Exhibit 10.7


 


$850,000,000


 


CREDIT AGREEMENT


 


Dated as of January 26, 2006


 


among


 


AMC ENTERTAINMENT INC.

GRUPO CINEMEX, S.A. DE C.V.

and

CADENA MEXICANA DE EXHIBICIÓN, S.A. DE C.V.

as Borrowers


 


and


 


THE LENDERS AND ISSUERS PARTY HERETO


 


and


 


CITICORP NORTH AMERICA, INC.

as Administrative Agent


 


and


 


BANCO NACIONAL DE MEXICO, S.A., INTEGRANTE 

DEL GRUPO FINANCIERO BANAMEX 

as Mexican Facility Agent


 


* * * 


 


J.P. MORGAN
SECURITIES INC.

as Syndication Agent


 


CREDIT
SUISSE SECURITIES (USA) LLC

BANK OF AMERICA, N.A.


and


GENERAL
ELECTRIC CAPITAL CORPORATION

as Co-Documentation Agents


 


 


	
  CITIGROUP GLOBAL MARKETS INC.

  	
  J.P. MORGAN SECURITIES INC.

  
	
  Joint Book
  Managers and Joint Lead Arrangers

  



 


 


WEIL,
GOTSHAL & MANGES LLP

767 FIFTH AVENUE

NEW YORK, NEW YORK  10153-0119


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS,
  INTERPRETATION AND ACCOUNTING TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Defined Terms

  	
  1

  
	
  Section 1.2

  	
  Computation of Time Periods

  	
  44

  
	
  Section 1.3

  	
  Accounting Terms and Principles

  	
  44

  
	
  Section 1.4

  	
  Conversion of Foreign Currencies

  	
  45

  
	
  Section 1.5

  	
  Certain Terms

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE
  FACILITIES

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  The Commitments

  	
  46

  
	
  Section 2.2

  	
  Borrowing Procedures

  	
  48

  
	
  Section 2.3

  	
  Swing Loans

  	
  50

  
	
  Section 2.4

  	
  Letters of Credit

  	
  52

  
	
  Section 2.5

  	
  Reduction and Termination of the Commitments

  	
  57

  
	
  Section 2.6

  	
  Repayment of Loans

  	
  58

  
	
  Section 2.7

  	
  Evidence of Debt

  	
  59

  
	
  Section 2.8

  	
  Optional Prepayments

  	
  60

  
	
  Section 2.9

  	
  Mandatory Prepayments

  	
  61

  
	
  Section 2.10

  	
  Interest

  	
  62

  
	
  Section 2.11

  	
  Conversion/Continuation Option

  	
  63

  
	
  Section 2.12

  	
  Fees

  	
  64

  
	
  Section 2.13

  	
  Payments and Computations

  	
  65

  
	
  Section 2.14

  	
  Special Provisions Governing Eurodollar Rate Loans and Peso TIIE Rate
  Loans

  	
  68

  
	
  Section 2.15

  	
  Capital Adequacy

  	
  70

  
	
  Section 2.16

  	
  Taxes

  	
  70

  
	
  Section 2.17

  	
  Substitution of Lenders

  	
  73

  
	
  Section 2.18

  	
  Special Provisions Governing Peso Loans

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  CONDITIONS
  TO LOANS AND LETTERS OF CREDIT

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Conditions Precedent to Initial Loans and Letters of Credit

  	
  76

  
	
  Section 3.2

  	
  Conditions Precedent to Each Loan and Letter of Credit

  	
  79

  
	
  Section 3.3

  	
  Determinations of Initial Borrowing Conditions

  	
  81

  
	
  Section 3.4

  	
  Conditions Precedent to Each Facility Increase

  	
  81

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  82

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Corporate Existence; Compliance with Law

  	
  82

  
	
  Section 4.2

  	
  Corporate Power; Authorization; Enforceable Obligations

  	
  83

  
	
  Section 4.3

  	
  Subsidiaries; Borrower Information

  	
  84

  
	
  Section 4.4

  	
  Financial Statements

  	
  84

  
	
  Section 4.5

  	
  Material Adverse Change

  	
  85

  
	
  Section 4.6

  	
  Solvency

  	
  85

  
	
  Section 4.7

  	
  Litigation

  	
  85

  
	
  Section 4.8

  	
  Taxes

  	
  85

  
				



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.9

  	
  Full Disclosure

  	
  86

  
	
  Section 4.10

  	
  Margin Regulations

  	
  86

  
	
  Section 4.11

  	
  No Burdensome Restrictions; No Defaults

  	
  86

  
	
  Section 4.12

  	
  Investment Company Act

  	
  87

  
	
  Section 4.13

  	
  Use of Proceeds

  	
  87

  
	
  Section 4.14

  	
  Insurance

  	
  87

  
	
  Section 4.15

  	
  Labor Matters

  	
  87

  
	
  Section 4.16

  	
  ERISA

  	
  88

  
	
  Section 4.17

  	
  Environmental Matters

  	
  88

  
	
  Section 4.18

  	
  Intellectual Property

  	
  89

  
	
  Section 4.19

  	
  Title; Real Property

  	
  89

  
	
  Section 4.20

  	
  Related Documents

  	
  90

  
	
  Section 4.21

  	
  New Subordinated Notes

  	
  91

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  FINANCIAL
  COVENANT

  	
  91

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  REPORTING
  COVENANTS

  	
  91

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Financial Statements

  	
  91

  
	
  Section 6.2

  	
  Default Notices

  	
  92

  
	
  Section 6.3

  	
  Litigation

  	
  93

  
	
  Section 6.4

  	
  SEC Filings; Press Releases

  	
  93

  
	
  Section 6.5

  	
  Labor Relations

  	
  93

  
	
  Section 6.6

  	
  Tax Returns

  	
  93

  
	
  Section 6.7

  	
  Insurance

  	
  93

  
	
  Section 6.8

  	
  ERISA Matters

  	
  94

  
	
  Section 6.9

  	
  Environmental Matters

  	
  94

  
	
  Section 6.10

  	
  Other Information

  	
  95

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  AFFIRMATIVE
  COVENANTS

  	
  95

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Preservation of Corporate Existence, Etc

  	
  95

  
	
  Section 7.2

  	
  Compliance with Laws, Etc

  	
  95

  
	
  Section 7.3

  	
  Conduct of Business

  	
  95

  
	
  Section 7.4

  	
  Payment of Taxes, Etc

  	
  96

  
	
  Section 7.5

  	
  Maintenance of Insurance

  	
  96

  
	
  Section 7.6

  	
  Access

  	
  96

  
	
  Section 7.7

  	
  Keeping of Books

  	
  96

  
	
  Section 7.8

  	
  Maintenance of Properties, Etc

  	
  97

  
	
  Section 7.9

  	
  Application of Proceeds

  	
  97

  
	
  Section 7.10

  	
  Environmental

  	
  97

  
	
  Section 7.11

  	
  Additional Collateral and Guaranties

  	
  97

  
	
  Section 7.12

  	
  Cash Collateral Accounts

  	
  99

  
	
  Section 7.13

  	
  Designation of Unrestricted Subsidiaries

  	
  100

  
	
  Section 7.14

  	
  Post-Closing Matters

  	
  100

  
				



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   NEGATIVE
  COVENANTS

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Indebtedness

  	
  101

  
	
  Section 8.2

  	
  Liens, Etc

  	
  103

  
	
  Section 8.3

  	
  Investments

  	
  106

  
	
  Section 8.4

  	
  Sale of Assets

  	
  108

  
	
  Section 8.5

  	
  Restricted Payments

  	
  109

  
	
  Section 8.6

  	
  Restriction on Fundamental Changes

  	
  111

  
	
  Section 8.7

  	
  Change in Nature of Business

  	
  111

  
	
  Section 8.8

  	
  Transactions with Affiliates

  	
  111

  
	
  Section 8.9

  	
  Limitations on Restrictions on Subsidiary Distributions; No New
  Negative Pledge

  	
  113

  
	
  Section 8.10

  	
  Modification of Related Documents

  	
  113

  
	
  Section 8.11

  	
  Modification of Debt Agreements

  	
  114

  
	
  Section 8.12

  	
  Modification of Constituent Documents

  	
  114

  
	
  Section 8.13

  	
  Accounting Changes; Fiscal Year

  	
  114

  
	
  Section 8.14

  	
  Margin Regulations

  	
  114

  
	
  Section 8.15

  	
  No Speculative Transactions

  	
  114

  
	
  Section 8.16

  	
  Designation of Senior Debt

  	
  114

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  EVENTS OF
  DEFAULT

  	
  115

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Events of Default

  	
  115

  
	
  Section 9.2

  	
  Remedies

  	
  117

  
	
  Section 9.3

  	
  Actions in Respect of Letters of Credit

  	
  117

  
	
  Section 9.4

  	
  Rescission

  	
  118

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  THE
  AGENTS

  	
  118

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Authorization and Action

  	
  118

  
	
  Section 10.2

  	
  Agent’s Reliance, Etc

  	
  119

  
	
  Section 10.3

  	
  Posting of Approved Electronic Communications

  	
  119

  
	
  Section 10.4

  	
  The Agents Individually

  	
  120

  
	
  Section 10.5

  	
  Lender Credit Decision

  	
  121

  
	
  Section 10.6

  	
  Indemnification

  	
  121

  
	
  Section 10.7

  	
  Successor Agents

  	
  121

  
	
  Section 10.8

  	
  Concerning the Collateral and the Collateral Documents

  	
  122

  
	
  Section 10.9

  	
  Collateral Matters Relating to Related Obligations

  	
  123

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  MISCELLANEOUS

  	
  124

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Amendments, Waivers, Etc

  	
  124

  
	
  Section 11.2

  	
  Assignments and Participations

  	
  126

  
	
  Section 11.3

  	
  Costs and Expenses

  	
  130

  
	
  Section 11.4

  	
  Indemnities

  	
  131

  
	
  Section 11.5

  	
  Limitation of Liability

  	
  132

  
	
  Section 11.6

  	
  Right of Set-off

  	
  133

  
	
  Section 11.7

  	
  Sharing of Payments, Etc

  	
  133

  
	
  Section 11.8

  	
  Notices, Etc

  	
  134

  
	
  Section 11.9

  	
  No Waiver; Remedies

  	
  137

  
				



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.10

  	
  Binding Effect

  	
  137

  
	
  Section 11.11

  	
  Governing Law

  	
  137

  
	
  Section 11.12

  	
  Submission to Jurisdiction; Service of Process

  	
  137

  
	
  Section 11.13

  	
  Waiver of Jury Trial

  	
  138

  
	
  Section 11.14

  	
  Marshaling; Payments Set Aside

  	
  138

  
	
  Section 11.15

  	
  Section Titles

  	
  139

  
	
  Section 11.16

  	
  Execution in Counterparts

  	
  139

  
	
  Section 11.17

  	
  Entire Agreement

  	
  139

  
	
  Section 11.18

  	
  Confidentiality

  	
  139

  
	
  Section 11.19

  	
  Patriot Act Notice.

