EXHIBIT 10.17
SIXTH AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIXTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of October , 1998 (this "Sixth Amendment"), to the Amended and
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Restated Credit Agreement dated as of August 7, 1997, as amended by the First
Amendment and Waiver to Amended and Restated Credit Agreement dated as of
November 13, 1997, the Second Amendment and Waiver to Amended and Restated
Credit Agreement dated as of December 13, 1997, the Third Amendment to Amended
and Restated Credit Agreement dated as of January 7, 1998, the Fourth Amendment
to the Amended and Restated Credit Agreement dated as of May 22, 1998 and the
Fifth Amendment and Waiver to Amended and Restated Credit Agreement dated as of
August 14, 1998 (as so amended, the "Credit Agreement"), among Hollywood Theater
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Holdings, Inc. (the "Parent"), Hollywood Theaters, Inc. (the "Company"), the
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banks and other financial institutions parties thereto (collectively, the
"Banks"; individually, a "Bank"), and Bank of America National Trust and Savings
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Association, as Administrative Agent for the Banks (the "Administrative Agent").
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W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Banks have agreed to make,
and have made, certain loans and other extensions of credit to the Borrower; and
WHEREAS, Parent and the Company have requested that the Administrative
Agent and the Banks amend and waive certain terms and conditions under the
Credit Agreement as more fully set forth herein; and
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms defined in the Credit Agreement
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and not otherwise defined herein shall have the meanings given to them in the
Credit Agreement.
2. Amendments to Credit Agreement. (a) Section 1.1 of the Credit
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Agreement is hereby amended by adding thereto the following definitions in the
appropriate alphabetical order:
"Beacon Letter of Credit": that letter of credit delivered by Beacon
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pursuant to Subsection 2(d) of the Fifth Amendment, as amended or
supplemented from time to time with the prior consent of the Administrative
Agent.
"Sixth Amendment": that Sixth Amendment and waiver to Amended and
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Restated Credit Agreement among the Parent, the Company, the Administrative
Agent and the Banks parties thereto.
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(b) Section 2.1 of the Credit Agreement is hereby amended by (i)
omitting the date "October 31, 1998" in the last proviso thereof and
substituting the date "December 15, 1998" therefor and (ii) by adding at the end
thereof the following:
"Consistent with the foregoing, the Beacon Letter of Credit delivered to
Administrative Agent pursuant to the Fifth Amendment may be amended
simultaneously with the execution and delivery of the Sixth Amendment in a
manner satisfactory to Administrative Agent to provide that the
Administrative Agent may not draw on the Beacon Letter of Credit due to
failure of the Additional Equity Issuance to occur until on or after
December 15, 1998"
(c) Section 7.1(e) of the Credit Agreement is hereby amended by
deleting Section 7.1(e) in its entirety and substituting therefore the
following:
"(e) Minimum Consolidated Operating Cash Flow. Commencing on the
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Third Amendment Effective Date and ending on December 15, 1998, at the end
of any calendar month during such period of time, permit Consolidated
Operating Cash Flow for prior twelve month period to be less than the
amount set forth below for the corresponding period during which such
fiscal quarter ends:
Period Minimum Consolidated
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Operating Cash Flow
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Third Amendment Effective Date
to March 31, 1998 $ 13,000,000
April 1, 1998 to
June 30, 1998 $ 16,000,000
July 1, 1998 to
December 15, 1998 $17,000,000"
(d) Section 7.6 of the Credit Agreement is hereby amended by adding at
the end thereof the following:
"(j) Unsecured Indebtedness owing to a Person or Persons and on terms
and conditions satisfactory to each of Required Banks and the
Administrative Agent in their sole and absolute discretion in the
aggregate principal amount not to exceed $5,000,000 at any time
outstanding."
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3. Waivers. The Administrative Agent and the Banks hereby grant the
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following waivers on the following terms:
(a) the provisions of subsection 2.7(d) hereby are waived beginning on
the date hereof and ending at 11:59 p.m. on December 15, 1998 (the "Additional
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Equity Issuance Waiver Period") solely to permit the Additional Equity Issuance
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to be consummated on or prior to December 15, 1998, without a corresponding
mandatory prepayment of the Loans and reduction of the Revolving Loan
Commitments;
(b) the provisions of the first sentence of subsection 4.3(f) are
hereby waived until the end of the Additional Equity Issuance Waiver Period;
provided, however, that if the Additional Equity Issuance shall not have
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occurred prior to the end of the Additional Equity Issuance Waiver Period, the
Parent shall affect a Required Equity Contribution within forty-five (45) days
after the end of the Additional Equity Issuance Waiver Period in an amount not
less than the aggregate amount of all Construction Advances in excess of
$12,000,000 made from and after the Third Amendment Effective Date to and
including the last day of the Additional Equity Issuance Waiver Period, and any
failure of Parent to affect such Required Equity Contribution shall be an Event
of Default;
(c) the provisions of subsection 7.1(a), 7.1(b) and subsection 7.1(d)
are hereby waived until the end of the Additional Equity Issuance Waiver Period,
after which period of the foregoing waiver shall terminate and the provisions of
subsection 7.1(a), 7.1(b) and 7.1(d) shall be reinstated with full force and
effect.
4. Payment of Expenses. The Company agrees to pay or reimburse the
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Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with the negotiation, preparation and distribution of
documents prepared in connection herewith and the transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent.
5. No Other Amendments; Confirmation. Except as expressly amended,
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modified and supplemented hereby, the provisions of the Credit Agreement and the
other Loan Documents are and shall remain in full force and effect.
6. Affirmation of Guarantees. The Parent hereby consents to the
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execution and delivery of this Sixth Amendment and reaffirms its obligations
under Article X of the Credit Agreement.
7. Counterparts. This Sixth Amendment may be executed in any number
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of separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
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8. GOVERNING LAW AND JURISDICTION. THIS SIXTH AMENDMENT SHALL BE
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GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT CONSIDERATION IF ITS CONFLICT OF LAWS PRINCIPLES, AND APPLICABLE FEDERAL
LAW.
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
HOLLYWOOD THEATER HOLDINGS, INC.
By: /s/ James R. Featherstone
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James R. Featherstone
Vice President
HOLLYWOOD THEATERS, INC.
By: /s/ James R. Featherstone
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James R. Featherstone
Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative Agent
and as a Bank
By: /s/ Carl F. Salas
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Carl F. Salas
Vice President
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THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ Vincent J. Fitzgerald
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Name: Vincent J. Fitzgerald, Jr.
Title: Authorized Signatory
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BANK ONE TEXAS, N.A., as a Bank
By: /s/ Gina A. Norris
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Name: Gina A. Norris
Title: Vice President
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THE SUMITOMO BANK, LIMITED, as a Bank
By: /s/ H. W. Redding
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Name: H. W. Redding
Title: Vice President and Manager
By: /s/ S. Marciniak
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Name: S. Marciniak
Title: Vice President and Manager
Operations