capital
Stock of NCM Holdings or National CineMedia, LLC, (ii) the payment of any NCM Recapitalization
Dividend or (iii) any incurrence of indebtedness, the cash proceeds received from such sale,
payment or incurrence, net of
21
attorneys fees, investment banking fees, accountants fees, underwriting discounts and
commissions and other arms-length costs, fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing arrangements).
Non-Excluded Taxes
: as defined in Section 2.18(a).
Non-Recourse Debt
: Indebtedness:
(a) with respect to any Unrestricted Subsidiary and any Class II Restricted Subsidiary,
except to the extent of any guarantee permitted by Section 7.8, (i) as to which none of the
Parent, Holdings, Intermediate Holdings, the Borrower nor any of the Class I Restricted
Subsidiaries (x) provides credit support of any kind (including any undertaking, agreement
or instrument that would constitute Indebtedness), (y) is directly or indirectly liable (as
a guarantor or otherwise), or (z) constitutes the lender; (ii) no default with respect to
which (including any rights that the holders thereof may have to take enforcement action
against any Unrestricted Subsidiary or Class II Restricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than the
Obligations and the Senior Discount Notes) of the Parent, Holdings, Intermediate Holdings,
the Borrower or any of the Class I Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or payable prior to its
stated maturity; and (iii) as to which the lenders thereunder will not have any recourse to
the Capital Stock or assets of the Parent, Holdings, Intermediate Holdings, the Borrower or
any of the Class I Restricted Subsidiaries; and
(b) with respect to the Parent, Holdings, Intermediate Holdings, the Borrower or any of
the Class I Restricted Subsidiaries, (1) for which none of the Parent, Holdings,
Intermediate Holdings, the Borrower or any of the Class I Restricted Subsidiaries provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) or is directly or indirectly liable (as guarantor or otherwise),
other than as primary obligor; and (2) as to which the lenders thereunder will not have any
recourse to the Capital Stock or assets of the Parent, Holdings, Intermediate Holdings, the
Borrower or any of the Class I Restricted Subsidiaries other than the asset financed by such
Indebtedness, additions, accessions and improvements thereto and proceeds thereof.
Non-U.S. Lender
: as defined in Section 2.18(d).
Note
: any promissory note evidencing any Loan.
Obligations
: the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans, the Reimbursement
Obligations and all other obligations and liabilities of the Borrower to the
22
Administrative Agent or to any Lender or any Qualified Counterparty, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the
Letters of Credit, any Specified Hedge Agreement or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges
and disbursements of counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise;
provided
, that (i) obligations of the
Borrower or any Class I Restricted Subsidiary under any Specified Hedge Agreement shall be secured
and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the
other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors
effected in the manner permitted by this Agreement shall not require the consent of holders of
obligations under Specified Hedge Agreements.
Other Taxes
: any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
Parent
: as defined in the preamble hereto.
Participant
: as defined in Section 10.6(b).
Payment Office
: the office of the Administrative Agent specified in Section 10.2 or
as otherwise specified from time to time by the Administrative Agent as its payment office by
notice to the Borrower and the Lenders.
PBGC
: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor).
Permitted Acquisition
: on any date of determination, the acquisition in any
transaction or series of transactions by the Borrower or any of its Class I Restricted Subsidiaries
of a theatre or theatres (or the Capital Stock of a Person that owns a theatre or theatres)
approved by the board of directors of the Borrower.
Permitted Equity Issuance
: any sale or issuance of any common stock of the Parent.
Permitted Investors
: the collective reference to (a) the Mitchell Family, (b)
Quadrangle, (c) Syufy Enterprises, LP, (d) the Sponsor and (e) the Related Parties.
Person
: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
Peso
: the coin or currency of the United Mexican States as at the time shall be
legal tender for payment of public and private debt.
23
Peso Borrowing Calculation Date
: the second Business Day prior to any date of
incurrence of any Third-Party Peso Loan.
Peso Borrowing Date
: any date of incurrence of any Third-Party Peso Loan.
Peso Subfacility
: as defined in Section 2.23.
Peso Subfacility Amendments
: as defined in Section 2.23.
Peso Subfacility Borrower
: as defined in Section 2.23(a).
Peso Subfacility Commitment
: as defined in Section 2.23(a).
Peso Subfacility Commitment Period
: as defined in Section 2.23(a).
Peso Subfacility Lenders
: as defined in Section 2.23.
Peso Subfacility Loans
: as defined in Section 2.23.
Plan
: at a particular time, any employee benefit plan that is covered by ERISA and
in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an employer as
defined in Section 3(5) of ERISA.
Pledged Stock
: as defined in the Guarantee and Collateral Agreement.
Post-Closing Date Mortgaged Properties
: each of the Mortgaged Properties listed as
such on Schedule 1.1B.
Pricing Grid
: the pricing grid attached hereto as Annex A.
Pro Forma Balance Sheet
: as defined in Section 4.1(a).
Pro Forma Cost Savings
: for any period and to the extent not deducted elsewhere in
the definition of Consolidated EBITDA, the amount of net cost savings projected by the Borrower in
good faith to be realized as a result of any actions taken in connection with the Acquisition or a
Permitted Acquisition (calculated on a pro forma basis as though such cost savings had been
realized on the first day of such period), net of the amount of actual benefits realized during
such period from such actions to the extent not deducted elsewhere in the definition of
Consolidated EBITDA,
provided
that (a) such cost savings are projected by the Borrower in
good faith, are reasonably identifiable and factually supportable and shall be set forth in the
applicable Compliance Certificate for such period and (b) such cost savings are projected to occur
within 18 months after the Closing Date in the case of the Acquisition and within 18 months after
the closing date of any Permitted Acquisition in the case of such Permitted Acquisition, as
applicable.
Pro Forma Statements of Operations
: as defined in Section 4.1(a).
Projections
: as defined in Section 6.2(c).
24
Property
: any right or interest in or to property of any kind whatsoever, whether
real, personal or mixed and whether tangible or intangible, including, without limitation, Capital
Stock. For the avoidance of doubt, the Capital Stock of a Person is not Property of such Person.
Quadrangle
: Quadrangle Capital Partners LP.
Qualified Counterparty
: (a) with respect to any Specified Hedge Agreement existing
on the Closing Date, any counterparty thereto that is a Lender or an Affiliate of a Lender on the
Closing Date and (b) with respect to any other Specified Hedge Agreement, any counterparty thereto
that, at the time such Specified Hedge Agreement was entered into, was a Lender or an Affiliate of
a Lender.
Qualified IPO
: the issuance by the Parent of its common Capital Stock in an
underwritten primary public offering pursuant to an effective registration statement filed with the
SEC in accordance with the Securities Act of 1933, as amended.
Recovery Event
: any settlement of or payment or transfer (voluntary or otherwise)
in respect of any property or casualty insurance claim or any condemnation proceeding relating to
any asset of Holdings, Intermediate Holdings, the Borrower or any of its Class I Restricted
Subsidiaries.
Register
: as defined in Section 10.6(d).
Regulation H
: Regulation H of the Board as in effect from time to time.
Regulation U
: Regulation U of the Board as in effect from time to time.
Reimbursement Obligation
: the obligation of the Borrower to reimburse each Issuing
Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such Issuing
Lender.
Reinvestment Deferred Amount
: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by Holdings, Intermediate Holdings, the Borrower or any of its Class I
Restricted Subsidiaries in connection therewith that are not applied to prepay the Loans pursuant
to Section 2.10(b) as a result of the delivery of a Reinvestment Notice.
Reinvestment Event
: any Asset Sale, Recovery Event or Sale and Leaseback
Transaction in respect of which the Borrower has delivered a Reinvestment Notice.
Reinvestment Notice
: a written notice executed by a Responsible Officer stating
that (i) no Default or Event of Default has occurred and is continuing and that the Borrower
(directly or indirectly through a Class I Restricted Subsidiary) intends and expects to use all or
a specified portion of the Net Cash Proceeds of a Reinvestment Event to acquire or fund the
construction of assets (other than inventory) useful in its or a Class I Restricted Subsidiarys
business, or to make capital improvements (other than maintenance capital improvements) to such
assets (including leased assets), or (ii) during the six-month period prior to a Reinvestment
Event, the Borrower (directly or indirectly through a Class I Restricted
25
Subsidiary) used an amount of funds equal to or greater than all or a specified portion of the
Net Cash Proceeds of such Reinvestment Event to acquire or fund the construction of assets (other
than inventory) useful in its or a Class I Restricted Subsidiarys business or to make capital
improvements (other than maintenance capital improvements) to such assets (including leased
assets).
Reinvestment Prepayment Amount
: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto
less
any amount expended prior to the
relevant Reinvestment Prepayment Date (including any amount expended during the six-month period
prior to such Reinvestment Event) to acquire or fund the construction of assets (other than
inventory) useful in the Borrowers or a Class I Restricted Subsidiarys business, or to make
capital improvements (other than maintenance capital improvements) to such assets (including leased
assets).
Reinvestment Prepayment Date
: with respect to any Reinvestment Event, the earlier
of (a) the date occurring six months after such Reinvestment Event,
provided
that, such
date shall be extended, (x) if the Borrower or any of its Class I Restricted Subsidiaries shall
have entered into a definitive agreement to acquire or fund the construction of assets useful in
the Borrowers or a Class I Restricted Subsidiarys business, or to make capital improvements
(other than maintenance capital improvements) to such assets (including leased assets) prior to, or
within six months after, such Reinvestment Event, to the date which is 15 months after such
Reinvestment Event or (y) in the case of a Recovery Event, the Property which was the subject of
the Recovery Event was leased by the Borrower or any of its Class I Restricted Subsidiaries
pursuant to a lease which requires the Borrower or such Class I Restricted Subsidiary, as the case
may be, to rebuild such Property after completion of any construction necessary by the landlord, to
the date which is nine months after the date the landlord has completed such necessary
construction, and, so long as the Administrative Agent is reasonably satisfied that the Borrower is
diligently pursuing such rebuilding, such date shall be further extended by the number of days
during which the Borrower is reasonably delayed in completing such rebuilding as a result of events
of force majeure, and (b) the date on which the Borrower shall have determined not to, or shall
have otherwise ceased to, acquire or fund the construction of assets useful in the Borrowers or a
Class I Restricted Subsidiarys business, or to make capital improvements (other than maintenance
capital improvements) to such assets (including leased assets) with all or any portion of the
relevant Reinvestment Deferred Amount.
Related Fund
: with respect to any Lender, any fund that (x) invests in commercial
loans and (y) is managed or advised by the same investment advisor as such Lender or an Affiliate
of such investment advisor, by such Lender or an Affiliate of such Lender.
Related Party
: (a) with respect to the Sponsor, Quadrangle and Syufy Enterprises,
LP, any investment fund or other entity controlled by or under common control with such Permitted
Investors or the principals that control such Permitted Investors, (b) with respect to the Mitchell
Family, any group which includes any member or members of the Mitchell Family if a majority of the
Capital Stock of the Parent held by such group is beneficially owned (including the power to vote
such Capital Stock of the Parent) by (x) such member or members or (y) one or more affiliates at
least 80% of the equity of which are owned by one or more of such member or members, and (c) any
trust, corporation, partnership or other entity, the
26
beneficiaries, stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of Permitted Investors.
Reorganization
: with respect to any Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of Section 4241 of ERISA.
Reportable Event
: any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the 30 day notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.
Required Lenders
: at any time, the holders of more than 50% of (a) until the
Closing Date, the Commitments and (b) thereafter, the sum of (i) the aggregate unpaid principal
amount of the Term Loans then outstanding and (ii) the Total Revolving Credit Commitments then in
effect or, if the Revolving Credit Commitments have been terminated, the Total Revolving Extensions
of Credit then outstanding.
Required Prepayment Lenders
: the Majority Facility Lenders in respect of each
Facility.
Requirement of Law
: as to any Person, the certificate of incorporation and by-laws
or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
Responsible Officer
: the chief executive officer, president or chief financial
officer of the Borrower, but in any event, with respect to financial matters, the chief financial
officer or treasurer of the Borrower.
Restricted Payments
: as defined in Section 7.6.
Restricted Subsidiary
: any Subsidiary of the Borrower that is not an Unrestricted
Subsidiary.
Revolving Credit Commitment
: as to any Lender, the obligation of such Lender, if
any, to make Revolving Credit Loans in an aggregate principal and/or face amount not to exceed the
amount set forth under the heading Revolving Credit Commitment opposite such Lenders name on
Schedule 1 to the Lender Addendum delivered by such Lender, or, as the case may be, in the
Assignment and Acceptance pursuant to which such Lender became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof. The original aggregate amount of the Total
Revolving Credit Commitments is $150,000,000.
Revolving Credit Commitment Period
: the period from and including the Closing Date
to the Revolving Credit Termination Date or such earlier date on which the Revolving Credit
Commitments are terminated in accordance with the terms of this Agreement.
Revolving Credit Facility
: as defined in the definition of Facility in this
Section 1.1.
27
Revolving Credit Lender
: each Lender that has a Revolving Credit Commitment or that
is the holder of Revolving Credit Loans.
Revolving Credit Loans
: as defined in Section 2.4.
Revolving Credit Note
: as defined in Section 2.6(e).
Revolving Credit Percentage
: as to any Revolving Credit Lender at any time, the
percentage which such Lenders Revolving Credit Commitment then constitutes of the Total Revolving
Credit Commitments (or, at any time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lenders Revolving Extensions of
Credit then outstanding constitutes of the amount of the Total Revolving Extensions of Credit then
outstanding).
Revolving Credit Termination Date
: the date which is the sixth anniversary of the
Closing Date;
provided
that the Revolving Credit Termination Date shall be August 1, 2012
if, on such date, the Indebtedness under the Senior Subordinated Notes has not been refinanced with
Indebtedness that matures no earlier than the date which is six months after the seventh
anniversary of the Closing Date and that otherwise meets the requirements for a refinancing
permitted by Section 7.2(f).
Revolving Extensions of Credit
: as to any Revolving Credit Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all Revolving Credit Loans made by
such Lender then outstanding and (b) such Lenders Revolving Credit Percentage of the L/C
Obligations then outstanding.
Rollup Subsidiaries
: Pricino I, L.P., Pricino II, L.P, Pricino III, L.P., Pricino
IV, L.P., Pricino V, L.P., Pricino VI, L.P., Pricino VII, L.P., Pricino VIII, L.P., Pricino IX,
L.P., Pricino X, L.P., Pricino XI, L.P., Pricino XII, L.P., Priciba EY Trust XIII and Priciba RI
Trust XIII or any of their successors.
Rollup Transaction
: the acquisition, in one or multiple transactions, by the
Borrower or any of its Subsidiaries of the legal or beneficial interests in the Rollup Subsidiaries
which are landlords in up to thirteen of the Borrowers properties which were sold to such Rollup
Subsidiaries as part of a sale leaseback transaction.
S&P
: Standard & Poors Ratings Services.
Sale and Leaseback Transaction
: any sale and leaseback transaction conducted by
Holdings, Intermediate Holdings or the Borrower or any Class I Restricted Subsidiary, but excluding
transactions of the type described in EITF 97-10.
SEC
: the Securities and Exchange Commission (or successors thereto or an analogous
Governmental Authority).
Secured Parties
: as defined in the Guarantee and Collateral Agreement.
28
Security Documents
: the collective reference to the Guarantee and Collateral
Agreement, the Mortgages and all other security documents hereafter delivered to the Administrative
Agent granting a Lien on any Property of any Person to secure the obligations and liabilities of
any Loan Party under any Loan Document.
Senior Discount Note Indenture
: the Indenture entered into by Holdings in
connection with the issuance of the Senior Discount Notes, together with all instruments and other
agreements entered into by Holdings in connection therewith, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with Section 7.9 or refinanced
pursuant to Section 7.2(g) or (o).
Senior Discount Notes
: $535,558,000 aggregate outstanding principal amount at
maturity of Holdings 9
3
/
4
% Senior Discount Notes due 2014, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with Section 7.9 or refinanced pursuant to
Section 7.2(g).
Senior Subordinated Note Indenture
: the Indenture entered into by the Borrower and
the Subsidiary Guarantors in connection with the issuance of the Senior Subordinated Notes,
together with all instruments and other agreements entered into by the Borrower or any Subsidiary
Guarantor in connection therewith, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with Section 7.9 or refinanced pursuant to Section 7.2(f).
Senior Subordinated Notes
: $332,250,000 aggregate outstanding principal amount of
the Borrowers 9% Senior Subordinated Notes due 2013, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 7.9 or refinanced pursuant to
Section 7.2(f).
Single Employer Plan
: any Plan that is covered by Title IV of ERISA, but which is
not a Multiemployer Plan.
Solvent
: with respect to any Person, as of any date of determination, (a) the
amount of the present fair saleable value of the assets of such Person will, as of such date,
exceed the amount of all liabilities of such Person, contingent or otherwise, as of such date, as
such quoted terms are determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be required to pay the
liability of such Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For purposes of this
definition, (i) debt means liability on a claim, and (ii) claim means any (x) right to
payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
29
Specified Change of Control
: a Change of Control, or like event, as defined in
any outstanding Senior Subordinated Note Indenture or the Senior Discount Note Indenture.
Specified Hedge Agreement
: any Hedge Agreement entered into by (a) Holdings, the
Borrower or any of its Class I Restricted Subsidiaries and (b) any Person that, at the time such
Hedge Agreement is entered into, is a Qualified Counterparty.
Specified Leasehold Mortgaged Properties
: each of the Mortgaged Properties listed
as such on Schedule 1.1B.
Specified Reorganizations
: any transaction or series of transactions pursuant to
which one or more of the Parent, Holdings, Intermediate Holdings and the Borrower will be merged or
otherwise combined into one or more of such entities.
Sponsor
: Madison Dearborn Capital Partners, LLC, a Delaware limited liability
company.
Subsidiary
: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a Subsidiary or to Subsidiaries in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
Subsidiary Guarantor
: each Class I Restricted Subsidiary that is a Wholly Owned
Subsidiary as of the Closing Date and each other Subsidiary that becomes a party to the Guarantee
and Collateral Agreement on or after the Closing Date, in each case, unless and until released in
accordance with the terms of this Agreement.
Syndication Agent
: as defined in the preamble hereto.
Syndication Date
: the date on which the syndication of the Facilities is completed
and the entities selected in such syndication process become parties to this Agreement.
Synthetic Lease Obligations
: all monetary obligations of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease or (b) an agreement for the use or
possession of property creating obligations which do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting treatment).
Target
: as defined in the recitals hereto.
Target Credit Agreement
: the Credit Agreement dated as of March 1, 2006, among
Century California Subsidiary, Inc. and Morgan Stanley Senior Funding Inc., as
30
administrative agent for itself and the other lenders party thereto, as amended and otherwise
modified prior to the date hereof.
Term Loan
: as defined in Section 2.1.
Term Loan Commitment
: as to any Lender, the obligation of such Lender, if any, to
make a Term Loan to the Borrower hereunder in a principal amount not to exceed the amount set forth
under the heading Term Loan Commitment opposite such Lenders name on Schedule 1 to the Lender
Addendum delivered by such Lender, or, as the case may be, in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original aggregate amount of the Term Loan Commitments is
$1,120,000,000.
Term Loan Facility
: as defined in the definition of Facility in this Section 1.1.
Term Loan Lender
: each Lender that has a Term Loan Commitment or is the holder of a
Term Loan.
Term Loan Percentage
: as to any Term Loan Lender at any time, the percentage which
such Lenders Term Loan Commitment then constitutes of the aggregate Term Loan Commitments (or, at
any time after the Closing Date, the percentage which the aggregate principal amount of such
Lenders Term Loan then outstanding constitutes of the aggregate principal amount of the Term Loans
then outstanding).
Term Note
: as defined in Section 2.6(e).
Third-Party Peso Loans
: as defined in Section 7.2(n).
Total Revolving Credit Commitments
: at any time, the aggregate amount of the
Revolving Credit Commitments then in effect.
Total Revolving Extensions of Credit
: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Credit Lenders outstanding at such time.
Transactions
: as defined in the recitals hereto.
Transferee
: as defined in Section 10.14.
Type
: as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.
Unrestricted Subsidiary
: a collective reference to:
(a) any Subsidiary of the Borrower that does not directly, indirectly, or beneficially
own or hold any Capital Stock of, or own or hold any Lien on any Property of, the Parent,
Holdings, Intermediate Holdings, the Borrower or any of its Class I Restricted Subsidiaries
and that, at the time of determination, shall be an Unrestricted Subsidiary as designated by
the board of directors of the Borrower and upon written
31
notice to the Administrative Agent or as listed as such on
Schedule 4.15(a)
;
provided
, that such Subsidiary at the time of such designation (i) has no
Indebtedness other than Indebtedness permitted pursuant to Section 7.2(i), (j), (k), (l),
(p), (q) and (r); (ii) is not a party to any agreement, contract, arrangement or
understanding with the Parent, Holdings, Intermediate Holdings, the Borrower or any of its
Class I Restricted Subsidiaries unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Parent, Holdings, Intermediate
Holdings, the Borrower or such Class I Restricted Subsidiary, as the case may be, than those
that might be obtained at the time from Persons who are not Affiliates of the Borrower;
(iii) in the case of the designation of a Class I Restricted Subsidiary, the Applicable
Amount immediately prior to such designation is at least equal to the fair market value (as
of the time of such designation) of the Class I Restricted Subsidiary to be so designated;
(iv) is a Person as to which none of the Parent, Holdings, Intermediate Holdings, the
Borrower or any of its Class I Restricted Subsidiaries has any direct or indirect obligation
(x) to subscribe for additional Capital Stock or (y) to maintain or preserve such Persons
financial condition or to cause such Person to achieve any specified level of operating
results; and (v) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Parent, Holdings, Intermediate Holdings, the Borrower or
any of its Class I Restricted Subsidiaries; and
(b) any Subsidiary of an Unrestricted Subsidiary;
provided
that, any Unrestricted Subsidiary may be designated as a Restricted Subsidiary
pursuant to Section 6.11.
In addition, upon the consummation of the Rollup Transaction, the Rollup Subsidiaries shall be
Unrestricted Subsidiaries.
Wholly Owned Subsidiary
: as to any Person, (a) any other Person all of the Capital
Stock of which with voting power under ordinary circumstances to elect directors (or Persons having
similar or corresponding powers and responsibilities) (other than directors qualifying shares
required by law and shares required by applicable law to be held by a Person other than the
Borrower or its Subsidiaries) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries and (b) any Subsidiary of which the Parent owns, directly and indirectly, less than
all of the Capital Stock having such voting power, but the Parent and its Affiliates otherwise have
the power, without the consent of any other stockholder or other equity holder, to cause such
Subsidiary to become a Subsidiary Guarantor.
1.2
Other Definitional Provisions
. (a) Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings when used in the other Loan Documents or
any certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms relating to the Parent, Holdings,
Intermediate Holdings, the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
32
(c) The words hereof, herein and hereunder and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(e) All calculations of the financial ratio set forth in Section 7.1 shall be calculated to
the same number of decimal places as the relevant ratios are expressed in and shall be rounded
upward if the number in the decimal place immediately following the last calculated decimal place
is five or greater. For example, if the relevant ratio is to be calculated to the hundredth
decimal place and the calculation of the ratio is 5.126, the ratio will be rounded up to 5.13.
(f) Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.
(g) For avoidance of doubt, (i) the words include, includes and including shall be
deemed to be followed by the phrase without limitation and (ii) the word will shall be
construed to have the same meaning and effect as the word shall.
(h) Any reference to any law or regulation herein shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1
Term Loan Commitments
. Subject to the terms and conditions hereof, the Term Loan
Lenders severally agree to make term loans (each, a
Term Loan
) to the Borrower on the
Closing Date in an amount for each Term Loan Lender equal to the amount of the Term Loan Commitment
of such Lender. The Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2
and 2.11.
2.2
Procedure for Term Loan Borrowing
. The Borrower shall deliver to the
Administrative Agent a Borrowing Notice (which Borrowing Notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, at least one Business Day prior to
the anticipated Closing Date) requesting that the Term Loan Lenders make the Term Loans to be made
on the Closing Date. The Term Loans made on the Closing Date shall initially be Base Rate Loans,
and no Term Loan may be converted into or continued as a Eurodollar Loan having an Interest Period
in excess of one
month prior to the date which is the earlier of (i) 60 days after the Closing Date and (ii)
the Syndication Date. Upon receipt of such Borrowing Notice the Administrative Agent shall
promptly notify each Term Loan Lender thereof. Not later than 12:00 Noon, New York City time, on
the Closing Date each Term Loan Lender shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the Term Loan or Term Loans to be
made by such Lender. The Administrative Agent shall promptly make available to the Borrower the
aggregate of the amounts made
33
available to the Administrative Agent by the Term Loan Lenders, in
like funds as received by the Administrative Agent.
2.3
Repayment of Term Loans
. (a) The Term Loan of each Term Loan Lender shall mature
in 28 consecutive quarterly installments, commencing on December 31, 2006, each of which shall be
in an amount equal to such Lenders Term Loan Percentage
multiplied
by the percentage set
forth below opposite such installment of the aggregate Term Loans made on the Closing Date:
|
|
|
Installment
|
|
Principal Amount
|
December 31, 2006
|
|
0.25%
|
March 31, 2007
|
|
0.25%
|
June 30, 2007
|
|
0.25%
|
September 30, 2007
|
|
0.25%
|
December 31, 2007
|
|
0.25%
|
March 31, 2008
|
|
0.25%
|
June 30, 2008
|
|
0.25%
|
September 30, 2008
|
|
0.25%
|
December 31, 2008
|
|
0.25%
|
March 31, 2009
|
|
0.25%
|
June 30, 2009
|
|
0.25%
|
September 30, 2009
|
|
0.25%
|
December 31, 2009
|
|
0.25%
|
March 31, 2010
|
|
0.25%
|
June 30, 2010
|
|
0.25%
|
September 30, 2010
|
|
0.25%
|
December 31, 2010
|
|
0.25%
|
March 31, 2011
|
|
0.25%
|
June 30, 2011
|
|
0.25%
|
September 30, 2011
|
|
0.25%
|
December 31, 2011
|
|
0.25%
|
March 31, 2012
|
|
0.25%
|
June 30, 2012
|
|
0.25%
|
September 30, 2012
|
|
0.25%
|
December 31, 2012
|
|
23.50%
|
March 31, 2013
|
|
23.50%
|
June 30, 2013
|
|
23.50%
|
October 5, 2013
|
|
Aggregate unpaid principal amount of the Term Loans
|
(b) Notwithstanding anything to the contrary herein, the Borrower shall repay all outstanding
Term Loans on August 1, 2012 if, on such date, the Indebtedness under the Senior Subordinated Notes
has not been refinanced with Indebtedness that matures no earlier than the
34
date which is six months
after the seventh anniversary of the Closing Date and that otherwise meets the requirements for a
refinancing permitted by Section 7.2(f) below.
2.4
Revolving Credit Commitments
. (a) Subject to the terms and conditions hereof,
the Revolving Credit Lenders severally agree to make revolving credit loans (
Revolving Credit
Loans
) to the Borrower from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding for each Revolving Credit Lender which, when
added to such Lenders Revolving Credit Percentage of the L/C Obligations then outstanding does not
exceed the amount of such Lenders Revolving Credit Commitment. During the Revolving Credit
Commitment Period the Borrower may use the Revolving Credit Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be Eurodollar Loans or Base
Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance
with Sections 2.5 and 2.11,
provided
that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Revolving Credit Termination Date.
Notwithstanding anything to the contrary herein, the aggregate principal amount of the Revolving
Loans made on the Closing Date shall not exceed $25,000,000.
(b) The Borrower shall repay all outstanding Revolving Credit Loans on the Revolving Credit
Termination Date.
2.5
Procedure for Revolving Credit Borrowing
. The Borrower may borrow under the
Revolving Credit Commitments on any Business Day during the Revolving Credit Commitment Period,
provided
that the Borrower shall deliver to the Administrative Agent a Borrowing Notice
(which Borrowing Notice must be received by the Administrative Agent prior to 12:00 Noon, New York
City time, (a) three Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the case of Base Rate
Loans). Any Revolving Credit Loans made on the Closing Date shall initially be Base Rate Loans.
Each borrowing of Revolving Credit Loans under the Revolving Credit Commitments shall be in an
amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole multiple of $200,000 in
excess thereof (or, if the then aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $3,000,000 or a whole
multiple of $500,000 in excess thereof. Upon receipt of any such Borrowing Notice from the
Borrower, the Administrative Agent shall promptly notify each Revolving Credit Lender
thereof. Each Revolving Credit Lender will make its Revolving Credit Percentage of the amount
of each borrowing of Revolving Credit Loans available to the Administrative Agent for the account
of the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing
Date requested by the Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be promptly made available to the Borrower by the Administrative Agent in like
funds as received by the Administrative Agent.
2.6
Repayment of Loans; Evidence of Debt
. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of the appropriate Revolving Credit
Lender or Term Loan Lender, as the case may be, (i) the then unpaid principal amount of each
Revolving Credit Loan of such Revolving Credit Lender on the Revolving Credit
35
Termination Date (or
on such earlier date on which (x) principal payments are required by Section 2.8 or 2.10 or (y) the
Loans become due and payable pursuant to Section 8.1) and (ii) the principal amount of each Term
Loan of such Term Loan Lender in installments according to the amortization schedule set forth in
Section 2.3(a) (or on such earlier date on which (x) principal payments are required by Section
2.10 or 2.3(b) (y) the Loans become due and payable pursuant to Section 8.1) which shall be applied
pursuant to Section 2.16. The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates, set forth in Section 2.13.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from
time to time, including the amounts of principal and interest payable and paid to such Lender from
time to time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant
to Section 10.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the
amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan and
each Interest Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the
amount of any sum received by the Administrative Agent hereunder from the Borrower and each
Lenders share thereof.
(d) The entries made in the Register and the accounts of each Lender maintained pursuant to
Section 2.6(b) shall, to the extent permitted by applicable law, be
prima
facie
evidence of the existence and amounts of the obligations of the Borrower therein recorded;
provided
,
however
, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by
such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the
Borrower will promptly execute and deliver to such Lender a promissory note of the Borrower
evidencing any Term Loans or Revolving Credit Loans, as the case may be, of such Lender,
substantially in the forms of Exhibit G-1 or G-2, respectively (a
Term Note
or
Revolving Credit Note
, respectively), with appropriate insertions as to date and
principal amount;
provided
, that delivery of Notes shall not be a condition precedent to
the occurrence of the Closing Date or the making of the Loans on the Closing Date.
2.7
Commitment Fees, etc
. (a) The Borrower agrees to pay to the Administrative Agent
for the account of each Revolving Credit Lender a commitment fee (a
Commitment Fee
) for
the period from and including the Closing Date to the last day of the Revolving Credit Commitment
Period, computed at the Commitment Fee Rate on the average daily amount of the Available Revolving
Credit Commitment of such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the Revolving Credit
Termination Date, commencing on the first of such dates to occur after the date hereof.
36
(b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the
dates from time to time agreed to in writing by the Borrower and the Administrative Agent.
2.8
Termination or Reduction of Revolving Credit Commitments
. The Borrower shall have
the right, upon not less than three Business Days notice to the Administrative Agent, to terminate
the Revolving Credit Commitments or, from time to time, to reduce the aggregate amount of the
Revolving Credit Commitments;
provided
that no such termination or reduction of Revolving
Credit Commitments shall be permitted if, after giving effect thereto and to any prepayments of the
Revolving Credit Loans made on the effective date thereof, the Total Revolving Extensions of Credit
would exceed the Total Revolving Credit Commitments. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently the Revolving Credit
Commitments then in effect.
2.9
Optional Prepayments
. The Borrower may at any time and from time to time prepay
the Loans, in whole or in part, without premium or penalty (other than pursuant to Section 2.19),
upon irrevocable notice delivered to the Administrative Agent at least three Business Days prior
thereto in the case of Eurodollar Loans and at least one Business Day prior thereto in the case of
Base Rate Loans, which notice shall specify the date and amount of such prepayment, whether such
prepayment is of Term Loans or Revolving Credit Loans, and whether such prepayment is of Eurodollar
Loans or Base Rate Loans;
provided
, that if a Eurodollar Loan is prepaid on any day other
than the last day of the Interest Period applicable thereto, the Borrower shall also pay any
amounts owing pursuant to Section 2.19. Upon receipt of any such notice the Administrative Agent
shall promptly notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein, together with
(except in the case of Revolving Credit Loans that are Base Rate Loans) accrued interest to such
date on the amount prepaid. Partial prepayments of Term Loans and Revolving
Credit Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of
$200,000 in excess thereof.
2.10
Mandatory Prepayments
. (a) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date the Parent, Holdings, Intermediate Holdings, the Borrower or any of its Class
I Restricted Subsidiaries shall incur any Indebtedness (excluding any Indebtedness incurred in
accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be
applied on the date of such issuance or incurrence toward the prepayment of the Loans as set forth
in Section 2.10(e). The provisions of this Section do not constitute a consent to the incurrence
of any Indebtedness by the Parent, Holdings, Intermediate Holdings, the Borrower or any of its
Subsidiaries not permitted by Section 7.2.
