EXHIBIT 4
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment") is
dated as of March 31, 1999 (the "Effective Date") and is entered into by
among United Artists Theatre Company, a Delaware corporation (the "Company"),
the several financial institutions party hereto (individually, a "Lender" and
collectively, the "Lenders"), Bank of America National Trust and Savings
Association, as administrative agent (in such capacity, the "Administrative
Agent"), BankBoston, N.A., as documentation agent (in such capacity, the
"Documentation Agent"), Merrill Lynch Capital Corporation and Morgan Stanley
Senior Funding, Inc., as co-syndication agents (in such capacity, the
"Co-Syndication Agents") and PNC Bank, N.A., as co-agent (in such capacity,
the Co-Agent), and amends the Credit Agreement dated as of April 21, 1998
among the Company, certain of the Lenders and certain of the Agents, as
amended by a First Amendment and Master Assignment and Acceptance Agreement
dated as of June 11, 1998 (as so amended, the "Agreement") and the Loan
Documents.
RECITALS
A. The parties to the Agreement desire to amend the Agreement to (1)
increase the pricing, (2) require the Company to deliver to the Secured
Parties additional Collateral, (3) increase Net Cash Proceeds of Dispositions
payable on the Loans, (4) provide that the Commitments terminate and the
Loans are repayable automatically upon a Change in Control Event, (5) require
the Company to deliver to the Administrative Agent and Lenders certain
financial information on a monthly basis, (6) modify the financial covenants
(to reflect, among other things, a change in the Company's fiscal year) and
restrict (i) the making of investments, (ii) transactions among Affiliates,
and (iii) incurrence and payment of Subordinated Indebtedness, (7) insert
provisions regarding Year 2000 compliance, (8) eliminate the requirement of
promissory notes unless requested by a Lender, (9) facilitate assignments by
the Lenders, and (10) make certain miscellaneous changes to (i) clarify the
definition of "Wholly-Owned First-Tier Subsidiary," (ii) require the Company
to deliver a compliance certificate upon each request for a Borrowing, and
(iii) clarify that various financial advisors to the lenders may meet with
the Company.
B. The Loan Parties, the Lenders and the Agents are willing to agree
to the foregoing on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. TERMS. All capitalized terms used herein have the same meanings as in
the Agreement unless otherwise defined herein.
2. AMENDMENTS TO LOAN DOCUMENTS. The Loan Parties, the Lenders and the
Agents agree that the Loan Documents are hereby amended as follows:
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Assignment and Acceptance Agreement
2.01 PRICING
2.01(a) APPLICABLE AMOUNT. To increase the interest and fees
payable under the Agreement, Schedule 1.01(a), which is referred to in the
definition of "Applicable Amount" in Section 1.01, is amended to read as set
forth on Schedule 1.01(a) to this Second Amendment.
2.02 COLLATERAL.
2.02(a) COLLATERAL. To require the Company to cause additional
Collateral to be delivered for the benefit of the Lenders, Section 6.14 is
amended to designate the first paragraph therein as "(a)" and to add at the
end of Section 6.14 the following provisions:
"(b) Within ninety (90) days after the effectiveness of the Second
Amendment to this Agreement, unless prohibited by the terms of any
Contractual Obligation to which the Company or its Subsidiaries are parties
on the effective date of the Second Amendment to this Agreement, the
Company shall execute and deliver or cause to be executed and delivered to
the Administrative Agent, at the Company's expense:
"(i) Subsidiary Guarantees from each Subsidiary of UAR;
"(ii) Subsidiary Pledge Agreements from each such Subsidiary of UAR
that owns equity interests in another Subsidiary or receives an
intercompany note from another Subsidiary; and
"(iii) mortgages, deeds of trust, pledge agreements, security
agreements, financing statements and other Collateral Documents
granting to the Administrative Agent, for the benefit of the Secured
Parties, a Lien on (x) all material real property owned in fee by the
Company, UATC, UAR and Subsidiaries of UAR not subject to any prior
deed of trust or mortgage securing Indebtedness and (y) all material
personal property of the Company, UATC, UAR and Subsidiaries of UAR.
Together with such Subsidiary Guaranties, Subsidiary Pledge
Agreements, and Liens, there shall be delivered to the Administrative
Agent such certificates, evidences of corporate action (including,
without limitation, those described in Section 4.03), evidences of
Lien priority and other documents as the Administrative Agent may
reasonably request, all in form an substance satisfactory to the
Administrative Agent, relating to the satisfaction of this covenant.
"(c) Except as prohibited by any Contractual Obligation to which the
Company or its Subsidiaries are parties on the effective date of the Second
Amendment to this Agreement, the Company shall, and shall cause UATC, UAR
and Subsidiaries of UAR to execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all deeds,
conveyances, security agreements, mortgages, assignments, estoppel
certificates, assurances and other instruments as the Administrative Agent
may
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Assignment and Acceptance Agreement
reasonably request to create and maintain a perfected security interest
and Lien in favor of the Secured Parties on all material personal and, to
the extent not covered by any prior deed of trust or mortgage securing
Indebtedness, real property owned in fee by the Company, UATC, UAR and
the Subsidiaries of UAR, whether now owned or hereafter acquired.
"(d) Upon receipt by the Administrative Agent of a certificate of a
Responsible Officer of the Company stating that the Company has agreed,
directly or indirectly, to dispose of real or personal property as
permitted by this Agreement, together with a brief description of such
Disposition and the benefits thereof to the Company, the Administrative
Agent, in accordance with Section 9.10(b)(ii) below, shall execute such
releases and reconveyances as the Company may reasonably request to release
the Lien of the Secured Parties on such property to the extent required in
connection with such Disposition."
2.03 APPLICATION OF ASSET DISPOSITION.
2.03(a) MANDATORY PREPAYMENTS. To modify the terms on which the Net
Cash Proceeds of Dispositions are payable to the Lenders, Section 2.08(a) is
amended to read as follows:
"(a) Asset Dispositions. Subject to Section 2.08(a)(i) and (ii) below,
upon the receipt of any Net Cash Proceeds of any Disposition (other than
Excluded Dispositions) by the Company or any of its Subsidiaries, the
Company shall promptly prepay the Term Loans in an amount equal to 100% of
such Net Cash Proceeds.