  	
  140

  
	
  Section 11.20

  	
  Designated Senior Debt

  	
  140

  
				



 


iv

















 


Schedules


 


	
  Schedule I

  	
  –

  	
  Commitments

  
	
  Schedule II

  	
  –

  	
  Applicable
  Lending Offices and Addresses for Notices

  
	
  Schedule 1.1

  	
  –

  	
  Mortgaged
  Real Property

  
	
  Schedule 2.4

  	
  –

  	
  Existing
  Letters of Credit

  
	
  Schedule
  3.1(a)

  	
  –

  	
  Opinion
  Jurisdictions

  
	
  Schedule 4.2

  	
  –

  	
  Consents

  
	
  Schedule 4.3(a)

  	
  –

  	
  Ownership of
  Subsidiaries

  
	
  Schedule
  4.3(b)

  	
  –

  	
  Borrower
  Information

  
	
  Schedule 4.7

  	
  –

  	
  Litigation

  
	
  Schedule
  4.14

  	
  –

  	
  Insurance

  
	
  Schedule
  4.15

  	
  –

  	
  Labor
  Matters

  
	
  Schedule
  4.16

  	
  –

  	
  List of
  Plans

  
	
  Schedule
  4.17

  	
  –

  	
  Environmental
  Matters

  
	
  Schedule
  4.19

  	
  –

  	
  Real
  Property

  
	
  Schedule
  7.14

  	
  –

  	
  Post-Closing
  Matters

  
	
  Schedule 8.1

  	
  –

  	
  Existing
  Indebtedness

  
	
  Schedule 8.2

  	
  –

  	
  Existing
  Liens

  
	
  Schedule 8.3

  	
  –

  	
  Existing
  Investments

  
	
  Schedule
  8.4(g)

  	
  –

  	
  Asset Sales

  
	
  Schedule 8.8

  	
  –

  	
  Transactions
  with Affiliates

  
	
  Schedule 8.9

  	
  –

  	
  Limitations
  on Restrictions on Subsidiary Distributions

  



 


Exhibits


 


	
  Exhibit A

  	
  –

  	
  Form of Assignment
  and Acceptance

  
	
  Exhibit B-1

  	
  –

  	
  Form of
  Revolving Dollar Note

  
	
  Exhibit B-2

  	
  –

  	
  Form of Peso
  Loan Note

  
	
  Exhibit B-3

  	
  –

  	
  Form of Term
  Loan Note

  
	
  Exhibit C

  	
  –

  	
  Form of
  Notice of Borrowing

  
	
  Exhibit D

  	
  –

  	
  Form of
  Swing Loan Request

  
	
  Exhibit E

  	
  –

  	
  Form of
  Letter of Credit Request

  
	
  Exhibit F

  	
  –

  	
  Form of
  Notice of Conversion or Continuation

  
	
  Exhibit G

  	
  –

  	
  Form of
  Opinion of counsel for the Loan Parties

  
	
  Exhibit H

  	
  –

  	
  Form of
  Guaranty

  
	
  Exhibit I

  	
  –

  	
  Form of
  Pledge and Security Agreement

  
	
  Exhibit J

  	
  –

  	
  Form of
  Compliance Certificate

  



 


v

















 


CREDIT
AGREEMENT, dated as of January 26, 2006, among AMC
ENTERTAINMENT INC., a Delaware corporation (the “Company”), GRUPO CINEMEX, S.A. DE C.V., a corporation
organized under the laws of Mexico (“Grupo
Cinemex”), CADENA MEXICANA DE EXHIBICIÓN, S.A. DE C.V., a
corporation organized under the laws of Mexico (“Cadena” and, together with Grupo Cinemex, the “Mexican Borrowers”), the Lenders and the
Issuers, CITICORP NORTH AMERICA, INC. (“Citicorp”), as agent for the Lenders and the Issuers
and as agent for the Secured Parties under the Collateral Documents (in such
capacity,  the “Administrative
Agent”), and BANCO NACIONAL DE MEXICO, S.A., INTEGRANTE DEL GRUPO
FINANCIERO BANAMEX (“Banamex”),
as agent for the Lenders under the Mexican Facility (in such capacity, the “Mexican Facility Agent”).


 


W I T N E S S E T H:


 


WHEREAS, the Borrowers have
requested that the Lenders and Issuers make available for the purposes
specified in this Agreement a term loan, revolving credit and letter of credit
facility; and


 


WHEREAS, the Lenders and
Issuers are willing to make available to the Borrowers such term loan,
revolving credit and letter of credit facility upon the terms and subject to
the conditions set forth herein;


 


NOW, THEREFORE, in
consideration of the premises and the covenants and agreements contained
herein, the parties hereto hereby agree as follows:


 


ARTICLE I



DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS


 


Section 1.1            Defined Terms


 


As used in this Agreement, the
following terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):


 


“Account” has
the meaning given to such term in the UCC.


 


“Agent” means each of the Administrative Agent and the
Mexican Facility Agent.


 


“Administrative Agent” has
the meaning specified in the preamble to this Agreement.


 


“Affected Lender” has the meaning specified in Section 2.17 (Substitution of Lenders).


 


“Affiliate” means,
with respect to any Person, any other Person directly or indirectly controlling
or that is controlled by or is under common control with such Person.  For the purposes of this definition, “control” means the possession of the power to direct or cause the direction
of the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.


 

















 


“Agent Affiliate” has the meaning specified in Section 10.3 (Posting of Approved Electronic
Communications).


 


“Agreement” means
this Credit Agreement.


 


“Alternative Currency” means any lawful currency other than
Dollars that is freely transferable into Dollars.


 


“Annualized EBITDA” means, with respect to any Person, the
Consolidated EBITDA of such Person as of the last day of any Fiscal Quarter
(computed for the period consisting of such Fiscal Quarter and each of the
three immediately preceding Fiscal Quarters), adjusted as follows: Consolidated
EBITDA during any applicable period that is attributable to (a) a division,
product line, a particular theatre, a particular screen or other facility used
for operations of such Person, which was closed for business or disposed of
during a Fiscal Quarter (excluding any theatre closed in the ordinary course of
business within 120 days of lease expiration), (b) any Annualized Theatre
opened or any Person, business or particular theatre acquired by the Company or
a Subsidiary during a Fiscal Quarter, (c) any cost savings initiative or (d)
any designation of a Subsidiary as an Unrestricted Subsidiary or an Unrestricted
Subsidiary as a Subsidiary, in each case, shall be determined on a Pro Forma
Basis.


 


“Annualized EBITDA Ratio” means, as of any date of
determination, on a Pro Forma Basis, the ratio of (a) Annualized EBITDA for the
Company and its Subsidiaries for the four most recent Fiscal Quarters ended
immediately preceding the date of such determination to (b) Consolidated
Interest Expense of the Company and its Subsidiaries for the four most recent
Fiscal Quarters ended immediately preceding the date of such determination for
which financial statements are available.


 


“Annualized Theatre” means, for any period, with respect to
any Person and its Subsidiaries, any newly constructed theatre identified to
the Administrative Agent that has completed at least one full Fiscal Quarter of
operations, but less than four full Fiscal Quarters of operations and that is
owned by such Person or one of its Subsidiaries.


 


“Applicable Lending Office” means, with respect to each
Lender, its Domestic Lending Office in the case of a Base Rate Loan, its
Eurodollar Lending Office in the case of a Eurodollar Rate Loan and its Mexican
Lending Office in the case of a Peso Loan.


 


“Applicable Margin”  means (a) during the period
commencing on the Closing Date and ending on the first Business Day after the
receipt by the Administrative Agent of the Financial Statements for the first
full Fiscal Quarter ending after the Closing Date required to be delivered
pursuant to Section 6.1(a) or
(b)  (Financial Statements), as applicable, (i) with respect to Revolving
Dollar Loans maintained as (A) Base Rate Loans, a rate equal to 0.75% per annum and (B) Eurodollar Rate Loans, a
rate equal to 1.75% per annum,
(ii) with respect to Peso Loans maintained as (A) Peso TIIE Rate Loans, a rate
equal to 1.75% per annum and (B)
Peso Base Rate Loans, a rate equal to 1.75% per
annum, and (iii) with respect to Term Loans maintained as (A) Base Rate
Loans, a rate equal to 1.125% per annum
and (B) Eurodollar Rate Loans, a rate equal to 2.125% per annum, and (b) thereafter, as of any
date of determination, a per annum
rate equal to the rate set forth below opposite the applicable type of Loan and
the then applicable Net Senior Secured Leverage Ratio (determined on the last
day of the most recent Fiscal Quarter for which Financial Statements have been
delivered pursuant to Section 6.1(a) or
(b)  (Financial Statements)) set forth below:


 


2

















 


	
   

  	
   

  	
  BASE
  RATE LOANS

  	
   

  	
  EURODOLLAR
  RATE LOANS

  	
   

  	
  PESO
  LOANS

  	
   

  
	
  NET SENIOR SECURED LEVERAGE

  RATIO

  	
   

  	
  REVOLVING

  LOANS

  	
   

  	
  TERM

  LOANS

  	
   

  	
  REVOLVING

  LOANS

  	
   

  	
  TERM

  LOANS

  	
   

  	
  PESO
  TIIE

  RATE LOANS

  	
   

  	
  PESO
  BASE

  RATE LOANS

  	
   

  
	
  Greater than 0.75 to 1.0

  	
   

  	
  0.75

  	
  %

  	
  1.125

  	
  %

  	
  1.75

  	
  %

  	
  2.125

  	
  %

  	
  1.75

  	
  %

  	
  1.75

  	
  %

  
	
  Less than or equal to 0.75 to 1.0

  	
   

  	
  0.50

  	
  %

  	
  1.00

  	
  %

  	
  1.50

  	
  %

  	
  2.00

  	
  %

  	
  1.50

  	
  %

  	
  1.50

  	
  %

  



 


Changes in the Applicable
Margin resulting from a change in the Net Senior Secured Leverage Ratio on the
last day of any subsequent Fiscal Quarter shall become effective as to all
Revolving Loans and Term Loans upon delivery by the Company to the Administrative
Agent of new Financial Statements pursuant to Section 6.1(a)
or (b)  (Financial Statements), as applicable.  Notwithstanding anything to the contrary set
forth in this Agreement (including the then effective Net Senior Secured
Leverage Ratio), if the Company shall fail to deliver such Financial Statements
within any of the time periods specified in Section 6.1(a)
or (b)  (Financial Statements), the Applicable
Margin from and including the 46th day after the end of such
Fiscal Quarter or the 91st day after the end of such Fiscal Year, as
the case may be, to but not including the date the Company delivers to the
Administrative Agent such Financial Statements shall equal the highest possible
Applicable Margin provided for by this definition.