(b) Except as set forth in clause Section 2.10(c) below, unless the Required Prepayment
Lenders shall otherwise agree, if on any date Holdings, Intermediate Holdings, the Borrower or any
of its Class I Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale, any
Sale and Leaseback Transaction or any Recovery Event then, unless a Reinvestment Notice shall be
delivered in respect thereof, on the date of receipt by Holdings, Intermediate Holdings, the
Borrower or any of its Class I Restricted Subsidiaries of such Net Cash Proceeds, the Loans shall
be prepaid by an amount equal to the amount of such Net Cash Proceeds (excluding any amounts
subject to any such Reinvestment Notice), as set forth in
37
Section 2.10(e);
provided
, that,
notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds that may be excluded from the
foregoing requirement pursuant to a Reinvestment Notice shall not exceed $250,000,000 in the
aggregate during the term of the Facilities and (ii) on each Reinvestment Prepayment Date the Loans
shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event, as set forth in Section 2.10(e). The provisions of this Section do
not constitute a consent to the consummation of any Disposition not permitted by Section 7.5 or any
Sale and Leaseback Transaction not permitted by Section 7.11.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings,
Intermediate Holdings, the Borrower or any of its Restricted Subsidiaries shall receive Net Cash
Proceeds from either (i) the sale of the Capital Stock of NCM Holdings or National CineMedia, LLC
or (ii) the payment of any NCM Recapitalization Dividend, then not later than 360 days after the
date of receipt by Holdings, Intermediate Holdings, the Borrower or any of its Restricted
Subsidiaries of such Net Cash Proceeds, the Loans shall be prepaid by an amount equal to the amount
of such Net Cash Proceeds, as set forth in Section 2.10(e);
provided
that to the extent
that the Consolidated Senior Secured Leverage Ratio for the period most recently ended prior to the
date of consummation of the relevant transaction described above in this Section 2.10(c), after
giving pro forma effect to such transaction and the application of the Net Cash Proceeds therefrom,
is less than 3.0 to 1.0, the percentage of Net Cash Proceeds required to be prepaid pursuant to
this Section 2.10(c) shall be 50%. The provisions of this Section do not constitute a consent to
the consummation of any Disposition not permitted by Section 7.5.
(d) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of
the Borrower commencing with the fiscal year ending December 31, 2007 there shall be Excess Cash
Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF
Percentage of such Excess Cash Flow toward the prepayment of the Loans, if and to the extent that
such amount exceeds the amount of voluntary prepayments of the Term Loans made during such fiscal
year to the extent such voluntary prepayments are financed directly or indirectly with cash from
operations, and any such prepayment shall be applied as set forth in Section 2.10(e). Each such
prepayment shall be made on a date (an
Excess Cash Flow Application Date
) no later than
five days after the date on which the financial statements of the Borrower referred to in Section
6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be
delivered to the Lenders.
(e) Amounts to be applied as prepayments pursuant to this Section shall be applied,
first
, to the prepayment of the Term Loans and
second
, to the prepayment of the
Revolving Credit Loans. Any such mandatory prepayment of the Revolving Credit Loans pursuant to
this Section 2.10 shall not result in a mandatory reduction of the Revolving Credit Commitments.
Amounts prepaid in respect of Term Loans pursuant to this Section 2.10 may not be reborrowed.
2.11
Conversion and Continuation Options
. (a) Subject to Section 2.19, the Borrower
may elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving the
Administrative Agent at least two Business Days prior irrevocable notice of such election. The
Borrower may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
38
giving the
Administrative Agent at least three Business Days prior irrevocable notice of such election (which
notice shall specify the length of the initial Interest Period therefor),
provided
that no
Base Rate Loan under a particular Facility may be converted into a Eurodollar Loan (i) when any
Event of Default has occurred and is continuing and the Administrative Agent has, or the Majority
Facility Lenders have, determined in its or their sole discretion not to permit such conversions or
(ii) after the date that is one month prior to the final scheduled termination or maturity date of
such Facility. Upon receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
(b) The Borrower may elect to continue any Eurodollar Loan as such upon the expiration of the
then current Interest Period with respect thereto by giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term Interest Period
set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,
provided
that no Eurodollar Loan under a particular Facility may be continued as such (i)
when any Event of Default has occurred and is continuing and the Administrative Agent has, or the
Majority Facility Lenders in respect of such Facility have, determined in its or their sole
discretion not to permit such continuations or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility, and
provided
,
further
, that if the Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the preceding proviso, such
Loans shall be converted automatically to Base Rate Loans on the last day of such then expiring
Interest Period. Upon
receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
2.12
Minimum Amounts and Maximum Number of Eurodollar Tranches
. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions, continuations and optional
prepayments of Eurodollar Loans and all selections of Interest Periods shall be in such amounts and
be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate
principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to
$3,000,000 or a whole multiple of $500,000 in excess thereof and (b) no more than 20 Eurodollar
Tranches shall be outstanding at any one time.
2.13
Interest Rates and Payment Dates
. (a) Each Eurodollar Loan shall bear interest
for each day during each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day
plus
the Applicable Margin in effect for such day.
(b) Each Base Rate Loan shall bear interest for each day on which it is outstanding at a rate
per annum equal to the Base Rate in effect for such day
plus
the Applicable Margin in
effect for such day.
(c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such
overdue amount (to the extent legally permitted) shall bear interest at a rate per annum that is
equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this Section
plus
2% or (y) in the case of Reimbursement
Obligations, the rate applicable to Base Rate Loans under the Revolving Credit Facility
plus
2%, and (ii) if all or a portion of any interest payable on any Loan
39
or Reimbursement
Obligation or any commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to Base Rate Loans under the
relevant Facility
plus
2% (or, in the case of any such other amounts that do not relate to
a particular Facility, the rate then applicable to Base Rate Loans under the Revolving Credit
Facility
plus
2%), in each case, with respect to clauses (i) and (ii) above, from the date
of such non-payment until such amount is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided
that
interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on
demand.
2.14
Computation of Interest and Fees
. (a) Interest, fees and commissions payable
pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed,
except that, with respect to Base Rate Loans on which interest is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case
may be) day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate
on a Loan resulting from a change in the Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change becomes effective.
The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders
of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Sections 2.13(a) and (b).
2.15
Inability to Determine Interest Rate
. If prior to the first day of any Interest
Period:
(a) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Majority Facility
Lenders in respect of the relevant Facility that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans denominated in Dollars under the relevant Facility requested to be made on the first day of
40
such Interest Period shall be made as Base Rate Loans, (y) any Loans under the relevant Facility
that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall
be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the relevant
Facility shall be converted, on the last day of the then current Interest Period with respect
thereto, to Base Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans under the relevant Facility shall be made or continued as such, nor shall
the Borrower have the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.16
Pro Rata Treatment and Payments
. (a) Each borrowing by the Borrower from the
Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of
Credit fee, and any reduction of the Commitments of the Lenders, shall be made
pro
rata
according to the respective Term Loan Percentages or Revolving Credit Percentages, as
the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Term Loans shall be allocated among the Term Loan Lenders
holding such Term Loans
pro
rata
based on the principal amount of such Term
Loans held by such Term Loan Lenders. The amount of each principal prepayment of the Terms Loans
shall be applied
first
, to the four immediately succeeding installments of such Term Loans
and,
second
, to the remaining installments of such Term Loans
pro
rata
based on the remaining outstanding principal amount of such installments. Amounts repaid or
prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Credit Loans shall be made
pro
rata
according to the
respective outstanding principal amounts of the Revolving Credit Loans then held by the Revolving
Credit Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of
Credit shall be made to the Issuing Lender that issued such Letters of Credit.
(d) The application of any payment of Loans under any Facility (including optional and
mandatory prepayments) shall be made,
first
, to Base Rate Loans under such Facility and,
second
, to Eurodollar Loans under such Facility. Each payment of the Loans (except in the
case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest
to the date of such payment on the amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars
and in immediately available funds. Any payment made by the Borrower after 12:00 Noon, New York
City time, on any Business Day shall be deemed to have been on the next following Business Day.
The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in
like funds as received. If any payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall be extended to the
next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity
41
thereof shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day. In the case of any extension of any
payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
(f) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error. If such Lenders share
of such borrowing is not made available to the Administrative Agent by such Lender within three
Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the
relevant Facility, on demand, from the Borrower.
(g) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make
such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective
pro
rata
shares of a corresponding amount. If such payment is not made to the Administrative Agent by the
Borrower within three Business Days after such due date, the Administrative Agent shall be entitled
to recover, on demand, from each Lender to which any amount which was made available pursuant to
the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.
2.17
Requirements of Law
. (a) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in
respect thereof (except for Non-Excluded Taxes covered by Section 2.18 and
changes in the rate of tax on the overall net income of such Lender);
42
(ii) shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of credit
by, or any other acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender, by an amount which
such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar
Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable. If any Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the Borrower (with a copy to the Administrative
Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of return on such Lenders
or such corporations capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration such Lenders or
such corporations policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the Borrower (with a copy
to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such corporation for such
reduction.
(c) A certificate as to any additional amounts payable pursuant to this Section submitted by
any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. The obligations of the Borrower pursuant to this Section shall survive
the termination of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
(d) The Borrower shall not be required to compensate a Lender pursuant to this Section for any
amounts incurred more than six months prior to the date that such Lender notifies the Borrower of
such Lenders intention to claim compensation therefor;
provided
that, if the circumstances
giving rise to such claim have a retroactive effect, then such six-month period shall be extended
to include the period of such retroactive effect. In addition, the Borrower shall not be required
to compensate a Lender pursuant to this Section for Eurocurrency Reserve
Requirements to the extent such compensation would duplicate compensation included in the
Eurodollar Rate pursuant to the definition thereof.
43
2.18
Taxes
. (a) All payments made by the Borrower under this Agreement shall be made free
and clear of, and without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on any
Agent or any Lender as a result of a present or former connection between such Agent or such Lender
and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection arising solely from such
Agents or such Lenders having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings (
Non-Excluded
Taxes
) or any Other Taxes are required to be withheld from any amounts payable to any Agent or
any Lender hereunder, the amounts so payable to such Agent or such Lender shall be increased to the
extent necessary to yield to such Agent or such Lender (after payment of all Non-Excluded Taxes and
Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement;
provided
,
however
, that the Borrower shall not be
required to increase any such amounts payable to any Lender with respect to any Non-Excluded Taxes
(i) that are attributable to such Lenders failure to comply with the requirements of paragraph (d)
or (e) of this Section or (ii) that are United States withholding taxes imposed on amounts payable
to such Lender at the time such Lender becomes a party to this Agreement, except to the extent that
such Lenders assignor (if any) was entitled, at the time of assignment, to receive additional
amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph (a).
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for the account of the
relevant Agent or Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the Agents and the Lenders for any incremental taxes, interest or penalties that
may become payable by any Agent or any Lender as a result of any such failure. The agreements in
this Section shall survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or under the laws of
the United States of America (or any jurisdiction thereof), or any estate or trust that is subject
to federal income taxation regardless of the source of its income (a
Non-U.S. Lender
)
shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased) two copies of either
U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of portfolio interest a statement substantially in the form of
44
Exhibit H
and a Form W-8BEN, or any subsequent versions thereof or successors thereto properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.
federal withholding tax on all payments by the Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes
a party to this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any previously delivered certificate to the Borrower
(or any other form of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not legally able to
deliver.
(e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate,
provided
that such Lender is legally entitled to complete, execute and
deliver such documentation and in such Lenders reasonable judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
2.19
Indemnity
. The Borrower agrees to indemnify each Lender for, and to hold each Lender
harmless from, any loss or expense that such Lender may sustain or incur as a consequence of (a)
default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance with the provisions
of this Agreement, (b) default by the Borrower in making any prepayment after the Borrower has
given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a
prepayment or conversion of Eurodollar Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such prepayment or of such
failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any)
over
(ii) the amount
of interest (as reasonably determined by such Lender) that would have
accrued to such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The Borrower shall not be required
to compensate a Lender pursuant to this Section for any amounts incurred more than six months prior
to the date that such Lender notifies the Borrower of such Lenders intention to claim compensation
therefor. A certificate as to any amounts payable pursuant to this Section submitted to the
Borrower by any Lender shall be conclusive in the
45
absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20
Illegality
. Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such
and convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b) such Lenders
Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate
Loans on the respective last days of the then current Interest Periods with respect to such Loans
or within such earlier period as required by law. If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current Interest Period with respect thereto,
the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section
2.19.
2.21
Change of Lending Office
. Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 2.17, 2.18(a) or 2.20 with respect to such Lender, it will,
if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event;
provided
, that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to
suffer no economic, legal or regulatory disadvantage, and
provided
,
further
, that
nothing in this Section shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to Section 2.17, 2.18(a) or 2.20.
2.22
Replacement of Lenders under Certain Circumstances
. The Borrower shall be permitted
to replace any Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.17 or
2.18 or gives a notice of illegality pursuant to Section 2.20 or (b) defaults in its obligation to
make Loans hereunder, with a replacement lender;
provided
that (i) such replacement does
not conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement, such Lender shall
have taken no action under Section 2.21 so as to eliminate the continued need for payment of
amounts owing pursuant to Section 2.17 or 2.18 or to eliminate the illegality referred to in such
notice of illegality given pursuant to Section 2.20, (iv) the replacement lender shall purchase, at
par, all Loans and other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower
shall be liable to such replaced Lender under Section 2.19 (as though Section 2.19 were
applicable) if any Eurodollar Loan owing to such replaced Lender shall be purchased other than on
the last day of the Interest Period relating thereto, (vi) the replacement lender, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of Section 10.6
(
provided
that the Borrower shall be obligated to pay the registration and processing fee
referred to therein), (viii) the Borrower shall pay all additional amounts (if any) required
pursuant to Section 2.17 or 2.18, as the case may be, in respect of any period prior to the date on
which such replacement shall be consummated, and (ix) any such replacement shall not be deemed to
be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender.
46
2.23
Addition of Peso Subfacility
. The Borrower has advised the Lenders that, after the
Closing Date, the Borrower and certain of the Revolving Credit Lenders or their Affiliates (in
their sole discretion) or other lenders selected by the Borrower and reasonably acceptable to the
Administrative Agent (the
Peso Subfacility Lenders
) may wish to establish a subfacility
(the
Peso Subfacility
) whereby up to $25,000,000 of the Revolving Credit Commitments
would be made available by Peso Subfacility Lenders for revolving credit loans denominated and
funded in Pesos (
Peso Subfacility Loans
). Accordingly, at any time during the Revolving
Credit Commitment Period, the Borrower, the Peso Subfacility Lenders and the Administrative Agent
and, in the circumstances contemplated by paragraph (h) below only, all Revolving Credit Lenders
(in each case, without the consent of any other party hereto) may enter into amendments (or
amendments and restatements), in form and substance reasonably satisfactory to the Administrative
Agent, to this Agreement and the other relevant Loan Documents (the
Peso Subfacility
Amendments
) providing for the following:
(a) The Peso Subfacility Amendments shall provide that each Peso Subfacility Lender
shall make available to the Borrower (or to a Subsidiary of the Borrower organized under the
laws of Mexico and designated by the Borrower) (any such Mexican Subsidiary or, as the case
may be, the Borrower, as the borrower under the Peso Subfacility, the
Peso Subfacility
Borrower
), a commitment (for each Peso Subfacility Lender, the
Peso Subfacility
Commitment
of such Peso Subfacility Lender) to make Peso Subfacility Loans during the
period specified in the Peso Subfacility Amendments (which period shall in any event end not
later than the Revolving Credit Termination Date) (the
Peso Subfacility Commitment
Period
) in an aggregate principal amount for all Peso Subfacility Lenders not exceeding
the equivalent in Pesos of $25,000,000. The Peso Subfacility Amendments shall provide that
all Peso Subfacility Loans will be payable no later than the last day of the Peso
Subfacility Commitment Period. The Peso Subfacility Amendments shall provide for such
interest rate basis or bases, applicable margins, and fees and other pricing terms
applicable to the Peso Subfacility and the Peso Subfacility Loans as shall be agreed upon by
the parties thereto.
(b) The Peso Subfacility Amendments shall provide that the aggregate amount available
under the Revolving Credit Commitments and the Peso Subfacility,
plus
the
amount of any Third-Party Peso Loans, shall not exceed the Total Revolving Credit
Commitments.
(c) In the event that the Peso Subfacility Amendments provide that a Subsidiary of the
Borrower shall be the Peso Subfacility Borrower, the Peso Subfacility Amendments may provide
that the obligations of the Peso Subfacility Borrower in respect of the Peso Subfacility
Loans will be guaranteed by the Borrower and the Guarantors pursuant to the Guarantee and
Collateral Agreement and such guarantees will be secured, equally and ratably with all other
Obligations, pursuant to all Security Documents, as applicable.
(d) Subject to satisfaction of the conditions set forth in paragraph (h) below, the
Peso Subfacility Amendments may provide that, in connection with the Peso Subfacility, the
Revolving Credit Lenders will purchase, ratably in accordance with the Revolving Credit
Commitments and Peso Subfacility Commitments, participating
47
interests in any such Peso
Subfacility Loan, pursuant to participation provisions substantially equivalent to those set
forth in Section 3 in respect of participating interests in Letters of Credit,
mutatis
mutandis
.
(e) The Peso Subfacility Amendments may provide for the conversion to Dollars of any
amounts owing under the Peso Subfacility under such conditions and pursuant to such
conversion mechanisms as shall be set forth in the Peso Subfacility Amendments.
(f) The Peso Subfacility Amendments may provide for amendments of such other provisions
of the Loan Documents (including, without limitation, amendments providing for indemnities,
exchange rate fluctuation protection, tax gross-up provisions and other provisions in
respect of the Peso Subfacility) as the parties thereto shall reasonably determine to be
necessary or advisable to accomplish the purpose of establishing the Peso Subfacility and
causing the Peso Subfacility to be treated, to the extent practicable and applicable, as a
subfacility of the Revolving Credit Facility, benefiting from the protections of the Loan
Documents equally and ratably with, and in a manner otherwise equivalent to, the Revolving
Credit Facility.
(g) The Peso Subfacility Amendments shall set forth, as conditions precedent to the
availability of credit under the Peso Subfacility, the delivery of such corporate records,
documents, evidence of corporate approvals, evidence of necessary consents and approvals of
Governmental Authorities and legal opinions as the parties thereto shall reasonably
determine to be necessary or advisable.
(h) In the event that the Peso Subfacility Amendments provide for Revolving Credit
Lenders (other than the Peso Subfacility Lenders) to purchase participating interests in
amounts outstanding under the Peso Subfacility, each of the Revolving Credit Lenders shall
be a party to, or give its written consent to, the Peso Subfacility Amendments (it being
understood that each Revolving Credit Lender, in its sole discretion, may determine to
consent or withhold consent to becoming obligated to purchase participating interests in
amounts outstanding under the Peso Subfacility).
SECTION 3. LETTERS OF CREDIT
3.1
L/C Commitment
. (a) Subject to the terms and conditions hereof, each Issuing Lender,
in reliance on the agreements of the other Revolving Credit Lenders set forth in Section 3.4(a),
agrees to issue letters of credit (the letters of credit issued on and after the Closing Date
pursuant to this Section 3, together with all Existing Letters of Credit, the
Letters of
Credit
) for the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by such Issuing Lender;
provided
, that no Issuing Lender shall issue any Letter of Credit if, after giving effect
to such issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the aggregate
amount of the Available Revolving Credit Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the earlier of (x) the
first anniversary of its date of issuance and (y) the date which is five Business Days prior to the
Revolving Credit Termination Date;
provided
that any Letter of Credit with a one-year term
may
48
provide for the renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above). All Existing Letters of Credit shall be deemed
to have been issued pursuant hereto and from and after the Closing Date shall be subject to and
governed by the terms and conditions hereof.
(b) No Issuing Lender shall at any time be obligated to issue any Letter of Credit hereunder
if such issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed
any limits imposed by, any applicable Requirement of Law.
3.2
Procedure for Issuance of Letter of Credit
. The Borrower may from time to time
request that an Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at its
address for notices specified herein an Application therefor, with a copy to the Administrative
Agent, completed to the satisfaction of such Issuing Lender, and such other certificates, documents
and other papers and information as such Issuing Lender may request. Upon receipt of any
Application, an Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested thereby by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by
such Issuing Lender and the Borrower (but in no event shall any Issuing Lender be required to issue
any Letter of Credit earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information relating thereto).
Promptly after issuance by an Issuing Lender of a Letter of Credit, such Issuing Lender shall
furnish a copy of such Letter of Credit to the Borrower. Each Issuing Lender shall promptly give
notice to the Administrative Agent of the issuance of each Letter of Credit issued by such Issuing
Lender (including the amount thereof). Upon the written request of any Revolving Credit Lender,
the Administrative Agent will, within three Business Days of such request, inform such Revolving
Credit Lender of the aggregate drawable amount of all Letters of Credit outstanding on the date of
such request.
3.3
Fees and Other Charges
. (a) The Borrower will pay a fee on the aggregate drawable
amount of all outstanding Letters of Credit at a per annum rate equal to the Applicable Margin then
in effect with respect to Eurodollar Loans under the Revolving Credit Facility, shared ratably
among the Revolving Credit Lenders in accordance with their respective Revolving Credit Percentages
and payable quarterly in arrears on each L/C Fee Payment Date after the issuance date of such
Letters of Credit. In addition, the Borrower shall pay to the relevant Issuing Lender for its own
account a fronting fee on the aggregate drawable amount of all outstanding Letters of Credit issued
by it at a rate per annum to be agreed upon by such Issuing Lender and the Borrower, payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender
for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4
L/C Participations
. (a) Each Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce each Issuing Lender to issue Letters of
49
Credit
hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from each Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participants own account and risk, an undivided interest equal to such L/C Participants Revolving
Credit Percentage in each Issuing Lenders obligations and rights under each Letter of Credit
issued by such Issuing Lender hereunder and the amount of each draft paid by such Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit issued by such Issuing Lender for which such
Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to such Issuing Lender upon demand at such Issuing
Lenders address for notices specified herein an amount equal to such L/C Participants Revolving
Credit Percentage of the amount of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to an Issuing Lender pursuant to
Section 3.4(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender
under any Letter of Credit is paid to such Issuing Lender within three Business Days after the date
such payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amount
equal to the product of (i) such amount,
times
(ii) the daily average Federal Funds
Effective Rate during the period from and including the date such payment is required to the date
on which such payment is immediately available to such Issuing Lender,
times
(iii) a
fraction the numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C Participant
pursuant to Section 3.4(a) is not made available to such Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, such Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to Base Rate Loans under
the Revolving Credit Facility. A certificate of such Issuing Lender submitted to any L/C
Participant with respect to any such amounts owing under this Section shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its
pro
rata
share of such payment in
accordance with Section 3.4(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of Collateral applied
thereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender
will distribute to such L/C Participant its
pro
rata
share thereof;
provided
,
however
, that in the event that any such payment received by such Issuing
Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall return
to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.
3.5
Reimbursement Obligation of the Borrower
. The Borrower agrees to reimburse each
Issuing Lender, on each date on which such Issuing Lender notifies the Borrower of the date and
amount of a draft presented under any Letter of Credit and paid by such Issuing Lender, for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment (the amounts described in the
foregoing clauses (a) and (b) in respect of any drawing, collectively, the
Payment
Amount
). Each such payment by the Borrower of the Payment Amount shall be
50
made to such
Issuing Lender at its address for notices specified herein in lawful money of the United States of
America and in immediately available funds. Interest shall be payable on each Payment Amount from
the date of the applicable drawing until payment in full at the rate set forth in (i) until the
second Business Day following the date of the applicable drawing, Section 2.13(b) and (ii)
thereafter, Section 2.13(c). Each drawing under any Letter of Credit shall (unless an event of the
type described in clause (i) or (ii) of Section 8.1(f) shall have occurred and be continuing with
respect to the Borrower, in which case the procedures specified in Section 3.4 for funding by L/C
Participants shall apply) constitute a request by the Borrower to the Administrative Agent for a
borrowing pursuant to Section 2.5 of Revolving Credit Loans as Base Rate Loans in the amount of
such drawing. The Borrowing Date with respect to such borrowing shall be the first date on which a
borrowing of Revolving Credit Loans could be made, pursuant to Section 2.5, if the Administrative
Agent had received a notice of such borrowing at the time the Administrative Agent receives notice
from the relevant Issuing Lender of such drawing under such Letter of Credit.
3.6
Obligations Absolute
. The Borrowers obligations under this Section 3 shall be
absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the Borrower may have or have had against any Issuing
Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with
each Issuing Lender that such Issuing Lender shall not be responsible for, and the Borrowers
Reimbursement Obligations under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged, or any dispute between or
among the Borrower and any beneficiary of any Letter of Credit or any other party to which
such Letter of Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender shall be liable for
any error, omission, interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Issuing Lender. The Borrower
agrees that any action taken or omitted by an Issuing Lender under or in connection with any Letter
of Credit issued by it or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards or care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the Borrower and shall not
result in any liability of such Issuing Lender to the Borrower.
3.7
Letter of Credit Payments
. If any draft shall be presented for payment under any
Letter of Credit, the relevant Issuing Lender shall promptly notify the Borrower of the date and
amount thereof. The responsibility of the relevant Issuing Lender to the Borrower in connection
with any draft presented for payment under any Letter of Credit, in addition to any payment
obligation expressly provided for in such Letter of Credit issued by such Issuing Lender, shall be
limited to determining that the documents (including each draft) delivered under such Letter of
Credit in connection with such presentment appear on their face to be in conformity with such
Letter of Credit.
3.8
Applications
. To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Agreement or the Guarantee and
51
Collateral Agreement, the provisions of this Agreement or the Guarantee and Collateral Agreement,
as applicable, shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and to make the Loans and
issue or participate in the Letters of Credit, the Parent, Holdings, Intermediate Holdings and the
Borrower hereby jointly and severally represent and warrant to each Agent and each Lender that:
4.1
Financial Condition
. (a) The (i) unaudited
pro
forma
consolidated
balance sheet of the Parent and its consolidated Subsidiaries as at December 31, 2005 (the
Pro
Forma Balance Sheet
), and (ii) unaudited
pro
forma
consolidated statement of
operations as at December 31, 2005, the unaudited
pro
forma
consolidated statement
of operations as at the end of the most recent interim period for which unaudited financial
statements have been delivered pursuant to Section 5.1(c)(iii) and the unaudited
pro
forma
consolidated statement of operations as at the end of the twelve-month period ending
on the last day of such interim period (the statements described in this clause (ii) collectively,
the
Pro Forma Statements of Operations
), copies of which have
heretofore been furnished to each Lender, have been prepared giving effect (as if such events
had occurred (x) in the case of the Pro Forma Balance Sheet, on such date and (y) in the case of
the Pro Forma Statements of Operations, as of the first day of the applicable period) to (A) the
consummation of the Acquisition, (B) the Loans to be made on the Closing Date and the use of
proceeds thereof and (C) the payment of fees and expenses in connection with the foregoing. The
Pro Forma Balance Sheet and the Pro Forma Statements of Operations have been prepared based on the
best information available to the Parent as of the date of delivery thereof, and present fairly in
all material respects on a
pro
forma
basis the estimated financial position of the
Parent and its consolidated Subsidiaries as at December 31, 2005 and, in the case of the Pro Forma
Statements of Operations, as at the dates specified in clause (ii) above, assuming that the events
specified in the preceding sentence had actually occurred at such date.
(b) (i) The audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at December 31, 2004 and December 31, 2005 and the
related consolidated statements of income and of cash flows for the fiscal years
ended on such dates, reported on by and accompanied by an unqualified report from
Deloitte & Touche LLP present fairly in all material respects the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at such
dates respectively, and the consolidated results of its operations and its
consolidated cash flows for the respective fiscal years then ended.
(ii) The audited restated consolidated balance sheets of the Target and its
consolidated Subsidiaries as at September 30, 2004 and September 29, 2005, and the
related restated consolidated statements of income and of cash flows for the fiscal
years ended on such dates, reported on by and accompanied by an unqualified report
from Grant Thorton LLP, present fairly in all material respects the consolidated
financial condition of the Target and its consolidated Subsidiaries as at such dates
respectively, and the consolidated results of its operations and its consolidated
cash flows for the respective fiscal years then ended.
52
(iii) All such financial statements referred to in clauses (i) and (ii) of this
paragraph (b), including the related schedules and notes thereto, have been prepared
in accordance with GAAP applied consistently to each consolidated group throughout
the periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein). The Parent, Holdings, Intermediate Holdings, the Borrower
and its Restricted Subsidiaries (including the Target and its Subsidiaries) do not
have any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are
required to be but are not reflected in the most recent financial statements
referred to in this paragraph. During the period from December 31, 2005 to and
including the date hereof there has been no Disposition by the Borrower or any of
its Subsidiaries of any material part of its business or Property. During the
period from September 29, 2005 to and including the date hereof there has been no
Disposition by the Target or any of its Subsidiaries of any material part of its
business or Property.
4.2
No Change
. Since September 29, 2005 there has been no development or event that has
had or could reasonably be expected to have a Material Adverse Effect.
4.3
Corporate Existence; Compliance with Law
. Each of the Parent, Holdings, Intermediate
Holdings, the Borrower and its Restricted Subsidiaries (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b) has the corporate
power and authority, and the legal right, to own and operate its Property, to lease the Property it
operates as lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of Property or the conduct of its business requires such
qualification except to the extent that the failure to do so could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4
Corporate Power; Authorization; Enforceable Obligations
. Each Loan Party has the
corporate power and authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party, to consummate the Transactions (to the extent applicable) and, in the case
of the Borrower, to borrow hereunder. Each Loan Party has taken all necessary corporate or other
action to authorize the execution, delivery and performance of the Loan Documents to which it is a
party and, in the case of the Borrower, to authorize the borrowings on the terms and conditions of
this Agreement. No consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person (each, a
Filing
) is required
in connection with the Acquisition, the borrowings hereunder or the execution, delivery,
performance, validity or enforceability of this Agreement or any of the other Loan Documents,
except (i) Filings described in
Schedule 4.4
, which Filings have been obtained or made and
are in full force and effect, (ii) the Filings referred to in Section 4.19 and any other Filing
contemplated by this Agreement or any other Loan Document and (iii) any antitrust Filings required
to be made to foreclose on the Collateral. Each Loan Document has been duly
53
executed and delivered
on behalf of each Loan Party that is a party thereto. This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan
Party that is a party thereto, enforceable against each such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law).
4.5
No Legal Bar
. The execution, delivery and performance of this Agreement and the other
Loan Documents, the issuance of Letters of Credit, the borrowings hereunder, the use of the
proceeds
thereof and the consummation of the Acquisition will not violate any Requirement of Law or any
material Contractual Obligation of the Parent, Holdings, Intermediate Holdings, the Borrower or any
of its Restricted Subsidiaries and will not result in, or require, the creation or imposition of
any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or
any such Contractual Obligation (other than the Liens created by the Security Documents). No
Requirement of Law or Contractual Obligation applicable to the Borrower or any of its Subsidiaries
could reasonably be expected to have a Material Adverse Effect.
4.6
No Material Litigation
. Except as set forth on
Schedule 4.6
, no litigation,
investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to
the knowledge of the Parent, Holdings, Intermediate Holdings, or the Borrower, threatened by or
against the Parent, Holdings, Intermediate Holdings, the Borrower or any of its Subsidiaries or
against any of their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably
be expected to have a Material Adverse Effect.
4.7
No Default
. Neither the Parent, Holdings, Intermediate Holdings, the Borrower nor any
of its Subsidiaries is in default under or with respect to any of its Contractual Obligations in
any respect that could reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
4.8
Ownership of Property; Liens
. Each of the Parent, Holdings, Intermediate Holdings,
the Borrower and its Restricted Subsidiaries has title in fee simple to, or a valid leasehold
interest in, all its real property, and good title to, or a valid leasehold interest in, all its
other Property except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and none of such Property is subject to
any Lien except as permitted by Section 7.3.
4.9
Intellectual Property
. The Parent, Holdings, Intermediate Holdings, the Borrower and
each of its Restricted Subsidiaries owns, or is licensed to use, all Intellectual Property
necessary for the conduct of its business as currently conducted in all material respects. No
material claim has been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does
the Parent, Holdings, Intermediate Holdings or the Borrower know of any valid basis for any such
claim, other than any such claim that could not reasonably be expected to have a Material Adverse
Effect. Except as would not have a Material Adverse Effect, the use of
54
Intellectual Property by
the Parent, Holdings, Intermediate Holdings, the Borrower and its Restricted Subsidiaries does not
infringe on the rights of any Person.
4.10
Taxes
. Each of the Parent, Holdings, Intermediate Holdings, the Borrower and each of its
Restricted Subsidiaries has filed or caused to be filed all Federal and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable on said returns or
on any assessments made against it or any of its Property and all other taxes, fees or other
charges imposed on it or any of its Property by any Governmental Authority, in each case prior to
delinquency (other than any the amount or validity of which are currently being contested in good
faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Parent, Holdings, Intermediate Holdings, the Borrower or its
Restricted Subsidiaries, as the case may be); and no tax Lien has been filed, and, to the knowledge
of the Parent, Holdings, Intermediate Holdings and the Borrower, no claim is being asserted, with
respect to any such tax, fee or other charge.
4.11
Federal Regulations
. No part of the proceeds of any Loans will be used for
purchasing or carrying any margin stock within the respective meanings of each of the quoted
terms under Regulation U as now and from time to time hereafter in effect or for any purpose that
violates the provisions of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1
referred to in Regulation U.
4.12
Labor Matters
. There are no strikes or other labor disputes against the Parent,
Holdings, Intermediate Holdings, the Borrower or any of its Restricted Subsidiaries pending or, to
the knowledge of the Parent, Holdings, Intermediate Holdings or the Borrower, threatened that
(individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect.