"(i) So long as no Default or Event of Default shall have occurred and be
continuing, the Company may promptly deliver a certificate to the
Administrative Agent stating that it intends, in good faith, to use some or
all of such Net Cash Proceeds in a Covered Transaction. In such case, the
Company shall make a prepayment under this Section 2.08(a) in an amount
equal to the Asset Disposition Prepayment Percentage of such Net Cash
Proceeds and shall not be required to make a prepayment using the Asset
Disposition Reinvestment Percentage of such Net Cash Proceeds; PROVIDED,
that the Company shall make a prepayment using the Asset Disposition
Reinvestment Percentage of Net Cash Proceeds upon the earliest to occur of
(A) the date which is 360 days after such Disposition if a definitive
agreement to acquire or develop theatre properties or other activities
incidental thereto which would utilize such Net Cash Proceeds has not
theretofore been entered into, (B) the last day specified in the definition
of 'Covered Transaction' that such Net Cash Proceeds could have been used
in a Covered Transaction, and (C) the date any Default or Event of Default
occurs. Any Net Cash Proceeds not immediately paid to the Administrative
Agent as permitted above shall be deposited by the Company into a
segregated deposit account with Bank of America National Trust and Savings
Association within ten Business Days of receipt and the Company shall
invest such Net Cash Proceeds only in Permitted Investments. As used
herein, 'Asset Disposition Reinvestment Percentage' means, until the date
on which audited financial statements for fiscal year ended December 28,
2000 are delivered pursuant to Section 6.01(a) below if no Default or Event
of Default has occurred and is then continuing, 25%
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Assignment and Acceptance Agreement
and, thereafter, 100%. As used herein, 'Asset Disposition Prepayment
Percentage' means, until the date audited financial statements for
fiscal year ended December 28, 2000 are delivered pursuant to Section
6.01(a) below if no Default or Event of Default has occurred and is then
continuing, 75% and, thereafter, 0%; and
"(ii) So long as no Event of Default shall have occurred and be
continuing, any prepayments under this Section 2.08(a) shall be made from
time to time only after the Company and its Subsidiaries shall have
received, since the last prepayment under this Section 2.08(a), aggregate
Net Cash Proceeds from such Dispositions of not less than $3,000,000, at
which time the Company shall make a prepayment in an amount equal to all of
such retained amounts."
2.04 CHANGE IN CONTROL.
2.04(a) TERMINATION OF COMMITMENTS UPON CHANGE IN CONTROL. To
provide that the Commitments automatically and immediately terminate upon a
Change in Control Event, Section 2.06(f) is amended to read as follows:
"(f) Termination of Commitments Upon Change in Control Event. The
Commitments shall automatically and immediately terminate upon a Change in
Control Event or upon a Change in Control (as defined in the Indentures
pursuant to which the Senior Subordinated Notes were issued) resulting in
an offer to purchase or redeem Senior Subordinated Notes."
2.04(b) PREPAYMENT UPON CHANGE IN CONTROL. To provide that the Loans
shall be repaid immediately upon a Change in Control Event, Section 2.08(e) is
amended to read as follows:
"(e) Change in Control Event. The Company shall prepay all Loans in full
promptly upon a Change in Control Event or upon a Change in Control (as
defined in the Indentures pursuant to which the Senior Subordinated Notes
were issued) resulting in an offer to purchase or redeem Senior
Subordinated Notes."
2.05 FINANCIAL STATEMENTS.
2.05(a) FINANCIAL STATEMENTS. To require the Company to deliver
additional financial statements, to require such statements to be delivered
monthly in addition to quarterly, and to require the Company to deliver cash
budgets, Section 6.01 is amended to delete the "and" after subsection (b), to
insert ";and" after subsection (c) and to add thereafter new subsections (d),
(e) and (f) to read as follows:
"(d) for each month until and including the month ending November 30, 2000,
as soon as available, but in any event not later than thirty (30) days
after the end of each month, (i) a copy of the unaudited balance sheet and
income statement, showing the financial condition and results of operations
for the Company and its Subsidiaries on a Consolidated and first-tier
consolidating basis in form and substance satisfactory to the
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Assignment and Acceptance Agreement
Administrative Agent as at the end of and for the month just ended and for
the elapsed portion of the fiscal year through such date, setting forth in
each case in comparative form the figures for the corresponding periods of
the preceding fiscal year, (ii) a certificate of a Responsible Officer of
the Company stating that the financial statements delivered pursuant to
clause (i) above are complete and correct in all material respects and
present fairly the financial condition and results of operation of the
Company and its Subsidiaries on a Consolidated and first-tier consolidating
basis, and (iii) a certificate of a Responsible Officer of the Company in
the form required by Section 6.02(b) below in the case of financial reports
delivered pursuant to Sections 6.01(a) and 6.01(b) above. For purposes of
this Section 6.01(d), 'first tier consolidating basis' means, on a
consolidating basis , in accordance with GAAP, as applied only to the
Company, its Wholly-Owned First-Tier Subsidiaries, and Prop I;
"(e) concurrently with the delivery of financial statements pursuant to the
preceding Section 6.01(d), at the request of the Administrative Agent,
statements of capital expenditures, taxes paid, interest paid, and such
other cash flow component information as the Administrative Agent shall
reasonably request;
"(f) as soon as available, but in any event not later than seven (7) days
after the first day of each month through November 1, 2000, a copy of a
cash budget in form and substance satisfactory to the Administrative Agent
for such month and a statement of variances during the month just ended
from any previously delivered cash budget. "
2.06 FINANCIAL COVENANTS.
2.06(a) FINANCIAL COVENANTS. To modify the financial covenants,
Section 7.12 is amended to read as follows:
"7.12 Financial Ratios. The Company shall not:
"(a) As of the end of any fiscal quarter, commencing with the fiscal
quarter ending December 31, 1998, permit the Senior Leverage Ratio or,
commencing with the fiscal quarter ending December 30, 1999 the Total
Leverage Ratio to exceed the ratios set forth below:
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Assignment and Acceptance Agreement
SENIOR LEVERAGE TOTAL LEVERAGE
PERIOD RATIO RATIO
---------------------------------------------------------------
December 31, 1998 4.25:1 none
April 1, 1999 5.15:1 none
July 1, 1999 through 4.25:1 none
September 30, 1999
December 30, 1999 4.00:1 6.00:1
March 30, 2000 through 3.50:1 5.50:1
December 28, 2000
March 29, 2001 through 3.00:1 5.00:1
January 3, 2002
March 28, 2002 and 3.00:1 4.50:1
thereafter
"(b) As of the end of any fiscal quarter, commencing with the fiscal
quarter ending December 31, 1998, permit the ratio of (i) Operating Cash
Flow PLUS Pro Forma Lease Expense TO (ii) Pro Forma Debt Service to be less
than (x) 1.15 to 1.0 as at December 31, 1998, (y) 1.0 to 1.0 as at April 1,
1999 or (z) 1.15 to 1.0 as at July 1, 1999 and thereafter;
"(c) As of the end of any fiscal quarter, commencing with the fiscal
quarter ending June 30, 1998, permit the ratio of (i) Operating Cash
Flow PLUS Consolidated Lease Expense, TO (ii) Consolidated Interest
Expense PLUS Consolidated Lease Expense to be less than the ratios set
forth below; PROVIDED, HOWEVER, that, notwithstanding the definitions of
Operating Cash Flow, Consolidated Interest Expense and Consolidated
Lease Expense, when calculating covenant compliance for this Section
7.12(c) (i) for the fiscal quarter ending June 30, 1998 only the results
for the prior fiscal quarter ending on such date shall be included when
computing such items; (ii) for the fiscal quarter ending September 30,
1998 only the results for the prior two fiscal quarters ending on such
date shall be included when computing such items; and (iii) for the
fiscal quarter ending December 31, 1998 only the results for the prior
three fiscal quarters ending on such date shall be included when
computing such items:
PERIOD MINIMUM RATIO
-------------------------------------------------
December 31, 1998 1.30 to 1
April 1, 1999 and July 1, 1999 1.15 to 1
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Assignment and Acceptance Agreement
PERIOD MINIMUM RATIO
-------------------------------------------------
September 30, 1999 through 1.20 to 1
December 28, 2000
March 29, 2001 through January 1.40 to 1
1, 2004
April 1, 2004 and thereafter 1.50 to 1
"(d) For the fiscal years ending December 30, 1999 and December 28, 2000,
make, on a Consolidated basis, Capital Expenditures in an aggregate amount
in excess of (i) the Maximum Permitted Capital Expenditure for such year
plus (ii) the amount, if any by which actual Capital Expenditures made in
the immediately prior fiscal year were less than the Maximum Permitted
Capital Expenditures; provided that the aggregate amount added to Maximum
Permitted Capital Expenditure pursuant to this clause (ii) shall not exceed
$10,000,000 in any fiscal year. For purposes of this Section 7.12(d),
'Maximum Permitted Capital Expenditure' means, (x) for the fiscal year
ending December 30, 1999, $50,000,000 and (y) for the fiscal year ending
December 28, 2000 and, thereafter, until audited financial statements are
delivered pursuant to Section 6.01(a) for fiscal year ended December 28,
2000 and no Default or Event of Default has occurred and is continuing,
$60,000,000.