 


“Applicable Unused Commitment Fee Rate” means (a) during
the period commencing on the Closing Date and ending on the first Business Day
after the receipt by the Administrative Agent of the Financial Statements for
the first full Fiscal Quarter ending after the Closing Date required to be
delivered pursuant to Section 6.1(a) or
(b)  (Financial Statements), as
applicable, 0.375% per annum and
(b) thereafter, as of any date of determination, a per annum rate equal to the rate set forth below opposite
the then applicable Net Senior Secured Leverage Ratio (determined on the last
day of the most recent Fiscal Quarter for which Financial Statements have been
delivered pursuant to Section 6.1(a) or
(b)  (Financial Statements)) set forth below:


 




	
  NET SENIOR SECURED LEVERAGE
  RATIO

  	
   

  	
  APPLICABLE UNUSED

  COMMITMENT FEE RATE

  	
   

  
	
  Greater than
  0.75 to 1.0

  	
   

  	
  0.375

  	
  %

  
	
  Less than or
  equal to 0.75 to 1.0

  	
   

  	
  0.250

  	
  %

  






 


Changes in the Applicable
Unused Commitment Fee Rate resulting from a change in the Net Senior Secured
Leverage Ratio on the last day of any subsequent Fiscal Quarter shall become
effective upon delivery by the Company to the Administrative Agent of new
Financial Statements pursuant to Section 6.1(a)
or (b)  (Financial Statements), as applicable.  Notwithstanding anything to the contrary set
forth in this Agreement (including the then effective Net Senior Secured
Leverage Ratio), if the Company shall fail to deliver such Financial Statements
within any of the time periods specified in Section 6.1(a)
or (b)  (Financial Statements), the Applicable Unused Commitment Fee Rate
from and including the 46th day after the end of such Fiscal Quarter
or the 91st day after the end of such Fiscal Year, as the case may
be, to but not including the date the Company delivers to the Administrative
Agent such Financial Statements shall equal the highest possible Applicable
Unused Commitment Fee Rate provided for in this definition.


 


“Apollo” means Apollo Management V, L.P., a Delaware limited
partnership.


 


“Apollo Group” means (i) Apollo; (ii) the Apollo Holders; and
(iii) any Affiliate of Apollo (including the Apollo Holders).


 


3

















 


“Apollo Holders” means (i) Apollo Investment Fund V, L.P. (“AIF V”), Apollo Overseas Partners V, LP. (“AOP V”), Apollo Netherlands Partners V (A), L.P. (“Apollo Netherlands A”), Apollo Netherlands Partners V (B),
L.P. (“Apollo Netherlands B”), and Apollo
German Partners V GmbH & Co KG (“Apollo German Partners”)
and (ii) any other partnership or entity affiliated with and managed by Apollo
or its Affiliates to which AIF V, AOP V, Apollo Netherlands A, Apollo
Netherlands B or Apollo German Partners assigns any of their respective
interests in the Company.


 


“Approved Electronic Communications” means each notice,
demand, communication, information, document and other material that any Loan
Party is obligated to, or otherwise chooses to, provide to the Administrative
Agent pursuant to any Loan Document or the transactions contemplated therein,
including (a) any supplement to the Guaranty, any joinder to the Pledge and
Security Agreement and any other written Contractual Obligation delivered or
required to be delivered in respect of any Loan Document or the transactions
contemplated therein and (b) any Financial Statement, financial and other
report, notice, request, certificate and other information material; provided,
however, that, “Approved Electronic Communication” shall exclude (i) any Notice of
Borrowing, Letter of Credit Request, Swing Loan Request, Notice of Conversion
or Continuation, and any other notice, demand, communication, information,
document and other material relating to a request for a new, or a conversion of
an existing, Borrowing, (ii) any notice pursuant to Section 2.8 (Optional Prepayments) and Section 2.9 (Mandatory Prepayments) and
any other notice relating to the payment of any principal or other amount due
under any Loan Document prior to the scheduled date therefor, (iii) all notices
of any Default or Event of Default and (iv) any notice, demand, communication,
information, document and other material required to be delivered to satisfy
any of the conditions set forth in Article III
(Conditions to Loans and Letters of Credit) or Section 2.4(a) (Letters of Credit) or any other
condition to any Borrowing or other extension of credit hereunder or any
condition precedent to the effectiveness of this Agreement.


 


“Approved Electronic Platform” has the meaning specified in Section 10.3 (Posting of Approved Electronic
Communications).


 


“Approved Fund” means any Fund that is advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an
entity that administers or manages a Lender.


 


“Arrangers” means Citigroup Global Markets Inc. and J.P.
Morgan Securities Inc., in their capacities as joint book managers and joint
lead arrangers.


 


“Asset Sale” has the meaning specified in Section 8.4 (Sale of Assets).


 


“Assignment and Acceptance” means an assignment and
acceptance entered into by a Lender and an Eligible Assignee, and accepted by
the Administrative Agent, in substantially the form of Exhibit A  (Form of Assignment and Acceptance).


 


“Available Amount” means, with respect to any Person, at any
time, an amount equal to the amount of “Restricted Payments”
(as defined in the New Subordinated Note Indenture) the Company would be
permitted to make under Section 4.06(A)(iii)(a),
(b) and (c)
of the New Subordinated Note Indenture, such covenant contained in the New
Subordinated Note Indenture and all other terms of the New Subordinated Note
Indenture to which reference is made in such section, together with all related
definitions and ancillary provisions, being hereby


 


4

















 


incorporated into this
Agreement by this reference as though specifically set forth in this definition;
provided, however,
that for purposes of this Agreement, (a) with respect to Section 4.06(A)(iii)(a)
of the New Subordinated Note Indenture, the “Restricted
Payments Computation Period” (as defined in the New Subordinated
Note Indenture) shall be deemed to have commenced on January 1, 2006, (b) with
respect to Section 4.06(A)(iii)(b) of the New
Subordinated Note Indenture, the aggregate net proceeds received by the Company
shall be calculated commencing January 1, 2006 and shall exclude any net proceeds
received in connection with the Merger, (c) with respect to Section 4.06(A)(iii)(c) of the New Subordinated Note
Indenture, the aggregate net proceeds received by the Company shall be
calculated commencing January 1, 2006 and (d) any defined terms used in the New
Subordinated Note Indenture that have equivalent meanings in this Agreement or
any other Loan Document shall have such meaning so that the covenant made to
the Trustee (as defined in the New Subordinated Note Indenture) for the benefit
of the Holders (as defined in the New Subordinated Note Indenture) set forth in
Section 4.06(A)(iii)(a), (b) and (c) of the New
Subordinated Note Indenture runs to the benefit of the Lenders under this
Agreement; provided, further,
that when used in this definition, the defined term “New
Subordinated Note Indenture” means the New Subordinated Note
Indenture, as in effect on the Closing Date and without giving effect to any
amendments, waivers or modifications thereto, or any termination, repayment,
defeasance, redemption, repurchase, or expiration thereof, in each case unless
separately expressly consented to in accordance with Section 11.1
(Amendments, Waivers, Etc.).


 


“Available Credit” means, at any time, (a) the then effective
Revolving Credit Commitments minus
(b) the aggregate Revolving Credit Outstandings at such time.


 


“Bain Capital Group” means (i) Bain Capital Holdings (Loews)
I, L.P., (ii) Bain Capital AIV (Loews) II, L.P. and (iii) any Affiliates of
Bain Capital Holdings (Loews) I, L.P. and Bain Capital AIV (Loews) II, L.P.


 


“Banamex” has the meaning specified in the preamble to this
Agreement.


 


“Bankruptcy Code” means title 11, United States Code.


 


“Base Rate” means, for any period, a fluctuating interest
rate per annum as shall be in effect from time to time, which rate per annum
shall be equal at all times to the higher of the following:


 


(a)            the rate of
interest announced publicly by Citibank in New York, New York, from time to
time, as Citibank’s base rate; and


 


(b)           0.5% per annum plus the Federal Funds Rate.


 


“Base Rate Loan” means any Dollar Swing Loan or any other
Loan during any period in which it bears interest based on the Base Rate.


 


“Borrower” means each of the Company and the Mexican
Borrowers.


 


“Borrowing” means a Revolving Credit Borrowing or a Term Loan
Borrowing.


 


“Business Day” means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to notices,


 


5

















 


determinations, fundings and
payments in connection with (a) the Eurodollar Rate or any Eurodollar Rate
Loans, a day on which dealings in Dollar deposits are also carried on in the
London interbank market and (b) the Peso Base Rate, the Peso TIIE Rate or any
Peso Loan, a day of the year on which banks are not required or authorized to
close in Mexico City.


 


“Cadena” has the meaning specified in the preamble to this
Agreement.


 


“Capital Expenditures” means, for any Person for any period,
the aggregate of amounts that would be reflected as additions to property,
plant or equipment on a Consolidated balance sheet of such Person and its
Subsidiaries prepared in accordance with GAAP, excluding interest capitalized
during construction.


 


“Capital Lease” means, with respect to any Person, any lease
of, or other arrangement conveying the right to use, property by such Person as
lessee that would be classified or accounted for as a capital lease on a
balance sheet of such Person prepared in conformity with GAAP.


 


“Capital Lease Obligation” means, with respect to any Person
as of any date, the capitalized amount as of such date of all Consolidated
obligations of such Person or any of its Subsidiaries under Capital Leases
(excluding any operating leases entered into by the Company or its Subsidiaries
after May 21, 1998 and required to be reflected on a consolidated balance sheet
pursuant to EITF 97-10).


 


“Carlyle Group” means (i) TC Group, L.L.C., (ii) Carlyle
Partners III Loews, L.P., (iii) CP II Coinvestment, L.P. and (iv) any Affiliates
of TC Group, L.L.C., Carlyle Partners III Loews, L.P. and CP II Coinvestment,
L.P.


 


“Cash Collateral Account” means any Deposit Account or
Securities Account that is (a) established by the Administrative Agent from
time to time in its sole discretion to receive cash and Cash Equivalents (or
purchase cash or Cash Equivalents with funds received) from the Loan Parties or
Persons acting on their behalf pursuant to the Loan Documents, (b) with such
depositaries and securities intermediaries as the Administrative Agent may
determine in its sole discretion, (c) in the name of the Administrative Agent
(although such account may also have words referring to any Borrower and the
account’s purpose), (d) under the control of the Administrative Agent and (e)
in the case of a Securities Account, with respect to which the Administrative
Agent shall be the Entitlement Holder and the only Person authorized to give
Entitlement Orders with respect thereto.