Hours worked by and payments made to employees of the Parent, Holdings, Intermediate Holdings, the
Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act
(to the extent applicable) or any other applicable Requirement of Law dealing with such matters
that (individually or in the aggregate) could reasonably be expected to have a Material Adverse
Effect. All payments due from the Parent, Holdings, Intermediate Holdings, the Borrower or any of
its Restricted Subsidiaries on account of employee health and welfare insurance that (individually
or in the aggregate) could reasonably be expected to have a Material Adverse Effect, if not paid,
have been paid or accrued as a liability on the books of the Parent, Holdings, Intermediate
Holdings, the Borrower or the relevant Restricted Subsidiary.
4.13
ERISA
. Except as set forth on Schedule 4.13, neither a material Reportable Event nor
an accumulated funding deficiency (within the meaning of Section 412 of the Code or Section 302
of ERISA) has occurred during the five-year period prior to the date on which this representation
is made or deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of a Single Employer
Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this representation is made or deemed made,
55
exceed
the value of the assets of such Plan allocable to such accrued benefits by a material amount.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal
from any Multiemployer Plan that has resulted or could reasonably be expected to result in a
material liability under ERISA, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date
most closely preceding the date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent.
4.14
Investment Company Act; Other Regulations
. No Loan Party is an investment company,
or a company controlled by an investment company, within the meaning of the Investment Company
Act of 1940, as amended. No Loan Party is subject to regulation under any Requirement of Law which
limits its ability to incur Indebtedness.
4.15
Subsidiaries
. (a) The Subsidiaries listed on
Schedule 4.15(a)
constitute all
the Subsidiaries of the Borrower as of the Closing Date.
Schedule 4.15(a)
sets forth as of
the Closing Date the name and jurisdiction of organization of each Subsidiary and, as to each
Subsidiary, the percentage of each class of Capital Stock owned by each Loan Party and whether such
Subsidiary is a Class I Restricted Subsidiary, Class II Restricted Subsidiary or an Unrestricted
Subsidiary and, in the case of each Class I Restricted Subsidiary, whether such Subsidiary is a
Wholly Owned Subsidiary and a Subsidiary Guarantor.
(b) There are no outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options granted to employees or directors and
directors qualifying shares) of any nature relating to any Capital Stock of the Parent, Holdings,
Intermediate Holdings, the Borrower or any Subsidiary, except as disclosed on
Schedule
4.15(b)
or with respect to such Capital Stock owned by third parties.
4.16
Use of Proceeds
. The proceeds of the Term Loans shall be used (i) to finance a
portion of the Acquisition, (ii) for the repayment in full of the loans outstanding under the
Existing Credit Agreement and the payment in full of any and all other amounts owing to the lenders
thereunder, (iii) for the repayment of existing Indebtedness of the Target and (iv) to pay fees and
expenses related to any of the foregoing. The proceeds of the Revolving Credit Loans and the
Letters of Credit shall be used for general corporate purposes of the Borrower and its Restricted
Subsidiaries in the ordinary course of business (it being understood that the proceeds of the
Revolving Credit Loans may not be used to finance any portion of the Acquisition).
4.17
Environmental Matters
. Other than exceptions to any of the following that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect:
(a) The Borrower and its Subsidiaries: (i) are, and within the period of all
applicable statutes of limitation have been, in compliance with all applicable Environmental
Laws; (ii) hold all Environmental Permits (each of which is in full force and effect)
required for any of their current operations at any property owned, leased, or
56
otherwise
operated by any of them; and (iii) are, and within the period of all applicable statutes of
limitation have been, in compliance with all of their Environmental Permits.
(b) Materials of Environmental Concern are not present at, on, under, in, or about any
real property now or formerly owned, leased or operated by the Borrower or any of its
Subsidiaries, or at any other location (including, without limitation, any location to which
the Borrower or any of its Subsidiaries has sent Materials of Environmental Concern for
re-use or recycling or for treatment, storage, or disposal) which could reasonably be
expected to (i) give rise to liability of the Borrower or any of its Subsidiaries under any
applicable Environmental Law, or (ii) interfere with the Borrowers or any of its
Subsidiaries continued operations, or (iii) impair the fair saleable value of any real
property owned or leased by the Borrower or any of its Subsidiaries.
(c) There is no judicial, administrative, or arbitral proceeding (including any notice
of violation or alleged violation) under or relating to any Environmental Law to which the
Borrower or any of its Subsidiaries is, or to the knowledge of the Borrower or any of its
Subsidiaries will be, named as a party.
(d) Neither the Borrower nor any of its Subsidiaries has received any written request
for information, or been notified that it is a potentially responsible party under or
relating to the federal Comprehensive Environmental Response, Compensation, and Liability
Act or any similar Environmental Law, or with respect to any Materials of Environmental
Concern.
(e) Neither the Borrower nor any of its Subsidiaries has entered into or agreed to any
consent decree, order, or settlement or other agreement, or is subject to any judgment,
decree, or order or other agreement, in any judicial, administrative, arbitral, or other
forum for dispute resolution, relating to compliance with or liability under any
Environmental Law.
(f) Neither the Borrower nor any of its Subsidiaries has contractually assumed any
liabilities of another Person under any Environmental Law or with respect to any Material of
Environmental Concern.
4.18
Accuracy of Information, etc
. No statement or information contained in this
Agreement, any other Loan Document, the Confidential Information Memorandum or any other document,
certificate or statement furnished to the Administrative Agent or the Lenders or any of them, by or
on behalf of any Loan Party for use in connection with the transactions contemplated by this
Agreement or
the other Loan Documents, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential Information Memorandum, as of the
date of this Agreement), any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements contained herein or therein not misleading. The
projections and
pro
forma
financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders that such financial
information as it relates to future events is not to be viewed as
57
fact and that actual results
during the period or periods covered by such financial information may differ from the projected
results set forth therein by a material amount. There is no fact known to any Loan Party that
could reasonably be expected to have a Material Adverse Effect that has not been expressly
disclosed herein, in the other Loan Documents, in the Confidential Information Memorandum or in any
other documents, certificates and statements furnished to the Agents and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan Documents.
4.19
Security Documents
. (a) The Guarantee and Collateral Agreement is effective to
create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral described therein. In the case of the Pledged
Stock, stock certificates representing such Pledged Stock have been delivered to the Administrative
Agent, and in the case of the other Collateral described in the Guarantee and Collateral Agreement,
financing statements in appropriate form have been filed in the offices specified on
Schedule
4.19(a)
and such other filings as are specified on Schedule 2 to the Guarantee and Collateral
Agreement have been completed and the Liens created under the Guarantee and Collateral Agreement
constitute fully perfected Liens in all right, title and interest of the Loan Parties in such
Collateral, as security for the Obligations (as defined in the Guarantee and Collateral Agreement),
in each case prior and superior in right to any other Person (except Liens permitted by Section
7.3(a), (m), (s) and (u) and, in the case of Collateral other than Pledged Stock, other Liens
permitted by Section 7.3).
(b) Each of the Mortgages is effective to create in favor of the Administrative Agent, for the
benefit of the Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Properties
described therein and proceeds thereof; and when the Mortgages are filed in the offices specified
on
Schedule 4.19(b)
(in the case of the Mortgages to be executed and delivered on the
Closing Date) or in the recording office designated by the Borrower (in the case of any Mortgage to
be executed and delivered pursuant to Section 6.9(b), Section 6.14 or Section 6.15), such Mortgage
shall constitute a fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in the Mortgaged Properties described therein and the proceeds thereof, as
security for the Obligations (as defined in the relevant Mortgage), in each case prior and superior
in right to any other Person (other than Persons holding Liens or other encumbrances or rights
permitted by the relevant Mortgage).
4.20
Solvency
. Each Loan Party is, and after giving effect to the Transactions and the incurrence of all
Indebtedness and obligations being incurred in connection herewith will be, Solvent.
4.21
Senior Indebtedness
. The Obligations constitute Designated Senior Indebtedness of
the Borrower under and as defined in the Senior Subordinated Note Indenture. In furtherance
thereof, and for avoidance of doubt, the Borrower hereby designates all Indebtedness (as defined
in the Senior Subordinated Note Indenture in existence on the date hereof) under this Agreement as
Designated Senior Indebtedness for purposes of the Senior Subordinated Note Indenture.
4.22
Regulation H
. No Mortgage encumbers improved real property which is located in an
area that has been identified by the Secretary of Housing and Urban Development
58
as an area having
special flood hazards and in which flood insurance has been made available under the National Flood
Insurance Act of 1968 (except any Mortgaged Properties as to which such flood insurance as required
by Regulation H has been obtained and is in full force and effect as required by this Agreement).
SECTION 5. CONDITIONS PRECEDENT
5.1
Conditions to Initial Extension of Credit
. The agreement of each Lender to make the
initial extension of credit requested to be made by it hereunder is subject to the satisfaction,
prior to or concurrently with the making of such extension of credit on the Closing Date, of the
following conditions precedent:
(a)
Loan Documents
. The Administrative Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the Parent, Holdings,
Intermediate Holdings and the Borrower, (ii) the Guarantee and Collateral Agreement,
executed and delivered by a duly authorized officer of the Parent, Holdings, Intermediate
Holdings, the Borrower and each Subsidiary Guarantor and (iii) a Lender Addendum executed
and delivered by each Lender and accepted by the Borrower.
(b)
Acquisition, etc
. (i) The acquisition of all of the issued and outstanding
capital stock of the Target and all related transactions (the
Acquisition
) shall
have been consummated on terms consistent with the Acquisition Documentation, and no
material provision thereof shall have been waived, amended or supplemented which would
adversely affect the Lenders.
(ii) The Administrative Agent shall have received satisfactory evidence that each
of the Existing Credit Agreement and the Target Credit Agreement shall have
been terminated (subject to the survival of customary indemnification and gross-up
provisions) and all amounts thereunder (other than contingent indemnity and gross-up
claims) shall have been paid in full and satisfactory arrangements shall have been
made for the termination of all guarantees and Liens granted in connection
therewith.
(iii) All governmental and third party approvals (including
landlords and other consents, other than with respect to Post-Closing Date
Mortgaged Properties) required to be obtained pursuant to the Acquisition
Agreement for the consummation of the Acquisition shall have been obtained and
be in full force and effect, and all applicable waiting periods shall have
expired without any non-consensual action (it being understood and agreed that
any consensual action in respect of any divestiture in excess of what is
provided for in Section 6.3(d) of the Acquisition Agreement shall be treated as
a waiver of a material provision of the Acquisition Agreement for purposes of
paragraph (b)(i) above) being taken or threatened by any competent authority
that would restrain, prevent or otherwise impose any material adverse
conditions on the Acquisition or the financing thereof.
59
(c)
Pro Forma Balance Sheet; Financial Statements
. The Administrative Agent shall
have received (i) the Pro Forma Balance Sheet and each of the Pro Forma Statements of
Operations; (ii) audited consolidated financial statements of (A) Holdings and its
consolidated Subsidiaries, (B) the Borrower and its consolidated Subsidiaries and (C) the
Target and its consolidated Subsidiaries, in each case, for the 2004 and 2005 Fiscal Years;
and (iii) unaudited interim consolidated financial statements of (A) Holdings and its
consolidated Subsidiaries and (B) the Borrower and its consolidated Subsidiaries, in each
case, to the extent available, for each quarterly period ended after the 2005 Fiscal Year.
All such financial statements shall have been prepared in accordance with GAAP consistently
applied to each consolidated group throughout the applicable period.
(d)
Related Agreements
. To the extent not previously delivered, the Administrative
Agent shall have received true and correct copies, certified as to authenticity by the
Borrower, of (i) the Acquisition Documentation and (ii) such other material documents or
instruments as may be reasonably requested by the Administrative Agent, including, without
limitation, a copy of any debt instrument or security agreement to which the Loan Parties
may be a party.
(e)
Fees
. The Lenders and the Administrative Agent shall have received all fees
required to be paid, and all expenses for which invoices have been presented supported by
customary documentation (including reasonable fees, disbursements and other charges of
counsel to the Agents), on or before the Closing Date. All such amounts will be paid
with proceeds of Loans made on the Closing Date and will be reflected in the funding
instructions given by the Borrower to the Administrative Agent on or before the Closing
Date.
(f)
Solvency Analysis
. The Lenders shall have received a reasonably satisfactory
solvency certificate of the chief financial officer of the Borrower which shall certify as
to the solvency of the Borrower and its Subsidiaries considered as a whole after giving
effect to the Transactions and the financing contemplated hereby.
(g)
Lien Searches
. The Administrative Agent shall have received the results of a
recent lien search in each of the jurisdictions in which Uniform Commercial Code financing
statement or other filings or recordations should be made to evidence or perfect security
interests in all assets of the Loan Parties, and such search shall reveal no liens on any of
the assets of the Loan Party, except for Liens permitted by Section 7.3.
(h)
Environmental Matters
. To the extent not previously delivered, the
Administrative Agent shall have received, to the extent existing and requested by the
Administrative Agent, a written environmental assessment regarding each Mortgaged Property
(other than any Post-Closing Date Mortgaged Property) owned in fee by the Borrower and its
Restricted Subsidiaries, prepared by an environmental consultant reasonably acceptable to
the Administrative Agent, in form, scope, and substance reasonably satisfactory to the
Administrative Agent, together with a letter from the environmental consultant permitting
the Agents and the Lenders to rely on the environmental assessment as if addressed to and
prepared for each of them.
60
(i)
Appraisals
. The Administrative Agent shall have received with respect to each
Mortgaged Property (other than any Post-Closing Date Mortgaged Property and any Specified
Leasehold Mortgaged Property), an appraisal of the value, or a valuation, of such Mortgaged
Property, which shall be reasonably satisfactory to the Administrative Agent.
(j)
Closing Certificate
. The Administrative Agent shall have received a
certificate of each Loan Party, dated the Closing Date, substantially in the form of Exhibit
C, with appropriate insertions and attachments.
(k)
Legal Opinions
. The Administrative Agent shall have received the following executed legal opinions:
(i) the legal opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., counsel to
the Loan Parties, substantially in the form of
Exhibit F-1.
(ii) to the extent consented to by the relevant counsel, each legal opinion, if
any, delivered in connection with the Acquisition Agreement, accompanied by a
reliance letter in favor of the Lenders; and
(iii) the legal opinion of each local counsel listed on
Schedule 5.1(k)
and of such other special and local counsel as may be reasonably requested by
the Administrative Agent, in each case, substantially in the form of Exhibit F-2.
Such legal opinions shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may reasonably require.
(l)
Pledged Stock; Stock Powers; Acknowledgment and Consent; Pledged Notes
. The
Administrative Agent shall have received (i) to the extent not previously delivered, the
certificates representing the shares of Capital Stock pledged pursuant to the Guarantee and
Collateral Agreement, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof, (ii) an
Acknowledgment and Consent, substantially in the form of Annex II to the Guarantee and
Collateral Agreement, duly executed by any issuer of Capital Stock pledged pursuant to the
Guarantee and Collateral Agreement that is not itself a party to the Guarantee and
Collateral Agreement and (iii) to the extent not previously delivered, each promissory note
pledged pursuant to the Guarantee and Collateral Agreement endorsed (without recourse) in
blank (or accompanied by an executed transfer form in blank satisfactory to the
Administrative Agent) by the pledgor thereof.
(m)
Filings, Registrations and Recordings
. Each document (including, without
limitation, any Uniform Commercial Code financing statement) required by the Security
Documents (other than with respect to any Post-Closing Date Mortgaged Property and any
Specified Leasehold Mortgaged Property) or under law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the
Collateral described therein, prior and superior in right to any other Person (other than
61
with respect to Liens permitted by Section 7.3), shall have been filed, registered or
recorded or shall have been delivered to the Administrative Agent and be in proper form for
filing, registration or recordation.
(n)
Mortgages, etc.
The Administrative Agent shall have received a Mortgage with respect to each Mortgaged
Property (other than any Post-Closing Date Mortgaged Property and any Specified Leasehold
Mortgaged Property) executed and delivered by a duly authorized officer of each party
thereto.
(o)
Title Insurance; Flood Insurance
. With respect to each Mortgaged Property
(other than any Post-Closing Date Mortgaged Property and any Specified Leasehold Mortgaged
Property):
(i) If requested by the Administrative Agent, the Administrative Agent shall
have received, and the title insurance company issuing the policy referred to in
clause (ii) below (the
Title Insurance Company
) shall have received, maps
or plats of an as-built survey of the sites of such Mortgaged Property prepared by
an independent professional licensed land surveyor reasonably satisfactory to the
Administrative Agent and the Title Insurance Company (and certified by such surveyor
to the Administrative Agent and the Title Insurance Company), which maps or plats
and the surveys on which they are based shall be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and adopted
by the American Land Title Association and the American Congress on Surveying and
Mapping in 1992, and, without limiting the generality of the foregoing, there shall
be surveyed and shown on such maps, plats or surveys the following: (A) the
locations on such sites of all the buildings, structures and other improvements and
the established building setback lines; (B) the lines of streets abutting the sites
and width thereof; (C) all access and other easements appurtenant to the sites; (D)
all roadways, paths, driveways, easements, encroachments and overhanging projections
and similar encumbrances affecting the site, whether recorded, apparent from a
physical inspection of the sites or otherwise known to the surveyor; (E) any
encroachments on any adjoining property by the building structures and improvements
on the sites; (F) if the site is described as being on a filed map, a legend
relating the survey to said map; and (G) the flood zone designations, if any, in
which such Mortgaged Property is located.
(ii) The Administrative Agent shall have received in respect of such Mortgaged
Property a mortgagees title insurance policy (or policies) or marked up
unconditional binder for such insurance. Each such policy shall (A) be in an amount
reasonably satisfactory to the Administrative Agent; (B) be issued at ordinary
rates; (C) insure that the Mortgage insured thereby creates a valid first Lien on
such Mortgaged Property free and clear of all defects and encumbrances, except as
disclosed therein; (D) name the Administrative Agent for the benefit of the Secured
Parties as the insured thereunder; (E) be in the form of ALTA Loan Policy 1970
(Amended 10/17/70 and 10/17/84) (or equivalent policies); (F) contain such
endorsements and affirmative coverage as the Administrative
62
Agent may reasonably
request and (G) be issued by a title company reasonably satisfactory to the
Administrative Agent (including any such title companies acting as co-insurers or
reinsurers, at the option of the Administrative Agent).
The Administrative Agent shall have received evidence satisfactory to it that
all premiums in respect of each such policy, all charges for mortgage recording tax,
and all related expenses, if any, have been paid.
(iii) If requested by the Administrative Agent, the Administrative Agent shall
have received (A) a policy of flood insurance that (1) covers any parcel of improved
real property that is encumbered by any Mortgage, (2) is written in an amount not
less than the outstanding principal amount of the indebtedness secured by such
Mortgage that is reasonably allocable to such real property or the maximum limit of
coverage made available with respect to the particular type of property under the
National Flood Insurance Act of 1968, whichever is less, and (3) has a term which
may be extended until a date which is after the maturity of the Loans and (B)
confirmation that the Borrower has received the notice required pursuant to Section
208.25(i) of Regulation H of the Board.
(iv) The Administrative Agent shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title policy or
policies referred to in clause (ii) above and a copy of all other material documents
affecting such Mortgaged Properties.
(v) Notwithstanding the foregoing provisions of this paragraph (o), the
Borrower shall not be required to take the actions described in this paragraph (o)
in respect of any Mortgaged Property until such Property is required to be mortgaged
pursuant to Section 6.14 or Section 6.15, as the case may be.
(p)
Lease Conditions
. To the extent not previously delivered, the Administrative
Agent shall have received evidence that short form leases or lease memoranda shall have been
duly recorded in the local real estate records, with respect to each Mortgaged Property
(other than any Post-Closing Date Mortgaged Property and any Specified Leasehold Mortgaged
Property) constituting a leasehold interest. The Administrative Agent shall have received
with respect to those Mortgaged Properties (other than any Post-Closing Date Mortgaged
Property and any Specified Leasehold Mortgaged Property) consisting of leaseholds so
designated by the Administrative Agent, copies of valid, binding and enforceable lease
amendments or landlord agreements in form and content reasonably acceptable to the
Administrative Agent, conferring on the Administrative Agent rights of default notice, cure
opportunity and such other leasehold lender protections as the Administrative Agent may
reasonably require. Notwithstanding the foregoing provisions of this paragraph (p), the
Borrower shall not be required to take the actions described in this paragraph (p) in
respect of any Mortgaged Property until such Property is required to be mortgaged pursuant
to Section 6.14 or Section 6.15, as the case may be.
63
(q)
Insurance
. The Administrative Agent shall have received insurance certificates satisfying the
requirements of Section 5.3 of the Guarantee and Collateral Agreement.
(r)
PATRIOT Act
. The Lenders shall have received, sufficiently in advance of
closing, all documentation and other information required by bank regulatory authorities
under applicable know your customer and anti-money laundering rules and regulations,
including without limitation the United States PATRIOT Act.
(s)
Material Adverse Effect
. Since December 31, 2005, there shall not have
occurred or become known to the Lenders any event, development or circumstance that has
caused or could reasonably be expected to cause a Company Material Adverse Effect (as
defined in the Acquisition Agreement on the date hereof) or a material adverse effect on (i)
the Acquisition or (ii) the validity or enforceability of any of the documentation relating
to this Agreement or any other Loan Document or the rights and remedies of the
Administrative Agent and the Lenders hereunder or thereunder.
5.2
Conditions to Each Extension of Credit
. The agreement of each Lender to make any
extension of credit requested to be made by it hereunder on any date (including, without
limitation, its initial extension of credit) is subject to the satisfaction of the following
conditions precedent:
(a)
Representations and Warranties
. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents (other than, in the case of any
extension of credit made on the Closing Date, Section 4.2) shall be true and correct in all
material respects on and as of such date as if made on and as of such date (except that any
representation or warranty which by its terms is made as of an earlier date shall be true
and correct in all material respects as of such earlier date).
(b)
No Default
. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit requested to be
made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shall
constitute a representation and warranty by the Borrower as of the date of such extension of credit
that the conditions contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Parent, Holdings, Intermediate Holdings and the Borrower hereby jointly and severally
agree that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding
or any Loan or other amount is owing to any Lender or any Agent hereunder, each of the Parent,
Holdings, Intermediate Holdings and the Borrower shall and shall cause each of its
Class I Restricted Subsidiaries (and, with respect to Section 6.12, Class II Restricted
Subsidiaries and Unrestricted Subsidiaries) to:
6.1
Financial Statements
. Furnish to each Agent (to promptly be made available to each
Lender):
64
(a) (i) as soon as available, but in any event within 90 days after the end of each
Fiscal Year, a copy of the audited consolidated balance sheet of Holdings (or, if Holdings
does not have any publicly-traded securities, the Parent) and its consolidated Subsidiaries
as at the end of such year and the related audited consolidated statements of income and of
cash flows for such year, setting forth in each case in comparative form the figures as of
the end of and for the previous year, reported on without a going concern or like
qualification or exception, or qualification arising out of the scope of the audit, by
Deloitte & Touche LLP or other independent certified public accountants of nationally
recognized standing; and
(ii) as soon as available, but in any event within 90 days after the end of each Fiscal
Year, a copy of the unaudited consolidated balance sheet of the Borrower and its
consolidated Restricted Subsidiaries as at the end of such year and the related unaudited
consolidated statements of income and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year; and
(b) as soon as available, but in any event not later than 45 days after the end of each
of the first three quarterly periods of each Fiscal Year, (i) unaudited consolidated balance
sheets of Holdings (or, if Holdings does not have any publicly-traded securities, the
Parent) and its consolidated Subsidiaries and (ii) the unaudited consolidated balance sheet
of the Borrower and its consolidated Restricted Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash flows for such
quarter and the portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures as of the end of and for the corresponding period
in the previous year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments and the absence of
footnotes);
all such financial statements to present fairly in all material respects the financial position of
Holdings and its consolidated Subsidiaries or the Borrower and its Restricted Subsidiaries, as the
case may be, and, in each case, to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and disclosed therein).
6.2
Certificates; Other Information
. Furnish to each Agent, or, in the case of clause
(h), to the relevant Lender:
(a) concurrently with the delivery of the financial statements referred to in Section
6.1(a)(i), a certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default, except as specified in such
certificate (it being understood that such certificate shall be limited to the items that
independent certified public accountants are permitted to cover in such certificates
pursuant to their professional standards and customs of the profession);
(b) concurrently with the delivery of any financial statements pursuant to Section 6.1,
(i) a certificate of a Responsible Officer (A) stating that, to the best of such
65
Responsible
Officers knowledge, each Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in this Agreement
and the other Loan Documents to which it is a party to be observed, performed or satisfied
by it, and that such Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate and (B) certifying as to any change in
designation of any Unrestricted Subsidiaries and (ii) in the case of quarterly or annual
financial statements, (x) a Compliance Certificate containing all information and
calculations necessary for determining compliance by the Parent, Holdings, Intermediate
Holdings, the Borrower and its Subsidiaries with the provisions of this Agreement referred
to therein as of the last day of the fiscal quarter or Fiscal Year, as the case may be, (y)
to the extent not previously disclosed to the Administrative Agent, a listing of any
Intellectual Property acquired by any Loan Party since the date of the most recent list
delivered pursuant to this clause (y) (or, in the case of the first such list so delivered,
since the Closing Date) and (z) any UCC financing statements or other filings specified in
such Compliance Certificate as being required to be delivered therewith;
(c) as soon as available, and in any event no later than 90 days after the end of each
Fiscal Year, a detailed consolidated budget for the following fiscal year (including a
projected consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of
the end of the following fiscal year, and the related consolidated statements of projected
cash flow, projected changes in financial position and projected income), and, as soon as
available, significant revisions, if any, of such budget and projections with respect to
such fiscal year (collectively, the
Projections
), which Projections shall in each
case be accompanied by a certificate of a Responsible Officer stating that such Projections
are based upon good faith estimates and assumptions believed by management of the Borrower
to be reasonable at the time made and that such Responsible Officer has no reason to believe
that such Projections are incorrect or misleading in any material respect;
(d) within 45 days after the end of each of the first three fiscal quarters, and within
90 days after the end of each Fiscal Year, of the Borrower, a narrative discussion and
analysis of the financial condition and results of operations of Holdings (or, if Holdings
does not have any publicly-traded securities, the Parent) and its consolidated Subsidiaries
for such fiscal quarter and for the period from the beginning of the then current fiscal
year to the end of such fiscal quarter, as compared to the comparable periods of the
previous year;
(e) no later than five Business Days prior to the effectiveness thereof, copies of
substantially final drafts of any proposed amendment, supplement, waiver or other
modification with respect to the Senior Discount Note Indenture or the Senior
Subordinated Note Indenture;
(f) within five days after the same are sent, copies of all financial statements and
reports that the Parent, Holdings, Intermediate Holdings or the Borrower sends to the
holders of any class of its debt securities or public equity securities generally and,
within five days after the same are filed, copies of all financial statements and reports
that the
66
Parent, Holdings, Intermediate Holdings or the Borrower may make to, or file with,
the SEC;
(g) as soon as possible and in any event within 20 days of obtaining knowledge thereof:
(i) written notice of any development, event, or condition that, individually or in the
aggregate with other developments, events or conditions, could reasonably be expected to
result in the payment by the Borrower and its Class I Restricted Subsidiaries, in the
aggregate, of a Material Environmental Amount; and (ii) any written notice that any
Governmental Authority may deny any application for a material Environmental Permit sought
by, or revoke or refuse to renew any material Environmental Permit held by, the Borrower;
and
(h) promptly, such additional financial and other information as any Lender (requesting
through the Administrative Agent) may from time to time reasonably request.
6.3
Payment of Obligations
. Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its material obligations of whatever nature,
except where the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Parent, Holdings, Intermediate Holdings, the Borrower or its Class I
Restricted Subsidiaries, as the case may be.
6.4
Conduct of Business and Maintenance of Existence; Compliance
. (a) (i) Preserve, renew
and keep in full force and effect its corporate or other existence and (ii) take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable in the normal
conduct of its business, except, in each case, as otherwise permitted by Section 7.4 and except, in
the case of clause (ii) above, to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect; and (b) comply with all Contractual Obligations and Requirements
of Law, except to the extent that failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.5
Maintenance of Property; Insurance
. (a) Keep all Property and systems useful and
necessary in its business in good working order and condition, ordinary wear and tear excepted and
(b) maintain with financially sound and reputable insurance companies insurance on all its Property
in at least such amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as the Borrower deems adequate for its
business. Additional covenants
regarding insurance coverage are set forth in the Mortgages and in Section 5.3 of the
Guarantee and Collateral Agreement.
6.6
Inspection of Property; Books and Records; Discussions
. (a) Keep proper books of
records and account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation to its business and
activities and (b) upon prior notice, permit representatives of any Lender to visit and inspect any
of its properties and examine and make abstracts from any of its books and records at any
reasonable time during normal business hours and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition of the Parent,
Holdings, Intermediate Holdings, the Borrower and its Class I Restricted Subsidiaries
67
with officers
of the Parent, Holdings, Intermediate Holdings, the Borrower and its Class I Restricted
Subsidiaries and with its independent certified public accountants.
6.7
Notices
. Promptly give notice to the Administrative Agent of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of the Parent,
Holdings, Intermediate Holdings, the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Parent, Holdings,
Intermediate Holdings, the Borrower or any of its Subsidiaries and any Governmental
Authority, that in either case, if not cured or if adversely determined, as the case may be,
could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Parent, Holdings, Intermediate Holdings,
the Borrower or any of its Restricted Subsidiaries in which the amount involved is
$10,000,000 or more and not covered by insurance or in which injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence of any Reportable Event
with respect to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer
setting forth details of the occurrence referred to therein and stating what action the
Parent, Holdings, Intermediate Holdings, the Borrower or the relevant Subsidiary proposes to take
with respect thereto.
6.8
Environmental Laws
. (a) Comply in all material respects with, and use commercially
reasonable efforts to cause compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply in all material respects with
and maintain, and use commercially reasonable efforts to cause all tenants and subtenants obtain
and comply in all material respects with and maintain, any and all required Environmental Permits.
(b) Conduct and complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
68
6.9
Additional Collateral, etc.
(a) With respect to any Property acquired after the
Closing Date by the Parent, Holdings, Intermediate Holdings, the Borrower or any Subsidiary
Guarantor (other than (u) personal property as to which the Administrative Agent, for the benefit
of the Secured Parties, is not required to have a perfected security interest pursuant to the
Guarantee and Collateral Agreement, (v) the Capital Stock of any Unrestricted Subsidiary organized
under the laws of any jurisdiction outside the United States, (w) any Property described in
paragraph (c) or (d) of this Section, (x) any interest in real property, (y) any foreign
intellectual property and (z) any Property subject to a Lien permitted by Section 7.3(g), (k) or
(m)) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a
perfected Lien to the extent required pursuant to the Guarantee and Collateral Agreement, promptly
(i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral
Agreement or such other documents as the Administrative Agent deems necessary or advisable to grant
to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such
Property and (ii) take all actions necessary or advisable to grant to the Administrative Agent, for
the benefit of the Secured Parties, a perfected first priority (subject to Liens permitted by the
Guarantee and Collateral Agreement) security interest in such Property, including without
limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may
be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested
by the Administrative Agent.