"(e) Permit its Operating Cash Flow, determined on a Consolidated basis, to
be less than (i) for the four fiscal quarters ending April 1, 1999,
$80,000,000; (ii) for the four fiscal quarters ending July 1, 1999,
$90,000,000; (iii) for the four fiscal quarters ending September 30, 1999,
$98,000,000; or (iv) for the four fiscal quarters ending December 30, 1999,
$100,000,000."
2.06(b) CONSENT TO CHANGE IN FISCAL YEAR. To permit the Loan
Parties to change their fiscal year, the Loan Parties, the Lenders, the
Issuing Lenders and the Agents hereby consent to the Loan Parties changing,
commencing with the fiscal year ending December 31, 1998 (the "Change Date"),
each fiscal quarter to end on the Thursday which is closest to the end of
each calendar quarter, and change their fiscal year to end on the Thursday
which is closest to the end of each calendar year. From and after the Change
Date, whenever trailing four-quarter results are used in calculating any
covenant, any fiscal quarter included in such four-quarter period which ended
prior to the Change Date shall be restated as if the revised reporting
periods had been in effect at such time. All references in the Loan Documents
to specific year- and quarter-end calendar dates and fiscal periods
(including, without limitation,
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Assignment and Acceptance Agreement
interest, fee and principal payment dates, dates set for payments and
reductions of Commitments in the Schedules to the Agreement, and financial
covenant calculation and loan amortization dates) are hereby deemed amended
to refer to the year- and quarter-end calendar dates and fiscal periods
corresponding to the revised fiscal quarters and years; PROVIDED, HOWEVER,
that references to such dates occurring prior to the Change Date are deemed
revised only for financial covenant calculation purposes and then only to the
extent the corresponding reporting periods are restated.
2.06(c) NEW FISCAL QUARTERS. For convenience of reference, set forth
below is a table cross referencing the former fiscal and calendar quarter-and
year-end dates with the revised fiscal quarter- and year-end dates (the
following table is for reference only and is not a part of the Agreement):
If the prior fiscal and calendar
period end date was... ...the revised date is:
------------------------------------------------------------
March 31, 1999 April 1, 1999
June 30, 1999 July 1, 1999
September 30, 1999 September 30, 1999
December 31, 1999 December 30, 1999
March 31, 2000 March 30, 2000
June 30, 2000 June 29, 2000
September 30, 2000 September 28, 2000
December 31, 2000 December 28, 2000
March 31, 2001 March 29, 2001
June 30, 2001 June 28, 2001
September 30, 2001 September 27, 2001
December 31, 2001 January 3, 2002
March 31, 2002 April 4, 2002
June 30, 2002 July 4, 2002
September 30, 2002 October 3, 2002
December 31, 2002 January 2, 2003
March 31, 2003 April 3, 2003
June 30, 2003 July 3, 2003
September 30, 2003 October 2, 2003
December 31, 2003 January 1, 2004
March 31, 2004 April 1, 2004
June 30, 2004 July 1, 2004
September 30, 2004 September 30, 2004
December 31, 2004 December 30, 2004
March 31, 2005 March 31, 2005
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Assignment and Acceptance Agreement