 


“Cash Equivalents” means at any time: (a) any evidence of
Indebtedness with a maturity of twelve months or less issued or directly and
fully guaranteed or insured by the United States or guaranteed by a government
that is a member of the Organization for Economic Cooperation and Development (“OECD Country”) or any agency,
instrumentality, state or political subdivision thereof which is rated “A-” or better by S&P; (b) certificates
of deposit, time deposits, eurodollar time deposits, overnight bank deposits or
bankers’ acceptances with a maturity of twelve months or less of, or dollar
deposits in, any financial institution that is a member of the Federal Reserve
System or an applicable central bank of an OECD Country having a combined
capital and surplus and undivided profits of not less than $500,000,000; (c)
commercial paper with a maturity of twelve months or less rated at least “A-1” (or its equivalent) by S&P or at least “P-1” (or its equivalent) by Moody’s; (d)
repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally


 


6

















 


guaranteed by the government of
the United States or issued by any agency thereof and backed by the full faith
and credit of the government of the United States, in each case maturing within
one year from the date of acquisition, provided that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as
adopted by the Comptroller of the Currency; (e) qualified purchaser funds
regulated by the exemption provided by Section 3(c)(7) of the Investment
Company Act of 1940, as amended, which funds possess a “AAA” rating from at least two nationally
recognized agencies and provide daily liquidity; (f) money market mutual or
similar funds which invest exclusively in assets satisfying the requirements of
clauses (a) through (e)
of this definition; and (g) instruments equivalent to those referred to in
clauses (a) through (f) above
denominated in Pesos, Euros or any other foreign currency comparable in credit
quality and tenor to those referred to above and customarily used by
corporations for cash management purposes in any jurisdiction outside the
United States to the extent reasonably required in connection with any business
conducted by any Subsidiary organized in such jurisdiction.


 


“Cash Management Document” means any certificate, agreement
or other document executed by any Loan Party in respect of the Cash Management
Obligations of any Loan Party.


 


“Cash Management Obligation” means, as applied to any Person,
any direct or indirect liability, contingent or otherwise, of such Person in
respect of cash management services (including treasury, depository, overdraft,
credit or debit card, electronic funds transfer and other cash management
arrangements) provided after the date hereof (regardless of whether these or
similar services were provided prior to the date hereof by the Administrative
Agent, any Lender or any Affiliate of any of them) by the Administrative Agent,
any Lender or any Affiliate of any of them in connection with this Agreement or
any Loan Document (other than Cash Management Documents), including obligations
for the payment of fees, interest, charges, expenses, attorneys’ fees and
disbursements in connection therewith. 


 


“Change of Control” means the occurrence of any of the
following: 


 


(a) the Permitted Holders
ceasing to have the power, directly or indirectly, to vote or direct the voting
of a majority of the Voting Stock of Holdings (or, at any time after the
consummation of a Qualifying IPO of the Company, the Company); provided, however,
that the occurrence of the foregoing event shall not be deemed a Change of
Control if (i) at any time prior to the consummation of a Qualifying IPO of
Holdings or the Company, and for any reason whatever, (A) the Permitted Holders
otherwise have the right, directly or indirectly, to designate (and do so
designate) a majority of the board of directors of Holdings or (B) the
Permitted Holders own, directly or indirectly, of record and beneficially an
amount of Voting Stock of Holdings equal to an amount more than forty percent
(40%) of the amount of Voting Stock of Holdings owned, directly or indirectly,
by the Permitted Holders of record and beneficially as of the Closing Date and
such ownership by the Permitted Holders represents the largest single block of Voting
Stock of Holdings held by any Person or related group for purposes of Section
13(d) of the Securities Exchange Act of 1934, or (ii) at any time after the
consummation of a Qualifying IPO of Holdings or the Company, and for any reason
whatsoever, (A) no “person” or “group” (as such terms are used in sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee
benefit plan of such person and its subsidiaries, and any person or entity
acting in its capacity as trustee, agent or other fiduciary or administrator of
any such plan), excluding the Permitted Holders, shall


 


7

















 


become the “beneficial owner” (as defined in Rules
13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of more than the
greater of (x) thirty-five percent (35%) of the outstanding Voting Stock of
Holdings or the Company, as applicable, and (y) the percentage of the then
outstanding Voting Stock of Holdings or the Company, as applicable, owned,
directly or indirectly, beneficially by the Permitted Holders, and (B) during
any period of twelve (12) consecutive months, the board of directors of
Holdings or the Company, as applicable, shall consist of a majority of the
Continuing Directors; or


 


(b)           any “Change of Control”
(or any comparable term) as defined in any Indenture (other than the Holdings
Senior Note Indenture), the aggregate outstanding principal amount of which is
in excess of $25,000,000; or


 


(c)           at any time prior to the consummation of a Qualifying IPO
of the Company, the Company ceasing to be a direct wholly owned Subsidiary of
Holdings. 


 


“Citibank” means Citibank, N.A., a national banking
association.


 


“Citicorp” has the meaning specified in the preamble to this
Agreement.


 


“Closing Date” means the first date on which any Loan is made
or any Letter of Credit is Issued or deemed Issued pursuant to Section 2.4(k) (Letters of Credit).


 


“Code” means the U.S. Internal Revenue Code of 1986, as
amended.


 


“Co-Documentation
Agents” means Credit Suisse Securities (USA) LLC, Bank of America,
N.A. and General Electric Capital Corporation, in their capacities as
co-documentation agents.


 


“Co-Investors”
means Weston Presidio Capital IV, L.P., WPC Entrepreneur Fund II, L.P., SSB
Capital Partners (Master Fund) I, L.P., Caisse de Depot et Placement du Quebec,
Co-Investment Partners, L.P., CSFB Strategic Partners Holdings II, L.P., CSFB
Strategic Partners Parallel Holdings II, L.P., CSFB Credit Opportunities Fund
(Employee), L.P., CSFB Credit Opportunities Fund (Helios), L.P., Credit Suisse
Anlagestiftung, Pearl Holding Limited, Partners Group Private Equity
Performance Holding Limited, Vega Invest (Guernsey) Limited, Alpinvest Partners
CS Investments 2003 C.V., Alpinvest Partners Later Stage Co-Investments
Custodian II B.V., Alpinvest Partners Later Stage Co-Investments Custodian IIA
B.V. and Screen Investors 2004, LLC and their respective Affiliates. 


 


“Collateral” means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any Collateral Document.


 


“Collateral Documents” means the Pledge and Security Agreement,
the Mortgages, the Foreign Pledge Agreements and any other document executed
and delivered by a Loan Party granting a Lien on any of its property to secure
payment of the Secured Obligations.


 


“Commitment” means, with respect to any Lender, such Lender’s
Revolving Credit Commitment, if any, such Lender’s Peso Commitment, if any, and
such Lender’s Term Loan Commitment, if any, and “Commitments” means
the aggregate Revolving Credit Commitments, Peso Commitments and Term Loan
Commitments of all Lenders.


 


8

















 


“Company” has the meaning specified in the preamble to this
Agreement.


 


“Company’s Accountants” means any of (i)
PriceWaterhouseCoopers LLP, (ii) Ernst & Young LLP, KPMG LLP or Deloitte
& Touche LLP or (iii) any other independent nationally-recognized public
accountants selected by the Company and reasonably acceptable to the
Administrative Agent.


 


 “Compliance
Certificate” has the meaning specified in Section 6.1(c) (Financial Statements).


 


“Consolidated” means, with respect to any Person, the
consolidation of accounts of such Person and its Subsidiaries in accordance
with GAAP.


 


“Consolidated Cash Taxes” means, with
respect to the Company for any period, the Consolidated income, franchise and
similar taxes, as determined in accordance with GAAP, to the extent the same
are payable in cash with respect to such period (including to the extent
applicable in respect of tax liabilities incurred in a prior period, including
prior to the Closing Date).


 


“Consolidated Current Assets” means, with respect to any
Person at any date, the total Consolidated current assets (other than cash and
Cash Equivalents and current deferred tax assets) of such Person and its
Subsidiaries at such date.


 


“Consolidated Current Liabilities” means, with respect to any
Person at any date, all liabilities of such Person and its Subsidiaries at such
date that should be classified as current liabilities on a Consolidated balance
sheet of such Person and its Subsidiaries, but excluding, in the case of the
Company the sum of (a) the principal amount of any current portion of long-term
Indebtedness, (b) (without duplication of clause
(a) above) the then outstanding principal amount of the Loans, (c) the
principal amount of any short-term Indebtedness and (d) current deferred tax
liabilities.


 


“Consolidated EBITDA” means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period
increased (to the extent deducted in determining Consolidated Net Income) by
the sum (without duplication) of: (i) all income taxes of such Person and its
Subsidiaries paid or accrued in accordance with GAAP for such period (other
than income taxes attributable to extraordinary gains or losses), franchise and
capital and similar taxes, and any tax distributions made to Holdings in
respect of consolidated, combined, unitary or affiliated returns and to pay
franchise and capital taxes and other fees, taxes and expenses to maintain its
corporate existence (net of comparable tax credits); (ii) interest expense of
such Person and its Subsidiaries for such period (net of interest income);
(iii) depreciation expense of such Person and its Subsidiaries for such period;
(iv) amortization expense of such Person and its Subsidiaries for such period
including amortization of capitalized debt issuance costs; (v) any call premium
(or original issue discount) expenses (cash and non-cash) associated with the
call or repurchases of Indebtedness; (vi) letter of credit fees and annual
agency fees paid to the Administrative Agent; (vii) cash expense incurred in
connection with any permitted investment, any equity issuance or debt issuance
(in each case, whether or not consummated); (viii) to the extent actually
reimbursed, expenses incurred to the extent covered by indemnification
provisions in any agreement in connection with a Permitted Acquisition; (ix) 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


 


9

















 


interruption; (x) management,
monitoring, consulting and advisory fees, related expenses, any other fees and
expenses (or any accruals relating to such fees and related expenses) and any
one-time termination fees in respect of a change of control or Qualifying IPO
and related indemnities and reasonable out of pocket expenses, in each case, as
permitted under this Agreement to be paid to the Permitted Holders; (xi) fees
and expenses in connection with refinancings of Indebtedness permitted under
this Agreement, including charges attributable to the write-off debt discount
and the write-off of deferred financing fees; (xii)(A) non-recurring cash
facilities relocation and consolidation costs and (B) other non-recurring fees,
cash charges and other non-recurring cash expenses (including restructuring
charges and severance costs), whether incurred prior to or after the Closing
Date; (xiii) non-cash straight line rent operating lease adjustments reducing
Consolidated Net Income, less any such adjustments increasing Consolidated Net
Income, in each case as required under GAAP; (xiv) any other non-cash charges
and expenses of such Person and its Subsidiaries for such period (including
non-cash expenses recognized in accordance with SFAS No. 106); (xv) costs
incurred in connection with the closing or disposition of any theatre or screen
within a theatre during any applicable period; (xvi) costs incurred in
connection with any newly opened theatre, any theatre newly acquired from other
than an Affiliate and unconsummated theatre acquisitions from other than an
Affiliate (but not to exceed $6,000,000 for any single unconsummated theatre
acquisition), all as determined in accordance with GAAP; and (xvii) fees,
expenses and other costs incurred in connection with the Transactions and the
Prior Transactions, all determined on a Consolidated basis in accordance with
GAAP, plus unrealized losses and minus unrealized gains in respect of
Hedging Contracts, all as determined in accordance with GAAP; provided, however,
that, in the case of the Company, the “Consolidated
EBITDA” for the Fiscal Quarter ended on or around September 30, 2005
shall be deemed to equal $88,536,000.