(b) With respect to (i) any fee interest in any real property having a value (together with
improvements thereof) of at least $2,000,000 (valued in accordance with
Schedule 6.9
; such
valuation to be reasonably satisfactory to the Administrative Agent) acquired after the Closing
Date by the Parent, Holdings, Intermediate Holdings, the Borrower or any Subsidiary Guarantor
(which, for purposes of this paragraph, shall include any such property owned or leased by an
entity at the time such entity becomes a Subsidiary) or (ii) any leasehold interest in any real
property contemplating an initial annual rent payment, including projected percentage rent during
such initial year, after the expiration of any free rent or rent abatement period, of at least
$500,000 acquired or leased after the Closing Date by the Parent, Holdings, Intermediate
Holdings, the Borrower or any Subsidiary Guarantor (in each case other than any such real
property subject to a Lien expressly permitted by Section 7.3(g), (k) or (m)), if, at the time of
such acquisition or lease commencement, the aggregate value of all leasehold and fee-owned real
property of the Borrower and the Subsidiary Guarantors subject to a Mortgage (valued in accordance
with
Schedule 6.9
; such value to be demonstrated to the reasonable satisfaction of the
Administrative Agent) is less than 250% of the Assumed Loan Amount, then no later than 60 days
after the date of such acquisition or lease commencement: (A) execute and deliver a first priority
Mortgage in favor of the Administrative Agent, for the benefit of the Secured Parties, covering
such real property, subject to any Liens permitted by such Mortgage, (B) if requested by the
Administrative Agent, provide the Lenders with (w) title and extended coverage insurance covering
such real property in an amount at least equal to the purchase price of such real property (or such
other amount as shall be reasonably specified by the Administrative Agent) as well as an ALTA
survey thereof, together with a surveyors certificate, (x) any consents or estoppels reasonably
deemed necessary or advisable by the Administrative Agent in connection with such Mortgage, each of
the foregoing in form and substance reasonably satisfactory to the Administrative Agent, (y)
appraisals of such real property complying with Section 5.1(i) and (z) Phase I environmental
reports (and where appropriate based upon such Phase I environmental reports and at the reasonable
request of the
69
Administrative Agent, Phase II environmental reports) with respect to such real
property, all in form and substance reasonably satisfactory to the Administrative Agent and (C) if
requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating
to the matters described above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Subsidiary (other than (i) a Class II Restricted Subsidiary or
(ii) an Unrestricted Subsidiary organized under the laws of any jurisdiction outside the United
States) created or acquired after the Closing Date (which, for the purposes of this paragraph,
shall include any existing Subsidiary that becomes a Class I Restricted Subsidiary because it
ceases to be an Unrestricted Subsidiary), by the Parent, Holdings, Intermediate Holdings, the
Borrower or any Subsidiary Guarantor, promptly (i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary
that is owned by the Parent, Holdings, Intermediate Holdings, the Borrower or any Subsidiary
Guarantor (other than any such Capital Stock subject to a Lien expressly permitted by Section
7.3(m)), subject to the Liens permitted by the Guarantee and Collateral Agreement, (ii) deliver to
the Administrative Agent the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of the Parent,
Holdings, Intermediate Holdings, the Borrower or such Subsidiary Guarantor, as the case may be,
(iii) if such new Subsidiary is a Wholly Owned Subsidiary, cause such new Subsidiary (A) to become
a party to the Guarantee and Collateral Agreement and (B) to take such actions necessary or
advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected
first priority security interest in the Collateral described in the Guarantee and Collateral
Agreement with respect to such new Subsidiary, subject to the Liens permitted by the Guarantee and
Collateral Agreement, including, without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be requested by the Administrative
Agent, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(d) With respect to any new Class II Restricted Subsidiary created or acquired after the
Closing Date by the Parent, Holdings, Intermediate Holdings, the Borrower or any Subsidiary
Guarantor (which, for purposes of this paragraph (d), shall include any Unrestricted Subsidiary
that becomes a Class II Restricted Subsidiary), promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected first priority (subject
to the Liens permitted by the Guarantee and Collateral Agreement) security interest in the Capital
Stock of such new Subsidiary that is owned by the Parent, Holdings, Intermediate Holdings, the
Borrower or any Subsidiary Guarantor (other than any such Capital Stock subject to a Lien expressly
permitted by Section 7.3(m)) (
provided
that in no event shall more than 65% of the total
outstanding Capital Stock of any such new Class II Restricted Subsidiary be required to be so
pledged), (ii) deliver to the Administrative Agent the certificates representing such Capital
70
Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized
officer of the Parent, Holdings, Intermediate Holdings, the Borrower or such Subsidiary Guarantor,
as the case may be, and take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Lien of the Administrative Agent thereon, and (iii)
if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
6.10
Further Assurances
. From time to time execute and deliver, or cause to be executed
and delivered, such additional instruments, certificates or documents, and take such actions, as
the Administrative Agent may reasonably request for the purposes of implementing or effectuating
the provisions of this Agreement and the other Loan Documents, or of more fully perfecting or
renewing the rights of the Administrative Agent and the Lenders with respect to the Collateral (or
with respect to any additions thereto or replacements or proceeds thereof or with respect to any
other Property or assets hereafter acquired by the Parent, Holdings, Intermediate Holdings, the
Borrower or any Subsidiary Guarantor which may be deemed to be part of the Collateral) pursuant
hereto or thereto. Upon the exercise by the Administrative Agent or any Lender of any power,
right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires
any consent, approval, recording, qualification or authorization of any Governmental Authority, the
Borrower will execute and deliver, or will cause the execution and delivery of, all applications,
certifications, instruments and other documents and papers that the Administrative Agent or such
Lender may be required to obtain from the Borrower or any of its Subsidiaries for such governmental
consent, approval, recording, qualification or authorization.
6.11
Designation of Restricted and Unrestricted Subsidiaries
. (a) The board of directors of the Borrower may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary;
provided
that no Default or Event of Default shall have occurred
and be continuing immediately prior to or after giving effect to such designation.
(b) The board of directors of the Borrower may designate any Class I or Class II Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation complies with paragraph (a) of the
definition of the term Unrestricted Subsidiary in Section 1.1.
(c) If, at any time, any Unrestricted Subsidiary fails to comply with the definition of
Unrestricted Subsidiary or is redesignated by the board of directors of the Borrower as a
Restricted Subsidiary (i) it shall thereafter cease to be an Unrestricted Subsidiary for purposes
of this Agreement and shall be a Restricted Subsidiary, (ii) any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Borrower as of such date and (iii)
any Investments in such Subsidiary shall be deemed to be Investments in a Restricted Subsidiary of
the Borrower as of such date.
6.12
Maintenance of Separate Existence
. With respect to each Unrestricted Subsidiary and
Class II Restricted Subsidiary, cause such Subsidiary to do all things necessary to continue to be
readily distinguishable from the Parent, Holdings, Intermediate Holdings, the Borrower and the
Class I Restricted Subsidiaries and maintain its existence separate and apart from that of the
Parent, Holdings, Intermediate Holdings, the Borrower and the Class I Restricted Subsidiaries
including, without limitation:
71
(a) practicing and adhering to organizational formalities, such as maintaining
appropriate books and records;
(b) observing all organizational formalities in connection with all dealings between
itself and the Parent, Holdings, Intermediate Holdings, the Borrower and the Class I
Restricted Subsidiaries;
(c) observing all procedures required by its organizational documents and the laws of
the jurisdiction of its organization;
(d) acting solely in its name and through its duly authorized officers or agents in the
conduct of its businesses;
(e) maintaining its deposit and other bank accounts and all of its assets separate from
those of any other Person;
(f) maintaining its financial records separate and apart from those of any other
Person;
(g) not suggesting in any way, within its financial statements, that its assets are
available to pay the claims of creditors of the Parent, Holdings, Intermediate Holdings, the
Borrower or any Class I Restricted Subsidiary;
(h) ensuring that the responsible officers of the Unrestricted Subsidiary or Class II
Restricted Subsidiary, as the case may be, duly authorized in accordance with its
organizational documents, duly authorize all of its actions;
(i) ensuring the receipt of proper authorization, when necessary, in accordance with
the terms of its organizational documents for its actions;
(j) not (A) having or incurring any Indebtedness to the Parent, Holdings, Intermediate
Holdings, the Borrower or any Class I Restricted Subsidiary (except for any such
Indebtedness permitted by Section 7.2(k) or (l)); (B) guaranteeing or otherwise becoming
liable for any obligations of the Parent, Holdings, Intermediate Holdings, the Borrower
(other than Peso Subfacility Loans and Third-Party Peso Loans, if any) or any Class I
Restricted Subsidiary; (C) having obligations guaranteed by the Parent, Holdings,
Intermediate Holdings, the Borrower or any Class I Restricted Subsidiary except to the
extent of any guarantee permitted by Section 7.8; (D) making any loans or advances to the
Parent, Holdings, Intermediate Holdings, the Borrower or any Subsidiary Guarantor except for
any such Indebtedness that is (i) permitted by Section 7.2, (ii) unsecured, and (iii)
subordinated to the Obligations on terms and conditions reasonably satisfactory to the
Administrative Agent; (E) holding itself out as responsible for debts of the Parent,
Holdings, Intermediate Holdings, the Borrower or any Class I Restricted Subsidiary or for
decisions or actions with respect to the affairs of the Parent, Holdings, Intermediate
Holdings, the Borrower or any Class I Restricted Subsidiary; (F) operating or purporting to
operate as an integrated, single economic unit with respect to the Parent, Holdings,
Intermediate Holdings, the Borrower or any Class I Restricted Subsidiary; (G) seeking to
obtain credit or incur any obligation to any third party based upon the assets of the
72
Parent, Holdings, Intermediate Holdings, the Borrower or any Class I Restricted Subsidiary
(except to the extent of any guarantee permitted by Section 7.8); and (H) inducing any such
third party to reasonably rely on the creditworthiness of the Parent, Holdings, Intermediate
Holdings, the Borrower or any Class I Restricted Subsidiary (except to the extent of any
guarantee permitted by Section 7.8);
(k) causing the Unrestricted Subsidiaries and the Class II Restricted Subsidiaries to
reimburse the Borrower and its other Subsidiaries for the respective shares (determined on a
commercially reasonable basis) of the Unrestricted Subsidiaries and Class II Restricted
Subsidiaries of the costs of all shared corporate operating services, leases and expenses,
including, without limitation, those associated with the services of shared executive
officers, employees, consultants and agents, shared computer and other office equipment and
software and shared telephone numbers; and otherwise refraining from engaging in any
transaction with any of the Parent, Holdings, Intermediate Holdings, the Borrower or any
Class I Restricted Subsidiary unless such transaction is consummated (x) on terms and
conditions no less favorable to the Unrestricted Subsidiary or Class II Restricted
Subsidiary, as the case may be, than transactions consummated on an arms-length basis with
unaffiliated Persons and (y) only with the proper approval and authorization in accordance
with such Unrestricted Subsidiarys or Class II Restricted Subsidiarys organizational
documents, as applicable;
(l) refraining from filing or otherwise initiating or supporting the filing of a motion
in any bankruptcy or other insolvency proceeding involving the Parent, Holdings,
Intermediate Holdings, the Borrower or any Class I Restricted Subsidiary to substantively
consolidate the Parent, Holdings, Intermediate Holdings, the Borrower or any Class I
Restricted Subsidiary with such Unrestricted Subsidiary or Class II Restricted Subsidiary;
(m) remaining Solvent;
(n) conducting all of its business (whether written or oral) solely in its own name
(other than using servicemarks, trademarks, slogans or similar Intellectual Property which
are in common with those used by the Borrower and its Restricted Subsidiaries) so as not to
mislead others as to the identity of each of the Unrestricted Subsidiary, Class II
Restricted Subsidiary, the Parent, Holdings, Intermediate Holdings, the Borrower and any
Class I Restricted Subsidiary; and
(o) maintaining a record with respect to any material asset purchased from the Parent,
Holdings, Intermediate Holdings, the Borrower or any Class I Restricted Subsidiary,
including bills of sale (or any similar instrument of assignment) and, if appropriate,
filings under the Uniform Commercial Code.
6.13
Maintenance of Fee Owned Properties
. Cause the aggregate value of all fee-owned real
property of the Borrower and the Class I Restricted Subsidiaries subject to a Mortgage to be at
least $400,000,000 minus the amount of the Net Cash Proceeds of any Sale and Leaseback Transactions
consummated after the Closing Date at all times, such value to be determined in accordance with
Schedule 6.9
and demonstrated to the reasonable satisfaction of the Administrative Agent.
73
6.14
Post-Closing Date Mortgaged Properties
. Within 90 days after the Closing Date,
execute and deliver to the Administrative Agent with respect to each Post-Closing Date Mortgaged
Property and each Specified Leasehold Mortgaged Property listed on Schedule 6.15(a) a Mortgage and
each of the other certificates and documents referred to in Sections 5.1(h), 5.1(i), 5.1(k)(iii)
(if applicable), (5.1(m), 5.1(n), 5.1(o) and, with respect to each Post-Closing Date Mortgaged
Property, Section 5.1(p), in each case, in form and substance reasonably satisfactory to the
Administrative Agent. Notwithstanding the foregoing, the Administrative Agent may, in its sole
discretion, extend the date for the foregoing deliveries for a period of up to an additional 60
days.
6.15
Specified Leasehold Mortgaged Properties
. Use its commercially reasonable efforts to
(a) obtain the landlord agreements and, if applicable, the lease amendments described in Section
5.1(p) for the Specified Leasehold Mortgaged Properties listed on Schedule 6.15(a) and (b) obtain
all necessary landlord consents and landlord agreements for the Specified Leasehold Mortgaged
Properties listed on Schedule 6.15(b) and if and to the extent any such consent is obtained, within
90 days thereafter execute and deliver to the Administrative Agent with respect to such Specified
Leasehold Mortgaged Property a Mortgage and each of the other certificates and documents referred
to in Sections
5.1(h), 5.1(i), 5.1(k)(iii) (if applicable), 5.1(m), 5.1(n), 5.1(o) and 5.1(p), in each case,
in form and substance reasonably satisfactory to the Administrative Agent.
SECTION 7. NEGATIVE COVENANTS
The Parent, Holdings, Intermediate Holdings and the Borrower hereby jointly and severally
agree that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding
or any Loan or other amount is owing to any Lender or any Agent hereunder, each of the Parent,
Holdings, Intermediate Holdings and the Borrower shall not, and shall not permit any of its Class I
Restricted Subsidiaries (and, (i) with respect to Sections 7.2, 7.3, 7.14(a), 7.15, 7.17 and 7.19,
Class II Restricted Subsidiaries and (ii) with respect to Sections 7.2 and 7.19, Unrestricted
Subsidiaries) to, directly or indirectly:
7.1
Consolidated Net Senior Secured Leverage Ratio
. Permit the Consolidated Net Senior
Secured Leverage Ratio for any period of four consecutive fiscal quarters ending with any fiscal
quarter set forth below to exceed the ratio set forth below opposite such fiscal quarter:
|
|
|
|
|
|
|
Consolidated Net Senior
|
Fiscal Quarter
|
|
Secured Leverage Ratio
|
9/30/06 9/30/07
|
|
|
4.25 to 1.0
|
|
12/31/07 9/30/08
|
|
|
4.00 to 1.0
|
|
12/31/08 9/30/09
|
|
|
3.75 to 1.0
|
|
12/31/09 9/30/10
|
|
|
3.50 to 1.0
|
|
12/31/10 and thereafter
|
|
|
3.00 to 1.0
|
|
7.2
Limitation on Indebtedness
. Create, incur, assume or suffer to exist any
Indebtedness, except:
74
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of the Borrower to Holdings, Intermediate Holdings, the Parent or any
Subsidiary, and Indebtedness of any Guarantor to the Borrower or any other Guarantor;
(c) (i) Capital Lease Obligations of the Borrower and its Class I Restricted
Subsidiaries in an amount not to exceed $100,000,000, (ii) obligations under any leases of
the Borrower and any of its Restricted Subsidiaries in existence on the date hereof and
characterized on the date hereof as operating leases which are recharacterized as Capital
Lease Obligations after the date hereof and (iii) obligations under any EITF 97-10 Capital
Leases;
(d) Indebtedness of the Borrower and the Class I Restricted Subsidiaries outstanding on
the date hereof or arising under agreements entered into prior to the Closing Date and in
each case listed on
Schedule 7.2(d)
(other than the Senior
Subordinated Notes) and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof (other than any increase not exceeding
the amount of all accrued and unpaid interest on the Indebtedness being refinanced, and any
fees, premium, if any, and financing costs relating to such refinancing) or any shortening
of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or
any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) Indebtedness of the Borrower and the Guarantors in respect of the Senior
Subordinated Notes, including any refinancing thereof,
provided
that, (w) the
aggregate principal amount of such Indebtedness shall not exceed $332,250,000
plus
the amount of any interest, fees, premiums or penalties paid in connection with such
refinancing, (x) the maturity of any principal amount thereof shall not be earlier than the
date which is six months after the seventh anniversary of the Closing Date, (y) the
documents under which the Senior Subordinated Notes are refinanced shall have covenants
taken as a whole not materially more restrictive than those applicable to the Indebtedness
refinanced thereby and (z) the obligations of the Borrower and the Guarantors in respect of
such refinancing Indebtedness are subordinated in right of payment to the Obligations to at
least the same extent in all material respects as the obligations of the Borrower in respect
of the Senior Subordinated Notes as in effect on the Closing Date are subordinated to the
Obligations;
(g) (i) Indebtedness of the Parent or Holdings in respect of the Senior Discount
Notes, including any refinancing thereof,
provided
that, (x) the aggregate amount of
such Indebtedness shall not exceed an amount equal to the Accreted Value (as defined in the
Senior Discount Note Indenture) of the Senior Discount Notes on the date of such refinancing
plus
the amount of any fees, premiums or penalties paid in connection with such
refinancing, (y) the maturity of any principal amount thereof shall not be earlier than the
date which is six months after the seventh anniversary of the Closing Date and (z) the
documents under which the Senior Discount Notes are
75
refinanced shall have covenants taken as
a whole not materially more restrictive than those applicable to the Indebtedness refinanced
thereby; and
(ii) unsecured Indebtedness of the Parent and Holdings so long as (w) immediately
prior to and after giving effect to the incurrence of such Indebtedness, the Parent,
Holdings, Intermediate Holdings and the Borrower are in compliance with Section 7.1, (x) the
maturity of any principal amount thereof shall not be earlier than the date which is six
months after the seventh anniversary of the Closing Date and (y) none of the Borrower or any
of its Restricted Subsidiaries has any Guarantee Obligation with respect to such
Indebtedness;
(h) (i) (A) Non-Recourse Debt of the Borrower or any Class I Restricted Subsidiary
secured by fee-owned real property of the Borrower or such Class I Restricted Subsidiary
that does not constitute Mortgaged Property and (B) upon transfer of any fee-owned property
of the type described in the foregoing clause (A) to an Unrestricted Subsidiary,
Non-Recourse Debt of such Unrestricted Subsidiary secured by such
property, (ii) Indebtedness in respect of Sale and Leaseback Transactions permitted by
clause (a) of the proviso to Section 7.11 and (iii) Indebtedness in respect of Sale and
Leaseback Transactions permitted by clause (b) of the proviso to Section 7.11;
provided
that (x) the sum of the principal amount of such Non-Recourse Debt pursuant
to clause (i)(A) of this paragraph,
plus
the aggregate value (in sale price) of such
Sale and Leaseback Transactions pursuant to clause (ii) of this paragraph shall not exceed
an amount equal to $125,000,000 while this Agreement is outstanding and (y) the Net Cash
Proceeds of such Non-Recourse Debt and Sale and Leaseback Transactions are applied toward
prepayment of the Loans to the extent required by Section 2.10;
(i) Indebtedness of any Unrestricted Subsidiary or Class II Restricted Subsidiary
consisting entirely of Non-Recourse Debt;
provided
that, if any such Indebtedness
ceases to be Non-Recourse Debt of such Unrestricted Subsidiary or Class II Restricted
Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a
Class I Restricted Subsidiary of the Borrower that was not permitted by this Section 7.2(i);
(j) Guarantee Obligations of Unrestricted Subsidiaries in respect of the obligations of
other Unrestricted Subsidiaries and Class II Restricted Subsidiaries not otherwise
prohibited hereunder, and Guarantee Obligations of Class II Restricted Subsidiaries of
obligations of other Class II Restricted Subsidiaries not otherwise prohibited hereunder;
(k) intercompany Indebtedness of any Class II Restricted Subsidiary or Unrestricted
Subsidiary to the Borrower or any Class I Restricted Subsidiary outstanding on the date
hereof and listed on
Schedule 7.2(k)
(including any accrued but unpaid interest
thereon accruing subsequent to the Closing Date) and any refinancings, refundings, renewals
or extensions thereof (without any increase in the principal amount thereof other than the
amount of any accrued interest) or shortening of the maturity of any principal amount
thereof (which shall not prohibit any prepayments made with cash), which Indebtedness is
evidenced by a promissory note in form and substance reasonably
76
satisfactory to the
Administrative Agent which has been delivered to the Administrative Agent;
(l) other Indebtedness of an Unrestricted Subsidiary or Class II Restricted Subsidiary
to the Borrower or any Class I Restricted Subsidiary permitted by Section 7.8(h);
(m) Indebtedness of any Person that is acquired by the Borrower or any of its
Restricted Subsidiaries and becomes a Restricted Subsidiary or is merged with or into the
Borrower or any of its Restricted Subsidiaries after the Closing Date and Indebtedness
secured by an asset acquired by the Borrower or any of its Restricted Subsidiaries after the
Closing Date and, in each case, refinancings, renewals, extensions, refundings and
replacements thereof (provided that any such refinancing, renewal, extension, refunding or
replacement shall not (i) increase the principal amount of such Indebtedness other than by
the amount of any accrued interest, (ii) shorten the maturity of any principal amount of
such Indebtedness, (iii) change the obligor under such Indebtedness or (iv) expand the
Property securing such Indebtedness);
provided
that (i) such original
Indebtedness was in existence on the date such Person became a Restricted Subsidiary or
merged with or into the Borrower or any of its Restricted Subsidiaries or on the date that
such asset was acquired, as the case may be, (ii) such original Indebtedness was not created
in contemplation of such Person becoming a Restricted Subsidiary or merging with or into the
Borrower or any of its Restricted Subsidiaries or such asset being acquired, as the case may
be, (iii) immediately after giving effect to the acquisition of such Person or asset by the
Borrower or any of its Restricted Subsidiaries, as the case may be, no Default or Event of
Default shall have occurred and be continuing and (iv) after giving
pro
forma
effect to such acquisition, the Consolidated Net Senior Secured Leverage Ratio
shall not be greater than 3.0 to 1.0;
(n) Indebtedness of the Borrower or any Class II Restricted Subsidiary under the Peso
Subfacility and/or under a loan facility denominated in Pesos providing for loans made under
documentation other than the Loan Documents (
Third-Party Peso Loans
) in an
aggregate maximum principal amount as of any Peso Borrowing Date and after giving effect to
the borrowings and any repayments to be made on such date not to exceed the Peso equivalent
(calculated as of the Peso Borrowing Calculation Date) of $25,000,000 and guarantees thereof
by the Parent, Holdings, Intermediate Holdings, the Borrower or any Restricted Subsidiary;
provided
, that the aggregate amount available under the Peso Subfacility,
Third-Party Peso Loans and the Revolving Credit Commitments shall not exceed the Total
Revolving Credit Commitments;
(o) unsecured Indebtedness of the Borrower and Subsidiary Guarantors used to refinance
the Senior Discount Notes;
provided
that after giving pro forma effect to the
incurrence of such Indebtedness, the ratio of Consolidated Total Debt to Consolidated EBITDA
shall not be greater than 4.5 to 1.0;
(p) Indebtedness resulting from the endorsement of negotiable instruments in the
ordinary course of business or arising from the honoring of a check, draft or similar
77
instrument presented by the Parent, Holdings, Intermediate Holdings, the Borrower or any of
its Subsidiaries in the ordinary course of business against insufficient funds;
(q) Indebtedness of the Borrower or any Subsidiary in respect of (i) workers
compensation claims and self-insurance obligations incurred in the ordinary course of
business, (ii) the financing of insurance premiums with the providers of such insurance or
their Affiliates in the ordinary course of business, (iii) surety, appeal and performance
bonds entered into in the ordinary course of business and (iv) take-or pay obligations
arising under supply agreements entered into in the ordinary course of business;
(r) Indebtedness arising from or representing deferred compensation to employees of the
Parent or any of its Subsidiaries incurred in the ordinary course of business; and
(s) additional Indebtedness of the Borrower and Subsidiary Guarantors in an aggregate
principal amount not to exceed $100,000,000 at any one time outstanding.
7.3
Limitation on Liens
. Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes, fees, assessments and other governmental charges not yet
delinquent or which remain payable without penalty or which are being contested in good
faith by appropriate proceedings,
provided
that adequate reserves with respect
thereto are maintained on the books of the Borrower or its Restricted Subsidiaries, as the
case may be, in conformity with GAAP;
(b) carriers, warehousemens, landlords (whether statutory or otherwise), mechanics,
materialmens, repairmens or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or remain payable without penalty or
that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers compensation, unemployment
insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions, minor defects and irregularities in title
and other similar encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and which do not in any case materially detract
from the value of the Property subject thereto or interfere with the ordinary conduct of the
business of the Borrower and its Restricted Subsidiaries;
(f) Liens in existence on the date hereof listed on
Schedule 7.3(f)
, securing
Indebtedness permitted by Section 7.2(d), and any replacements of such Liens in connection
with any refinancing of such Indebtedness permitted by such Section,
provided
that
no such Lien is spread to cover any additional Property after the Closing
78
Date (other than
additions, accessions and improvements thereto and proceeds thereof) and that the amount of
Indebtedness (plus any interest, fees, premium, if any, and financing costs) secured thereby
is not increased;
(g) Liens securing Indebtedness incurred pursuant to Section 7.2(c) to finance the
acquisition, construction or repair of fixed or capital assets or to refinance any such
Indebtedness,
provided
that (i) such Liens shall be created substantially
contemporaneously with the acquisition of such fixed or capital assets, (ii) such Liens do
not at any time encumber any Property other than the Property financed by such Indebtedness
(other than any improvements, proceeds, additions or accessions with respect thereto) and
(iii) the amount of Indebtedness secured thereby is not increased (other than to the extent
of accrued interest, fees, premium, if any and financing costs);
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by the Borrower or
any other Subsidiary in the ordinary course of its business and covering only the assets so
leased;
(j) Liens arising solely by virtue of any statutory or common law provision relating to
bankers liens, rights of set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depository institution;
provided
that (i)
such deposit account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Borrower in excess of those set forth by regulations
promulgated by the Federal Reserve Board, and (ii) such deposit account is not intended by
the Borrower or any of its Subsidiaries to provide collateral to the depository institution;
(k) Liens on fee-owned property of the Borrower and Class I Restricted Subsidiaries not
subject to a Mortgage securing Non-Recourse Debt or Sale and Leaseback Transactions
permitted by Section 7.11;
(l) Liens on assets of any Class II Restricted Subsidiary securing Non-Recourse Debt of
such Class II Restricted Subsidiary permitted by Section 7.2;
(m) Liens securing Indebtedness permitted by Section 7.2(m) on property of a Person or
on an asset existing at the time such Person is merged with or into or consolidated with or
is acquired by the Borrower or any Class I Restricted Subsidiary of the Borrower or such
asset is so acquired;
provided
that such Liens were not incurred in connection with
or in contemplation of such transaction and do not extend to any assets other than those of
the Person merged into or consolidated with or acquired by, or the asset so acquired by, the
Borrower or such Class I Restricted Subsidiary, as applicable, and accessions, additions and
improvements thereto and proceeds thereof;
(n) Liens on assets of a Subsidiary of the Borrower in favor of the Borrower or any
Guarantor;
79
(o) Liens in connection with the defeasance of the Senior Subordinated Notes or Senior
Discount Notes covering the proceeds of Indebtedness which constitutes refinancing
Indebtedness of the Senior Subordinated Notes or Senior Discount Notes permitted by Section
7.2(f) or (g) and other funds intended for such purpose,
provided
that, such Lien
covers proceeds in an aggregate amount necessary solely to defease the principal, interest,
premium, if any, and, if required by the terms of the relevant indenture, fees, costs and
expenses due in connection with the defeasance of such Senior Subordinated Notes or Senior
Discount Notes;
(p) Liens of the trustee under Section 7.7 of the Senior Subordinated Note Indenture as
in effect on the Closing Date and Section 7.7 of the Senior Discount Notes Indenture (and
similar provisions if the Senior Subordinated Note Indenture and the Senior Discount Notes
Indenture are amended in accordance with Section 7.9 or refinanced pursuant to Section
7.2(f), (g) or (o)) on money or property held or collected by the trustee thereunder;
(q) Liens on assets of any joint venture or partnership pursuant to the organizational
documents of such joint venture or partnership,
provided
that, such Liens cover only
the assets of such joint venture or partnership, as the case may be;
(r) Liens arising from judgments, decrees or attachments in circumstances not
constituting an Event of Default under Section 8.1(h);
(s) Liens in the nature of a right of first refusal, redemption rights or other
restrictions on transfer existing as of the Closing Date in respect of the shares or
partnership interest of Fandango, Inc., Laredo Theatre, Ltd., Greeley, Ltd., NCM Holdings or
National CineMedia, LLC held by the Borrower and its Class I Restricted Subsidiaries;
(t) the rights of film distributors under film licensing contracts entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business on a basis customary
in the movie exhibition industry;
(u) Liens on the stock of and assets of Class II Restricted Subsidiaries to secure the
Peso Subfacility or the Third-Party Peso Loans;
(v) Liens securing Indebtedness of the Borrower and Subsidiary Guarantors permitted
under Section 7.2(s);
(w) Liens solely on earnest money deposits of cash made by the Borrower or its
Restricted Subsidiaries in connection with a Permitted Acquisition;
(x) (i) Licenses, sublicenses or similar rights to use any patent, trademark, copyright
or other intellectual property right granted to others by the Borrower or any of its
Restricted Subsidiaries in the ordinary course of business which do not (A) interfere in any
material respect with the business of the Borrower or such Restricted Subsidiary or (B)
secure Indebtedness and (ii) any rights reserved by or vested in any Governmental
80
Authority
with respect to any franchise, grant, license or permit held by the Borrower or any of its
Restricted Subsidiaries;
(y) Liens securing insurance premium financing arrangements entered into in the
ordinary course of business; and
(z) Liens securing obligations not constituting Indebtedness in an aggregate amount not
to exceed $1,000,000 at any one time outstanding.
7.4
Limitation on Fundamental Changes
. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution),
or Dispose of all or substantially all of its Property, except that:
(a) the Parent, Holdings, Intermediate Holdings or any Restricted Subsidiary of the
Borrower may be merged, consolidated or amalgamated with or into the Borrower
(
provided
that the Borrower shall be the continuing or surviving corporation)
or with or into any Guarantor (
provided
that (i) a Guarantor shall be the continuing
or surviving corporation or (ii) simultaneously with such transaction, the continuing or
surviving corporation shall become a Guarantor and the Borrower shall comply with Section
6.9 in connection therewith);
(b) any Person may enter into a merger, consolidation or amalgamation with any Class I
Restricted Subsidiary as a means of implementing a Permitted Acquisition permitted by
Section 7.8 (
provided
that such Class I Restricted Subsidiary shall be the
continuing or surviving corporation);
(c) any Person may Dispose of all or substantially all of its Property pursuant to a
transaction permitted by Section 7.5; and
(d) the Specified Reorganizations may be consummated;
provided
that after
giving effect to each Specified Reorganization, (i) at least two of the Parent, Holdings,
Intermediate Holdings and the Borrower shall be the continuing or surviving corporations of
such Specified Reorganization, (ii) if any Indebtedness of Holdings which is not guaranteed
by the Borrower is then outstanding, the Borrower and Holdings may not merge or otherwise
combine with each other, (iii) the Borrower or its successor shall be a direct Wholly Owned
Subsidiary of Holdings or its successor or Intermediate Holdings, (iv) whichever of the
Parent, Holdings or Intermediate Holdings that survives such Specified Reorganization shall
be a Guarantor hereunder and (v) if the Borrower is a party to such Specified Reorganization
and is not the surviving entity thereof, Holdings (or its successor, if applicable) or
Intermediate Holdings shall execute and deliver all documentation and shall take all
actions, and cause the successor Borrower to take all actions, reasonably deemed necessary
or advisable by the Administrative Agent (including the delivery of all stock certificates
and related stock powers, the deliver of officers certificates, corporate resolutions and
legal opinions and the filing of Uniform Commercial Code financings statements) to the
confirm the Liens granted under the Guarantee and Collateral Agreement and the other
Security Documents and assume all obligations under the Loan Documents.
81
7.5
Limitation on Disposition of Property
. Dispose of any of its Property, whether now
owned or hereafter acquired, or, in the case of any Class I Restricted Subsidiary, issue or sell
any shares of such Class I Restricted Subsidiarys Capital Stock to any Person, except:
(a) the Disposition of obsolete, surplus or worn out property in the ordinary course of
business, including the sale of parcels of real property adjacent to parcels being used in
the Borrowers or any Class I Restricted Subsidiarys business, which adjacent parcels are
not necessary in the business of the Borrower or such Class I Restricted Subsidiary;
(b) (i) the Disposition of inventory in the ordinary course of business and (ii) the
granting of leases, licenses, subleases and sublicenses of real and personal property
(including Intellectual Property) in the ordinary course of business and which do not
materially interfere with the business of the Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.4(a), (b) and (d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Subsidiarys
Capital Stock to, the Borrower or any Subsidiary Guarantor;
(e) any Recovery Event;
(f) an exchange or swap of fixed, tangible assets of the Borrower or any of its Class
I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I
Restricted Subsidiaries;
provided
that, (i) the assets received by the Borrower or
such Class I Restricted Subsidiary will be used or useful in a similar line of business that
the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this
Agreement or that are reasonably related thereto, (ii) the Borrower or such Class I
Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent
value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in
the case of an exchange or swap with a non-Affiliate of any Loan Party, as determined by
the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case
may be) and (iii) if the asset which is the subject of such exchange or swap constituted
Collateral hereunder, the Borrower or such Class I Restricted Subsidiary shall take such
action necessary to create and perfect the security interest of the Administrative Agent for
the benefit of the Secured Parties in the assets received by the Borrower or such Class I
Subsidiary in such exchange or swap pursuant to Section 6.9,
provided
further
that, the fair market value of all such assets exchanged or swapped shall
not exceed $150,000,000 during the term of this Agreement;
(g) the issuance and sale of directors qualifying shares and shares required by
applicable law to be held by a Person other than the Borrower or its Class I Restricted
Subsidiaries;
82
(h) the issuance and sale of minority interests in joint ventures, partnerships and
other entities to third parties to the extent that the proceeds of such sale are reinvested
in the related joint venture, partnership or other entity;
(i) any sale and leaseback transaction permitted by Section 7.11;
(j) a sale or other Disposition of the type described in EITF 97-10 in connection with
a sale and leaseback transaction otherwise permitted hereby;
(k) the Disposition of any real property subject to a sale contract on the Closing Date
as described on
Schedule 7.5(k)
;
(l) the Disposition of the Borrowers or any Class I Restricted Subsidiarys minority
interest in National CineMedia, LLC, NCM Holdings or any holding company holding any such
interest and the subsequent Disposition of any consideration received
pursuant to such Disposition; provided that the Net Cash Proceeds of such Disposition
are applied toward prepayment of the Loans to the extent required by Section 2.10(c);
(m) the Disposition of cash and Cash Equivalents permitted under this Agreement;
(n) Dispositions of Property pursuant to contracts between the Borrower and the U.S.