June 30, 2005 June 30, 2005
September 30, 2005 September 29, 2005
December 31, 2005 December 29, 2005
March 31, 2006 March 30, 2006
June 30, 2006 June 29, 2006
September 30, 2006 September 28, 2006
December 31, 2006 December 28, 2006
March 31, 2007 March 29, 2007
2.07 COVENANTS.
2.07(a) LIMITATIONS ON INDEBTEDNESS. To limit the incurrence of
Subordinated Indebtedness, Section 7.01(g) is amended to read as follows:
"(g) unsecured Subordinated Indebtedness issued in exchange for, or the
net proceeds of which are used to refinance or refund all or any portion of
the Senior Subordinated Notes, the Obligations hereunder, or other
Subordinated Indebtedness; provided, that Subordinated Indebtedness
exchanged for or used to refinance or refund any such Indebtedness shall
(i) be in a principal amount not in excess of the principal amount of the
Indebtedness exchanged, refinanced or refunded, (ii) mature no earlier
than the maturity date of the Indebtedness which is exchanged, refinanced
or refunded, (iii) be on terms not materially more restrictive on the
Company and its Subsidiaries than the terms of the Indebtedness exchanged,
refinanced or refunded, and (iv) not contain subordination provisions more
favorable taken as a whole to the lenders thereof than the terms of the
Indebtedness exchanged, refinanced or refunded;"
2.07(b) PERMITTED INVESTMENTS. To limit loans to and investments in
Subsidiaries and other Persons, Section 7.05(m) is amended to read
"Intentionally deleted," and Sections 7(d), 7(e) and 7(g) are amended to read as
follows:
"(d) investments in (i) Pledged Subsidiaries which are not Subsidiary
Guarantors for the purpose of maintenance and refurbishment of assets,
(ii) the Company; and (iii) Subsidiary Guarantors;
"(e) investments in (i) Persons, including Subsidiaries of the Company
which are not Pledged Subsidiaries or Subsidiary Guarantors, existing on
the date on which the Second Amendment to this Agreement becomes effective
and (ii) Persons in which investments are made by the Company and
Subsidiary Guarantors; provided that the aggregate amount of investments
made pursuant to this subsection (e) shall not exceed the sum of (x)
$10,000,000 in the aggregate from the Closing Date plus (y) an amount equal
to dividends and other distributions received from such Subsidiaries from
time to time; PROVIDED, HOWEVER, that the total of such investments under
this subsection (e) shall not
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Assignment and Acceptance Agreement
exceed $25,000,000 in the aggregate from the Closing Date, and immediately
before and after giving effect to such investment, no Default or Event of
Default shall exist;
"(g) redemptions, repurchases, retirements or other acquisitions by the
Company and Subsidiary Guarantors for consideration of equity interests in
a Person which is, or after giving effect to such investment is, a
Subsidiary of the Company; provided that (i) such stock is not owned by the
Company, any Subsidiary of the Company, or any Affiliate of the Company;
and (ii) such acquisition is not otherwise prohibited under this Agreement;
and"
2.07(c) TRANSACTIONS AMONG AFFILIATES. To restrict transactions
among Affiliates, Section 7.06(h) is amended to read:
"(h) transactions among the Company and the Subsidiary Guarantors (and, in
the ordinary course of business, Pledged Subsidiaries);"
2.07(d) PREPAYMENT OF SUBORDINATED DEBT. To limit the prepayment of
Senior Subordinated Notes, Section 7.13(c) is amended to read as follows:
"(c) prepayments of the Senior Subordinated Notes from the proceeds of
other Subordinated Indebtedness permitted under Section 7.01(g) above and,
on and after the date that audited financial statements are delivered
pursuant to Section 6.01(a) above for the fiscal year ended December 28,
2000 so long as no Default or Event of Default has occurred and is then
continuing, prepayments of the Senior Subordinated Notes not exceeding
$50,000,000 in the aggregate;"
2.07(e) COMPLIANCE WITH INDENTURES ETC. To require the Company to
comply with material agreements to which it is a party, (including indenture
relating to Subordinated Indebtedness), a new Section 6.19 is added at the end
of Article VI to read as follows:
"6.19 Compliance with Indentures, etc. The Company will, and will
cause its Subsidiaries, at all times to (i) comply with all material terms
of (x) the Indentures dated as of April 21, 1998 pursuant to which the
Senior Subordinated Notes later were issued, (y) the Participation
Agreement dated as of December 13, 1995 relating to the UATC Pass-Through
Certificates and (z) all other material contracts (collectively, the
'Material Contracts') and (ii) deliver to the Administrative Agent,
promptly upon receipt or delivery, a copy of all notices, reports, and
statements received under or delivered pursuant to each Material Contract."
2.08 YEAR 2000.
2.08(a) YEAR 2000 COMPLIANCE REPRESENTATION. To add a representation
by the Company regarding Year 2000 compliance, a new Section 5.20 is inserted in
the Agreement after Section 5.19 as follows:
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Assignment and Acceptance Agreement
"5.20 Year 2000 Compliance. The Company has (a) initiated a review and
assessment of all areas within its and each of its Subsidiaries' business
and operations (including those affected by suppliers and vendors) that
could be adversely affected by the Year 2000 Problem (that is, the risk
that computer applications used by the Company or any of its Subsidiaries
(or its suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any
date after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable. The Company
reasonably believes that its computer applications that are material to its
or any of its Subsidiaries' business and operations will on a timely basis
be able to perform properly date-sensitive functions for all dates before
and after January 1, 2000 (that is, be Year 2000 compliant), except to the
extent that a failure to do so could not reasonably be expected to have a
Material Adverse Effect."
2.08(b) YEAR 2000 COVENANT. To add a covenant regarding Year 2000
compliance, a new Section 6.20 is inserted in the Agreement at the end of
Article VI to read as follows:
"6.20 Year 2000 Compliance. The Company will promptly notify the
Administrative Agent in the event the Company discovers or determines that
any computer application (including those of its suppliers and vendors)
that is material to its or any of its Subsidiaries' business and operations
will not be Year 2000 compliant on a timely basis, except to the extent
that such failure could not reasonably be expected to have a Material
Adverse Effect."
2.09 PROMISSORY NOTES.
2.09(a) PROMISSORY NOTES OPTIONAL. To permit the Loan to be
evidenced by the Agreement in addition to Notes, Section 2.02(b) of the
Agreement is amended and restated in its entirety as follows:
"(b) Evidence of Indebtedness. The Loans made by each Lender shall be
evidenced by one or more loan accounts or records maintained by such Lender
in the ordinary course of business. Upon the request of any Lender made
through the Administrative Agent, such Lender's Loans may be evidenced by
one or more Notes, instead of or in addition to loan accounts. (Each such
Lender may attach schedules to its Note(s) and endorse thereon the date,
amount and maturity of its Loans and payments with respect thereto.) Such
loan accounts, records or Notes shall be conclusive absent manifest error
of the amount of such Loans and payments thereon. Any failure so to record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Company to pay any amount owing with respect to the
Loans."
2.09(b) CHANGES RELATED TO MAKING PROMISSORY NOTES OPTIONAL. To
reflect that not all Lenders may hold Notes, Section 3.01(j) of the Agreement is
amended by inserting "or a Lender hereunder" after "becomes a registered holder
of any Note."
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2.10 ASSIGNMENTS.
2.10(a) CONFIDENTIALITY AGREEMENT SEPARATE FROM ASSIGNMENT AND
ASSUMPTION AGREEMENT. To streamline the Assignment of Loans by deleting the
Confidentiality Agreement as an exhibit to the Assignment and Assumption
Agreement, the proviso to Section 10.07(g) of the Agreement is amended by
deleting the reference to "Annex C to EXHIBIT G" and inserting "EXHIBIT H" in
lieu thereof.
2.10(b) NOTES TO REFLECT DATE OF ASSIGNMENT. To coordinate the dates
of Notes with the dates of issuance or assignment, Notes issued after the date
of this Second Amendment shall be dated the date of issuance or assignment and
Exhibits A-1, A-2, A-3, and A-4 of the Agreement are amended accordingly.
2.10(c) NOTES AUTOMATICALLY MODIFIED UPON ASSIGNMENT. To reflect
that Notes are not required to be issued or reissued upon assignment, Exhibits
A-1, A-2, A-3 and A-4 and outstanding Notes are amended to add beneath the
Dollar amount thereof "(or such lesser amount as shall be evidenced hereby)".
2.10(d) MODIFICATION OF ASSIGNMENT AND ASSUMPTION AGREEMENT. To
streamline the Assignment and Assumption Agreement, Exhibit G to the Agreement
is amended and restated in its entirety in the form of Exhibit G hereto.