 


“Consolidated Interest Expense” means, with respect to any
Person for any period, without duplication, (i) the sum of (a) the interest
expense of such Person and its Subsidiaries for such period as determined on a
Consolidated basis in accordance with GAAP consistently applied, but excluding,
to the extent included in interest expense, (A) amortization of fees and
expenses associated with the consummation of the Transactions, (B) annual
agency fees paid to the Administrative Agent, (C) costs associated with
obtaining or terminating Hedging Contracts, (D) amortization of fees and
expenses associated with any permitted investment, equity issuance or debt
issuance (whether or not consummated), (E) pay-in-kind interest expense or
other noncash interest expense (including as a result of the effects of
purchase accounting) and (F) any payments made in respect of operating leases
entered into by the Company or its Subsidiaries after May 21, 1998 and required
to be reflected on a Consolidated balance sheet pursuant to EITF 97-10 and (b)
the aggregate amount of the interest component of Capital Lease Obligations
paid, accrued and/or scheduled to be paid or accrued by such Person and its
Subsidiaries during such period as determined on a Consolidated basis in
accordance with GAAP consistently applied, less (ii) the interest income
(exclusive of deferred financing fees) of such Person and its Subsidiaries for
such period as determined on a Consolidated basis in accordance with GAAP
consistently applied, and with respect to clauses
(i) and (ii), only to
the extent the same are paid or payable (or received or receivable) in cash
with respect to such period; provided,
however, that, Consolidated
Interest Expense shall be calculated after giving effect to any payments made
by such Person minus any payments
received by such Person in respect of Hedging Contracts.


 


“Consolidated Net Income” means, with respect to any Person,
for any period, the Consolidated net income (or loss) of such Person and its
Subsidiaries for such period as


 


10

















 


determined in accordance with
GAAP, adjusted, to the extent included in calculating such net income, by
excluding (A) all after-tax extraordinary gains or losses (net of reasonable
fees and expenses relating to the transaction giving rise thereto), (B) the
cumulative effect of a change in accounting principles as well as any current
period impact of new accounting pronouncements including those related to
purchase accounting, (C) any net after-tax gains or losses attributable to the
early extinguishment of Indebtedness, (D) any non-cash income or charges
resulting from mark-to-market accounting under Statement of Financial
Accounting Standard No. 52 – Foreign Currency Translation relating to
indebtedness denominated in foreign currencies, (E) any non-cash impairment
charges resulting from the application of Statement of Financial Accounting
Standards No. 142 – Goodwill and Other Intangibles and No. 144 – Accounting for
the Impairment or Disposal of Long-Lived Assets and the amortization of
intangibles including arising pursuant to Statement of Financial Accounting
Standards No. 141 – Business Combinations, (F) inventory purchase accounting
adjustments and amortization, impairment and other non-cash charges (including
asset revaluations) resulting from purchase accounting adjustments with respect
to the Merger or any Permitted Acquisition, (G) non-cash compensation charges,
including any such charges arising from stock options, restricted stock grants,
SARs or other equity – incentive programs, reasonable cash compensation charges
related to any SARs linked to the performance of Grupo Cinemex and its
Subsidiaries and granted to or for management of the Company with direct
oversight responsibility for the operations of Grupo Cinemex or management of
or senior consultants to Grupo Cinemex or its Subsidiaries, reasonable
customary cash charges resulting from purchase accounting to the extent such
charges represent sales bonuses to management, and cash charges related to retention,
signing or completion bonuses in connection with the Transactions, any
Permitted Acquisition or any Asset Sale, (H) non-cash losses from Joint
Ventures and non-cash minority interest reductions, (I) gains or losses
incurred in connection with Asset Sales other than those in the ordinary course
of business and (J) any expenses related to the Transactions; provided, however,
that there shall be included the deferred revenue eliminated as a consequence
of the application of purchase accounting adjustments due to the Transactions
or any Permitted Acquisition for the fiscal periods that such revenue would
otherwise have been recognized.


 


“Constituent Documents” means, with respect to any Person,
(a) the articles of incorporation, certificate of incorporation, constitution
or certificate of formation (or the equivalent organizational documents) of
such Person, (b) the by-laws or operating agreement (or the equivalent
governing documents) of such Person and (c) any document setting forth the
manner of election or duties of the directors or managing members of such
Person (if any) and the designation, amount or relative rights, limitations and
preferences of any class or series of such Person’s Stock.


 


“Contaminant” means any material, substance or waste that is
classified or regulated under any Environmental Law as hazardous, toxic, a
contaminant or a pollutant or by other words of similar meaning, including any
petroleum or petroleum-derived substance or waste, asbestos and polychlorinated
biphenyls.


 


“Continuing Directors” shall mean the directors of Holdings (or
the Company after a Qualifying IPO of the Company) on the Closing Date, as
elected or appointed after giving effect to the Merger and the other
transactions contemplated hereby, and each other director, if, in each case,
such other director’s nomination for election to the board of directors of
Holdings (or the Company after a Qualifying IPO of the Company) is recommended
by a majority of the then Continuing Directors or such other director receives
the vote of the Permitted Holders in his or


 


11

















 


her election by the
stockholders of Holdings (or the Company after a Qualifying IPO of the
Company). 


 


“Contractual Obligation” of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound.


 


“Corporate Chart” means a corporate organizational chart,
list or other similar document in each case in form reasonably acceptable to
the Administrative Agent and setting forth, for each Person that is a Loan Party,
that is subject to Section 7.11 (Additional
Collateral and Guaranties) or that is a Subsidiary of any of them,
(a) the full legal name of such Person (and any trade name, fictitious name or
other name such Person may have had or operated under), (b) the
jurisdiction of organization, the organizational number (if any) and the tax
identification number (if any) of such Person, (c) the location of such Person’s
chief executive office (or sole place of business) and (d) the number of shares
of each class of such Person’s Stock authorized (if applicable), the number
outstanding as of the date of delivery and the number and percentage of such
outstanding shares for each such class owned (directly or indirectly) by any
Loan Party or any Subsidiary of any of them.


 


“Debt Issuance” means the incurrence of Indebtedness of the
type specified in clause (a) or (b) of the definition of “Indebtedness” by the Company or any of its Subsidiaries.


 


“Default” means any event that, with the passing of time or
the giving of notice or both, would become an Event of Default.


 


“Deferred Prepayment Amount” means, with respect to any Net
Cash Proceeds of any Deferred Prepayment Event, the portion of such Net Cash
Proceeds subject to a Deferred Prepayment Notice.


 


“Deferred Prepayment Date” means, with respect to any Net
Cash Proceeds of any Deferred Prepayment Event, the earlier of (a) the date
occurring 365 days after such Deferred Prepayment Event or, if a definitive
letter of intent or agreement has been executed during such 365 day period with
respect to the reinvestment of such Net Cash Proceeds, the date occurring six
months after the date of such letter of intent or agreement, as the case may
be, and (b) the date that is five Business Days after the date on which the
Company shall have notified the Administrative Agent of (i) the Company’s
determination not to reinvest in assets useful in the Company’s or a Subsidiary’s
business or (ii) the determination by the applicable Subsidiary of the Company
not to repay the applicable Indebtedness with all or any portion of the
relevant Deferred Prepayment Amount for such Net Cash Proceeds.


 


“Deferred Prepayment Event” means any Asset Sale or Property
Loss Event in respect of which the Company has delivered a Deferred Prepayment
Notice.


 


“Deferred Prepayment Notice” means a written notice executed
by a Responsible Officer of the Company stating that no Default or Event of
Default has occurred and is continuing and that the Company (directly or
indirectly through one of its Subsidiaries) intends and expects to use all or a
specified portion of the Net Cash Proceeds of an Asset Sale or Property Loss
Event to acquire, upgrade, improve, repair or replace assets useful in its or
one of its Subsidiaries’ businesses.


 


12

















 


“Deposit Account” has the meaning given to such term in the
UCC.


 


“Disclosure Documents” means, collectively, the Confidential
Information Memorandum dated January 2006 and all other confidential
information memoranda and related written materials prepared in connection with
the syndication of the Facilities.


 


“Dispose” or “Disposition”
has the meaning specified in Section 8.4
(Sale of Assets).


 


“Disqualified Stock” means with respect to any Person, any
Stock that, by its terms (or by the terms of any Security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is exchangeable for Indebtedness of such Person, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Term Loan Maturity Date.


 


“Documentary Letter of Credit” means any Letter of Credit
that is drawable upon presentation of documents evidencing the sale or shipment
of goods purchased by the Company or any of its Subsidiaries in the ordinary
course of its business.


 


“Dollar” and the sign “$”
each mean the lawful money of the United States of America.


 


“Dollar Equivalent” of any amount means, at the time of
determination thereof, (a) if such amount is expressed in Dollars, such amount,
(b) if such amount is expressed in Pesos, the equivalent of such amount in
Dollars determined by using the Peso Spot Rate, (c) if such amount is expressed
in any other Alternative Currency, the equivalent of such amount in Dollars
determined by using the rate of exchange quoted by Citibank in New York, New
York at 11:00 a.m. (New York time) on the date of determination (or, if such
date is not a Business Day, the last Business Day prior thereto) to prime banks
in New York for the spot purchase in the New York foreign exchange market of
such amount of Dollars with such Alternative Currency and (d) if such amount is
denominated in any other currency, the equivalent of such amount in Dollars as
determined by the Administrative Agent using any method of determination it
deems appropriate.


 


 “Dollar
Swing Loan” has the meaning specified in Section 2.3 (Swing Loans).


 


“Dollar Swing Lender” means Citicorp or any other Revolving
Credit Lender that becomes the Administrative Agent or agrees, with the
approval of the Administrative Agent and the Company, to act as the Dollar
Swing Lender hereunder, in each case in its capacity, as the Dollar Swing
Lender hereunder.


 


“Dollar Swing Loan Sublimit” means $20,000,000.


 


“Domestic Lending Office” means, with respect to any Lender,
the office of such Lender specified as its “Domestic
Lending Office” opposite its name on Schedule II  (Applicable
Lending Offices and Addresses for Notices) or on the Assignment and
Acceptance by which it became a Lender or such other office of such Lender as
such Lender may from time to time specify to the Company and the Administrative
Agent.


 


13

















 


“Domestic Person” means any “United
States person” under and as defined in Section 770l(a)(30) of the
Code.


 


“Domestic Loan Party” means any Loan Party organized under
the laws of any state of the United States of America or the District of
Columbia.