Department of Justice related to the Acquisition up to the amount set forth in Section
6.3(d) of the Acquisition Agreement as in effect on the date of execution thereof; and
(o) the Disposition of other assets having a fair market value not to exceed
$500,000,000 during the term of this Agreement.
7.6
Limitation on Restricted Payments
. Declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase,
redemption, retirement or other acquisition for value of, any Capital Stock of the Parent,
Holdings, Intermediate Holdings, the Borrower or any Class I Restricted Subsidiary, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of the Parent, Holdings, Intermediate
Holdings, the Borrower or any Class I Restricted Subsidiary, or enter into any derivatives or other
transaction with any financial institution, commodities or stock exchange or clearinghouse (a
Derivatives Counterparty
) obligating the Parent, Holdings, Intermediate Holdings, the
Borrower or any Class I Restricted Subsidiary to make payments to such Derivatives Counterparty as
a result of any change in market value of any such Capital Stock (collectively,
Restricted
Payments
), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any Subsidiary that
owns the common stock (or equivalent ownership interests) of the Subsidiary making such
Restricted Payment;
(b) the Parent may make Restricted Payments in the form of common stock of the Parent
or preferred stock of the Parent,
provided
that, in the case of preferred stock,
83
such preferred stock is not redeemable at the option of the holder thereof and not
mandatorily redeemable in any circumstance until after the date which is six months after
the seventh anniversary of the Closing Date;
(c) so long as no Default or Event of Default shall have occurred and be continuing,
the Borrower may make Restricted Payments to Intermediate Holdings, Intermediate Holdings
may make Restricted Payments to Holdings and Holdings may make Restricted Payments to the
Parent, to permit the Parent to purchase, and the Parent may purchase, the Parents common
stock or common stock options from present or former officers or employees (and their heirs,
estates and assigns) of the Parent, the Borrower or any Subsidiary upon the death,
disability or termination of employment of such officer or employee,
provided
, that
the aggregate amount of payments under this clause shall not exceed $3,000,000 in any twelve
month period (with unused amounts in
any twelve month period being carried over to succeeding twelve months periods subject
to a maximum carry-over amount of $6,000,000);
(d) the Borrower may make Restricted Payments to Intermediate Holdings, Intermediate
Holdings may make Restricted Payments to Holdings, and Holdings may make Restricted Payments
to the Parent, to permit Holdings, Intermediate Holdings and the Parent to pay (i) any taxes
which are due and payable by the Parent, Holdings, Intermediate Holdings and the Borrower
and their Subsidiaries as part of a consolidated group, (ii) customary fees to members of
its board of directors, (iii) ordinary course corporate operating expenses, (iv) principal
and interest on Indebtedness permitted under Section 7.2,
provided
that, no
Restricted Payments may be made to pay cash interest on any Indebtedness permitted under
Section 7.2(g) prior to June 30, 2009 and (v) the management advisory fees and expenses
permitted under Section 7.10;
(e) the Borrower or any Class I Restricted Subsidiary may make Restricted Payments to
any other Person to repurchase minority interests in any joint venture, partnership or other
entity which is a Subsidiary of the Borrower;
(f) the Parent, Holdings, Intermediate Holdings, the Borrower or any Class I Restricted
Subsidiary may purchase, redeem, retire or otherwise acquire its Capital Stock with the
proceeds of a substantially contemporaneous issuance of new shares of its common stock or
preferred stock that is not redeemable at the option of the holder thereof and not
mandatorily redeemable in any circumstance until after the date which is six months
following the seventh anniversary of the Closing Date;
(g) the Borrower and its Subsidiaries may, upon the sale of any Subsidiary of the
Borrower or any assets of such Subsidiary, make distribution of the proceeds of such sale to
any holders of minority equity interests in such Subsidiary as required by the partnership
agreement, joint venture agreement or other analogous agreement of such Subsidiary, as the
case may be,
provided
that, such sale is permitted under Section 7.5;
(h) any Subsidiary of the Borrower that is not 100% owned, directly or indirectly, by
the Borrower may make distributions to its equity holders as required by its respective
partnership agreement, joint venture agreement or other analogous agreement
84
of such
Subsidiary,
provided
that, the aggregate amounts distributed pursuant to this clause
(h) to Persons other than the Borrower and its Subsidiaries shall not exceed $10,000,000 in
any Fiscal Year;
(i) the Borrower may make Restricted Payments to Intermediate Holdings, Intermediate
Holdings may make Restricted Payments to Holdings, and Holdings may make Restricted Payments
to the Parent, in the amount required to redeem, repurchase or defease the Senior Discount
Notes to the extent permitted by Section 7.9(a); and
(j) the Parent, Holdings, Intermediate Holdings, the Borrower or any Class I Restricted
Subsidiary may make additional Restricted Payments in an amount not to exceed the Applicable
Amount at the time of, and immediately prior to the making of, any such Restricted Payment;
provided
that, at the time of and immediately after giving
effect to any such Restricted Payment under this paragraph (j), no Default or Event of
Default shall have occurred and be continuing.
7.7
Limitation on Capital Expenditures
. Make or commit to make any Capital Expenditures
except:
(a) Capital Expenditures made (or deemed made) with the proceeds of any Reinvestment
Deferred Amount (including Capital Expenditures made during the six-month period prior to
the relevant Reinvestment Event);
(b) Capital Expenditures in any Fiscal Year to finance the acquisition, construction or
leasing of fixed or capital assets of the Borrower and its Class I Restricted Subsidiaries
in the ordinary course of business not exceeding:
(i) for the Fiscal Year 2006, $160,000,000; and
(ii) thereafter, the Applicable Consolidated EBITDA Amount for such Fiscal
Year;
provided
, that (x) such amounts referred to above, if not so expended in the
Fiscal Year for which it is permitted, may be carried over for expenditure in the
next succeeding Fiscal Year and (y) Capital Expenditures made pursuant to this
paragraph (b) during any Fiscal Year shall be deemed made,
first
, in respect
of amounts permitted for such Fiscal Year as provided above and,
second
, in
respect of amounts carried over from the prior Fiscal Year pursuant to clause (x)
above; and
(c) to the extent that no amounts under Section 7.7(a) and (b) are available, Capital
Expenditures to finance the acquisition, construction or leasing of fixed or capital assets
in an amount not to exceed the Applicable Amount at the time of, and immediately prior to
the making of, such Capital Expenditure;
provided
that, immediately prior to and
after giving effect to such Capital Expenditure under this paragraph (c), no Default or
Event of Default shall have occurred and be continuing.
85
7.8
Limitation on Investments
. Make any advance, loan, extension of credit (by way of
guarantee or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes,
debentures or other debt securities of, or any assets constituting an ongoing business from, or
make any other investment in, any other Person (all of the foregoing,
Investments
),
except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Investments arising in connection with the incurrence of Indebtedness permitted by
Sections 7.2(b), (e) and (k) (and any Investment consisting of equity
interests arising upon the conversion to equity of any Indebtedness permitted by
Section 7.2(k)) and any guarantee permitted by Section 7.2(a), (f), (g)(ii), (m), (n) or
(o);
(d) Investments in assets useful in the Borrowers or a Class I Restricted Subsidiarys
business (other than inventory) made by the Borrower or any of its Subsidiaries with the
proceeds of any Reinvestment Deferred Amount;
(e) Investments (other than those relating to the incurrence of Indebtedness permitted
by Section 7.8(c)) by the Parent, Holdings, Intermediate Holdings, the Borrower or any of
its Restricted Subsidiaries in the Borrower or any Person that, prior to such Investment, is
a Subsidiary Guarantor;
(f) equity interests acquired by the Borrower or any Restricted Subsidiary in a Person
engaged in the indoor motion picture exhibition business if (i) such Persons theaters are
managed by the Borrower or such Restricted Subsidiary, (ii) such equity interest is acquired
solely in exchange for services rendered in connection with the management of such Persons
theaters, (iii) the board of directors of the Borrower determines that such acquisition is
in the best interests of the Borrower and (iv) promptly after the acquisition of such equity
interests, such equity interests are pledged to the Administrative Agent for the benefit of
the Secured Parties to the extent required by Section 6.9;
(g) loans and advances to employees of the Parent, Holdings, Intermediate Holdings, the
Borrower or any of the Class I Restricted Subsidiaries in the ordinary course of business
(including for travel and entertainment expenses) in an aggregate amount not to exceed
$1,000,000 at any one time outstanding;
(h) Investments by the Borrower or any of its Class I Restricted Subsidiaries in
Unrestricted Subsidiaries, Class II Restricted Subsidiaries, partnerships, joint ventures
and other entities that are not Guarantors in an amount not to exceed the Applicable Amount
at the time of, and immediately prior to the making of, any such Investment;
provided
that, (i) any such amounts invested in any entity that is not a Subsidiary
or the business of which is outside the Borrowers primary line of business shall not exceed
$5,000,000 in any Fiscal Year and (ii) immediately prior to and after giving effect to such
Investment under this paragraph (h), no Default or Event of Default shall have occurred and
be continuing; and
provided
further
that (x) transfers by the Borrower or
the Class I
86
Restricted Subsidiaries to any Unrestricted Subsidiary of fee-owned property in
connection with the incurrence by such Unrestricted Subsidiary of Non-Recourse Debt secured
by such fee-owned property, as contemplated by Section 7.2(h)(i)(B) and (y) Investments in
Brazilco by any Unrestricted Subsidiary that is subsequently designated as a Class I
Restricted Subsidiary, in each case shall not constitute Investments for purposes of
determining the Applicable Amount;
(i) Investments by the Borrower or any of its Class I Restricted Subsidiaries in
Permitted Acquisitions,
provided
that, (A) to the extent such Investment results in
the creation or acquisition of a Subsidiary of the Borrower (other than an Excluded Foreign
Subsidiary of the Class I Restricted Subsidiary so acquired), such Subsidiary must be a
Class I Restricted Subsidiary and (B) immediately prior to and after giving effect to
such Permitted Acquisition, no Default or Event of Default shall have occurred and be
continuing;
(j) Investments permitted by Sections 7.5(b), 7.5(f), 7.5(h), 7.6 and 7.17;
(k) the Acquisition;
(l) Investments in Subsidiaries of the Borrower resulting from purchases of minority
interests in such Subsidiaries in exchange for the Parents common stock;
(m) Investments by the Borrower or any of its Class I Restricted Subsidiaries
consisting of refundable construction advances made with respect to the construction of
motion picture exhibition theatres in the ordinary course of business;
(n) Investments by the Borrower or any of its Class I Restricted Subsidiaries
consisting of the licensing or contribution of Intellectual Property pursuant to joint
marketing arrangements; and
(o) Investments by the Borrower or any of its Class I Restricted Subsidiaries received
in connection with the bankruptcy or reorganization of or settlement of, delinquent accounts
and disputes with or judgments against, customers and suppliers, in each case in the
ordinary course of business.
7.9
Limitation on Optional Payments and Modifications of Debt Instruments, etc
. (a)
Except as permitted by Section 7.2(f), (g) or (o), make or offer to make any optional or voluntary
payment, prepayment, repurchase or redemption of, or otherwise voluntarily or optionally defease,
the Senior Subordinated Notes or the Senior Discount Notes (
except
that (i) the Borrower
may repurchase or redeem the Senior Subordinated Notes, (ii) Holdings or the Borrower may
repurchase or redeem the Senior Discount Notes,
provided
that, the aggregate principal
amount of the Senior Subordinated Notes repurchased or redeemed after the Closing Date pursuant to
clause (i) above
plus
the aggregate accreted amount of the Senior Discount Notes
repurchased or redeemed after the Closing Date pursuant to clause (ii) above shall not exceed the
Applicable Amount at the time of, and immediately prior to the making of, any such repurchase or
redemption, (iii) if at any time, the Consolidated Senior Secured Leverage Ratio as of the most
recent quarter end for which financial statements have been delivered to the Agents pursuant to
Section 6.1 is less than 3.0 to 1.0, the Borrower may repurchase or redeem the Senior
87
Subordinated
Notes and (iv) if at any time, the Consolidated Senior Secured Leverage Ratio as of the most recent
quarter end for which financial statements have been delivered to the Agents pursuant to Section
6.1 is less than 2.5 to 1.0, Holdings or the Borrower may repurchase or redeem the Senior Discount
Notes), or segregate funds (except in connection with a repurchase, redemption or defeasance
permitted by the preceding parenthetical) for any such payment, prepayment, repurchase, redemption
or defeasance, or enter into any derivative or other transaction with any Derivatives Counterparty
obligating the Parent, Holdings, Intermediate Holdings, the Borrower or any Class I Restricted
Subsidiary to make payments to such Derivatives Counterparty as a result of any change in market
value of the
Senior Subordinated Notes, (b) amend, modify or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of the Senior Subordinated
Notes or the Senior Discount Notes (other than any such amendment, modification, waiver or other
change which (A) would extend the maturity or reduce the amount of any payment of principal
thereof, reduce the rate or extend the date for payment of interest thereon or relax any covenant
or other restriction applicable to the Parent, Holdings, Intermediate Holdings, the Borrower or any
of its Class I Restricted Subsidiaries or add any Guarantor as a guarantor of the Senior
Subordinated Notes,
provided
that such guarantee is subordinated in right of payment to the
Guarantors guarantee of the Obligations to at least the same extent in all material respects as
the obligations of the Borrower in respect of the Senior Subordinated Notes are subordinated to the
Obligations or (B) does not require the consent of any holder of the Senior Subordinated Notes or
Senior Discount Notes, as applicable, to (i) cure any ambiguity, defect or inconsistency or (ii)
comply with the requirements of the SEC in order to effect or maintain the qualification of the
Senior Subordinated Note Indenture or the Senior Discount Note Indenture, as the case may be, under
the TIA (as defined in the applicable agreement)), (c) designate any Indebtedness (other than the
Obligations) as Designated Senior Indebtedness for the purposes of the Senior Subordinated Note
Indenture or (d) amend its certificate of incorporation in any manner reasonably determined by the
Administrative Agent to be material and adverse to the Lenders.
7.10
Limitation on Transactions with Affiliates
. Enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of Property, the rendering of any service
or the payment of any management, advisory or similar fees, with any Affiliate (other than the
Parent, Holdings, Intermediate Holdings, the Borrower or any Subsidiary Guarantor) unless such
transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business
of the Parent, Holdings, Intermediate Holdings, the Borrower or such Subsidiary, as the case may
be, and (c) upon fair and reasonable terms no less favorable to the Parent, Holdings, Intermediate
Holdings, the Borrower or such Subsidiary, as the case may be, than it would obtain in a comparable
arms length transaction with a Person that is not an Affiliate, except for:
(i) so long as no Default or Event of Default shall have occurred and be continuing,
the payment of customary annual fees and related expenses to the Sponsor and its Affiliates;
provided
that such fees shall not, in the aggregate, exceed $1,000,000 (
plus
out of pocket expenses) in any twelve-month period commencing after the date of this
Agreement;
(ii) so long as no Default or Event of Default shall have occurred and be continuing,
the payment of customary transaction, management, consulting and advisory
88
fees and related
expenses to the Sponsor and its Affiliates made pursuant to financial advisory, financing or
underwriting agreements in respect of other investment banking activities, including,
without limitation, in connection with acquisitions or divestures, in each case, which
payments are (a) reasonably related to the services performed and (b) approved by a majority
of the members of the board of directors of the Borrower not affiliated with the Sponsor;
(iii) such other transactions with transaction values not exceeding $15,000,000 in the
aggregate for all such transactions consummated during the term of this Agreement; and
(iv) transactions in the ordinary course of business with National CineMedia, LLC and
NCM Holdings and transactions in the ordinary course of business with the other members of
National CineMedia, LLC and NCM Holdings in relation to Borrowers or any Subsidiarys
interest therein, so long as at the time of entry into of any such transaction the Borrower
determined that such transaction was reasonable in relation to its business.
7.11
Limitation on Sales and Leasebacks
. Enter into any arrangement with any Person
providing for the leasing by the Parent, Holdings, Intermediate Holdings, the Borrower or any Class
I Restricted Subsidiary of real or personal property which has been or is to be sold or transferred
by the Parent, Holdings, Intermediate Holdings, the Borrower or such Class I Restricted Subsidiary
to such Person or to any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of the Parent, Holdings, Intermediate
Holdings, the Borrower or such Class I Restricted Subsidiary;
provided
, that, so long as
the Net Cash Proceeds of any of the following transactions are applied toward prepayment of the
Loans to the extent required by Section 2.10, (a) the Borrower or any Class I Restricted Subsidiary
may consummate Sale and Leaseback Transactions with respect to any fee-owned property set forth on
Schedule 7.11
that does not constitute Mortgaged Property or property acquired in Section
7.5(f) swaps in exchange for such property set forth on such Schedule and (b) the Borrower or any
Class I Restricted Subsidiary may consummate Sale and Leaseback Transactions with respect to any
real property acquired by the Borrower or any Class I Restricted Subsidiary after the Closing Date.
7.12
Limitation on Changes in Fiscal Periods
. Permit the Fiscal Year to end on a day other
than December 31 or change the Borrowers method of determining fiscal quarters.
7.13
Limitation on Negative Pledge Clauses
. Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of the Parent, Holdings, Intermediate
Holdings, the Borrower or any of its Class I Restricted Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its Property or revenues, whether now owned or hereafter
acquired, to secure the Obligations or, in the case of any Guarantor, its obligations under the
Guarantee and Collateral Agreement, other than:
(a) this Agreement and the other Loan Documents;
(b) the Senior Subordinated Note Indenture;
89
(c) the Senior Discount Note Indenture;
(d) any agreements governing any purchase money Liens or Capital Lease Obligations
otherwise permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby);
(e) in connection with any Lien permitted under Section 7.3(b), (c), (d), (f), (g),
(i), (k), (m), (o), (s), (u) or (v) or any document or instrument governing any such Lien,
provided
that such prohibition or limitation shall only be effective against the
assets subject to such Lien;
(f) pursuant to customary restrictions and conditions contained in any agreement
related to the sale of any property permitted under Section 7.5, pending the consummation of
such sale,
provided
that such prohibition or limitation shall only be effective
against the assets to be sold;
(g) leases, licenses and other agreements entered into in the ordinary course of
business (other than for Indebtedness);
(h) provisions in corporate charters, bylaws, stockholders agreements, partnership
agreements, limited liability company agreements and similar agreements entered into in
connection with Investments permitted by Section 7.8 and negotiated in good faith and not
with the purpose of avoiding the restrictions of this Section; and
(i) restrictions on cash or other deposits or net worth imposed by customers and
suppliers in the ordinary course of business.
7.14
Limitation on Restrictions on Subsidiary Distributions
. Enter into or suffer to exist
or become effective any consensual encumbrance or restriction on the ability of any Class I
Restricted Subsidiary (or, in the case of clause (a) only, any Class II Restricted Subsidiary of
the Borrower) to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary
held by, or pay any Indebtedness owed to, the Borrower or any Class I Restricted Subsidiary, (b)
make Investments in the Borrower or any other Class I Restricted Subsidiary or (c) transfer any of
its assets to the Borrower or any other Class I Restricted Subsidiary, except for such encumbrances
or restrictions existing under or by reason of (i) any restrictions existing under the Loan
Documents, (ii) any restrictions with respect to a Restricted Subsidiary imposed pursuant to an
agreement that has been entered into in connection with the Disposition of all or substantially all
of the Capital Stock or assets of such Subsidiary pending such Disposition and (iii) agreements,
instruments and documents of the types described in clauses (b) through (i) of Section 7.13
(provided, that, in the case of any such type that is limited to certain assets (including Capital
Stock) or Persons, the permission in this clause (iii) shall also be limited to such assets or
Persons) and negotiated in good faith and not with the purpose of avoiding the restrictions of this
Section. Notwithstanding any of the foregoing, the ability of any Class II Restricted Subsidiary
to make Restricted Payments may be subject to encumbrances and restrictions imposed by agreements
or instruments relating to any Non-Recourse Debt of such Class II Restricted Subsidiary.
90
7.15
Limitation on Lines of Business
. Enter into any material business, either directly or through any Subsidiary, except for
those businesses in which the Borrower and its Subsidiaries are engaged on the date of this
Agreement or that are reasonably related thereto.
7.16
Limitation on Activities of the Parent, Holdings and Intermediate Holdings
. In the
case of the Parent, Holdings and Intermediate Holdings, notwithstanding anything to the contrary in
this Agreement or any other Loan Document:
(a) conduct, transact or otherwise engage in, or commit to conduct, transact or
otherwise engage in, any material business or operations other than those incidental to
(i) in the case of the Parent, (A) issuances and sales of its Capital Stock and
options, warrants and rights related thereto, and (B) its ownership of the Capital
Stock of Holdings, or after a Specified Reorganization, Intermediate Holdings or the
Borrower,
(ii) in the case of Holdings, its ownership of the Capital Stock of
Intermediate Holdings, or after a Specified Reorganization, the Borrower,
(iii) in the case of Intermediate Holdings, its ownership of the Capital Stock
of the Borrower,
(iv) the Indebtedness permitted under Section 7.2,
(v) the ownership of intercompany Indebtedness permitted under Section 7.2,
(vi) the transactions permitted under Section 7.10,
(vii) the Acquisition, and
(viii) the rights and obligations hereunder and under the other Loan Documents;
(b) incur, create, assume or suffer to exist any Indebtedness or other material
liabilities or financial obligations, except
(i) nonconsensual liabilities and obligations imposed by operation of law,
(ii) pursuant to the Loan Documents to which it is a party,
(iii) liabilities and obligations with respect to its Capital Stock (and in the
case of the Parent, options, warrants and rights related thereto),
(iv) Indebtedness permitted under Section 7.2,
(v) taxes,
91
(vi) customary fees to members of its board of directors,
(vii) ordinary course corporate operating expenses,
(viii) liabilities and obligations arising out of Restricted Payments permitted
under Section 7.6,
(ix) the transactions permitted under Section 7.10,
(x) liabilities and obligations arising out of operations permitted under
clause (a) of this Section or ownership of assets permitted under clause (c) of this
Section; or
(c) own, lease, manage or otherwise operate any properties or assets (including cash
and Cash Equivalents) other than
(i) in the case of the Parent, the ownership of shares of Capital Stock of
Holdings, or after a Specified Reorganization, Intermediate Holdings or the
Borrower,
(ii) in the case of Holdings, the ownership of shares of Capital Stock of
Intermediate Holdings or, after the occurrence of a Specified Reorganization, the
Borrower,
(iii) in the case of Intermediate Holdings, the ownership of shares of Capital
Stock of the Borrower,
(iv) the ownership of intercompany Indebtedness permitted under Section 7.2,
(v) customary minimum balances of cash and Cash Equivalents,
(vi) cash and Cash Equivalents pending application to an Indebtedness,
liability or obligation permitted under clause (b) of this Section,
(vii) in the case of the Parent, on any date cash and Cash Equivalents pending
application to ordinary course corporate operating expenses of the Parent for the
two year period following such date in an amount not to exceed $3,000,000, and
(viii) Capital Stock of the Target to the extent necessary or advisable (with
the agreement of the Administrative Agent (such agreement not to be unreasonably
withheld)) in connection with the Acquisition.
Notwithstanding any of the foregoing, Holdings shall be allowed to repurchase or redeem its Senior
Discount Notes to the extent permitted by Section 7.9(a).
92
7.17
Limitation on Hedge Agreements
. Enter into any Hedge Agreement other than Hedge
Agreements entered into in the ordinary course of business (i) to protect against changes in
interest rates or to reduce overall interest costs with respect to Funded Debt of the Parent and
its Subsidiaries to the extent that such Hedge Agreements have an aggregate notional amount equal
to or less than an amount reasonably related to the amount of such Funded Debt, all such
determinations to be made at the time of incurrence of such Hedge Agreement and (ii) to protect
against changes in currency exchange rates or commodity prices and to reduce overall costs with
respect to such currency exchange rates or commodity prices to the extent that such Hedge
Agreements are in an aggregate notional amount equal to or less than an amount reasonably related
to the exposure of the Borrower and its Restricted Subsidiaries with respect to such currencies or
commodities, as applicable.
7.18
Limitation on New Leases
. Enter into any lease of real estate contemplating an annual
rental payment of more than $500,000, unless (i) the leasehold lender protections required by
Section 5.1(p) are incorporated into such lease or a separate landlords agreement and (ii)
accompanied by a binding and recordable short form lease or lease memorandum.
7.19
Limitations on Activities of Class II Restricted Subsidiaries and Unrestricted
Subsidiaries
. Notwithstanding anything to the contrary in this Agreement, except to the extent
the Parent, Holdings, Intermediate Holdings, the Borrower or a Class I Restricted Subsidiary would
be permitted to take such action under this Agreement: (a) permit any Class II Restricted
Subsidiary or Unrestricted Subsidiary to (i) pay any dividend on, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption,
retirement or other acquisition for value of, any Capital Stock of the Parent, Holdings,
Intermediate Holdings, the Borrower or any Class I Restricted Subsidiary, (ii) make any other
payment or distribution in respect of any Capital Stock of the Parent, Holdings, Intermediate
Holdings, the Borrower or any Class I Restricted Subsidiary or (iii) enter into any derivatives or
other transaction with a Derivatives Counterparty obligating such Subsidiary to make payments to
such Derivatives Counterparty as a result of any change in the market value of any Capital Stock of
the Parent, Holdings, Intermediate Holdings, the Borrower or any Class I Restricted Subsidiary or
the Senior Subordinated Notes, (b) permit any Class II Restricted Subsidiary to make or offer to
make any optional or voluntary payment, prepayment, repurchase or redemption of, or otherwise
voluntarily or optionally defease, the Senior Subordinated Notes or the Senior Discount Notes, or
segregate funds for any such payment, prepayment, repurchase, redemption or defeasance or (c)
furnish any funds to any other Person for purposes of enabling it to engage in any transaction
prohibited by the foregoing clause (a).
7.20
Amendments to Acquisition Documentation
. (a) Amend, supplement or otherwise modify
(pursuant to a waiver or otherwise) the terms and conditions of the indemnities and licenses
furnished to the Borrower or any of its
Subsidiaries pursuant to the Acquisition Documentation such that after giving effect thereto
the Acquisition taken as a whole shall be materially less favorable to the interests of the Loan
Parties or the Lenders with respect thereto or (b) otherwise amend, supplement or otherwise modify
the terms of the Acquisition Documentation or any such other documents except for any such
amendment, supplement or modification that (i) becomes effective after the Closing Date and (ii)
could not reasonably be expected to have a Material Adverse Effect.
93
SECTION 8. EVENTS OF DEFAULT
8.1
Events of Default
. If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay
any interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder
or under any other Loan Document, within five days after any such interest or other amount
becomes due in accordance with the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been inaccurate in any material respect on
or as of the date made or deemed made or furnished; or
(c) (i) Any Loan Party shall default in the observance or performance of any agreement
contained in clause (i) or (ii) of Section 6.4(a) (with respect to the Parent, Holdings,
Intermediate Holdings and the Borrower only), Section 6.7(a) or Section 7, or (ii) an Event
of Default under and as defined in any Mortgage shall have occurred and be continuing; or
(d) Any Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall continue unremedied for
a period of 30 days; or
(e) The Parent, Holdings, Intermediate Holdings, the Borrower or any of its Restricted
Subsidiaries shall (i) default in making any payment of any principal of any Indebtedness
(including, without limitation, any Guarantee Obligation, but excluding the Loans and
Reimbursement Obligations) on the scheduled or original due date with respect thereto or,
with respect to any Capital Lease Obligation, after giving effect to any grace period with
respect thereto; or (ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or
a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated maturity or to
become subject to a mandatory offer to purchase by the obligor thereunder or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become payable;
provided
, that a default, event or condition described in clause (i), (ii) or (iii)
of this paragraph (e) shall not at any time constitute an Event of Default unless, at such
time, one
94
or more defaults, events or conditions of the type described in clauses (i), (ii)
and (iii) of this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the aggregate $25,000,000;
or
(f) (i) The Parent, Holdings, Intermediate Holdings, the Borrower or any of its
Restricted Subsidiaries shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Parent, Holdings, Intermediate Holdings, the Borrower
or any of its Restricted Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Parent, Holdings, Intermediate
Holdings, the Borrower or any of its Restricted Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains undismissed, undischarged
or unbonded for a period of 60 days; or (iii) there shall be commenced against the Parent,
Holdings, Intermediate Holdings, the Borrower or any of its Restricted Subsidiaries any
case, proceeding or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets that results
in the entry of an order for any such relief that shall not have been vacated, discharged,
or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the
Parent, Holdings, Intermediate Holdings, the Borrower or any of its Restricted Subsidiaries
shall take any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Parent, Holdings, Intermediate Holdings, the Borrower or any of its Restricted Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due; or
(g) (i) Any Person shall engage in any prohibited transaction (as defined in Section
406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any accumulated funding
deficiency (as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan, or any Lien in favor of the PBGC or a Plan shall arise on the assets of
the Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to
result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Borrower or
any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders
shall be likely to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
95
conditions, if any,
could, in the sole judgment of the Required Lenders, reasonably be expected to have a
Material Adverse Effect; or
(h) One or more final judgments or decrees shall be entered against the Parent,
Holdings, Intermediate Holdings, the Borrower or any of its Restricted Subsidiaries
involving for the Parent, Holdings, Intermediate Holdings, the Borrower and its Restricted
Subsidiaries taken as a whole a liability (not paid or fully covered by insurance as to
which the relevant insurance company has not disclaimed coverage) of $25,000,000 or more,
and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any reason (other than by reason
of the express release thereof pursuant to this Agreement), to be in full force and effect,
and the Borrower shall not cure such event within three Business Days after notice thereof;
(ii) any Loan Party shall assert that any of the Security Documents are not in full force
and effect; or (iii) any Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created thereby or any Loan
Party shall so assert (other than by reason of the express release thereof pursuant to this
Agreement), and the Borrower shall not cure such event within three Business Days after
notice thereof;
provided
, that a default, event or condition described in clause
(i), (ii) or (iii) of this paragraph (i) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph shall have occurred and be
continuing with respect to Collateral with a fair market value which exceeds $250,000 in the
aggregate; or
(j) (i) The guarantee contained in Section 2 of the Guarantee and Collateral Agreement
shall cease, for any reason (other than by reason of the express release thereof pursuant to
this Agreement), to be in full force and effect, and the Borrower shall not cure such event
within three Business Days after notice thereof; or (ii) or any Loan Party shall assert that
the guarantee contained in Section 2 of the Guarantee and Collateral Agreement is not in
full force and effect; or
(k) Any Change of Control shall occur; or
(l) The Senior Subordinated Notes shall cease, for any reason, to be validly
subordinated to the Obligations, as provided in any Senior Subordinated Note Indenture
(other than in the case of the defeasance of the Senior Subordinated Notes), or any Loan
Party, the trustee in respect of the Senior Subordinated Notes or the holders of at least
25% in aggregate principal amount of the Senior Subordinated Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented the documents required thereunder) shall
96
immediately become due and payable,
and (B) if such event is any other Event of Default and such Event of Default is continuing, either
or both of the following actions may be taken: (i) with the consent of the Majority Revolving
Credit Facility Lenders, the Administrative Agent may, or upon the request of the Majority
Revolving Credit Facility Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable. In the case of all
Letters of Credit with respect to which presentment for honor shall not have occurred at the time
of an acceleration pursuant to this paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit,
and the unused portion thereof after all such Letters of Credit shall have expired or been fully
drawn upon, if any, shall be applied to repay other obligations of the Borrower hereunder and under
the other Loan Documents. After all such Letters of Credit shall have expired or been fully drawn
upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the
Borrower hereunder and under the other Loan Documents shall have been paid in full, the balance, if
any, in such cash collateral account shall be returned to the Borrower within ten Business Days of
such expiration (or such other Person as may be lawfully entitled thereto).
8.2
Borrowers Right to Cure
. (a) Notwithstanding anything to the contrary contained in
Section 8.1, in the event of any Event of Default under the covenant set forth in Section 7.1 and
until the expiration of the tenth day after the date on which financial statements are required to
be delivered with respect to the applicable fiscal quarter hereunder, the Parent may engage in any
Permitted Equity Issuance to the Permitted Investors and apply the amount of the Net Cash Proceeds
thereof to increase Consolidated EBITDA with respect to such applicable quarter; provided that such
Net Cash Proceeds applied to the cure right in this Section 8.2 (i) are actually received by the
Borrower and contributed to the common equity of the Borrower (including through capital
contribution of such Net Cash Proceeds directly or indirectly by the Parent to the Borrower) no
later than ten days after the date on which financial statements are required to be delivered with
respect to such fiscal quarter hereunder, (ii) do not increase the Applicable Amount or any other
item specified in this Agreement as being increased by the amount of any contributed equity, (iii)
are not deducted from Consolidated Senior Secured Debt in the determination of the
Consolidated Net Senior Secured Leverage Ratio and (iv) do not exceed the aggregate amount
necessary to cure such Event of Default under Section 7.1 for any applicable period. The parties
hereby acknowledge that this Section 8.2 may not be relied on for purposes of calculating any
financial ratios other than as applicable to Section 7.1 and shall not result in any adjustment to
any amounts other than the amount of the Consolidated EBITDA referred to in the immediately
preceding sentence.
97
(b) Notwithstanding the provisions of Section 8.2(a), (x) in each period of four fiscal
quarters, there shall be at least one fiscal quarter in which no cure set forth in Section 8.2(a)
is made and (y) in each period of eight fiscal quarters, there shall be at least four consecutive
fiscal quarters in which no cure set forth in Section 8.2(a) is made.