2.10(e) NO COMPANY CONSENT TO ASSIGNMENT OR ASSIGNEES. To delete the
requirement that the Company consent to Eligible Assignees, the definition of
"Eligible Assignee" in Section 1.01 is amended to read as follows:
"'Eligible Assignee' means (a) a commercial lender organized under the laws
of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (b) a commercial lender organized
under the laws of any other country which is a member of the Organization
for Economic Cooperation and Development (the 'OECD'), or a political
subdivision of any such country, and having a combined capital and surplus
of at least $100,000,000; provided that such lender is acting through a
branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (c) any other entity which is
an "accredited investor" (as defined in Regulation D under the Securities
Act) which extends credit or buys loans as one of its businesses, including
but not limited to, insurance companies, mutual funds and lease financing
companies, or (d) other lenders or institutional investors approved in
writing in advance by the Administrative Agent and the Issuing Lender(s) in
the case of the Revolving Commitment which approval is not to be
unreasonably withheld or delayed."
2.10(f) CONSENTS TO ASSIGNMENT. To delete the requirement that the
Company consent to assignments, Section 10.07(a)(iii) is amended to read as
follows:
"(iii) The prior written consents of the Administrative Agent and, with
respect to assignments of risk participations in Letters of Credit, the
relevant Issuing Bank(s) shall be required for any assignment, which
consents shall not be unreasonably withheld or
12
Assignment and Acceptance Agreement
delayed; PROVIDED FURTHER, that no such consents shall be required with
respect to assignments to (1) another member of the Lender Group, (2) a
wholly-owned Affiliate, (including its parent institution) of the
assigning Lender or (3) a Related Fund."
2.11 MISCELLANEOUS
2.11(a) DEFINITION OF SECOND AMENDMENT. Section 1.01 is amended to add a
new definition in correct alphabetical order to read as follows:
"'Second Amendment' means that certain Second Amendment among the Company,
the Agents, and the Lenders dated as of March 31, 1999."
2.11(b) DEFINITION OF "WHOLLY OWNED FIRST TIER SUBSIDIARY." To
clarify that UAR is a first tier Subsidiary of the Company, the definition of
"Wholly-Owned First-Tier Subsidiary" in Section 1.01 is amended to read as
follows:
"'Wholly-Owned First-Tier Subsidiary' means any domestic first tier
Subsidiary which is wholly-owned, in the aggregate, by the Company, UATC,
or UAR."
2.11(c) DELIVERY OF OFFICER'S CERTIFICATE UPON BORROWING. To augment
the conditions to each Borrowing, a new subsection (d) is added immediately
after subsection (c) in Section 4.02 and prior to the final paragraph thereof,
such new subsection to read as follows:
"(d) Officer's Certificate. The Administrative Agent or the Issuing
Lender, with a copy to the Administrative Agent, as applicable, shall have
received a certificate of a Responsible Officer of the Company:
"(i) certifying that, to the best of such officer's knowledge, as of the
date such Borrowing is requested and as of the date on which such Borrowing
is to be made, the Company and each of the other Loan Parties is in
compliance with all of the terms and conditions of this Agreement and the
Loan Documents;
"(ii) certifying that, as of such dates, such Borrowing will not violate
Section 1008 or Section 1018 of the Indentures pursuant to which the Senior
Subordinated Indebtedness was issued;
"(iii) certifying that, as of such dates, such Responsible Officer has
obtained no knowledge of any Default or Event of Default; and
"(iv) certifying that the representations and warranties made by the
Company contained in Article V are true and correct in all material
respects as of such dates."
2.11(d) FINANCIAL ADVISERS. To clarify that financial advisers to
the Administrative Agent may visit the Company, Section 6.09 is amended to add
at the end thereof the following provisions:
13
Assignment and Acceptance Agreement
"Without limiting the generality of the foregoing, financial advisers
engaged by the Administrative Agent may at any time and from time to time
visit, inspect and examine any of the properties and records of the Company
and its Subsidiaries, make copies thereof and discuss their respective
affairs, accounts and finances with their respective directors, officers,
employees and independent public accountants, all at the expense of the
Company at any time during business hours upon notice to the Company."
3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Second Amendment is
subject to the conditions that the Administrative Agent shall have received all
of the following, in form and substance satisfactory to the Administrative Agent
and its counsel:
(a) Second Amendment. This Second Amendment.
(b) (i) Resolutions; incumbency. Copies of the resolutions of the
board of directors of the Company approving and authorizing the execution,
delivery and performance by the Company of this Agreement, (ii) a certificate of
the Secretary or Assistant Secretary of the Company certifying the names and
true signatures of the officers authorized to execute and deliver this Second
Amendment.
(c) Legal Opinions. Written legal opinion of counsel to the Company.
(d) Certificate. A certificate signed by a Responsible Officer:
(i) stating that the representations and warranties contained in
the Agreement and this Second Amendment are true and correct;
(ii) stating that no Default or Event of Default exists after
giving effect to this Second Amendment.
(e) Fees. All fees and expenses as agreed upon by the Borrower, the
Administrative Agent and the Lenders.
4. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Lenders, the Issuing Lender(s) and the Agents as of the effective date of
this Second Amendment that:
4.01 AUTHORIZATION. The execution, delivery and performance of this
Second Amendment by the Company have been duly authorized by all necessary
corporate action by the Company and has been duly executed and delivered by the
Company.
4.02 BINDING OBLIGATION. This Second Amendment is a legal, valid and
binding agreement of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights generally and to general principles of
equity.
14
Assignment and Acceptance Agreement
4.03 INCORPORATION OF CERTAIN REPRESENTATIONS. The representations
and warranties set forth in Article V of the Agreement are true and correct on
and as of the Effective Date with the same effect as if made on and as of the
Effective Date.
4.04 DEFAULT. No Default or Event of Default under the Agreement has
occurred and is continuing after giving effect to this Second Amendment.
5. MISCELLANEOUS.
5.01 WAIVERS. This Second Amendment is specific in time and in intent
and does not constitute, nor should it be construed as, a waiver of any other
right, power or privilege under the Agreement, or under any agreement, contract,
indenture, document or instrument mentioned in the Agreement; nor does it
preclude any exercise thereof or the exercise of any other right, power or
privilege, nor shall any future waiver of any right, power, privilege or default
hereunder, or under the Agreement or any agreement, contract, indenture,
document or instrument mentioned in the Agreement, constitute a waiver of any
other default of the same or of any other term or provision.
5.02 EFFECTIVENESS OF AGREEMENT. Except as hereby amended, the
Agreement shall remain in full force and effect.
5.03 COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. This Second Amendment shall
become effective on the Effective Date upon the Company, the Lenders and the
Agents signing a copy hereof, and the Guarantors consenting hereto, whether the
same or counterparts, and delivering the same to the Administrative Agent.