 


“Domestic Subsidiary” means any Subsidiary of the Company
organized under the laws of any state of the United States of America or the
District of Columbia.


 


“Eligible Assignee” means (a) a Lender or an Affiliate or
Approved Fund of any Lender, (b) a commercial bank having total assets whose
Dollar Equivalent exceeds $5,000,000,000, (c) a finance company, insurance
company or any other financial institution or Fund, in each case reasonably
acceptable to the Administrative Agent and regularly engaged in making,
purchasing or investing in loans and having a net worth, determined in
accordance with GAAP, whose Dollar Equivalent exceeds $250,000,000 (or, to the
extent net worth is less than such amount, a finance company, insurance
company, other financial institution or Fund, reasonably acceptable to the
Administrative Agent and the Company) or (d) a savings and loan association or
savings bank organized under the laws of the United States or any State thereof
having a net worth, determined in accordance with GAAP, whose Dollar Equivalent
exceeds $250,000,000; provided, however, that the Persons designated by
the Company in writing to the Administrative Agent on or prior to the Closing
Date shall not be deemed an “Eligible
Assignee.”


 


“Entitlement Holder” has the meaning given to such term in
the UCC.


 


“Entitlement Order” has the meaning given to such term in the
UCC.


 


“Environmental Laws” means all applicable Requirements of Law
now or hereafter in effect and as amended or supplemented from time to time,
relating to pollution or the protection of human health, the environment or
natural resources or the release of any materials into the environment,
including those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems, including the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. § 9601 et seq.); the Hazardous Material Transportation
Act, as amended (49 U.S.C. § 5101 et seq.); the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended (7 U.S.C. § 136 et
seq.); the Resource Conservation and Recovery Act, as amended (42
U.S.C. § 6901 et seq.); the Toxic Substance Control Act, as
amended (15 U.S.C. § 2601 et seq.); the Clean Air Act, as amended (42 U.S.C.
§ 7401 et seq.); the Federal Water Pollution Control Act,
as amended (33 U.S.C. § 1251 et seq.); the Occupational Safety and Health Act,
as amended (29 U.S.C. § 651 et seq.); the Safe Drinking Water Act, as amended
(42 U.S.C. § 300f et seq.); and each of their state and local
counterparts or equivalents and any transfer of ownership notification or
approval statute, including the Industrial Site Recovery Act (N.J. Stat. Ann. §
13:1K-6 et seq.).


 


“Environmental Liabilities and Costs” means, with respect to
any Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages (but excluding any punitive, consequential or treble damages),
costs and expenses (including all fees, disbursements and expenses of counsel,
experts and consultants and costs of investigation and feasibility studies),
fines and penalties, whether contingent or otherwise, arising under any
Environmental Law, Permit, order or agreement with any Governmental Authority
or other Person, in each case relating to any environmental, health or safety
condition or to any Release or threatened Release


 


14

















 


and resulting from the past,
present or future operations of, or ownership of property by, such Person or
any of its Subsidiaries or exposure to any Contaminant.


 


“Environmental Lien” means any Lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.


 


“Equity Issuance” means the issue or sale of any Stock of
Holdings, the Company or any Subsidiary of the Company by Holdings, the Company
or any Subsidiary of the Company to any Person other than Holdings, the Company
or any Subsidiary of the Company.


 


“ERISA” means the United States Employee Retirement Income
Security Act of 1974.


 


“ERISA Affiliate” means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Company or any of its Subsidiaries within the meaning of Section 414(b), (c),
(m) or (o) of the Code.


 


“ERISA Event” means (a) a reportable event described in
Section 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with respect to a
Title IV Plan, other than events for which the thirty (30) day notice period
has been waived, (b) the withdrawal of the Company or any of its Subsidiaries
or any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA, (c) the complete or partial withdrawal of the
Company or any of its Subsidiaries or any ERISA Affiliate from any Multiemployer
Plan, (d) notice of reorganization or insolvency of a Multiemployer Plan, (e)
the filing of a notice of intent to terminate a Title IV Plan or the treatment
of a plan amendment as a termination under Section 4041 of ERISA, (f) the
institution of proceedings to terminate a Title IV Plan or Multiemployer Plan
by the PBGC, (g) the failure to make any required contribution to a Title IV
Plan or Multiemployer Plan, (h) the imposition of a lien under Section 412 of
the Code or Section 302 of ERISA on the Company or any of its Subsidiaries or
any ERISA Affiliate or (i) any other event or condition that might reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Title IV
Plan or Multiemployer Plan or the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under Section 4007
of ERISA.


 


“Eurocurrency Liabilities” has the meaning assigned to that
term in Regulation D of the Federal Reserve Board.


 


“Eurodollar Base Rate” means, with respect to any Interest
Period for any Eurodollar Rate Loan, the rate determined by the Administrative
Agent to be the offered rate for deposits in Dollars for the applicable
Interest Period appearing on the Dow Jones Markets Telerate Page 3750 as of
11:00 a.m., London time, on the second full Business Day next preceding the
first day of each Interest Period.  In
the event that such rate does not appear on the Dow Jones Markets Telerate Page
3750 (or otherwise on the Dow Jones Markets screen), the Eurodollar Base Rate
for the purposes of this definition shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates as
may be selected by the Administrative Agent, or, in the absence of such
availability, the Eurodollar Base Rate shall be the rate of interest determined
by the Administrative Agent to be the rate per
annum at which deposits in Dollars are offered by the principal
office of Citibank in London to major banks in the London interbank market at
11:00 a.m. (London time) two Business Days before the first day of


 


15

















 


such Interest Period in an
amount substantially equal to the Eurodollar Rate Loan of Citibank for a period
equal to such Interest Period.


 


“Eurodollar Lending Office” means, with respect to any
Lender, the office of such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule II
(Applicable Lending Offices and Addresses
for Notices) or on the Assignment and Acceptance by which it became
a Lender (or, if no such office is specified, its Domestic Lending Office) or
such other office of such Lender as such Lender may from time to time specify
to the Company and the Administrative Agent.


 


“Eurodollar Rate” means, with respect to any Interest Period
for any Eurodollar Rate Loan, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the Eurodollar Base Rate by (b)(i) a percentage
equal to 100% minus (ii) the
reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Federal
Reserve Board for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which the
Eurodollar Rate is determined) having a term equal to such Interest Period.


 


“Eurodollar Rate Loan” means any Loan that, for an Interest
Period, bears interest based on the Eurodollar Rate.


 


“Event of Default” has
the meaning specified in Section 9.1 (Events
of Default).


 


“Excess Cash Flow” means, with respect to the Company and its
Subsidiaries on a Consolidated basis for any period, an amount equal to (a)
Consolidated EBITDA plus (b) the
excess, if any, of the Working Capital at the beginning of such period over the
Working Capital at the end of such period minus
(c) without duplication:


 


(i)            Capital Expenditures to the extent
permitted by this Agreement and paid in cash;


 


(ii)           total Consolidated Interest Expense
paid in cash;


 


(iii)          Consolidated Cash Taxes paid or that
will be paid within six months after the end of such period (which payments
would have been deducted in calculating Excess Cash Flow for such period had
they been made during such period); provided, however, that with respect to Consolidated Cash Taxes that
will be paid within six months after the end of such period, (w) the Company
shall have established adequate reserves therefor on the books of the Company
in conformity with GAAP, (x) the Company shall deliver a certificate to the
Administrative Agent not later than 90 days after the end of such period,
signed by a Responsible Officer of the Company, describing the nature and
amount of such Consolidated Cash Taxes and certifying that such Consolidated
Cash Taxes will be paid within six months after the end of such period, (y) if
such payment is not made within six months after the end of such period, then
the Company shall promptly make an optional prepayment of Term Loans in accordance
with Section 2.8 (Optional Prepayments) in an
amount, if positive, equal to (A) the amount that would have been paid pursuant
to Section 2.9(b) (Mandatory Prepayments)


 


16

















 


with respect to such period but for this clause (iii)  minus (B) the
amount of the payment made pursuant to Section 2.9(b) (Mandatory
Prepayments) with respect to such fiscal period and (z) any
deduction from Excess Cash Flow made with respect to such Consolidated Cash
Taxes pursuant to this clause (iii) in
such period shall not be deducted in computing Excess Cash Flow for the period
in which such Consolidated Cash Taxes are paid;


 


(iv)          the aggregate principal amount of
Indebtedness repaid or prepaid, excluding (A) Indebtedness in respect of
Revolving Loans, Letters of Credit and any other Indebtedness that consists of
a revolving line of credit, except to the extent that the commitments under
such line of credit are permanently reduced by the amount of such prepayment,
(B) Term Loans prepaid pursuant to Sections
2.8 (Optional Prepayments) and 2.9
(Mandatory Prepayments) and (C) repayments or prepayments of Indebtedness
that, in accordance with GAAP, constitutes (or when incurred constituted) a
long-term liability and current maturities of such long-term liabilities
financed by incurring other such long-term Indebtedness;


 


(v)           Restricted Payments made in cash to
the extent permitted under Section 8.5(c), (d), (e),
(g) or (h) (Restricted Payments);


 


(vi)          letter of credit and commitment or
facility fees (including the Unused Commitment Fee and similar fees in respect
of any other revolving or committed line of credit);


 


(vii)         proceeds received from insurance claims
with respect to casualty events or business interruption which reimburse prior
business expenses to the extent such expenses were added to Consolidated Net
Income in determining Consolidated EBITDA;


 


(viii)        cash payments made in satisfaction of
non-current liabilities (other than Indebtedness);


 


(ix)           cash expenses incurred in connection
with the Transactions or, to the extent permitted hereunder, any Investment
permitted under Section 8.3 (Investments),
Equity Issuance or Debt Issuance (whether or not consummated), or early
extinguishment of Indebtedness;


 


(x)            fees and expenses in connection with
exchanges or refinancings permitted by Section
8.5(f) (Restricted Payments);


 


(xi)           cash indemnity payments received
pursuant to indemnification provisions in any agreement in connection with any
Permitted Acquisition or any other Investment permitted hereunder (or in any
similar agreement related to any other acquisition consummated prior to the
Closing Date);


 


(xii)          extraordinary and non-recurring cash
charges to the extent included in determining Consolidated EBITDA;


 


(xiii)         cash expenses incurred in connection
with deferred compensation arrangements in connection with the Transactions;


 


17

















 


(xiv)        management fees paid under Section 8.8(d) (Transactions with
Affiliates);


 


(xv)         cash from operations used to consummate
a Permitted Acquisition or an Investment permitted under Section 8.3(e), (i) or (k) (Investments);



 


(xvi)        to the extent added to Consolidated Net
Income in determining Consolidated EBITDA, losses from discontinued operations;


 


(xvii)       cash expenditures made in respect of
Hedging Contracts to the extent not reflected in the computation of
Consolidated EBITDA or Consolidated Interest Expense;


 