SECTION 9. THE AGENTS
9.1
Appointment
. Each Lender hereby irrevocably designates and appoints the Agents as the
agents of such Lender under this Agreement and the other Loan Documents, and each Lender
irrevocably authorizes each Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any
duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against
any Agent.
9.2
Delegation of Duties
. Each Agent may execute any of its duties under this Agreement
and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
9.3
Exculpatory Provisions
. Neither any Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from its or such
Persons own gross negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received by the Agents under
or in
connection with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder.
The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions of, this Agreement
or any other Loan Document, or to inspect the properties, books or records of any Loan Party.
9.4
Reliance by Agents
. Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel (including, without
98
limitation, counsel to the Loan Parties), independent accountants and other experts selected by
such Agent. The Agents may deem and treat the payee of any Note as the owner thereof for all
purposes unless such Note shall have been transferred in accordance with Section 10.6 and all
actions required by such Section in connection with such transfer shall have been taken. Each
Agent shall be fully justified in failing or refusing to take any action under this Agreement or
any other Loan Document unless it shall first receive such advice or concurrence of the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement) as it deems appropriate or it shall first be indemnified to
its satisfaction by such Lenders against any and all liability and expense that may be incurred by
it by reason of taking or continuing to take any such action. Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement), and
such request and any action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
9.5
Notice of Default
. No Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless such Agent shall have received
notice from a Lender, the Parent, Holdings, Intermediate Holdings or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such notice is a notice of
default. In the event that the Administrative Agent shall receive such a notice, the
Administrative Agent shall give notice thereof to the Lenders or if such notice is from a Lender,
to the Borrower. The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement);
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.
9.6
Non-Reliance on Agents and Other Lenders
. Each Lender expressly acknowledges that
neither any of the Agents nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warranties to it and that no act
by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate
of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any
Lender. Each Lender represents to the Agents that it has, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their affiliates and
made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any 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 credit analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices, reports and other
documents expressly
99
required to be furnished to the Lenders by the Administrative Agent hereunder,
no Agent shall have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial or otherwise),
prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into
the possession of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
9.7
Indemnification
. The Lenders agree to indemnify each Agent in its capacity as such
(to the extent not reimbursed by the Borrower or any Guarantor and without limiting the obligation
of the Borrower or any Guarantor to do so), ratably according to their respective Aggregate
Exposure Percentages in effect on the date on which indemnification is sought under this Section
(or, if indemnification is sought after the date upon which the Commitments shall have terminated
and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), for, and to save each Agent harmless from and against,
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under
or in connection with any of the foregoing;
provided
that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agents gross negligence
or willful misconduct. The agreements in this Section shall survive the payment of the Loans and
all other amounts payable hereunder.
9.8
Agent in Its Individual Capacity
. Each Agent and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business with any Loan Party as though
such Agent were not an Agent. With respect to its Loans made or renewed by it and with respect to
any Letter of Credit issued or participated in by it, each Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as
though it were not an Agent, and the terms Lender and Lenders shall include each Agent in its
individual capacity.
9.9
Successor Agents
. The Administrative Agent may resign as Administrative Agent upon
ten days notice to the Lenders and the Borrower. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall
(unless an Event of Default under Section 8.1(a) or Section 8.1(f) with respect to the Borrower
shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall
not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term Administrative Agent shall
mean such successor agent effective upon such appointment and approval, and the former
Administrative Agents rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act
or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent has accepted
appointment as Administrative Agent by the date that is ten days following a retiring
Administrative Agents notice of resignation, the retiring Administrative Agents resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties
of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. The Syndication Agent may, at any time, by notice to the
Lenders and the Administrative Agent, resign as Syndication Agent hereunder, whereupon the duties,
rights, obligations and responsibilities of the Syndication Agent, if any, hereunder shall
automatically be assumed by, and inure to the benefit of, the Administrative Agent, without any
further act by the Syndication Agent, the Administrative Agent or any Lender. After any retiring
Agents resignation as Agent, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this Agreement and the other
Loan Documents.
9.10
Authorization to Release Liens and Guarantees
. The Administrative Agent is hereby
irrevocably authorized by each of the Lenders to effect any release of Liens or guarantee
obligations contemplated by Section 10.15.
9.11
The Arrangers; the Syndication Agent; the Co-Documentation Agent
. None of the
Arrangers, the Syndication Agent or the Co-Documentation Agents, in their respective capacities as
such, shall have any duties or responsibilities, or incur any liability, under this Agreement and
the other Loan Documents.
SECTION 10. MISCELLANEOUS
10.1
Amendments and Waivers
. Neither this Agreement or any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or (with the written consent of the Required Lenders) the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan Documents (including
amendments and restatements hereof or thereof) for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the
Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as may be specified
in the instrument of waiver, any of the requirements of this Agreement or the other Loan Documents
or any Default or Event of Default and its consequences;
provided
,
however
, that no
such waiver and no such amendment, supplement or modification shall:
(i) forgive or reduce the principal amount or extend the final scheduled date
of maturity of any Loan or Reimbursement Obligation, extend the scheduled date of
any amortization payment in respect of any Term Loan, reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any payment
thereof, or increase the amount or extend the expiration date of any Commitment of
any Lender, in each case without the consent of each Lender directly affected
thereby;
101
(ii) amend, modify or waive any provision of this Section or reduce any
percentage specified in the definition of Required Lenders or Required Prepayment
Lenders, consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement and the other Loan Documents, release all or
substantially all of the Collateral or release all or substantially all of the
Guarantors from their guarantee obligations under the Guarantee and Collateral
Agreement, in each case without the consent of all Lenders;
(iii) amend, modify or waive any condition precedent to any extension of credit
under the Revolving Credit Facility set forth in Section 5.2 (including, without
limitation, the waiver of an existing Default or Event of Default required to be
waived in order for such extension of credit to be made) without the consent of the
Majority Revolving Credit Facility Lenders;
(iv) reduce the percentage specified in the definition of Majority Facility
Lenders with respect to any Facility without the written consent of all Lenders
under such Facility;
(v) amend, modify or waive any provision of Section 9 or any other provision of
any Loan Document directly affecting the rights, obligations or duties of any Agent
without the consent of such Agent;
(vi) amend, modify or waive any provision of Section 2.16 without the consent
of each Lender directly affected thereby;
(vii) amend, modify or waive any provision of Section 3 without the consent of
the Issuing Lender;
(viii) amend or modify Section 10.6 to add any additional consent requirements
necessary to effect any assignment or participation under such Section (other than
the consent of the Borrower) without the consent of each Lender;
(ix) amend, modify or waive any provision of Section 2.10 without the consent
of the Required Prepayment Lenders; or
(x) amend Section 10.6(g) except in the manner set forth in the last sentence
thereof.
In addition to the amendments described above, and notwithstanding anything in this Section 10.1 to
the contrary, the Peso Subfacility Amendments may be effected in accordance with the provisions of
Section 2.23.
Any waiver, amendment, supplement or modification effected in accordance with this Section
10.1 shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Agents and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the Lenders and the Agents shall be restored to their former position and rights
102
hereunder
and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to
be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or
Event of Default, or impair any right consequent thereon. Any such waiver, amendment, supplement
or modification shall be effected by a written instrument signed by the parties required to sign
pursuant to the foregoing provisions of this Section;
provided
, that delivery of an
executed signature page of any such instrument by facsimile transmission shall be effective as
delivery of a manually executed counterpart thereof.
If the Required Lenders shall have approved any amendment which requires the consent of all of
the Lenders, the Borrower shall be permitted to replace any non-consenting Lender with another
lender,
provided
that, (i) the replacement lender shall purchase at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of replacement, (ii) the
Borrower shall be liable to such replaced Lender under Section 2.19 if any Eurodollar Loan owing to
such replaced Lender shall be purchased other than on the last day of the Interest Period relating
thereto (as if such purchase constituted a prepayment of such Loans), (iii) such replacement
lender, if not already a Lender, shall be reasonably satisfactory to the Administrative Agent and,
with respect to the replacement of a Revolving Credit Lender, each Issuing Lender (such consent not
to be unreasonably withheld), (iv) the replaced Lender shall be obligated to make such replacement
in accordance with the provisions of Section 10.6 (
provided
that the Borrower shall be obligated to pay the registration and processing fee referred to
therein), (v) such replacement Lender shall consent to the proposed amendment and (vi) any such
replacement shall not be deemed to be a waiver of any rights the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender or of the replaced Lender against the
Borrower.
For the avoidance of doubt, this Agreement and any other Loan Document may be amended (or
amended and restated) with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party to each relevant Loan Document (x) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof (collectively, the
Additional
Extensions of Credit
) to share ratably in the benefits of this Agreement and the other Loan
Documents with the Term Loans and Revolving Extensions of Credit and the accrued interest and fees
in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in
any determination of the Required Lenders, Required Prepayment Lenders, the Majority Facility
Lenders and Majority Revolving Facility Lenders;
provided
,
however
, that no such
amendment shall permit the Additional Extensions of Credit to share ratably with (except pursuant
to the Peso Subfacility Amendments) or with preference to the Loans in the application of mandatory
prepayments without the consent of the Required Prepayment Lenders (prior to giving effect to
clause (y)).
10.2
Notices
. All notices, requests and demands to or upon the respective parties hereto
to be effective shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of the Parent, Holdings, Intermediate Holdings, the Borrower
and the Agents, as follows and (b) in the case of the Lenders, as set forth in an administrative
questionnaire delivered to the Administrative Agent or on Schedule I to the
103
Lender Addendum to
which such Lender is a party or, in the case of a Lender which becomes a party to this Agreement
pursuant to an Assignment and Acceptance, in such Assignment and Acceptance or (c) in the case of
any party, to such other address as such party may hereafter notify to the other parties hereto:
|
|
|
|
|
|
|
The Parent:
|
|
Cinemark Holdings, Inc.
|
|
|
|
|
3900 Dallas Parkway
|
|
|
|
|
Suite 500
|
|
|
|
|
Plano, Texas 75093
|
|
|
|
|
Attention: Robert Copple, Chief Financial Officer
|
|
|
|
|
Telephone: (972) 665-1000
|
|
|
|
|
Facsimile: (972) 665-1004
|
|
|
|
|
|
|
|
with a copy to:
|
|
Attention: Michael Cavalier, Senior VP-General Counsel
|
|
|
|
|
Telephone: (972) 665-1000
|
|
|
|
|
Facsimile: (972) 665-1004
|
|
|
|
|
|
|
|
Holdings, Intermediate
|
|
|
|
|
Holdings and the Borrower:
|
|
c/o the Parent
|
|
|
|
|
|
|
|
The Syndication Agent:
|
|
Morgan Stanley Senior Funding, Inc.
|
|
|
|
|
1585 Broadway
|
|
|
|
|
New York, New York 10036
|
|
|
|
|
Attention: Steve King
|
|
|
|
|
Telephone: (212) 761-3915
|
|
|
|
|
Telecopy: (212) 507-4687
|
|
|
|
|
|
|
|
The Administrative Agent:
|
|
Lehman Commercial Paper Inc.
|
|
|
|
|
745 Seventh Avenue
|
|
|
|
|
New York, New York 10019
|
|
|
|
|
Attention: Loan Portfolio Group
|
|
|
|
|
Telecopy: (646) 758-4617
|
|
|
|
|
Telephone: (212) 526-7150
|
|
|
|
|
|
|
|
with a copy to:
|
|
Lehman Brothers Inc.
|
|
|
|
|
399 Park Avenue
|
|
|
|
|
New York, NY 10022
|
|
|
|
|
Attention: Brian Gross
|
|
|
|
|
Telecopy: (646) 758-5331
|
|
|
|
|
Telephone: (212) 526-4625
|
|
|
|
|
|
|
|
Issuing Lender:
|
|
As notified by such Issuing Lender to the
Administrative Agent and the Borrower
|
provided
that any notice, request or demand to or upon any Agent, any Issuing Lender or any
Lender shall not be effective until received.
104
10.3
No Waiver; Cumulative Remedies
. No failure to exercise and no delay in exercising, on
the part of any Agent or any Lender, any right, remedy, power or privilege hereunder or under the
other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.4
Survival of Representations and Warranties
. All representations and warranties made
herein, in the other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit hereunder.
10.5
Payment of Expenses
. The Borrower agrees (a) to pay or reimburse the Administrative
Agent and the Arrangers for all their reasonable out-of-pocket costs and expenses incurred in
connection with the syndication of the Facilities (other than fees payable to syndicate members)
and the development, preparation and execution of, and any amendment, supplement or modification
to, this Agreement and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the transactions contemplated
hereby and thereby, including, without limitation, the reasonable fees and disbursements and other
charges of counsel to the Administrative Agent and the charges of Intralinks, (b) to pay or
reimburse each Lender and the Agents for all their out-of-pocket costs and expenses incurred in
connection with the enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any other documents prepared in connection herewith or therewith, including, without
limitation, the fees and disbursements of counsel (including the allocated fees and disbursements
and other charges of in-house counsel) to each Lender and of counsel to the Agents, (c) to pay,
indemnify, or reimburse each Lender and the Agents for, and hold each Lender and the Agents
harmless from, any and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay caused by the Borrower in paying, Other Taxes, if any, which may be
payable or determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the
other Loan Documents and any such other documents, and (d) to pay, defend, indemnify or reimburse
each Lender, each Agent, their respective affiliates, and their respective officers, directors,
trustees, employees, advisors, agents and controlling persons (each, an
Indemnitee
) for,
and hold each Indemnitee harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the Loans or the
violation of, noncompliance with or liability under, any Environmental Law applicable to the
operations of the Parent, Holdings, Intermediate Holdings, the Borrower, any of its Subsidiaries or
any of the Properties and the fees and disbursements and other charges of legal counsel in
connection with claims, actions or proceedings by any Indemnitee against the Borrower hereunder
(all the foregoing in this clause (d), collectively, the
Indemnified Liabilities
),
provided
, that the Borrower shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities (i) to the extent
105
such Indemnified Liabilities are found by a
final, nonappealable judgment of a court of competent jurisdiction to have resulted from the gross
negligence, bad faith or willful misconduct of such Indemnitee or (ii) arising from claims asserted
by another Indemnitee against such Indemnitee. The Borrower shall have the right to undertake,
conduct and control through counsel of its own choosing (which counsel shall be acceptable to the
applicable Indemnitee acting reasonably), the conduct and settlement of claims with respect to the
related Indemnified Liabilities, and such Indemnitee shall cooperate with the Borrower in
connection therewith;
provided
that the Borrower shall permit such Indemnitee to
participate in such conduct and settlement through counsel chosen by such Indemnitee.
Notwithstanding the foregoing, each Indemnitee shall have the right to employ its own counsel and
the reasonable fees and expenses of such counsel shall be at the Borrowers cost and expense if
such Indemnitee reasonably
determines that (i) the Borrowers counsel is not defending any claim or proceeding in a
manner reasonably acceptable to such Indemnitee or (ii) the interest of the Borrower and such
Indemnitee have become adverse in any such claim or cause of action,
provided
,
however
, that in such event, the Borrower shall only be liable for the reasonable legal
expenses of one counsel for all such Indemnitees. If clause (ii) of the immediately preceding
sentence is applicable, at the option of the applicable Indemnitee, its attorneys shall control the
resolution of any such claim with respect to the related Indemnified Liabilities. The Borrower
shall not, without the prior written consent of each Indemnitee affected thereby, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification may be sought hereunder (whether
or not such Indemnitee is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (a) includes an unconditional release of such Indemnitee from
all liability arising out of such action or claim, (b) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of such Indemnitee and (c) does
not require such Indemnitee to pay any form of consideration to any party or parties (including,
without limitation, the payment of money) in connection therewith. Without limiting the foregoing,
and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries so to waive, all
rights for contribution or any other rights of recovery with respect to all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature,
under or related to Environmental Laws, that any of them might have by statute or otherwise against
any Indemnitee until the date on which all Obligations (other than obligations in respect of any
Specified Hedge Agreement) have been paid in full, all Commitments have terminated or expired and
no Letter of Credit shall be outstanding. Notwithstanding any other provision of this Section, the
Borrower shall have no obligation hereunder to any Indemnitee for any environmental claims arising
from actions taken by such Indemnitee with respect to any Property after the exercise of remedies
by such Indemnitee with respect to such Property. All amounts due under this Section shall be
payable not later than 30 days after written demand therefor supported by customary documentation.
Statements payable by the Borrower pursuant to this Section shall be submitted to General Counsel
(Telephone No. (972) 665-1000) (Fax No. (972) 665-1004), at the address of the Borrower set forth
in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower
in a notice to the Administrative Agent. The agreements in this Section shall survive repayment of
the Loans and all other amounts payable hereunder.
No Indemnitee or any of the other parties hereto shall be liable to any other party hereto for
any damages arising from the use by unauthorized Persons of information or other
106
materials sent
through electronic, telecommunications or other
information transmission systems that are
intercepted by such Persons or for any special, indirect, consequential or punitive damages in
connection with the Facilities.
10.6
Successors and Assigns; Participations and Assignments
. (a) This Agreement shall be
binding upon and inure to the benefit of the Parent, Holdings, Intermediate Holdings, the Borrower,
the Lenders, the Agents, all future holders of the Loans and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at
any time sell to one or more banks, financial institutions or other entities (each, a
Participant
) participating interests in any Loan owing to such Lender, any Commitment of
such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a Participant, such Lenders
obligations under this Agreement to the other parties to this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such Lender shall remain
the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and
the Borrower and the Agents shall continue to deal solely and directly with such Lender in
connection with such Lenders rights and obligations under this Agreement and the other Loan
Documents. In no event shall any Participant under any such participation have any right to
approve any amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent
would require the consent of all Lenders pursuant to Section 10.1. The Borrower agrees that if
amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right
of setoff in respect of its participating interest in amounts owing under this Agreement to the
same extent as if the amount of its participating interest were owing directly to it as a Lender
under this Agreement,
provided
that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as
provided in Section 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower
and each Lender also agree that each Participant shall be entitled to the benefits of Sections
2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding
from time to time as if such Participant were a Lender;
provided
that, in the case of
Section 2.18, such Participant shall have complied with the requirements of said Section, and
provided
,
further
, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender (an
Assignor
) may, in accordance with applicable law, at any time and
from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the
consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred
and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or
delayed) (
provided
that no such consent need be obtained with respect to any
107
assignment of
Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an
Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall
require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving
Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an
additional bank, financial institution or other entity (an
Assignee
) all or any part of
its rights and obligations under this Agreement pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the
consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to
the foregoing provisions, by the Borrower and such other Persons) and delivered to the
Administrative Agent for its acceptance and recording in the Register;
provided
that no
such assignment to an Assignee (other than any Lender or any affiliate
or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in
the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any
assignment of Term Loans (other than in the case of an assignment of all of a Lenders interests
under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and,
after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving
Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in
the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such
assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance
and recording, from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitments
and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignors rights and obligations under
this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.17, 2.18
and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding
any provision of this Section, the consent of the Borrower shall not be required for any assignment
that occurs at any time when any Event of Default shall have occurred and be continuing. For
purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or
by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the
Commitments and Loans of Related Funds shall be aggregated.
(d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address
referred to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and a register
(the
Register
) for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower,
each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only
upon appropriate entries with respect thereto being made in the Register. Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied
by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the designated Assignee,
108
and the old Notes shall be returned by
the Administrative Agent to the Borrower marked canceled. The Register shall be available for
inspection by the Borrower or any Lender (with respect to any entry relating to such Lenders
Loans) at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee
(and, in any case where the consent of any other Person is required by Section 10.6(c), by each
such other Person) together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related
Funds as a single assignment) (except that no such registration and processing fee shall be payable
in connection with an assignment by or to a Lehman Entity), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained therein in the Register
and give notice of such acceptance and recordation to the Borrower. On or prior to such effective
date, the Borrower, at its own expense, upon request, shall execute and deliver to the
Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as
the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes,
as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to
such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment
and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes,
as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new
Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or
Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit
Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent
shall promptly return to the Borrower such Note and/or Notes for cancellation.
(f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of
this Section concerning assignments of Loans and Notes relate only to absolute assignments and that
such provisions do not prohibit assignments creating security interests in Loans and Notes,
including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a
Granting
Lender
) may grant to a special purpose funding vehicle (an
SPC
), identified as such
in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower,
the option to provide to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided
that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent,
and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender).
109
In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all outstanding
commercial paper or other indebtedness of any SPC, it will not institute against, or join any other
Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any state thereof. In addition,
notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to,
but without the prior written consent of, the Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in any Loans to the
Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent
(which consent shall not be unreasonably withheld) to any financial institutions providing
liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis
any non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC;
provided
that non-public information with respect to the Borrower may be disclosed only with the Borrowers
consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the
written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the
time of such proposed amendment.
10.7
Adjustments; Set-off
. (a) Except to the extent that this Agreement provides for
payments to be allocated to a particular Lender or to the Lenders under a particular Facility, if
any Lender (a
Benefitted Lender
) shall at any time receive any payment of all or part of
the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section
8.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by
any other Lender, if any, in respect of such other Lenders Obligations, such Benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such portion of each
such other Lenders Obligations, or shall provide such other Lenders with the benefits of any such
collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders;
provided
,
however
,
that if all or any portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Parent, Holdings, Intermediate Holdings or the
Borrower, any such notice being expressly waived by the Parent, Holdings, Intermediate Holdings and
the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by
the Parent, Holdings, Intermediate Holdings or the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount
any and all deposits (general or special, time or demand, provisional or final, but excluding
deposits held by the Parent, Holdings, Intermediate Holdings or the Borrower in a fiduciary
capacity for others), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch, agency or bank affiliate thereof to or for the
credit or the account of the Parent, Holdings, Intermediate Holdings or the Borrower, as the case
may be. Each Lender agrees promptly to
110
notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender,
provided
that the failure to give such
notice shall not affect the validity of such setoff and application.
10.8
Counterparts
. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. Delivery of an executed signature
page of this Agreement or of a Lender Addendum by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed
by all the parties shall be lodged with the Borrower and the Administrative Agent.
10.9
Severability
. Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
10.10
Integration
. This Agreement and the other Loan Documents represent the entire
agreement of the Parent, Holdings, Intermediate Holdings, the Borrower, the Agents, the Arrangers
and the Lenders with respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Arrangers, any Agent or any Lender relative to
the subject matter hereof not expressly set forth or referred to herein or in the other Loan
Documents. This Agreement supersedes and terminates the commitment letter among the Borrower, the
Arrangers and the Administrative Agent (other than any provisions relating to obligations of the
Borrower in respect of syndication of the Facilities) but not the related fee letter.
10.11
GOVERNING LAW
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
10.12
Submission To Jurisdiction; Waivers
. Each of the Parent, Holdings, Intermediate
Holdings and the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or proceeding relating to
this Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
111
(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Parent, Holdings, Intermediate Holdings or the Borrower, as
the case may be at its address set forth in Section 10.2 or at such other address of which
the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
and
(e) together with each Lender, each Agent and the Arrangers, waives, to the maximum
extent not prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this Section any special, exemplary, punitive or consequential
damages.
10.13
Acknowledgments
. Each of the Parent, Holdings, Intermediate Holdings and the Borrower
hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;
(b) neither the Arrangers, any Agent nor any Lender has any fiduciary relationship with
or duty to the Parent, Holdings, Intermediate Holdings or the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the relationship
between the Arrangers, the Agents and the Lenders, on one hand, and the Parent, Holdings,
Intermediate Holdings and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Arrangers, the Agents and
the Lenders or among the Parent, Holdings, Intermediate Holdings, the Borrower and the
Lenders.
10.14
Confidentiality
. Each of the Agents, the Lenders and the Arrangers agrees to keep
confidential all non-public information provided to it by any Loan Party pursuant to this Agreement
that is designated by such Loan Party as confidential;
provided
that nothing herein shall
prevent any Agent or any Lender from disclosing any such information (a) to the Arrangers, any
Agent, any other Lender or any affiliate of any thereof, (b) to any Participant or Assignee (each,
a
Transferee
) or prospective Transferee that has agreed to comply with the provisions of
this Section, (c) to any of its employees, directors, agents, attorneys, accountants and other
professional advisors who will be advised of such confidentiality, (d) to any financial institution
that is a creditor of such Agent or Lender or a direct or indirect contractual counterparty of such
Agent or Lender in swap agreements or such contractual counterpartys professional advisor (so long
as such creditor or contractual counterparty or professional advisor to such contractual
counterparty has agreed to be bound by the provisions of this Section), (e) upon the request
or demand of any Governmental Authority having jurisdiction over it, (f) in response
to any order
of any court or other Governmental Authority or as may otherwise be required pursuant to any
112
Requirement of Law, (g) in connection with any litigation or similar proceeding, (h) that has been
publicly disclosed other than in breach of this Section, (i) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized rating agency that
requires access to information about a Lenders investment portfolio in connection with ratings
issued with respect to such Lender or (j) in connection with the exercise of any remedy hereunder
or under any other Loan Document;
provided
,
however
, with respect to clauses (e),
(f) and (g), each of the Agents and Lenders and the Arrangers agrees to give the Parent, Holdings,
Intermediate Holdings and Borrower prompt notice of any request for such confidential information
so as to permit the Parent, Holdings, Intermediate Holdings or the Borrower to seek a protective
order or similar remedy or cause such information to be accorded confidential treatment.
Notwithstanding anything herein to the contrary, any party to this Agreement (and any employee,
representative, or other agent of any party to this Agreement) may disclose to any and all Persons,
without limitation of any kind, the structure and tax aspects of the transactions contemplated by
this Agreement, and all materials of any kind (including opinions or other tax analyses) related to
such structure and tax aspects. Further, each party hereto acknowledges that it has no proprietary
rights to any tax matter or tax idea related to the transactions contemplated by this Agreement.
10.15
Release of Collateral and Guarantee Obligations.
(a) Notwithstanding anything to the contrary contained herein or in any other Loan
Document, upon request of the Borrower in connection with any Disposition of Property
permitted by the Loan Documents, the Administrative Agent shall (without notice to, or vote
or consent of, any Lender, any Agent or any Qualified Counterparty) take such actions as
shall be required to release its security interest in any Collateral being Disposed of in
such Disposition, and to release any guarantee obligations under any Loan Document of any
Person being Disposed of in such Disposition, to the extent necessary to permit consummation
of such Disposition in accordance with the Loan Documents.
(b) Notwithstanding any other provision of this Agreement or any other Loan Document,
the Borrower may request, and the Administrative Agent shall (without notice to, or vote or
consent of, any Lender, any Agent or any Qualified Counterparty) grant, a release of any
specific parcel of real property Collateral if (i) (A) such release is in connection with a
grant by the Borrower or a Guarantor of additional real property Collateral of similar or
greater value (valued in accordance with
Schedule 6.9
; such value to be demonstrated
to the reasonable satisfaction of the Administrative Agent) and (B) immediately after giving
effect to such Collateral substitution, no Default or Event of Default (including, without
limitation, under Section 6.13) shall have occurred and be continuing or (ii) such parcel
represents an adjacent parcel of real property not necessary in the business of the Borrower
or any Class I Restricted Subsidiary which has been separated from another parcel of real
property of the Borrower or a Class I Restricted Subsidiary by means of subdivision and
replatting.
(c) Notwithstanding anything to the contrary contained herein or any other Loan
Document, when all Obligations (other than obligations in respect of any Specified Hedge
Agreement) have been paid in full, all Commitments have terminated or expired
113
and no Letter
of Credit shall be outstanding, upon request of the Borrower, the Administrative Agent shall
(without notice to, or vote or consent of, any Lender, any Agent, or any Person that is a
party to any Specified Hedge Agreement) take such actions as shall be required to release
its security interest in all Collateral, and to release all guarantee obligations under any
Loan Document, whether or not on the date of such release there may be outstanding
Obligations in respect of Specified Hedge Agreements. Any such release of guarantee
obligations shall be deemed subject to the provision that such guarantee obligations shall
be reinstated if after such release any portion of any payment in respect of the Obligations
guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payment had not been
made.
10.16
Accounting Changes
. In the event that any Accounting Change (as defined below)
shall occur and such change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Change with the desired result that the criteria for evaluating
the Borrowers financial condition shall be the same after such Accounting Change as if such
Accounting Change had not been made. Until such time as such an amendment shall have been executed
and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be calculated or construed as if
such Accounting Change had not occurred.
Accounting Change
refers to any change in
accounting principles required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the American Institute of Certified Public
Accountants (including the Emerging Issues Task Force thereof) or, if applicable, the SEC or in the
interpretation or application thereof by independent certified public accountants of nationally
recognized standing.
10.17
Delivery of Lender Addenda
. Each initial Lender shall become a party to this
Agreement by delivering to the Administrative Agent a Lender Addendum duly executed by such Lender,
the Borrower and the Administrative Agent.
10.18
WAIVERS OF JURY TRIAL
.
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.
|
|
|
|
|
|
CINEMARK HOLDINGS, INC.
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
CINEMARK, INC.
|
|
|
By:
|
/s/ Michael Cavalier
|
|
|
|
Name: Michael Cavalier
|
|
|
|
|
Title: Senior Vice President General Counsel
|
|
|
|
CNMK HOLDING, INC.
|
|
|
By:
|
/s/ Vatoni Ragsdale
|
|
|
|
Name: Vatoni Ragsdale
|
|
|
|
|
Title: President
|
|
|
|
|
CINEMARK USA, INC.
|
|
|
By:
|
/s/ Michael Cavalier
|
|
|
|
Name: Michael Cavalier
|
|
|
|
|
Title: Senior Vice President General Counsel
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
LEHMAN BROTHERS INC., as a Joint Lead Arranger
|
|
|
By:
|
/s/
Laurie Perper
|
|
|
|
Name:
|
Laurie Perper
|
|
|
|
Title:
|
Senior Vice President
|
|
|
|
MORGAN STANLEY SENIOR FUNDING, INC.,
as a Joint Lead Arranger and Syndication Agent
|
|
|
By:
|
/s/
Christian Biggs
|
|
|
|
Name:
|
Christian Biggs
|
|
|
|
Title:
|
VP
|
|
|
|
BNP PARIBAS, as Co-Documentation Agent
|
|
|
By:
|
/s/
Gregg Bonardi
|
|
|
|
Name:
|
Gregg Bonardi
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
By:
|
/s/
Ola Anderssen
|
|
|
|
Name:
|
Ola Anderssen
|
|
|
|
Title:
|
Director
|
|
|
|
GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agent
|
|
|
By:
|
/s/
Karl
Kieffer
|
|
|
|
Name:
|
Karl Kieffer
|
|
|
|
Title:
|
Duly Authorized Signatory
|
|
|
|
LEHMAN COMMERCIAL PAPER INC., as Administrative Agent
|
|
|
By:
|
/s/
Laurie Perper
|
|
|
|
Name:
|
Laurie Perper
|
|
|
|
Title:
|
Senior Vice President
|
|
|
Credit Agreement Signature Page
EXECUTION VERSION
Exhibit 10.6
GUARANTEE AND COLLATERAL AGREEMENT
made by
CINEMARK HOLDINGS, INC.