5.04 JURISDICTION. THIS SECOND AMENDMENT, AND ANY INSTRUMENT OR
AGREEMENT REQUIRED HEREUNDER, SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS
OF THE STATE OF NEW YORK
15
Assignment and Acceptance Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed and delivered by their proper and duly authorized
officers as of the day and year First Above written.
UNITED ARTISTS THEATRE COMPANY
By: /s/ Trent J. Carman
---------------------------
Trent J. Carman
Senior Vice President
Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS ADMINISTRATIVE
AGENT
By: /s/ David Price
---------------------------
David Price
Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS A LENDER AND
ISSUING LENDER
By: /s/ Matthew J. Koenig
---------------------------
Name: Matthew J. Koenig
Title: Vice President
BANKBOSTON, N.A., AS DOCUMENTATION
AGENT, A LENDER AND ISSUING LENDER
By: /s/ Matthew E. Murphy
---------------------------
Name Matthew E. Murphy
Title: Director
16
Assignment and Acceptance Agreement
MERRILL LYNCH CAPITAL CORPORATION, AS A
CO-SYNDICATION AGENT AND A LENDER
By: /s/ Julie Hallowell
---------------------------
Name: Julie Hallowell
Title: Vice President
17
Assignment and Acceptance Agreement
MORGAN STANLEY SENIOR
FUNDING, INC., AS A CO-SYNDICATION AGENT
AND A LENDER
By: /s/ Michael Hart
---------------------------
Name: Michael Hart
Title: Vice President
18
Assignment and Acceptance Agreement
PNC BANK, N.A. AS CO- AGENT AND A LENDER
By: /s/ Steven J. McGerrin
---------------------------
Name: Steven J. McGerrin
Title: Vice President
19
Assignment and Acceptance Agreement
By:
---------------------------
Name:
-------------------------
Title:
------------------------
20
Assignment and Acceptance Agreement
CONSENT OF GUARANTORS
The undersigned Subsidiary Guarantors hereby acknowledge that they have
reviewed and consented to the foregoing Second Amendment to Credit Agreement
dated as of even date herewith to the Credit Agreement dated as of April 21,
1998 among United Artists Theatre Company, the several financial institutions
party hereto, Bank of America National Trust and Savings Association, as
administrative agent, BankBoston, N.A., as documentation agent, Merrill Lynch
Capital Corporation and Morgan Stanley Senior Funding, Inc., as
co-syndication agents, and PNC Bank, N.A., as co-agent, and represent and
warrant to the Administrative Agent and the Banks that there is no defense,
counterclaim or offset of any type or nature under the Subsidiary Guaranty,
and that the Subsidiary Guaranty remains in full force and effect as to them
after giving effect hereto and thereto.
Dated: March 31, 1999
UNITED ARTISTS THEATRE CIRCUIT, INC.
UNITED ARTISTS REALTY COMPANY
UNITED ARTISTS PROPERTIES I CORPORATION
By: /s/ Trent J. Carman
---------------------------
Trent J. Carman
Senior Vice President
Chief Financial Officer
21
Assignment and Acceptance Agreement
SCHEDULE 1.01(a)
APPLICABLE AMOUNTS
(REVOLVING COMMITMENT, REVOLVING LOANS, TRANCHE A TERM LOAN COMMITMENT,
TRANCHE A TERM LOANS)
LETTERS OF CREDIT
TOTAL LEVERAGE RATIO EURODOLLAR COMMITMENT BASE RATE
(x)(1) RATE LOANS FEE LOANS
- -------------------- ---------- ---------- ---------
6.00 less than or equal to x 325.00 62.50 200.00
5.50 less than or equal to x less than 6.00 300.00 62.50 175.00
5.00 less than or equal to x less than 5.50 275.00 50.00 150.00
x less than 5.00 250.00 50.00 125.00
(1) Calculated excluding issued and outstanding letters of credit.
APPLICABLE AMOUNTS
(TRANCHE B TERM LOANS)
TOTAL LEVERAGE EURODOLLAR BASE RATE
RATIO (x)(1) RATE LOANS LOANS
-------------- ---------- ---------
5.75 less than or equal to x 350.00 225.00
x less than 5.75 325.00 200.00
22
Assignment and Acceptance Agreement
APPLICABLE AMOUNTS
(TRANCHE C TERM LOANS)
TOTAL LEVERAGE EURODOLLAR BASE RATE
RATIO (x)(1) RATE LOANS LOANS
-------------- ---------- ---------
5.50 less than or equal to x 375.00 250.00
x less than 5.50 350.00 225.00
23
Assignment and Acceptance Agreement
EXHIBIT G TO CREDIT AGREEMENT
ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT ("Agreement") dated as of
______________ ______, ________ is made with reference to that certain Credit
Agreement dated as of April 21, 1998, as amended, among United Artists
Theatre Company (formerly named Oscar I Corporation), the several financial
institutions from time to time party hereto (individually, a "Lender" and
collectively, the "Lenders"), Bank of America National Trust and Savings
Association, as Administrative Agent, BankBoston, N.A., as Documentation
Agent, Merrill Lynch Capital Corporation and Morgan Stanley Senior Funding,
Inc., as Co-Syndication Agents, and PNC Bank, N.A., as Co-Agent (as amended,
modified, or waived from time to time, the "Credit Agreement;" terms used
herein and not defined have the meanings assigned to them in the Credit
Agreement), and is entered into between the "Assignor" described below, in
its capacity as a Lender under the Credit Agreement, and the "Assignee"
described below.
The Assignor and the Assignee hereby represent, warrant and agree as
follows:
1. DEFINITIONS. Except as otherwise provided herein, capitalized
terms defined in the Credit Agreement are used herein with the meanings set
forth therein. As used in this Agreement, the following capitalized terms
shall have the meanings set forth below:
"ASSIGNEE" means _______________________________.
"ASSIGNED PRO-RATA SHARES" means the percentages of the combined
Revolving Commitments, Tranche A Term Commitments, Tranche B Term Commitments
and/or Tranche C Term Commitments, and outstanding Obligations thereunder
being assigned hereby and the corresponding dollar amount thereof as set
forth below:
ASSIGNED
TRANCHE PRO RATA SHARE DOLLAR AMOUNT
- ------------------------------------------------------------------------
Revolving Commitments ________________% $________________
Tranche A Term Commitments ________________% $________________
Tranche B Term Commitments ________________% $________________
Tranche C Term Commitments ________________% $________________
"ASSIGNOR" means ________________________________.
"EFFECTIVE DATE" means the date first written above.