(xviii)      cash compensation expenses related to any
SARs linked to the performance of Grupo Cinemex and its Subsidiaries granted to
or for management of the Company with direct oversight responsibility for the
operations of or senior consultants to Grupo Cinemex or management of Grupo
Cinemex and its subsidiaries, cash expenses resulting from purchase accounting
to the extent such expenses represent sales bonuses to management, and cash
expenses related to retention, signing or completion bonuses in connection with
the Transactions, any Permitted Acquisition or any Disposition;


 


(xix)         to the extent not deducted in the
computation of Net Cash Proceeds in respect of any asset disposition or
condemnation giving rise thereto, the amount of any mandatory prepayment of
Indebtedness (other than Indebtedness hereunder or under any other Loan
Document), together with any interest, premium or penalties required to be paid
(and actually paid) in connection therewith (in the case of the foregoing clauses (c)(i) through (xix), to
the extent made, paid, incurred or for, as the case may be, during such
period);


 


(xx)          payments with respect to contingent
contractual obligations required to be paid in the six months after the end of
such period (which payments would have been deducted in calculating Excess Cash
Flow for such period had they been made during such period); provided, however,
that (x) the Company shall deliver a certificate to the Administrative Agent
not later than 90 days after the end of such period, signed by a Responsible
Officer of the Company, describing the nature and amount of such contingent
contractual obligation and certifying that such contingent contractual
obligation will be paid within six months after the end of such period, (y) if
such payment is not made within six months after the end of such period, then
the Company shall promptly make an optional prepayment of Term Loans in
accordance with Section 2.8 (Optional
Prepayments) in an amount, if positive, equal to (A) the amount that
would have been paid pursuant to Section
2.9(b) (Mandatory Prepayments) with respect to such period but for this
clause (xx)  minus (B) the amount of the payment made
pursuant to Section 2.9(b) (Mandatory
Prepayments) with respect to such fiscal period and (z) any
deduction from Excess Cash Flow made with respect to contingent contractual
obligations pursuant to this clause (xx)
in such period shall not be deducted in computing Excess Cash Flow for the
period in which such contingent obligations are paid; and


 


(xxi)         the excess, if any, of the Working
Capital at the end of such period over the Working Capital at the beginning of
such period. 


 


18

















 


“Existing AMC Credit Agreement” means the Second Amended and
Restated Credit Agreement, dated as of March 26, 2004 and as amended,
supplemented or otherwise modified from time to time, among the Company, the
institutions party thereto as lenders and issuing banks and The Bank of Nova
Scotia, as administrative agent.


 


“Existing Credit Agreements” means the Existing AMC Credit
Agreement and the Existing Loews Credit Agreement.


 


“Existing Loews Credit Agreement” means that certain Credit
Agreement, dated as of July 30, 2004 and as amended, supplemented or otherwise
modified from time to time, among the Loews Cineplex Entertainment Corporation,
Grupo Cinemex and Cadena, LCE Holdco LLC, the institutions party thereto as
lenders and issuing banks and Citicorp, as administrative agent.


 


“Facilities” means (a) the Term Loan Facility and (b) the
Revolving Credit Facility.


 


“Facility Increase” means any Revolving Commitment Increase or Term Loan Increase.


 


“Facility Increase Date” has the meaning specified in Section 2.1(c)(i)
(Facility Increases).


 


“Fair Market Value” means (a) with respect to any asset or
group of assets (other than a marketable Security) at any date, the value of
the consideration obtainable in a sale of such asset at such date assuming a
sale by a willing seller to a willing purchaser dealing at arm’s length and
arranged in an orderly manner over a reasonable period of time having regard to
the nature and characteristics of such asset, as reasonably determined by a
Responsible Officer of the Company or, if such asset shall have been the
subject of a relatively contemporaneous appraisal by an independent third party
appraiser, the basic assumptions underlying which have not materially changed
since its date, the value set forth in such appraisal and (b) with respect to
any marketable Security at any date, the closing sale price of such Security on
the Business Day next preceding such date, as appearing in any published list
of any national securities exchange or the NASDAQ Stock Market or, if there is
no such closing sale price of such Security, the final price for the purchase
of such Security at face value quoted on such Business Day by a financial
institution of recognized standing regularly dealing in Securities of such type
and selected by the Administrative Agent.


 


“Federal Funds Rate” means, for any period, a fluctuating
interest rate per annum equal for each day during such period to 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 for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.


 


“Federal Reserve Board” means the Board of Governors of the
United States Federal Reserve System, or any successor thereto.


 


19

















 


“Fee Letter” means the Fee Letter, dated June 20, 2005,
addressed to the Company from the Arrangers and Credit Suisse, Cayman Islands
Branch, and accepted by the Company on June 20, 2005, with respect to certain
fees to be paid from time to time to the Arrangers and Credit Suisse, Cayman
Islands Branch.


 


“Financial Statements” means the financial statements of the
Company and its Subsidiaries delivered in accordance with Section 4.4 (Financial Statements) and
Section 6.1 (Financial Statements).


 


“Fiscal Quarter” means each of the three month periods ending
on or around March 31, June 30, September 30 and December 31.


 


“Fiscal Year” means the twelve month period ending on or
around March 31.


 


“Foreign
Pledge Agreements” means, collectively, (i) the Pledge Agreement to
be entered into between LCE Mexican Holdings, Inc. and the Administrative Agent
with respect to the Stock of Symphony Subsisting Vehicle, S. de R.L. de C.V.
and (ii) the Pledge Agreement to be entered into among LCE Acquisition Sub,
Inc., the Administrative Agent and LCE Lux Holdco S.a r.l. with respect to the
Stock of LCE Lux Holdco S.a r.l.


 


“Foreign Subsidiary” means any Subsidiary of the Company that
is not a Domestic Subsidiary.


 


“Fund” means any Person (other than a natural Person) that is
or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course.


 


“GAAP” means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States. 


 


“Governmental Authority” means any nation, sovereign or
government, any state or other political subdivision thereof and any entity or
authority exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including any central
bank or stock exchange.


 


“Grupo Cinemex” has the meaning specified in the preamble to
this Agreement.


 


“Guarantor” means the Company and each Subsidiary of the
Company party to, or that becomes party to, the Guaranty.


 


“Guaranty” means the guaranty, in substantially the form of Exhibit H  (Form of Guaranty), executed
by the Guarantors.


 


“Guaranty Obligation” means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any Indebtedness of another Person, if the purpose or intent of such
Person in incurring the Guaranty Obligation is to provide assurance to the
obligee of such Indebtedness that such Indebtedness will be paid or discharged,


 


20

















 


that any agreement relating
thereto will be complied with, or that any holder of such Indebtedness will be
protected (in whole or in part) against loss in respect thereof, including (a)
the direct or indirect guaranty, endorsement (other than for collection or deposit
in the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of Indebtedness of another Person and (b) any
liability of such Person for Indebtedness of another Person through any
agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise
acquire such Indebtedness or any security therefor or to provide funds for the
payment or discharge of such Indebtedness (whether in the form of a loan,
advance, stock purchase, capital contribution or otherwise), (ii) to maintain
the solvency or any balance sheet item, level of income or financial condition
of another Person, (iii) to make take-or-pay or similar payments, if required,
regardless of non-performance by any other party or parties to an agreement,
(iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss or (v) to supply funds to, or in any other manner invest in, such
other Person (including to pay for property or services irrespective of whether
such property is received or such services are rendered), if in the case of any
agreement described under clause (b)(i),
(ii), (iii), (iv) or
(v) above the primary purpose or
intent thereof is to provide assurance that Indebtedness of another Person will
be paid or discharged, that any agreement relating thereto will be complied
with or that any holder of such Indebtedness will be protected (in whole or in
part) against loss in respect thereof. 
The amount of any Guaranty Obligation shall be equal to the amount of
the Indebtedness so guaranteed or otherwise supported.  The term “Guarantee”
used as a verb herein has a corresponding meaning.


 


“Hedging Contracts” means all Interest Rate Contracts,
foreign exchange contracts, currency swap or option agreements, forward
contracts, commodity swap, purchase or option agreements, other commodity price
hedging arrangements and all other similar agreements or arrangements designed
to alter the risks of any Person arising from fluctuations in interest rates,
currency values or commodity prices.


 


“Holdings” means Marquee Holdings Inc., a Delaware
corporation.


 


“Holdings Senior Note Indenture” means the Indenture, dated
as of August 18, 2004, pursuant to which the Holdings Senior Notes were issued
between Holdings and HSBC, as the initial trustee, as amended, supplemented or
otherwise modified and in effect from time to time in accordance with Section 8.11 (Modification of Debt Agreements).


 


“Holdings Senior Notes” means Holdings’ 12% Senior Discount
Notes due 2014 issued pursuant to the Holdings Senior Note Indenture in the
original principal amount of $304,000,000 and any additional notes issued
pursuant to the Holdings Senior Note Indenture which have terms (other than
interest rate, issuance price, issuance date, series and title) which are the
same as the Holdings Senior Note Indenture.


 


“HSBC” means HSBC Bank USA, National Association.


 


“Incur”, “Incurrence”
or “Incurred” has the meaning
specified in the Senior Notes. 


 


“Indebtedness” means, with respect to any Person, without
duplication, (a) all obligations for borrowed money, (b) all obligations
evidenced by bonds, debentures, notes or other similar instruments, (c) all
Capital Lease Obligations, (d) all obligations issued or assumed


 


21

















 


as the deferred purchase price
of property (other than current and non-current accrued expenses, deferred
revenue, all employee retirement obligations, and trade debt incurred in the
ordinary course of business) which would appear as liabilities on a balance
sheet of such Person, all conditional sale obligations (as determined under
GAAP) and all obligations under any title retention agreement (other than
customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (e) all obligations for the
reimbursement of any obligor on any letter of credit, banker’s acceptance or
similar credit transactions, (f) all obligations of the type referred to in clauses (a) through (e) above of other Persons for the payment
of which such Person is directly or indirectly responsible or liable as
obligor, guarantor or otherwise (limited to the stated or determinable amount
of the related primary obligation, or portion thereof, or if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
as determined by such Person in good faith), and (g) all obligations of the
type referred to in clauses (a)
through (f) above of other
Persons which are secured by any lien on any property or asset of such Person,
the amount of such obligation being deemed to be the lesser of the value of
such property or asset or the amount of the obligation so secured; provided, however,
that “Indebtedness” shall not
include (i) any Non-Recourse Indebtedness, any obligations under any operating
leases (as determined under GAAP as in effect on the Closing Date), trade
accounts payable arising in the ordinary course of business and trade letters
of credit issued in support of trade accounts payable arising in the ordinary
course of business, (ii) regardless of any change in GAAP after the Closing
Date, amounts owing in respect of preferred stock (other than Disqualified
Stock issued after the Closing Date that would be treated as Indebtedness under
GAAP as in effect at such time), (iii) any earn-out obligation or post closing
payment adjustment until such obligation becomes certain of payment, (iv) any
deferred compensation arrangements, (v) any non-compete or consulting
obligations incurred in connection with the Transactions, any Permitted
Acquisition or any similar transaction entered into prior to the Closing Date
or (vi) items that would appear as a liability upon a balance sheet prepared in
accordance with GAAP as a result of the application of EITF 97-10 “The Effects of Lessee Involvement in Asset
Construction”; provided,
further, that the amount of
Indebtedness (x) for which recourse is limited either to a specified amount or
to an identified asset of such Person shall be deemed to be equal to such
specified amount or the fair market value of such identified asset, as the case
may be, and (y) shall be determined by the principal amount thereof (or in the
case of Indebtedness issued at a discount, the accreted amount) thereof.