CINEMARK, INC.,
CNMK HOLDING, INC.,
CINEMARK USA, INC.,
and certain of its Subsidiaries
in favor of
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of October 5, 2006
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
SECTION 1.
|
|
DEFINED TERMS
|
|
|
2
|
|
|
|
1.1
|
|
Definitions
|
|
|
2
|
|
|
|
1.2
|
|
Other Definitional Provisions
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
SECT
|
|
ION 2.
|
|
GUARANTEE
|
|
|
6
|
|
|
|
2.1
|
|
Guarantee
|
|
|
6
|
|
|
|
2.2
|
|
Right of Contribution
|
|
|
7
|
|
|
|
2.3
|
|
No Subrogation
|
|
|
8
|
|
|
|
2.4
|
|
Amendments, etc. with respect to the Borrower Obligations
|
|
|
8
|
|
|
|
2.5
|
|
Guarantee Absolute and Unconditional
|
|
|
9
|
|
|
|
2.6
|
|
Reinstatement
|
|
|
10
|
|
|
|
2.7
|
|
Payments
|
|
|
10
|
|
|
|
|
|
|
|
|
|
|
SECT
|
|
ION 3.
|
|
GRANT OF SECURITY INTEREST
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
SECT
|
|
ION 4.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
12
|
|
|
|
4.1
|
|
Representations in Credit Agreement
|
|
|
12
|
|
|
|
4.2
|
|
Title; No Other Liens
|
|
|
12
|
|
|
|
4.3
|
|
Perfected First Priority Liens
|
|
|
12
|
|
|
|
4.4
|
|
Jurisdiction of Organization; Chief Executive Office
|
|
|
12
|
|
|
|
4.5
|
|
Inventory and Equipment
|
|
|
12
|
|
|
|
4.6
|
|
Farm Products
|
|
|
12
|
|
|
|
4.7
|
|
Investment Property
|
|
|
13
|
|
|
|
4.8
|
|
Receivables
|
|
|
13
|
|
|
|
4.9
|
|
Intellectual Property
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
SECT
|
|
ION 5.
|
|
COVENANTS
|
|
|
14
|
|
|
|
5.1
|
|
Covenants in Credit Agreement
|
|
|
14
|
|
|
|
5.2
|
|
Delivery of Instruments and Chattel Paper
|
|
|
14
|
|
|
|
5.3
|
|
Maintenance of Insurance
|
|
|
14
|
|
|
|
5.4
|
|
Payment of Obligations
|
|
|
15
|
|
|
|
5.5
|
|
Maintenance of Perfected Security Interest; Further Documentation
|
|
|
15
|
|
|
|
5.6
|
|
Changes in Locations, Name, etc
|
|
|
15
|
|
|
|
5.7
|
|
Notices
|
|
|
15
|
|
|
|
5.8
|
|
Investment Property
|
|
|
16
|
|
|
|
5.9
|
|
Receivables
|
|
|
17
|
|
|
|
5.10
|
|
Intellectual Property
|
|
|
17
|
|
|
|
|
|
|
|
|
|
|
SECT
|
|
ION 6.
|
|
REMEDIAL PROVISIONS
|
|
|
19
|
|
|
|
6.1
|
|
Certain Matters Relating to Receivables
|
|
|
19
|
|
|
|
6.2
|
|
Communications with Obligors; Grantors Remain Liable
|
|
|
20
|
|
|
|
6.3
|
|
Pledged Stock
|
|
|
20
|
|
|
|
6.4
|
|
Proceeds to be Turned Over To Administrative Agent
|
|
|
21
|
|
i
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
6.5
|
|
Application of Proceeds
|
|
|
21
|
|
|
|
6.6
|
|
Code and Other Remedies
|
|
|
22
|
|
|
|
6.7
|
|
Registration Rights
|
|
|
22
|
|
|
|
6.8
|
|
Deficiency
|
|
|
23
|
|
|
|
|
|
|
|
|
|
|
SECT
|
|
ION 7.
|
|
THE ADMINISTRATIVE AGENT
|
|
|
23
|
|
|
|
7.1
|
|
Administrative Agents Appointment as Attorney-in-Fact, etc
|
|
|
23
|
|
|
|
7.2
|
|
Duty of Administrative Agent
|
|
|
25
|
|
|
|
7.3
|
|
Execution of Financing Statements
|
|
|
25
|
|
|
|
7.4
|
|
Authority of Administrative Agent
|
|
|
25
|
|
|
|
|
|
|
|
|
|
|
SECT
|
|
ION 8.
|
|
MISCELLANEOUS
|
|
|
26
|
|
|
|
8.1
|
|
Amendments in Writing
|
|
|
26
|
|
|
|
8.2
|
|
Notices
|
|
|
26
|
|
|
|
8.3
|
|
No Waiver by Course of Conduct; Cumulative Remedies
|
|
|
26
|
|
|
|
8.4
|
|
Enforcement Expenses; Indemnification
|
|
|
26
|
|
|
|
8.5
|
|
Successors and Assigns
|
|
|
27
|
|
|
|
8.6
|
|
Set-Off
|
|
|
27
|
|
|
|
8.7
|
|
Counterparts
|
|
|
27
|
|
|
|
8.8
|
|
Severability
|
|
|
27
|
|
|
|
8.9
|
|
Section Headings
|
|
|
28
|
|
|
|
8.10
|
|
Integration
|
|
|
28
|
|
|
|
8.11
|
|
GOVERNING LAW
|
|
|
28
|
|
|
|
8.12
|
|
Submission To Jurisdiction; Waivers
|
|
|
28
|
|
|
|
8.13
|
|
Acknowledgments
|
|
|
28
|
|
|
|
8.14
|
|
Additional Grantors
|
|
|
29
|
|
|
|
8.15
|
|
Releases
|
|
|
29
|
|
|
|
8.16
|
|
WAIVER OF JURY TRIAL
|
|
|
29
|
|
|
|
8.17
|
|
Additional Waiver
|
|
|
29
|
|
ii
|
|
|
Schedules
|
|
|
|
|
|
Schedule 1
|
|
Description of Pledged Securities
|
Schedule 2
|
|
Filings and Other Actions Required to Perfect Security Interest
|
Schedule 3
|
|
Jurisdiction of Organization, Identification Number and Location of
Chief Executive Office
|
Schedule 4
|
|
Locations of Inventory and Equipment
|
Schedule 5
|
|
Receivables
|
Schedule 6
|
|
Intellectual Property
|
Schedule 7
|
|
Certificated LLC Interests
|
|
|
|
Annexes
|
|
|
|
|
|
Annex I
|
|
Assumption Agreement
|
Annex II
|
|
Acknowledgment and Consent
|
iii
GUARANTEE AND COLLATERAL AGREEMENT, dated as of October 5 2006, made by each of the
signatories hereto (together with any other entity that may become a party hereto as provided
herein, the
Grantors
), in favor of LEHMAN COMMERCIAL PAPER INC., as Administrative Agent
(in such capacity, the
Administrative Agent
) for the benefit of the Secured Parties (as
defined below), including the banks, other financial institutions and other entities (the
Lenders
) from time to time parties to the Credit Agreement, dated as of October 5, 2006
(as amended, supplemented or otherwise modified from time to time, the
Credit Agreement
),
among CINEMARK HOLDINGS, INC., a Delaware corporation (together with any of its permitted
successors and assigns, the
Parent
), CINEMARK, INC., a Delaware corporation (together
with any of its permitted successors and assigns,
Holdings
), CNMK HOLDING, INC., a
Delaware corporation, CINEMARK USA, INC., a Texas corporation (together with any of its permitted
successors and assigns, the
Borrower
), the Lenders parties thereto, LEHMAN BROTHERS INC.
and MORGAN STANLEY SENIOR FUNDING, INC., as joint lead arrangers and joint bookrunners (in such
capacity, the
Arrangers
), MORGAN STANLEY SENIOR FUNDING, INC., as syndication agent (in
such capacity, the
Syndication Agent
), BNP PARIBAS and GENERAL ELECTRIC CAPITAL
CORPORATION, as co-documentation agents (in such capacity, the
Co-Documentation Agents
),
and the Administrative Agent.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Borrower is a member of an affiliated group of companies that includes each other
Grantor;
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have
executed and delivered this Agreement to the Administrative Agent for the ratable benefit of the
Secured Parties;
WHEREAS, the Borrower and the other Grantors are engaged in related businesses, and each
Grantor will derive substantial direct and indirect benefit from the making of the extensions of
credit under the Credit Agreement and the making of this Agreement; and
WHEREAS, this Agreement is necessary and convenient to the conduct, promotion and attainment
of the business of the Borrower and each other Grantor;
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and
the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the Administrative
Agent, for the ratable benefit of the Secured Parties, as follows:
1
SECTION 1. DEFINED TERMS
1.1
Definitions
. (a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement and the
following terms are used herein as defined in the New York UCC: Accounts, Certificated Security,
Chattel Paper, Commercial Tort Claims, Documents, Equipment, Farm Products, General Intangibles,
Goods, Instruments, Inventory, Letter-of-Credit Rights and Supporting Obligations.
(b) The following terms shall have the following meanings:
Agreement
: this Guarantee and Collateral Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
Borrower Credit Agreement Obligations
: the collective reference to the
unpaid principal of and interest on the Loans and Reimbursement Obligations and all other
obligations and liabilities of the Borrower (including, without limitation, interest
accruing at the then applicable rate provided in the Credit Agreement after the maturity of
the Loans and Reimbursement Obligations and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding) to the Administrative Agent or any Lender, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Credit Agreement, this Agreement, or the other
Loan Documents, or any Letter of Credit, or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Administrative Agent or to the Secured Parties
that are required to be paid by the Borrower pursuant to the terms of any of the foregoing
agreements).
Borrower Hedge Agreement Obligations
: the collective reference to all
obligations and liabilities of the Borrower (including, without limitation, interest
accruing at the then applicable rate provided in any Specified Hedge Agreement after the
filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to any Qualified Counterparty, whether
direct or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, any Specified
Hedge Agreement or any other document made, delivered or given in connection therewith, in
each case whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the relevant Qualified Counterparty that are required to be paid
by the Borrower pursuant to the terms of any Specified Hedge Agreement).
Borrower Obligations
: the collective reference to (i) the Borrower Credit
Agreement Obligations, (ii) the Borrower Hedge Agreement Obligations, but only to the
2
extent
that, and only so long as, the Borrower Credit Agreement Obligations are secured and
guaranteed pursuant hereto, and (iii) all other obligations and liabilities of the Borrower,
whether direct or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this Agreement
(including, without limitation, all fees and disbursements of counsel to the Administrative
Agent or to the Secured Parties that are required to be paid by the Borrower pursuant to the
terms of this Agreement).
Collateral
: as defined in Section 3.
Collateral Account
: any collateral account established by the Administrative
Agent as provided in Section 6.1 or 6.4.
Copyrights
: (i) all copyrights arising under the laws of the United States
or any political subdivision thereof, whether registered or unregistered and whether
published or unpublished (including, without limitation, those listed in
Schedule
6
), all registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and applications in
the United States Copyright Office, and (ii) the right to obtain all renewals thereof.
Copyright Licenses
: any written agreement naming any Grantor as licensor or
licensee (including, without limitation, those listed in
Schedule 6
), granting any
right under any Copyright, including, without limitation, the grant of rights to
manufacture, distribute, exploit and sell materials derived from any Copyright.
Deposit Account
: as defined in the Uniform Commercial Code of any applicable
jurisdiction and, in any event, including, without limitation, any demand, time, savings,
passbook or like account maintained with a depositary institution.
Excluded Assets
: (i) Capital Stock of Unrestricted Subsidiaries which are
Foreign Subsidiaries, (ii) foreign intellectual property, (iii) subject to Section 5.8(e),
the Capital Stock of Fandango, Inc., Laredo Theatre, Ltd., Greeley, Ltd., NCM Holdings and
National CineMedia, LLC held by any Grantor to the extent and so long as such Capital Stock
is subject to the restrictions on pledge (such as rights of first refusal or similar rights)
set forth in the relevant stockholders agreement or partnership agreement and (iv) any
property to the extent that a grant of a security interest in or lien on such property is
prohibited by any Requirement of Law of a Governmental Authority, requires a consent not
obtained of any Governmental Authority pursuant to such Requirement of Law or is prohibited
by, or constitutes a breach or default under or results in the termination of (or the
creation of a right of termination with respect to) or requires any consent not obtained
under, any contract, license, agreement, instrument or other document evidencing or giving
rise to such property or is prohibited by any contract creating a Lien on such property
permitted by Section 7.3 of the Credit Agreement, except to the extent that such Requirement
of Law or the term in such contract, license, agreement, instrument or other document
providing for such prohibition, breach, default or termination or requiring such consent is
ineffective under applicable law.
Foreign Subsidiary
: any Subsidiary organized under the laws of any
jurisdiction outside the United States of America.
3
Foreign Subsidiary Voting Stock
: the voting Capital Stock of any Foreign
Subsidiary.
Guarantor Hedge Agreement Obligations
: the collective reference to all
obligations and liabilities of a Guarantor (including, without limitation, interest accruing
at the then applicable rate provided in any Specified Hedge Agreement after the filing of
any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to such Guarantor, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to any Qualified Counterparty, whether
direct or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, any Specified
Hedge Agreement or any other document made, delivered or given in connection therewith, in
each case whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the relevant Qualified Counterparty that are required to be paid
by such Guarantor pursuant to the terms of any Specified Hedge Agreement).
Guarantor Obligations
: with respect to any Guarantor, the collective
reference to (i) any Guarantor Hedge Agreement Obligations of such Guarantor, but only to
the extent that, and only so long as, the other Obligations of such Guarantor are secured
and guaranteed pursuant hereto, and (ii) all obligations and liabilities of such Guarantor
which may arise under or in connection with this Agreement (including, without limitation,
Section 2) or any other Loan Document to which such Guarantor is a party, in each case
whether on account of guarantee obligations, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or to the Secured Parties that are required to be paid
by such Guarantor pursuant to the terms of this Agreement or any other Loan Document).
Guarantors
: the collective reference to each Grantor other than the
Borrower.
Intellectual Property
: the collective reference to all rights, priorities
and privileges relating to intellectual property arising under United States laws,
including, without limitation, the Copyrights, the Copyright Licenses, the Patents, the
Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to sue at law or
in equity for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
Intercompany Note
: any promissory note evidencing loans made by any Grantor
to the Parent or any of its Subsidiaries.
Investment Property
: the collective reference to (i) all investment
property as such term is defined in Section 9-102(a)(49) of the New York UCC (other than
any Foreign Subsidiary Voting Stock excluded from the definition of Pledged Stock) and
(ii) whether or not constituting investment property as so defined, all Pledged Notes
and all Pledged Stock.
Issuers
: the collective reference to each issuer of any Investment Property.
4
New York UCC
: the Uniform Commercial Code as from time to time in effect in
the State of New York.
Obligations
: (i) in the case of the Borrower, the Borrower Obligations, and
(ii) in the case of each Guarantor, its Guarantor Obligations.
Patents
: (i) all letters patent of the United States or any political
subdivision thereof, all reissues and extensions thereof and all goodwill associated
therewith, including, without limitation, any of the foregoing referred to in
Schedule
6
, (ii) all applications for letters patent of the United States and all divisions,
continuations and continuations-in-part thereof, including, without limitation, any of the
foregoing referred to in
Schedule 6
, and (iii) all rights to obtain any reissues or
extensions of the foregoing.
Patent License
: all agreements, whether written or oral, providing for the
grant by or to any Grantor of any right to manufacture, use or sell any invention covered in
whole or in part by a Patent, including, without limitation, any of the foregoing referred
to in
Schedule 6
.
Pledged Notes
: all promissory notes listed on
Schedule 1
, all
Intercompany Notes at any time issued to any Grantor and all other promissory notes issued
to or held by any Grantor (other than (i) promissory notes issued in connection with
extensions of trade credit by any Grantor in the ordinary course of business and (ii)
promissory notes the aggregate face amount of which are not in excess of $100,000).
Pledged Securities
: the collective reference to the Pledged Notes and the
Pledged Stock.
Pledged Stock
: the shares of Capital Stock listed on
Schedule 1
,
together with any other shares, stock certificates, options or rights of any nature
whatsoever in respect of the Capital Stock of any Person that may be issued or granted to,
or held by, any Grantor while this Agreement is in effect;
provided
that in no event
shall more than 65% of the total outstanding Foreign Subsidiary Voting Stock of any Foreign
Subsidiary be required to be pledged hereunder.
Proceeds
: all proceeds as such term is defined in Section 9-102(a)(64) of
the Uniform Commercial Code in effect in the State of New York on the date hereof and, in
any event, including, without limitation, all dividends or other income from the Investment
Property, collections thereon or distributions or payments with respect thereto.
Receivable
: any right to payment for goods sold or leased or for services
rendered, whether or not such right is evidenced by an Instrument or Chattel Paper and
whether or not it has been earned by performance (including, without limitation, any
Account).
Secured Parties
: the collective reference to the Administrative Agent, the
Lenders (including any Issuing Lender in its capacity as Issuing Lender) and any Qualified
Counterparty.
5
Securities Act
: the Securities Act of 1933, as amended.
Trademarks
: (i) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, logos and other
source or business identifiers, and all goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State thereof or any
political subdivision thereof, or otherwise, and all common-law rights related thereto,
including, without limitation, any of the foregoing referred to in
Schedule 6
, and
(ii) the right to obtain all renewals thereof.
Trademark License
: any agreement, whether written or oral, providing for the
grant by or to any Grantor of any right to use any Trademark, including, without limitation,
any of the foregoing referred to in
Schedule 6
.
1.2
Other Definitional Provisions
. (a) The words hereof, herein, hereto and
hereunder and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantors Collateral or the relevant part
thereof.
SECTION 2. GUARANTEE
2.1
Guarantee
. (a) (i) The Guarantors hereby, jointly and severally, unconditionally
and irrevocably, guarantee to the Administrative Agent, for the ratable benefit of the Secured
Parties and their respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at stated maturity, by
acceleration or otherwise) of the Borrower Obligations (other than, in the case of each Guarantor,
Borrower Obligations arising pursuant to clause (ii) of this Section 2.1(a) in respect of Guarantor
Hedge Agreement Obligations in respect of which such Guarantor is a primary obligor).
(ii) The Borrower hereby unconditionally and irrevocably guarantees to the Administrative
Agent, for the ratable benefit of the Secured Parties and their respective successors, endorsees,
transferees and assigns, the prompt and complete payment and performance by each Guarantor when due
(whether at stated maturity, by acceleration or otherwise) of the Guarantor Hedge Agreement
Obligations of such Guarantor.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor
6
under applicable federal and state laws
relating to the insolvency of debtors (after giving effect to the right of contribution established
in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time
exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee of
such Guarantor contained in this Section 2 or affecting the rights and remedies of the
Administrative Agent or any Secured Party hereunder.
(d) The guarantee contained in this Section 2 shall remain in full force and effect until all
the Borrower Obligations and the obligations of each Guarantor under the guarantee contained in
this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be
outstanding and the Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrower may be free from any Borrower Obligations and any or
all of the Guarantors may be free from their respective Guarantor Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other
Person or received or collected by the Administrative Agent or any Secured Party from the Borrower,
any of the Guarantors, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations or the Guarantor Hedge Agreement Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment received or
collected from such Guarantor in respect of the Borrower Obligations or the Guarantor Hedge
Agreement Obligations, respectively), remain liable for the Borrower Obligations and the Guarantor
Hedge Agreement Obligations up to the maximum liability of such Guarantor hereunder until the
Borrower Obligations and the Guarantor Hedge Agreement Obligations are paid in full, no Letter of
Credit shall be outstanding and the Commitments are terminated.
2.2
Right of Contribution
. (a) Each Subsidiary Guarantor hereby agrees that to the
extent that a Subsidiary Guarantor shall have paid more than its proportionate share of any payment
made hereunder, such Subsidiary Guarantor shall be entitled to seek and receive contribution from
and against any other Subsidiary Guarantor hereunder which has not paid its proportionate share of
such payment. Each Subsidiary Guarantors right of contribution shall be subject to the terms and
conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect limit the
obligations and liabilities of any Subsidiary Guarantor to the Administrative Agent and the
Secured Parties, and each Subsidiary Guarantor shall remain liable to the Administrative Agent
and the Secured Parties for the full amount guaranteed by such Subsidiary Guarantor hereunder.
(b) The Borrower and each Guarantor agrees that to the extent that the Borrower or any
Guarantor shall have paid more than its proportionate share of any payment made hereunder in
respect of any Guarantor Hedge Agreement Obligation of any other Guarantor, the Borrower or such
Guarantor, as the case may be, shall be entitled to seek and receive contribution from and against
the Borrower and any other Guarantor which has not paid its proportionate share of such payment.
7
(c) The Borrowers and each Guarantors right of contribution under this Section 2.2 shall be
subject to the terms and conditions of Section 2.3. The provisions of this Section 2.2 shall in no
respect limit the obligations and liabilities of the Borrower or any Guarantor to the
Administrative Agent and the Secured Parties, and the Borrower and each Guarantor shall remain
liable to the Administrative Agent and the Secured Parties for the full amount guaranteed by the
Borrower or such Guarantor hereunder.
2.3
No Subrogation
. Notwithstanding any payment made by any Guarantor hereunder or
any set-off or application of funds of any Guarantor by the Administrative Agent or any Secured
Party, no Guarantor shall be entitled to be subrogated to any of the rights of the Administrative
Agent or any Secured Party against the Borrower or any other Guarantor or any collateral security
or guarantee or right of offset held by the Administrative Agent or any Secured Party for the
payment of the Borrower Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in respect of payments made
by such Guarantor hereunder, until all amounts owing to the Administrative Agent and the Secured
Parties by the Borrower on account of the Borrower Obligations are paid in full, no Letter of
Credit shall be outstanding and the Commitments are terminated. If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when all of the Borrower Obligations
shall not have been paid in full, such amount shall be held by such Guarantor in trust for the
Administrative Agent and the Secured Parties, segregated from other funds of such Guarantor, and
shall, forthwith upon receipt by such Guarantor, be turned over to the Administrative Agent in the
exact form received by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent,
if required), to be applied against the Borrower Obligations or the Guarantor Hedge Agreement
Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.
2.4
Amendments, etc. with respect to the Borrower Obligations
. Each Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any
of the Borrower Obligations or the Guarantor Hedge Agreement Obligations made by the Administrative
Agent or any Secured Party may be rescinded by the Administrative Agent or such Secured Party and
any of the Borrower Obligations or the Guarantor Hedge Agreement Obligations continued, and the
Borrower Obligations or the Guarantor Hedge Agreement Obligations, or the liability of any other
Person upon or for any part thereof, or any collateral security or guarantee therefor or right of
offset with
respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by the Administrative Agent or
any Secured Party, and the Credit Agreement and the other Loan Documents and any other documents
executed and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required Lenders or all
Lenders, as the case may be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any Secured Party for
the payment of the Borrower Obligations or the Guarantor Hedge Agreement Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Administrative Agent nor any Secured Party
shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as
security for the Borrower Obligations or the Guarantor Hedge Agreement Obligations or for the
guarantee contained in this Section 2 or any property subject thereto.
8
2.5
Guarantee Absolute and Unconditional
. (a) Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Borrower Obligations (other
than any notice with respect to any Guarantor Hedge Agreement Obligation with respect to which such
Guarantor is a primary obligor and to which it is entitled pursuant to the applicable Specified
Hedge Agreement) and notice of or proof of reliance by the Administrative Agent or any Secured
Party upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in
this Section 2; the Borrower Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 2; and all dealings between the Borrower and any of the
Guarantors, on the one hand, and the Administrative Agent and the Secured Parties, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives notice of acceleration, notice of
intent to accelerate, diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or any of the Guarantors with respect to the Borrower
Obligations (other than any diligence, presentment, protest, demand or notice with respect to any
Guarantor Hedge Agreement Obligation with respect to which such Guarantor is a primary obligor and
to which it is entitled pursuant to the applicable Specified Hedge Agreement). Each Guarantor
understands and agrees that the guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to (1) the validity or
enforceability of the Credit Agreement or any other Loan Document, any of the Borrower Obligations
or any other collateral security therefor or guarantee or right of offset with respect thereto at
any time or from time to time held by the Administrative Agent or any Secured Party, (2) any
defense, set-off or counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrower or any other Person against the Administrative
Agent or any Secured Party, or (3) any other circumstance whatsoever (with or without notice to or
knowledge of the Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of
such Guarantor under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder
against any Guarantor, the Administrative Agent or any Secured Party may, but shall be under no
obligation to, make a similar demand on
or otherwise pursue such rights and remedies as it may have against the Borrower, any other
Guarantor or any other Person or against any collateral security or guarantee for the Borrower
Obligations or any right of offset with respect thereto, and any failure by the Administrative
Agent or any Secured Party to make any such demand, to pursue such other rights or remedies or to
collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon
any such collateral security or guarantee or to exercise any such right of offset, or any release
of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee
or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent or any Secured Party against any Guarantor. For the
purposes hereof demand shall include the commencement and continuance of any legal proceedings.
(b) The Borrower waives any and all notice of the creation, renewal, extension or accrual of
any of the Guarantor Hedge Agreement Obligations and notice of or proof of reliance by the
Administrative Agent or any Secured Party upon the guarantee by the Borrower contained
9
in this
Section 2 or acceptance of the guarantee by the Borrower contained in this Section 2; the Guarantor
Hedge Agreement Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee by
the Borrower contained in this Section 2; and all dealings between the Borrower and any of the
Guarantors, on the one hand, and the Administrative Agent and the Secured Parties, on the other
hand, with respect to any Guarantor Hedge Agreement Obligation likewise shall be conclusively
presumed to have been had or consummated in reliance upon the guarantee by the Borrower contained
in this Section 2. The Borrower waives notice of acceleration, notice of intent to accelerate,
diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon
the Borrower with respect to the Guarantor Hedge Agreement Obligations. The Borrower understands
and agrees that the guarantee by the Borrower contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to (a) the validity or
enforceability of the Guarantor Hedge Agreement Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or from time to time held
by the Administrative Agent or any Secured Party, (b) any defense, set-off or counterclaim (other
than a defense of payment or performance) which may at any time be available to or be asserted by
any Person against the Administrative Agent or any Secured Party, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or any Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal discharge of the applicable
Guarantor for the applicable Guarantor Hedge Agreement Obligations, or of the Borrower under its
guarantee contained in this Section 2, in bankruptcy or in any other instance. When making any
demand under this Section 2 or otherwise pursuing its rights and remedies under this Section 2
against the Borrower, the Administrative Agent or any Secured Party may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have
against any Guarantor or any other Person or against any collateral security or guarantee for the
Guarantor Hedge Agreement Obligations or any right of offset with respect thereto, and any failure
by the Administrative Agent or any Secured Party to make any such demand, to pursue such other
rights or remedies or to collect any payments from any Guarantor or any other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of offset, or any
release of any Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve the Borrower of any
obligation or liability under this Section 2, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the Administrative Agent or
any Secured Party against the Borrower under this Section 2. For the purposes hereof demand
shall include the commencement and continuance of any legal proceedings.
2.6
Reinstatement
. The guarantee contained in this Section 2 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Borrower Obligations or the Guarantor Hedge Agreement Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any Secured Party upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
2.7
Payments
. Each Guarantor hereby guarantees that payments hereunder will be paid
to the Administrative Agent without set-off or counterclaim (i) in the case of obligations in
respect of Borrower Obligations arising under the Credit Agreement or any other
10
Loan Document, in
Dollars at the Payment Office specified in the Credit Agreement and (ii) in the case of obligations
in respect of any Borrower Hedge Agreement Obligations or any Guarantor Hedge Agreement
Obligations, in the currency and at the place specified in the applicable Specified Hedge
Agreement.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby grants to the Administrative Agent, for the ratable benefit of the Secured
Parties, a security interest in, and lien on, all of the following property now owned or at any
time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the
future may acquire any right, title or interest (collectively, the
Collateral
), as
collateral security for the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of such Grantors Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all Goods and other property not otherwise described above;
(m) all books and records pertaining to the Collateral; and
(n) to the extent not otherwise included, all Proceeds and products of any and all of
the foregoing, all Supporting Obligations in respect of any of the foregoing and all
collateral security and guarantees given by any Person with respect to any of the foregoing;
provided
, that the Collateral shall not include the Excluded Assets.
11
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby represents and warrants to the Administrative Agent and each Lender that:
4.1
Representations in Credit Agreement
. In the case of each Guarantor, the
representations and warranties set forth in Section 4 of the Credit Agreement as they relate to
such Guarantor or to the Loan Documents to which such Guarantor is a party, each of which is hereby
incorporated herein by reference, are true and correct, and the Administrative Agent and each
Lender shall be entitled to rely on each of them as if they were fully set forth herein,
provided
that each reference in such representations and warranties to the Borrowers
knowledge shall, for the purposes of this Section 4.1, be deemed to be a reference to such
Guarantors knowledge.
4.2
Title; No Other Liens
. Except for the security interest granted to the
Administrative Agent for the ratable benefit of the Secured Parties pursuant to this Agreement and
the other Liens permitted to exist on the Collateral by the Credit Agreement, such Grantor owns
each item of the Collateral free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the Collateral is on file or of
record in any public office, except such as have been filed in favor of the Administrative Agent,
for the ratable benefit of the Secured Parties, pursuant to this Agreement or in connection with
Liens permitted by the Credit Agreement.
4.3
Perfected First Priority Liens
. The security interests granted pursuant to this
Agreement (a) upon completion of the filings and other actions specified on
Schedule 2
(which, in the case of all filings and other documents referred to on said Schedule, have been
delivered to the Administrative Agent in completed and duly executed form) will constitute valid
perfected security interests in all of the Collateral in favor of the Administrative Agent, for the
ratable benefit of the Secured Parties, as collateral security for such Grantors Obligations,
enforceable in accordance with the terms hereof against all creditors of such Grantor and any
Persons purporting to purchase any Collateral from such Grantor and (b) are prior to all other
Liens on the Collateral in existence on the date hereof except for Liens permitted by the Credit
Agreement which have priority over the Liens on the Collateral by operation of law or contract.
4.4
Jurisdiction of Organization; Chief Executive Office
. On the date hereof, such
Grantors jurisdiction of organization, identification number from the jurisdiction of organization
(if any), and the location of such Grantors chief executive office or sole place of business or
principal residence, as the case may be, are specified on
Schedule 3
. Such Grantor has
furnished to the Administrative Agent a certified charter, certificate of incorporation or other
organization document and long-form good standing certificate as of a date which is recent to the
date hereof.
4.5
Inventory and Equipment
. On the date hereof, the Inventory and the Equipment
(other than mobile goods) are kept at the locations listed on
Schedule 4
.
4.6
Farm Products
. None of the Collateral constitutes, or is the Proceeds of, Farm
Products.
12
4.7
Investment Property
. (a) The shares of Pledged Stock pledged by such Grantor
hereunder constitute all the issued and outstanding shares of all classes of the Capital Stock of
each Issuer owned by such Grantor (other than any Capital Stock constituting Excluded Assets) or,
in the case of Foreign Subsidiary Voting Stock, if less, 65% of the outstanding Foreign Subsidiary
Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock have been duly and validly issued and are fully paid
and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and binding obligation of the
obligor with respect thereto, enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(d) Such Grantor is the record and beneficial owner of, and has good and marketable title to,
the Investment Property pledged by it hereunder, free of any and all Liens or options in favor of,
or claims of, any other Person, except for Liens permitted by the Credit Agreement.
4.8
Receivables
. (a) Except as listed
Schedule 5
, no amount payable to such
Grantor under or in connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent to the extent required by Section 5.2.
(b) None of the obligors on any Receivable is a Governmental Authority, except for Receivables
constituting not more than 25% of the face amount of all Receivables.
(c) The amounts represented by such Grantor to the Secured Parties from time to time as owing
to such Grantor in respect of the Receivables will at such times be accurate in all material
respects.
4.9
Intellectual Property
. (a)
Schedule 6
lists all material Intellectual
Property owned by such Grantor in its own name on the date hereof.
(b) On the date hereof, all Intellectual Property of such Grantor described on
Schedule
6
is valid, subsisting, unexpired and enforceable, has not been abandoned and does not infringe
the intellectual property rights of any other Person in any material respect.
(c) Except as set forth in
Schedule 6
, on the date hereof, none of the Intellectual
Property is the subject of any licensing or franchise agreement pursuant to which such Grantor is
the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any Governmental Authority which
would limit, cancel or question the validity of, or such Grantors rights in, any Intellectual
Property in any respect that could reasonably be expected to have a Material Adverse Effect.
13
(e) No action or proceeding is pending, or, to the knowledge of such Grantor, overtly
threatened, on the date hereof (i) seeking to limit, cancel or question the validity of any
material Intellectual Property or such Grantors ownership interest therein, or (ii) which, if
adversely determined, would have a Material Adverse Effect.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and the Secured Parties that,
from and after the date of this Agreement until the Obligations shall have been paid in full, no
Letter of Credit shall be outstanding and the Commitments shall have terminated:
5.1
Covenants in Credit Agreement
. In the case of each Guarantor, such Guarantor shall take, or shall refrain from taking, as
the case may be, each action that is necessary to be taken or not taken, as the case may be, so
that no Default or Event of Default is caused by the failure to take such action or to refrain from
taking such action by such Guarantor or any of its Subsidiaries.
5.2
Delivery of Instruments and Chattel Paper
. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any Instrument, Certificated
Security or Chattel Paper, such Instrument, Certificated Security or Chattel Paper shall be
promptly delivered to the Administrative Agent, duly indorsed in a manner reasonably satisfactory
to the Administrative Agent, to be held as Collateral pursuant to this Agreement;
provided
,
that the Grantors shall not be obligated to deliver to the Administrative Agent any Instruments or
Chattel Paper held by any Grantor at any time to the extent that the aggregate face amount of all
such Instruments and Chattel Paper held by all Grantors at such time does not exceed $100,000.
5.3
Maintenance of Insurance
. (a) Such Grantor will maintain, with financially sound
and reputable companies, insurance policies (i) insuring the Inventory and Equipment against loss
by fire, explosion, theft and such other casualties as may be reasonably satisfactory to the
Administrative Agent and (ii) insuring such Grantor, the Administrative Agent and the Secured
Parties against liability for personal injury and property damage relating to such Inventory and
Equipment, such policies to be in such form and amounts and having such coverage as the Borrower
deems adequate for its business.
(b) All such insurance shall (i) provide that no cancellation, material reduction in amount or
material change in coverage thereof shall be effective until at least 30 days (10 days in the case
of failure to pay the premium) after receipt by the Administrative Agent of written notice thereof
and (ii) name the Administrative Agent as an additional insured party or loss payee.
(c) The Borrower shall deliver to the Administrative Agent a report of a reputable insurance
broker with respect to such insurance substantially concurrently with the delivery by the Borrower
to the Administrative Agent of its audited financial statements for each fiscal year and such
supplemental reports with respect thereto as the Administrative Agent may from time to time
reasonably request.
14
5.4
Payment of Obligations
. Such Grantor will pay and discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all taxes, assessments
and governmental charges or levies imposed upon the Collateral or in respect of income or profits
therefrom, as well as all claims of any kind (including, without limitation, claims for labor,
materials and supplies) against or with respect to the Collateral, except that no such charge need
be paid if the amount or validity thereof is currently being contested in good faith by appropriate
proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books
of such
Grantor and such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest therein.
5.5
Maintenance of Perfected Security Interest; Further Documentation
. (a) Such Grantor shall maintain the security interest created by this Agreement as a
perfected security interest having at least the priority described in Section 4.3 and shall defend
such security interest against the claims and demands of all Persons whomsoever except as permitted
by Section 4.2.