24
Assignment and Acceptance Agreement
2. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The Assignor
represents and warrants to the Assignee as follows:
a. As of the Effective Date, the Pro-Rata Shares of the Assignor with
respect to each type of Commitment(s) all or a portion of which are being
assigned hereunder are listed below (without giving effect to any assignments
thereof which have not yet become effective or which are concurrently closing
on this date) is:
ASSIGNED
TRANCHE PRO RATA SHARE DOLLAR AMOUNT
- ------------------------------------------------------------------------
Revolving Commitments ________________% $________________
Tranche A Term Commitments ________________% $________________
Tranche B Term Commitments ________________% $________________
Tranche C Term Commitments ________________% $________________
b. The Assignor is the legal and beneficial owner of the Assigned
Pro-Rata Shares, and the Assigned Pro-Rata Shares are free and clear of any
adverse claim.
c. As of the Effective Date, the outstanding principal balance of
Loans made and Letters of Credit Usage under the Commitments under the Credit
Agreement is set forth below:
Revolving Loans $__________
Letter of Credit Usage $__________
Tranche A Term Loans $__________
Tranche B Term Loans $__________
Tranche C Term Loans $__________
d. The Assignor has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and any and all other
documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and no
governmental authorizations or other authorizations are required in
connection therewith.
e. This Agreement constitutes the legal, valid and binding obligation
of the Assignor.
The Assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance by the Company of the Obligations, and assumes no responsibility
with respect to any statements, warranties or
25
Assignment and Acceptance Agreement
representations made under or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other Loan Document under the Credit
Agreement, other than as expressly set forth above.
3. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The Assignee
hereby represents and warrants to the Assignor and the Administrative Agent
as follows:
(a) The Assignee has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement, and any and all other
documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and no
governmental authorizations or other authorizations are required in
connection therewith;
(b) This Agreement constitutes the legal, valid and binding obligation
of the Assignee; and
(c) The Assignee has independently and without reliance upon the
Assignor and based on such information as the Assignee has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. The Assignee will, independently and without reliance upon any
Agent, any Issuing Lender or any Lender, and based upon such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit
Agreement.
4. WITHHOLDING TAX. The Assignee (a) represents and warrants to the
Administrative Agent and the Company that under applicable law and treaties
no tax will be required to be withheld by the Administrative Agent or the
Company with respect to any payments to be made to the Assignee hereunder or
under the Credit Agreement, (b) agrees to furnish (if it is organized under
the laws of any jurisdiction other than the United States or any State
thereof) to the Administrative Agent and the Company prior to the time that
the Administrative Agent or Company is required to make any payment of
principal, interest or fees hereunder or under the Credit Agreement, (i)
duplicate executed originals of either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 (wherein the Assignee claims
entitlement to the benefits of a tax treaty that provides for a complete
exemption from U.S. federal income withholding tax on all payments hereunder
or under the Credit Agreement) and agrees to provide new Forms 4224 or 1001
upon the expiration of any previously delivered form or comparable statements
in accordance with applicable U.S. law and regulations and amendments
thereto, duly executed and completed by the Assignee, or (ii), if applicable
under Section 3.01(j) of the Credit Agreement, the forms and certificates set
forth in such Section and agrees to thereafter comply with such Section, and
(c) agrees to comply with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
5. ASSIGNMENT. On the terms set forth herein, the Assignor, as of the
Effective Date, hereby irrevocably sells, assigns and transfers to the
Assignee all of the rights and obligations of the Assignor under the Credit
Agreement, the other Loan Documents, all Outstanding Obligations owing to the
Assignor under the Credit Agreement and the Assignor's Note, if any, under
the Credit Agreement, in each case to the extent of the Assigned Pro Rata
Shares, and the Assignee irrevocably accepts such assignment of rights and
assumes such obligations from the Assignor on such terms and effective as of
the Effective Date. As of the Effective Date, the
26
Assignment and Acceptance Agreement
Assignee shall have the rights and obligations of a "Lender" under the Loan
Documents. Assignee hereby appoints and authorizes the Administrative Agent
to exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by Article IX of the Credit Agreement.
6. PAYMENT. On the Effective Date, the Assignee shall pay to the
Assignor, in immediately available funds, an amount equal to the purchase
price of the Assigned Pro Rata Shares, which shall be an amount equal to
Loans outstanding under its Assigned Pro Rata Shares.
The Assignor and the Assignee hereby agree that if either receives any
payment of interest, principal, fees or any other amount under the Credit
Agreement, their respective Notes, if any, or any other Loan Documents under
the Credit Agreement which is for the account of the other, it shall hold the
same in trust for such party to the extent of such party's interest therein
and shall promptly pay the same to such party.
7. PRINCIPAL, INTEREST, FEES, ETC. Any principal that would be
payable and any interest, fees and other amounts that would accrue from and
after the Effective Date to or for the account of the Assignor pursuant to
the Credit Agreement and the Notes shall be payable to or for the account of
the Assignor and the Assignee, in accordance with their respective interests
as adjusted pursuant to this Agreement. Payments to be made to the Assignee
shall be made to its address set forth in the administrative details
heretofore furnished to the Administrative Agent, or to such other address as
the Assignee may designate.
8. NOTES. The Assignor and the Assignee shall make appropriate
arrangements with the Company so that replacement Notes, if any are required,
are issued to the Assignor and any such new Notes are issued to the Assignee,
in each case in principal amounts reflecting their respective shares of the
Commitments under the Credit Agreement (as adjusted pursuant to this
Agreement).
9. FURTHER ASSURANCES. The Assignor and the Assignee agree to execute
and deliver such other instruments, and take such other action, as either
party may reasonably request in connection with the transactions contemplated
by this Agreement.
10. CONFIDENTIALITY. If it has not already done so, the Assignee
agrees to be bound by the terms of the Confidentiality Agreement set forth on
Exhibit H to the Credit Agreement as if signing the same.
11. ADMINISTRATIVE INFORMATION. The Assignee shall promptly provide
the administrative information requested by the Administrative Agent.
12. NOTICES. Notices to the Administrative Agent and the Guarantor
shall be sent in the manner set forth in Section 10.02 of the Credit
Agreement.
13. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns;
PROVIDED, HOWEVER, that the Assignee shall not assign its rights or
obligations without the prior written consent of the Assignor and any
purported assignment, absent such consent, shall be void.
27
Assignment and Acceptance Agreement
14. INTERPRETATION. The headings of the various sections hereof are
for convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
15. REQUEST FOR CONSENT AND REGISTRATION, ASSIGNMENT FEE. (a) The
Assignor and Assignee request the consent of the Administrative Agent for the
assignment described above. The Assignor and Assignee also request that the
Administrative Agent register the Assignee as a Lender pursuant to the Credit
Agreement effective as of the Effective Date described in the Assignment and
Acceptance Agreement and, in connection with this request, certify to the
Administrative Agent that the Assignment and Acceptance Agreement sets forth
the correct Pro-Rata Shares of the Commitments under the Credit Agreement
held by the Assignor and the Assigned Pro-Rata Shares of the Assignee. The
Assignor and Assignee request that all payments to Assignee upon the
effectiveness of this Assignment and Acceptance be directed to Assignee as
set forth in the administrative details heretofore furnished to the
Administrative Agent.
(b) By signing below, the Administrative Agent certifies that it will
register the Assignee as a Lender under the Credit Agreement, effective as of
the Effective Date described above, with a Pro-Rata Shares of the Commitments
under the Credit Agreement corresponding to the Assigned Pro-Rata Shares
(together with any existing Commitments of such Lender) and will adjust the
registered Pro-Rata Shares of the Commitments of the Assignor under the
Credit Agreement to reflect the assignment of the Assigned Pro-Rata Shares.
(c) On the Effective Date, the processing fee shall be paid to the
Administrative Agent as required under Section 10.07(b)(iii) of the Agreement
with respect to the assignments hereunder.
16. COUNTERPARTS. This Assignment and Acceptance may be executed in
any number of counterparts and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL
OBLIGATION UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. FOR ANY DISPUTE ARISING
IN CONNECTION WITH THIS AGREEMENT, THE ASSIGNEE HEREBY IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK.
28
Assignment and Acceptance Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officials, officers or agents
thereunder duly authorized as of the date first above written.
"ASSIGNOR"
-----------------------------
By:
--------------------------
Its:
--------------------------
"ASSIGNEE"
-----------------------------
By:
--------------------------
Its:
--------------------------
THE UNDERSIGNED CONFIRM THEIR CONSENT TO THE PROPOSED ASSIGNMENT DESCRIBED
HEREIN:
BANK OF AMERICA NATIONAL TRUST UNITED ARTISTS THEATRE COMPANY
AND SAVINGS ASSOCIATION, AS
ADMINISTRATIVE AGENT By:
---------------------------
By: Trent J. Carman
-------------------------- Senior Vice President
David Price Chief Financial Officer
Vice President
BANK OF AMERICA NATIONAL TRUST AND NATIONSBANK, N.A., AS AN
SAVINGS ASSOCIATION, AS AN ISSUING ISSUING LENDER
LENDER
By: By:
-------------------------- ---------------------------
Its: Its:
-------------------------- ---------------------------
29
Assignment and Acceptance Agreement
EXHIBIT H TO CREDIT AGREEMENT
CONFIDENTIALITY AGREEMENT
To: United Artists Theatre Company and
Bank of America National Trust and
Savings Association, as Administrative Agent
Dear Sirs:
The undersigned institution (the "Lender") has been contacted by the
above Assignor/Transferor in connection with possible assignment or
participation by the Lender in certain credit facilities ("the Facilities")
for United Artists Theatre Company (the "Company"), a Delaware corporation.
In order for the Lender to evaluate its possible participation in the
Facilities, you are delivering to the Lender certain information concerning
the Company and the Facilities and certain other non-public information (the
"Information"), and the purpose of this letter is to set forth certain
undertakings of the Lender regarding such Information.
As used herein, the term "Confidential Information" means the
Information and any other materials, documents and information (written or
oral) relating to the Company, its affiliates, and their respective
businesses which the Assignor/Transferor, the Agents, the Company, their
affiliates or their representatives may disclose to us in connection with our
evaluation of, and participation in, the Facilities, and shall also include
all copies thereof, extracts therefrom and analyses or other material based
thereon, but shall not include: (a) information which is or hereafter becomes
generally available to the public other than as a result of a disclosure by
the Lender in violation of this agreement; and (b) information which, prior
to disclosure to the Lender in connection with its evaluation of the
Facilities, was already in the Lender's possession, or which is obtained by
the Lender from a third party, unless, in either case, such information was
obtained by the Lender from a third party which the Lender knows to have
obtained such information in violation of any obligations to the Company, or
its affiliates with respect to such Confidential Information.
In consideration of the disclosure to us of Confidential Information,
the Lender agrees to take normal and reasonable precautions and use due care
to maintain as confidential and not to disclose (and to cause our officers,
employees, agents and representatives to keep confidential and not to
disclose) and, at the request of the Assignor/Transferor, the Company or the
Agents (except as provided below), promptly to return or destroy, the
Confidential Information, except that the Lender and its affiliates shall be
permitted to disclose Confidential Information (i) to such of its officers,
employees, agents and representatives as need to know such Confidential
Information in connection with our evaluation of a possible participation in
the Facilities (who will be informed of the confidential nature of the
Confidential Information, who will agree to be bound by the terms of this
agreement and who the Lender will be satisfied will act in accordance
herewith); (ii) to the extent required by applicable laws and regulations or
by any subpoena or similar legal process (in which event the Lender will
notify the Company, the Assignor/Transferor and the Administrative Agent to
the extent not prohibited by applicable law
H-1
Confidentiality Agreement
so that an appropriate protective order may be sought) by the Company, or
requested by any Lender, insurance or similar regulatory authority or
examiner; or (iii) to the extent the Company shall have consented to such
disclosure in writing.
The Lender further agrees that (a) it will use Confidential Information
only with regard to its possible or actual participation as a lender in the
proposed Facilities and (b) the Lender will establish reasonable internal
measures to assure that the Confidential Information is not disclosed to any
of its officers, employees, agents or representatives who are not involved
in the arrangement, evaluation, analysis or administration of any credit
facilities or proposed credit facilities extended or proposed to be extended
to the Company or any of its subsidiaries. The Lender acknowledges that it
is (i) aware that the securities laws of the United States prohibit any
person who has material non-public information about a company from
purchasing or selling securities of such company, or from communicating such
information to any other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such securities
and (ii) familiar with the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder and agrees that it will neither use, nor
cause any third party to use, any Confidential Information in contravention
of such Act or any such rules and regulations. The Lender also acknowledges
that neither the Assignor/Transferor, nor the Administrative Agent nor any of
their respective affiliates or representatives makes any representation or
warranty, express or implied, as to the accuracy or completeness of the
Information or any other materials, documents, or information that may be
disclosed to the Lender in connection with evaluation of, or participation
in, the Facilities and the Lender agrees that none of the foregoing persons
or entities shall have any liability to the Lender arising from the Lender's
use of the Information or any such other materials, documents or information.
Notwithstanding anything to the contrary set forth above (a) the
Lender's obligation to return or destroy Confidential Information is limited
to an obligation to return or destroy those materials which the Lender does
not deem it necessary to retain in order to comply with ordinary and
customary retention requirements of financial institution, sound banking
practices and audit and examination requirements and (b) if the Lender
participates in the Facilities, the Lender shall be entitled to retain all
Confidential Information and to use it solely in servicing the new credit and
in protecting its rights with regard thereto.
This agreement shall be governed by, and construed in accordance with,
the laws of the State of New York. The Lender acknowledges and agrees that
this letter is intended to be legally binding upon the Lender and is for the
benefit of each of you, and may be enforced by each of you.
NAME OF LENDER
By:
---------------------------
Title:
------------------------
H-2
Confidentiality Agreement