(b) Such Grantor will furnish to the Administrative Agent and the Lenders from time to time
statements and schedules further identifying and describing the assets and property of such Grantor
and such other reports in connection with the Collateral as the Administrative Agent may reasonably
request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of the Administrative Agent,
and at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver,
and have recorded, such further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted, including, without
limitation, (i) the filing of any financing or continuation statements under the Uniform Commercial
Code (or other similar laws) in effect in any jurisdiction with respect to the security interests
created hereby and (ii) in the case of Investment Property, Deposit Accounts, Letter-of-Credit
Rights and any other relevant Collateral, taking any actions necessary to enable the Administrative
Agent to obtain control (within the meaning of the applicable Uniform Commercial Code) with
respect thereto.
5.6
Changes in Locations, Name, etc
. Such Grantor will not, except upon 15 days
prior written notice to the Administrative Agent (or such shorter period as agreed to by the
Administrative Agent) and delivery to the Administrative Agent of all additional executed financing
statements and other documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein:
(i) change its jurisdiction of organization from that referred to in Section 4.3;
or
(ii) change its name.
5.7
Notices
. Such Grantor will advise the Administrative Agent and the Lenders promptly, in reasonable
detail, of:
15
(a) any Lien (other than security interests created hereby or Liens permitted under the Credit
Agreement) on any of the Collateral which would adversely affect the ability of the Administrative
Agent to exercise any of its remedies hereunder; and
(b) the occurrence of any other event which could reasonably be expected to have a material
adverse effect on the aggregate value of the Collateral or on the security interests created
hereby.
5.8
Investment Property
. (a) If such Grantor shall become entitled to receive or
shall receive any certificate (including, without limitation, any certificate representing a
dividend or a distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option or rights in
respect of the Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Grantor shall accept the same as the agent of the Administrative Agent and the
Secured Parties, hold the same in trust for the Administrative Agent and the Secured Parties and
deliver the same forthwith to the Administrative Agent in the exact form received, duly indorsed by
such Grantor to the Administrative Agent, if required, together with an undated stock power
covering such certificate duly executed in blank by such Grantor, to be held by the Administrative
Agent, subject to the terms hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Investment Property upon the liquidation or dissolution of any
Issuer shall be paid over to the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any distribution of capital shall be made on
or in respect of the Investment Property, or any property shall be distributed upon or with respect
to the Investment Property pursuant to the recapitalization or reclassification of the capital of
any Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless
otherwise subject to a perfected security interest in favor of the Administrative Agent, be
delivered to the Administrative Agent to be held by it hereunder as additional collateral security
for the Obligations. If any sums of money or property so paid or distributed in respect of the
Investment Property shall be received by such Grantor, such Grantor shall, until such money or
property is paid or delivered to the Administrative Agent, hold such money or property in trust for
the Secured Parties, segregated from other funds of such Grantor, as additional collateral security
for the Obligations. Notwithstanding the foregoing, the Grantors shall not be required to pay over
to the Administrative Agent or deliver to the Administrative Agent as Collateral any proceeds of
any liquidation or dissolution of any Issuer, or any distribution of capital or property in respect
of any Investment Property, to the extent that (i) such liquidation, dissolution or distribution,
if treated as a Disposition of the relevant Issuer, would be permitted by the Credit Agreement and
(ii) the proceeds thereof are applied as required or permitted by the Credit Agreement.
(b) Without the prior written consent of the Administrative Agent, such Grantor will not (i)
vote to enable, or take any other action to permit, any Issuer to issue any stock or other equity
securities of any nature or to issue any other securities convertible into or granting the right to
purchase or exchange for any stock or other equity securities of any nature
of any Issuer, unless such securities are delivered to the Administrative Agent, concurrently
with the issuance thereof, to be held by the Administrative Agent as Collateral, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Investment
Property or Proceeds thereof (except pursuant to a transaction permitted by the Credit Agreement),
(iii) create, incur or permit to exist any Lien or option in favor of, or any claim of
16
any Person
with respect to, any of the Investment Property or Proceeds thereof, or any interest therein,
except for the Liens permitted by the Credit Agreement or (iv) enter into any agreement or
undertaking restricting the right or ability of such Grantor or the Administrative Agent to sell,
assign or transfer any of the Pledged Securities or Proceeds thereof (except to the extent
permitted by Section 7.14 of the Credit Agreement).
(c) In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be
bound by the terms of this Agreement relating to the Pledged Securities issued by it and will
comply with such terms insofar as such terms are applicable to it, (ii) it will notify the
Administrative Agent promptly in writing of the occurrence of any of the events described in
Section 5.8(a) with respect to the Pledged Securities issued by it and (iii) the terms of Sections
6.3(c) and 6.7 shall apply to it,
mutatis
mutandis
, with respect to all actions
that may be required of it pursuant to Section 6.3(c) and 6.7 with respect to the Pledged
Securities issued by it.
(d) Each Issuer that is a partnership or a limited liability company (other than the limited
liability companies listed on
Schedule 7
) (i) confirms that none of the terms of any equity
interest issued by it provides that such equity interest is a security within the meaning of
Sections 8-102 and 8-103 of the New York UCC (a
Security
), (ii) agrees that it will take
no action to cause or permit any such equity interest to become a Security, (iii) agrees that it
will not issue any certificate representing any such equity interest and (iv) agrees that if,
notwithstanding the foregoing, any such equity interest shall be or become a Security, such Issuer
will (and the Grantor that holds such equity interest hereby instructs such Issuer to) comply with
instructions originated by the Administrative Agent without further consent by such Grantor.
(e) Each Grantor holding Capital Stock of Laredo Theatre, Ltd. agrees to use commercially
reasonable efforts to obtain the required consent of the other partners of Laredo Theatre, Ltd. to
the pledge of such Capital Stock under this Agreement.
5.9
Receivables
. (a) Other than in the ordinary course of business, such Grantor
will not (i) grant any extension of the time of payment of any Receivable, (ii) compromise or
settle any Receivable for less than the full amount thereof, (iii) release, wholly or partially,
any Person liable for the payment of any Receivable, (iv) allow any credit or discount whatsoever
on any Receivable or (v) amend, supplement or modify any Receivable in any manner that could
adversely affect the value thereof.
(b) Such Grantor will deliver to the Administrative Agent a copy of each material demand,
notice or document received by it that questions or calls into doubt the validity or enforceability
of more than 10% of the aggregate amount of the then outstanding Receivables.
5.10
Intellectual Property
. (a) Such Grantor (either itself or through licensees) will (i) unless a Responsible
Officer determines that is it is not in the best interest of such Grantor, continue to use each
material Trademark in order to maintain such Trademark in full force free from any claim of
abandonment for non-use, (ii) use such Trademark with the appropriate notice of registration and
all other notices and legends required by applicable Requirements of Law, (iii) not adopt or use
any mark which is confusingly similar or a colorable imitation of such Trademark unless the
Administrative Agent, for the ratable benefit of the Secured Parties, shall obtain a perfected
security interest in such mark pursuant to this Agreement, and (iv) unless a Responsible Officer
determines that is it is not in the best interest of
17
such Grantor, not (and not permit any licensee
or sublicensee thereof to) do any act or knowingly omit to do any act whereby such Trademark may
become invalidated or impaired in any way.
(b) Unless a Responsible Officer determines that is it is not in the best interest of such
Grantor, such Grantor (either itself or through licensees) will not do any act, or omit to do any
act, whereby any material Patent may become forfeited, abandoned or dedicated to the public.
(c) Unless a Responsible Officer determines that is it is not in the best interest of such
Grantor, such Grantor (either itself or through licensees) (i) will employ each material Copyright
and (ii) will not (and will not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any material portion of the Copyrights may become invalidated
or otherwise impaired. Unless a Responsible Officer determines that is it is not in the best
interest of such Grantor, such Grantor will not (either itself or through licensees) do any act
whereby any material portion of the Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not do any act that knowingly uses
any material Intellectual Property to infringe the intellectual property rights of any other
Person.
(e) Such Grantor will notify the Administrative Agent promptly if it knows, or has reason to
know, that any application or registration relating to any material Intellectual Property may
become forfeited, abandoned or dedicated to the public, or of any adverse determination or
development (including, without limitation, the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office, the United States
Copyright Office or any court or tribunal in any country) regarding such Grantors ownership of, or
the validity of, any material Intellectual Property or such Grantors right to register the same or
to own and maintain the same.
(f) Whenever such Grantor, either by itself or through any agent, employee, licensee or
designee, shall file an application for the registration of any Intellectual Property with the
United States Patent and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, such Grantor shall report such
filing to the Administrative Agent within 20 Business Days after the last day of the fiscal quarter
in which such filing occurs. Upon request of the Administrative Agent, such Grantor shall execute
and deliver, and have recorded, any and all agreements, instruments, documents, and papers as the
Administrative Agent may reasonably request to evidence the Administrative Agents and the Secured
Parties security interest in any Copyright, Patent or
Trademark and the goodwill and General Intangibles of such Grantor relating thereto or
represented thereby.
(g) Such Grantor will take all reasonable and necessary steps, including, without limitation,
in any proceeding before the United States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency or any political subdivision thereof, to maintain and pursue
each application relating to any material Intellectual Property (and to obtain the relevant
registration) and to maintain each registration of the material Intellectual Property, including,
without limitation, filing of applications for renewal, affidavits of use and affidavits of
incontestability.
18
(h) In the event that any material Intellectual Property is infringed, misappropriated or
diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably
deem appropriate under the circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the Administrative Agent after
it learns thereof and, if reasonable or appropriate under the circumstances in the judgment of a
Responsible Officer of such Grantor, sue for infringement, misappropriation or dilution, to seek
injunctive relief where appropriate and to recover any and all damages for such infringement,
misappropriation or dilution.
SECTION 6. REMEDIAL PROVISIONS
6.1
Certain Matters Relating to Receivables
. (a) The Administrative Agent shall have
the right, at any time after the occurrence and during the continuance of an Event of Default, to
make test verifications of the Receivables in any manner and through any medium that it reasonably
considers advisable, and each Grantor shall furnish all such assistance and information as the
Administrative Agent may reasonably require in connection with such test verifications. At any
time and from time to time after the occurrence and during the continuance of an Event of Default,
upon the Administrative Agents request and at the expense of the relevant Grantor, such Grantor
shall cause independent public accountants or others satisfactory to the Administrative Agent to
furnish to the Administrative Agent reports showing reconciliations, aging and test verifications
of, and trial balances for, the Receivables.
(b) The Administrative Agent hereby authorizes each Grantor to collect such Grantors
Receivables, subject to the Administrative Agents direction and control after the occurrence and
during the continuance of an Event of Default, and the Administrative Agent may curtail or
terminate during the continuance of such Event of Default said authority at any time after the
occurrence and during the continuance of an Event of Default. If required by the Administrative
Agent at any time after the occurrence and during the continuance of an Event of Default, any
payments of Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any event,
within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by
such Grantor to the Administrative Agent if required, in a Collateral Account maintained under the
sole dominion and control of the Administrative Agent, subject to withdrawal by the Administrative
Agent for the account of the Secured Parties only as provided in Section 6.5, and (ii) until so
turned over, shall be held by such Grantor in trust for the Administrative Agent and the Secured
Parties, segregated from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the deposit.
(c) At any time after the occurrence and during the continuance of an Event of Default, at the
Administrative Agents request, each Grantor shall deliver to the Administrative Agent all original
and other documents evidencing, and relating to, the agreements and transactions which gave rise to
the Receivables, including, without limitation, all original orders, invoices and shipping
receipts.
(d) At any time after the occurrence and during the continuance of an Event of Default, each
Grantor will cooperate with the Administrative Agent to establish a system of lockbox accounts,
under the sole dominion and control of the Administrative Agent, into which all Receivables shall
be paid and from which all collected funds will be transferred to a Collateral Account.
19
6.2
Communications with Obligors; Grantors Remain Liable
. (a) The Administrative
Agent in its own name or in the name of others may at any time after the occurrence and during the
continuance of an Event of Default communicate with obligors under the Receivables to verify with
them to the Administrative Agents satisfaction the existence, amount and terms of any Receivables.
(b) Upon the request of the Administrative Agent at any time after the occurrence and during
the continuance of an Event of Default, each Grantor shall notify obligors on the Receivables that
the Receivables have been assigned to the Administrative Agent for the ratable benefit of the
Secured Parties and that payments in respect thereof shall be made directly to the Administrative
Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables (or any agreement giving rise thereto) to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in accordance with
the terms of any agreement giving rise thereto. Neither the Administrative Agent nor any Secured
Party shall have any obligation or liability under any Receivable (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the Administrative Agent
or any Secured Party of any payment relating thereto, nor shall the Administrative Agent or any
Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or
pursuant to any Receivable (or any agreement giving rise thereto), to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency
of any performance by any party thereunder, to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts which may have been assigned to it
or to which it may be entitled at any time or times.
6.3
Pledged Stock
. (a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the relevant Grantor of the
Administrative Agents intent to exercise its corresponding rights pursuant to Section 6.3(b), each
Grantor shall
be permitted to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes, in each case paid in the normal course of business
of the relevant Issuer, to the extent permitted in the Credit Agreement, and to exercise all voting
and corporate rights with respect to the Pledged Securities;
provided
,
however
,
that no vote shall be cast or corporate right exercised or other action taken which, in the
Administrative Agents reasonable judgment, would impair the Collateral or which would be
inconsistent with or result in any violation of any provision of the Credit Agreement, this
Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the Administrative Agent shall
give notice of its intent to exercise such rights to the relevant Grantor or Grantors, (i) the
Administrative Agent shall have the right to receive any and all cash dividends, payments or other
Proceeds paid in respect of the Pledged Securities and make application thereof to the Obligations
in the order set forth in Section 6.5, and (ii) any or all of the Pledged Securities shall be
registered in the name of the Administrative Agent or its nominee, and the Administrative Agent or
its nominee may thereafter exercise (x) all voting, corporate and other rights pertaining to such
Pledged Securities at any meeting of shareholders of the relevant Issuer or Issuers or otherwise
and (y) any and all rights of conversion, exchange and subscription and any other rights,
privileges or options pertaining to such Pledged Securities as if
20
it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion any and all of the
Pledged Securities upon the merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of any Issuer, or upon the exercise by any Grantor or
the Administrative Agent of any right, privilege or option pertaining to such Pledged Securities,
and in connection therewith, the right to deposit and deliver any and all of the Pledged Securities
with any committee, depositary, transfer agent, registrar or other designated agency upon such
terms and conditions as the Administrative Agent may determine), all without liability except to
account for property actually received by it, but the Administrative Agent shall have no duty to
any Grantor to exercise any such right, privilege or option and shall not be responsible for any
failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any Pledged Securities pledged
by such Grantor hereunder to (i) comply with any instruction received by it from the Administrative
Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or further instructions
from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so
complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other
payments with respect to the Pledged Securities directly to the Administrative Agent.
6.4
Proceeds to be Turned Over To Administrative Agent
. In addition to the rights of
the Administrative Agent and the Secured Parties specified in Section 6.1 with respect to payments
of Receivables, if an Event of Default shall occur and be continuing, all Proceeds received by any
Grantor consisting of cash, checks and Instruments shall be held by such Grantor in trust for the
Administrative Agent and the Secured Parties, segregated from other funds of such Grantor, and
shall, forthwith upon receipt by such Grantor, be turned over to the Administrative Agent in the
exact form received by such Grantor (duly indorsed by such Grantor to the Administrative Agent, if
required). All Proceeds received
by the Administrative Agent hereunder shall be held by the Administrative Agent in a
Collateral Account maintained under its sole dominion and control. All Proceeds while held by the
Administrative Agent in a Collateral Account (or by such Grantor in trust for the Administrative
Agent and the Secured Parties) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided in Section 6.5.
6.5
Application of Proceeds
. At such intervals as may be agreed upon by the Borrower
and the Administrative Agent, or, if an Event of Default shall have occurred and be continuing, at
any time at the Administrative Agents election, the Administrative Agent shall apply all or any
part of Proceeds constituting Collateral, whether or not held in any Collateral Account, and any
proceeds of the guarantee set forth in Section 2, in payment of the Obligations in the following
order:
First
, to pay incurred and unpaid fees and expenses of the Administrative Agent
under the Loan Documents;
Second
, to the Administrative Agent, for application by it towards payment of
amounts then due and owing and remaining unpaid in respect of the Obligations,
pro
rata
among the Secured Parties according to the amounts of the Obligations then due
and owing and remaining unpaid to the Secured Parties;
21
Third
, to the Administrative Agent, for application by it towards prepayment of
the Obligations,
pro
rata
among the Secured Parties according to the amounts
of the Obligations then held by the Secured Parties; and
Fourth
, any balance of such Proceeds remaining after the Obligations shall have
been paid in full, no Letters of Credit shall be outstanding and the Commitments shall have
terminated, shall be paid over to the Borrower or to whomsoever may be lawfully entitled to
receive the same.
6.6
Code and Other Remedies
. If an Event of Default shall occur and be continuing,
the Administrative Agent, on behalf of the Secured Parties, may exercise, in addition to all other
rights and remedies granted to them in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of a secured party
under the New York UCC or any other applicable law. Without limiting the generality of the
foregoing, the Administrative Agent, without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice required by law referred to below)
to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements
and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate
and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign,
give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale
or sales, at any exchange, brokers board or office of the Administrative Agent or any Secured
Party or elsewhere upon such terms and conditions as it may deem advisable and at
such prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any Secured Party shall have the right
upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale
or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity
of redemption in any Grantor, which right or equity is hereby waived and released. Each Grantor
further agrees, at the Administrative Agents request, to assemble the Collateral and make it
available to the Administrative Agent at places which the Administrative Agent shall reasonably
select, whether at such Grantors premises or elsewhere. The Administrative Agent shall apply the
net proceeds of any action taken by it pursuant to this Section 6.6, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and the Secured Parties hereunder, including, without limitation, reasonable
attorneys fees and disbursements, to the payment in whole or in part of the Obligations, as
specified in Section 6.5, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law, including, without
limitation, Section 9-615(a)(3) of the New York UCC, need the Administrative Agent account for the
surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives
all claims, damages and demands it may acquire against the Administrative Agent or any Secured
Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed
sale or other disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 10 days before such sale or other disposition.
6.7
Registration Rights
. (a) Each Grantor recognizes that the Administrative Agent
may be unable to effect a public sale of any or all the Pledged Stock, by reason of certain
22
prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and
may be compelled to resort to one or more private sales thereof to a restricted group of purchasers
which will be obliged to agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or resale thereof. Each Grantor
acknowledges and agrees that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that
it is not commercially unreasonable to conduct such a private sale. The Administrative Agent
shall be under no obligation to delay a sale of any of the Pledged Stock for the period of time
necessary to permit the Issuer thereof to register such securities for public sale under the
Securities Act, or under applicable state securities laws, even if such Issuer would agree to do
so.
(b) Each Grantor agrees to use its commercially reasonable efforts to do or cause to be done
all such acts as may be necessary to make such sale or sales of all or any portion of the Pledged
Stock pursuant to this Section 6.7 valid and binding and in compliance with any and all other
applicable Requirements of Law other than the filing of registration, qualification or similar
statements under the Securities Act or applicable state securities laws. Each Grantor further
agrees that a breach of any of the covenants contained in this Section 6.7 will cause irreparable
injury to the Administrative Agent and the Secured Parties, that the Administrative Agent and the
Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this Section 6.7 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not
to assert any defenses against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under the Credit Agreement.
6.8
Deficiency
. Each Grantor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the
fees and disbursements of any attorneys employed by the Administrative Agent or any Secured Party
to collect such deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1
Administrative Agents Appointment as Attorney-in-Fact, etc
. (a) Each Grantor
hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent
thereof, with full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Grantor and in the name of such
Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the
generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of
the following:
(i) in the name of such Grantor or its own name, or otherwise, take possession of and
indorse and collect any checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under any Receivable or with respect to any other Collateral and file
any claim or take any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the
23
purpose of collecting any and all
such moneys due under any Receivable or with respect to any other Collateral whenever
payable;
(ii) in the case of any Intellectual Property, execute and deliver, and have recorded,
any and all agreements, instruments, documents and papers as the Administrative Agent may
request to evidence the Administrative Agents and the Secured Parties security interest in
such Intellectual Property and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this Agreement
and pay all or any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6 or 6.7, any
indorsements, assignments or other instruments of conveyance or transfer with respect to the
Collateral; and
(v) (1) direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Administrative
Agent or as the Administrative Agent shall direct; (2) ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (3) sign and indorse
any invoices, freight or express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral; (4) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect of any
Collateral; (5) defend any suit, action or proceeding brought against such Grantor with
respect to any Collateral; (6) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or releases as the
Administrative Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark
(along with the goodwill of the business to which any such Copyright, Patent or Trademark
pertains), throughout the world for such term or terms, on such conditions, and in such
manner, as the Administrative Agent shall in its sole discretion determine; and (8)
generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the Administrative Agent were
the absolute owner thereof for all purposes, and do, at the Administrative Agents option
and such Grantors expense, at any time, or from time to time, all acts and things which the
Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and
the Administrative Agents and the Secured Parties security interests therein and to effect
the intent of this Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the Administrative Agent
agrees that it will not exercise any rights under the power of attorney provided for in this
Section 7.1(a) unless an Event of Default shall have occurred and be continuing.
24
(b) If any Grantor fails to perform or comply with any of its agreements contained herein, the
Administrative Agent, at its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection with actions undertaken as
provided in this Section 7.1, together with interest thereon at a rate per annum equal to the rate
per annum at which interest would then be payable on past due Revolving Credit Loans that are Base
Rate Loans under the Credit Agreement, from the date of payment by the Administrative Agent to the
date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Administrative
Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2
Duty of Administrative Agent
. The Administrative Agents sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative Agent deals with
similar property for its own account. Neither the Administrative Agent, any Secured Party nor any
of their respective officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any
other Person or to take any other action whatsoever with regard to the Collateral or any part
thereof. The powers conferred on the Administrative Agent and the Secured Parties hereunder are
solely to protect the Administrative Agents and the Secured Parties interests in the Collateral
and shall not impose any duty upon the Administrative Agent or any Secured Party to exercise any
such powers. The Administrative Agent and the Secured Parties shall be accountable only for
amounts that they actually receive as a result of the exercise of such powers, and neither they nor
any of their officers, directors, employees or agents shall be responsible to any Grantor for any
act or failure to act hereunder, except for their own gross negligence or willful misconduct.
7.3
Execution of Financing Statements
. Pursuant to any applicable law, each Grantor
authorizes the Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the signature of such
Grantor in such form and in such offices as the Administrative Agent reasonably determines
appropriate to perfect the security interests of the Administrative Agent under this Agreement.
Each Grantor authorizes the Administrative Agent to use the collateral description all personal
property other than Excluded Assets (as defined on Annex A attached hereto) in any such financing
statements. Each Grantor hereby ratifies and authorizes the filing by the Administrative Agent of
any financing statement with respect to the Collateral made prior to the date hereof.
7.4
Authority of Administrative Agent
. Each Grantor acknowledges that the rights and
responsibilities of the Administrative Agent under this Agreement with respect to any action taken
by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any
option, voting right, request, judgment or other right or remedy provided for herein or resulting
or arising out of this Agreement shall, as between the Administrative Agent and the
25
Secured
Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as
may exist from time to time among them, but, as between the Administrative Agent and the Grantors,
the Administrative Agent shall be conclusively presumed to be acting as agent for the Secured
Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be
under any obligation, or entitlement, to make any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1
Amendments in Writing
. None of the terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except in accordance with Section 10.1 of the Credit Agreement.
8.2
Notices
. All notices, requests and demands to or upon the Administrative Agent or
any Grantor hereunder shall be effected in the manner provided for in Section 10.2 of the Credit
Agreement;
provided
that any such notice, request or demand to or upon any Guarantor shall
be addressed to such Guarantor care of the Borrower at the address specified in Section 10.2 of the
Credit Agreement.
8.3
No Waiver by Course of Conduct; Cumulative Remedies
. Neither the Administrative
Agent nor any Secured Party shall by any act (except by a written instrument pursuant to Section
8.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Secured Party, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the Administrative Agent or any
Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy which the Administrative Agent or such Secured Party would otherwise have on
any future occasion. The rights and remedies herein provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any other rights or remedies provided by law.
8.4
Enforcement Expenses; Indemnification
. (a) Subject to Section 10.5 of the Credit
Agreement, each Guarantor agrees to pay, or reimburse each Secured Party and the Administrative
Agent for, all its costs and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any rights under this
Agreement and the other Loan Documents to which such Guarantor is a party, including, without
limitation, the fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Secured Party and of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent and the Secured Parties
harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any
and all stamp, excise, sales or other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the transactions contemplated by this
Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative Agent and the Secured Parties
harmless from, any and all liabilities, obligations, losses, damages, penalties,
26
actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant to Section 10.5 of
the Credit Agreement.
(d) The agreements in this Section shall survive repayment of the Obligations and all other
amounts payable under the Credit Agreement and the other Loan Documents.
8.5
Successors and Assigns
. This Agreement shall be binding upon the successors and
assigns of each Grantor and shall inure to the benefit of the Administrative Agent and the Secured
Parties and their successors and assigns;
provided
that no Grantor may assign, transfer or
delegate any of its rights or obligations under this Agreement without the prior written consent of
the Administrative Agent.
8.6
Set-Off
. Each Grantor hereby irrevocably authorizes the Administrative Agent and
each Secured Party at any time and from time to time while an Event of Default shall have occurred
and be continuing, without notice to such Grantor or any other Grantor, any such notice being
expressly waived by each Grantor, to set-off as appropriate and apply any and all deposits (general
or special, time or demand, provisional or final, but excluding deposits held by such Grantor in a
fiduciary capacity for others), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Administrative Agent or such Secured Party to or for
the credit or the account of such Grantor, or any part thereof in such amounts as the
Administrative Agent or such Secured Party may elect, against and on account of the obligations and
liabilities of such Grantor to the Administrative Agent or such Secured Party hereunder and claims
of every nature and description of the Administrative Agent or such Secured Party against such
Grantor, in any currency, whether arising hereunder, under the Credit Agreement, any other Loan
Document or otherwise, as the Administrative Agent or such Secured Party may elect, whether or not
the Administrative Agent or any Secured Party has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The Administrative Agent and
each Secured Party shall notify such Grantor promptly of any such set-off and the application made
by the Administrative Agent or such Lender of the proceeds thereof,
provided
that the
failure to give such notice shall not affect the validity of such set-off and application. The
rights of the Administrative Agent and each Secured Party under this Section are in addition to
other rights and remedies (including, without limitation, other rights of set-off) which the
Administrative Agent or such Secured Party may have.
8.7
Counterparts
. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.
8.8
Severability
. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
27
8.9
Section Headings
. The Section headings used in this Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
8.10
Integration
. This Agreement and the other Loan Documents represent the agreement
of the Grantors, the Administrative Agent and the Secured Parties with respect to the subject
matter hereof and thereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Secured Party relative to subject matter hereof and thereof not
expressly set forth or referred to herein or in the other Loan Documents.
8.11
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12
Submission To Jurisdiction; Waivers
. Each Grantor hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the Courts of the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Grantor at its address referred to in Section 8.2 or at such
other address of which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.
8.13
Acknowledgments
. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;
(b) neither the Administrative Agent nor any Secured Party has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with this
28
Agreement
or any of the other Loan Documents, and the relationship between the Grantors, on the one
hand, and the Administrative Agent and Secured Parties, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Secured Parties or among
the Grantors and the Secured Parties.
8.14
Additional Grantors
. Each Subsidiary of the Borrower that is required to become
a party to this Agreement pursuant to Section 6.9 of the Credit Agreement shall become a Grantor
for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex 1 hereto.
8.15
Releases
. (a) At such time as the Loans, the Reimbursement Obligations and the
other Obligations (other than Borrower Hedge Agreement Obligations and Guarantor Hedge Agreement
Obligations) shall have been paid in full, the Commitments have been terminated and no Letters of
Credit shall be outstanding, the Collateral shall be released from the Liens created hereby, and
this Agreement and all obligations (other than those expressly stated to survive such termination)
of the Administrative Agent and each Grantor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the Collateral shall revert to
the Grantors. At the request and sole expense of any Grantor following any such termination, the
Administrative Agent shall deliver to such Grantor any Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably
request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise disposed of by any
Grantor in a transaction permitted by the Credit Agreement, then the Administrative
Agent, at the request and sole expense of such Grantor, shall execute and deliver to such
Grantor all releases or other documents reasonably necessary or desirable for the release of the
Liens created hereby on such Collateral. At the request and sole expense of the Borrower, a
Subsidiary Guarantor shall be released from its obligations hereunder in the event that all the
Capital Stock of such Subsidiary Guarantor shall be sold, transferred or otherwise disposed of in a
transaction permitted by the Credit Agreement;
provided
that the Borrower shall have
delivered to the Administrative Agent, at least 10 Business Days prior to the date of the proposed
release, a written request for release identifying the relevant Subsidiary Guarantor and the terms
of the sale or other disposition in reasonable detail, including the price thereof and any expenses
in connection therewith, together with a certification by the Borrower stating that such
transaction is in compliance with the Credit Agreement and the other Loan Documents.
8.16
WAIVER OF JURY TRIAL
. EACH GRANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF,
EACH AGENT AND EACH LENDER, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
8.17
Additional Waiver
. Each Guarantor waives all rights and defenses that such
Guarantor may have because the Borrowers debt is secured by real property. This means, among other
things: (i) the Administrative Agent or the Lenders may collect from any Guarantor without first
foreclosing on any real or personal property collateral pledged by the Borrower and
29
(ii) if the
Administrative Agent or the Lenders foreclose on any real property collateral pledged by the
Borrower, (A) the amount of the debt may be reduced only by the price for which that collateral is
sold at the foreclosure sale, even if the collateral is worth more than the sale price; and (B) the
Administrative Agent or the Lenders may collect from the Guarantors even if the Administrative
Agent or the Lenders, by foreclosing on the real property collateral, has destroyed any right any
Guarantor may have to collect from the Borrower. THIS IS AN UNCONDITIONAL AND IRREVOCABLE WAIVER OF
ANY RIGHTS AND DEFENSES ANY GUARANTOR MAY HAVE BECAUSE THE BORROWERS DEBT IS SECURED BY REAL
PROPERTY. THESE RIGHTS AND DEFENSES INCLUDE, BUT ARE NOT LIMITED TO, ANY RIGHTS AND DEFENSES BASED
UPON SECTIONS 580a, 580b, 580d, OR 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. Each Guarantor
waives all rights and defenses arising out of an election of remedies by the Administrative Agent
or the Lenders, even though that election of remedies, such as a non-judicial foreclosure with
respect to security for an Obligation guaranteed by any Guarantor, has destroyed any Guarantors
rights of subrogation and reimbursement against the principal by operation of Section 580d of the
California Code of Civil Procedure or otherwise.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and Collateral Agreement
to be duly executed and delivered as of the date first above written.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CINEMARK HOLDINGS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CINEMARK, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CNMK HOLDING, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Vatoni Ragsdale
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Vatoni Ragsdale
|
|
|
|
|
Title:
|
|
President
|
|
|
|
|
|
|
|
|
|
|
|
CINEMARK USA, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President General Counsel
|
|
|
Signature Page to Guarantee
|
|
|
|
|
|
|
|
|
CINEMARK LEASING COMPANY
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CINEMARK MEXICO (USA), INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CINEMARK PARTNERS I, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CINEMARK PROPERTIES, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CINEMARK, L.L.C.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CNMK DELAWARE INVESTMENT PROPERTIES, L.P.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Vatoni Ragsdale
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Vatoni Ragsdale
|
|
|
|
|
Title:
|
|
President of HS General
Partner
CNMK Delaware Investments I, L.L.C.
|
|
|
Signature Page to Guarantee
|
|
|
|
|
|
|
|
|
CNMK DELAWARE INVESTMENTS I, L.L.C.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Vatoni Ragsdale
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Vatoni Ragsdale
|
|
|
|
|
Title:
|
|
President
|
|
|
|
|
|
|
|
|
|
|
|
CNMK DELAWARE INVESTMENTS II, L.L.C.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Vatoni Ragsdale
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Vatoni Ragsdale
|
|
|
|
|
Title:
|
|
President
|
|
|
|
|
|
|
|
|
|
|
|
CNMK INVESTMENTS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Vatoni Ragsdale
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Vatoni Ragsdale
|
|
|
|
|
Title:
|
|
President
|
|
|
|
|
|
|
|
|
|
|
|
CNMK TEXAS PROPERTIES, LTD.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
GREELEY HOLDINGS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
LAREDO THEATRE, LTD.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
MULTIPLEX PROPERTIES, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Vatoni Ragsdale
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Vatoni Ragsdale
|
|
|
|
|
Title:
|
|
President
|
|
|
Signature Page to Guarantee
|
|
|
|
|
|
|
|
|
MULTIPLEX SERVICES, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
SUNNYMEAD CINEMA CORP.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
TRANS TEXAS CINEMA, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
BRASIL HOLDINGS, L.L.C.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CENTURY THEATRES, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
NBE, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
Signature Page to Guarantee
|
|
|
|
|
|
|
|
|
MARIN THEATRE MANAGEMENT, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CENTURY THEATRES NG, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CINEMARK, L.L.C.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CINEARTS SACRAMENTO, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CORTE MADERA THEATRES, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
NOVATO THEATRES, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
SAN RAFAEL THEATRES, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
Signature Page to Guarantee
|
|
|
|
|
|
|
|
|
NORTHBAY THEATRES, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CENTURY THEATRES SUMMIT SIERRA, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
CENTURY THEATRES SEATTLE, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Michael Cavalier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Cavalier
|
|
|
|
|
Title:
|
|
Senior Vice President
General Counsel
|
|
|
|
|
|
|
|
|
|
Signature Page to Guarantee