 


“Indemnified Matter” has
the meaning specified in Section 11.4 (Indemnities).


 


“Indemnitee” has the meaning specified in Section 11.4 (Indemnities).


 


“Indenture” means each of the Holdings Senior Note Indenture,
the Senior Note Indentures, the Subordinated Note Indentures and other
indentures, agreements or similar documents evidencing senior or subordinated
notes or other debt securities of the Company or any of its Subsidiaries. 


 


“Interest Period” means (a) in the case of any Eurodollar
Rate Loan, (i) initially, the period commencing on the date such Eurodollar
Rate Loan is made or on the date of conversion of a Base Rate Loan to such Eurodollar
Rate Loan and ending one, two, three or six months thereafter (or if deposits
of such duration are available to or agreed to by all applicable Lenders,
ending nine or twelve months thereafter), as selected by the Company in its
Notice of Borrowing or Notice of Conversion or Continuation given to the
Administrative Agent pursuant to Section 2.2
(Borrowing Procedures) or Section 2.11
(Conversion/Continuation Option) and (ii) thereafter, if such Loan
is continued, in whole or in part, as a Eurodollar Rate Loan pursuant to


 


22

















 


Section 2.11 (Conversion/Continuation Option),
a period commencing on the last day of the immediately preceding Interest
Period therefor and ending one, two, three or six months thereafter (or if
deposits of such duration are available to or agreed to by all applicable Lenders,
ending nine or twelve months thereafter), as selected by the Company in its
Notice of Conversion or Continuation given to the Administrative Agent pursuant
to Section 2.11 (Conversion/Continuation
Option) and (b) in the case of any Peso TIIE Rate Loan, the period
commencing on the date such Peso TIIE Rate Loan is made or on the date of
conversion of a Peso Base Rate Loan to such Peso TIIE Rate Loan and ending on
the 28th day thereafter; provided, however, 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 extend 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 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 a calendar month;


 


(iii)          the Borrowers may not select any
Interest Period that ends after the date of a scheduled principal payment on
the Loans as set forth in Article II (The Facilities) unless,
after giving effect to such selection, the aggregate unpaid principal amount of
the Loans for which Interest Periods end after such scheduled principal payment
shall be equal to or less than the principal amount to which the Loans are
required to be reduced after such scheduled principal payment is made;


 


(iv)          the Borrowers may not select any
Interest Period in respect of (A) Eurodollar Rate Loans having an aggregate
principal amount of less than $1,000,000 and (B) Peso TIIE Rate Loans having an
aggregate principal amount of less than P5,000,000; and


 


(v)           there shall be outstanding at any one
time no more than 20 Interest Periods in the aggregate for all Loans.


 


“Interest Rate Contracts” means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance.


 


“International Assets” means (a) theatres located outside the
United States and Canada, including the Mexican Assets and (b) Stock of Persons
(other than AMC Entertainment International, Inc., a Delaware corporation)
which own or operate theatres located outside the United States and Canada,
including the Mexican Assets, in each case, together with all property and
assets which are a part of or related to such theatres, including but not
limited to cash, accounts receivable, real estate, leases, tenant improvements,
furniture, fixtures and equipment, net of any accounts payable, accrued
expenses and other current and long-term liabilities related to such theatres.


 


23

















 


“Investment” means, with respect to any Person, (a) any
purchase or other acquisition by such Person of (i) any Security issued by,
(ii) a beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by such Person of all
or a significant part of the assets of a business conducted by any other
Person, or all or substantially all of the assets constituting the business of
a division, branch or other unit operation of any other Person, (c) any loan,
advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid
expenses, accounts receivable and similar items made or incurred in the
ordinary course of business as presently conducted) or capital contribution by
such Person to any other Person, including all Indebtedness of any other Person
to such Person arising from a sale of property by such Person other than in the
ordinary course of its business, and (d) any Guaranty Obligation incurred by
such Person in respect of Indebtedness of any other Person.


 


“IRS” means the Internal Revenue Service of the United States
or any successor thereto.


 


“Issue” means, with respect to any Letter of Credit, to issue
(including any deemed issuance pursuant to Section 2.4(k)
(Letters of Credit)), extend
the expiry of, renew or increase the maximum face amount (including by deleting
or reducing any scheduled decrease in such maximum face amount) of, such Letter
of Credit.  The terms “Issued” and “Issuance” shall have a corresponding meaning.


 


“Issuer” means each Lender or Affiliate of a Lender that (a)
is listed on the signature pages hereof as an “Issuer” or (b) hereafter becomes an Issuer with
the approval of the Administrative Agent and the Company by agreeing pursuant
to an agreement with and in form and substance satisfactory to the Administrative
Agent and the Company to be bound by the terms hereof applicable to Issuers.


 


“Joint Venture” means (a) any Person which would constitute
an “equity method investee” of
the Company or any of its Subsidiaries, (b) any other Person designated by the
Company in writing to the Administrative Agent as a “Joint Venture” for purposes of this Agreement and at least
50% but less than 100% of whose equity interests are directly owned by the
Company or any of its Subsidiaries, and (c) any Person in whom the Company or
any of its Subsidiaries beneficially owns any Stock that is not a Subsidiary.


 


“J.P. Morgan Partners Group” means (i) J.P. Morgan Partners,
LLC and (ii) any Affiliates of J.P. Morgan Partners, LLC.


 


“Land” of any Person means all of those plots, pieces or
parcels of land now owned, leased or hereafter acquired or leased or purported
to be owned, leased or hereafter acquired or leased (including, in respect of
the Loan Parties, as reflected in the most recent Financial Statements) by such
Person.


 


“Leases” means, with respect to any Person, all of those
leasehold estates in Real Property of such Person, as lessee, as such may be
amended, supplemented or otherwise modified from time to time.


 


“Lender” means the Swing Lender and each other financial
institution or other entity that (a) is listed on the signature pages hereof as
a “Lender” or (b) from time to time becomes a party
hereto by execution of an Assignment and Acceptance.


 


24

















 


“Letter of Credit” means any letter of credit Issued pursuant
to Section 2.4 (Letters of Credit).


 


“Letter of Credit Obligations” means, at any time, the Dollar
Equivalent of the aggregate of all liabilities at such time of the Company to
all Issuers with respect to Letters of Credit, whether or not any such
liability is contingent, including, without duplication, the sum of (a) the
Reimbursement Obligations at such time and (b) the Letter of Credit Undrawn
Amounts at such time.


 


“Letter of Credit Reimbursement Agreement” has the meaning
specified in Section 2.4(a)  (Letters of Credit).


 


“Letter of Credit Request” has the meaning specified in Section 2.4(c) (Letters of Credit).


 


“Letter of Credit Sublimit” means $50,000,000.


 


“Letter of Credit Undrawn Amounts” means, at any time, the
aggregate undrawn face amount of all Letters of Credit outstanding at such
time.


 


“Lien” means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
intended to assure payment of any Indebtedness or the performance of any other
obligation, including any conditional sale or other title retention agreement,
the interest of a lessor under a Capital Lease and any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the UCC or comparable law of any jurisdiction
naming the owner of the asset to which such Lien relates as debtor.


 


“Loan” means any loan made by any Lender pursuant to this
Agreement.


 


“Loan Documents” means, collectively, this Agreement, the
Notes (if any), the Guaranty, the Fee Letter, each Letter of Credit
Reimbursement Agreement, each Hedging Contract between any Loan Party and any
Person that was a Lender or an Affiliate of a Lender at the time it entered
into such Hedging Contract, each Cash Management Document, the Collateral
Documents and each certificate, agreement or document executed by a Loan Party
and delivered to the Administrative Agent or any Lender in connection with or
pursuant to any of the foregoing.


 


“Loan Party” means each Borrower, each Guarantor and each
other Subsidiary of the Company that executes and delivers a Loan Document.


 


“Local GAAP” means, with respect to any Foreign Subsidiary,
generally accepted accounting principals in the jurisdictions in which such
Person is organized and its principal business operations are conducted,
consistently applied.


 


“Local Time” means, with respect to (a) any Loan denominated
in Dollars, New York time and (b) any Loan denominated in Pesos, Mexico City
time. 


 


“Loews” means Loews Cineplex Entertainment Corporation, a
Delaware corporation.


 


25

















 


“Loews Holdings” means LCE Holdings Inc., a Delaware
corporation.


 


“Material Adverse Change” means a material adverse change in
any of (a) the condition (financial or otherwise), business, operations or
properties of the Company and its Subsidiaries, taken as a whole, (b) the
legality, validity or enforceability of any Loan Document, (c) the perfection
or priority of the Liens granted pursuant to the Collateral Documents, (d) the
ability of the Borrowers to repay the Obligations or of the other Loan Parties
to perform their respective obligations under the Loan Documents or (e) the
rights and remedies of the Agents, the Lenders or the Issuers under the Loan
Documents.


 


“Material Adverse Effect” means an effect that results in or
causes, or could reasonably be expected to result in or cause, a Material
Adverse Change.


 


“Merger” means, collectively, the merger of Loews with and
into the Company and the merger of Loews Holdings with and into Holdings
pursuant to the Merger Agreement.


 


“Merger Agreement” means the Agreement and Plan of Merger,
dated as of June 20, 2005, between Holdings and Loews Holdings.


 


“Mexican Assets” means (a) the property and assets of Grupo
Cinemex and Yelmo Cineplex and (b) the Stock of Grupo Cinemex and Yelmo
Cineplex, in each case, together with all property and assets which are a part
of or related to such entities, including but not limited to cash, accounts
receivable, real estate, leases, tenant improvements, furniture, fixtures and equipment,
net of any accounts payable, accrued expenses and other current and long-term
liabilities related to such entities.


 


“Mexican Borrowers” has the meaning specified in the preamble
to this Agreement.


 


“Mexican Facility” means the Peso Commitments and the
provisions herein related to the Peso Loans.


 


“Mexican Facility Agent” has the meaning specified in the
preamble to this Agreement.


 


“Mexican Lender” means each Revolving Credit Lender (or
Affiliate thereof) that has a Peso Commitment or holds a Peso Loan and, at the
time such Lender becomes a Mexican Lender, whether directly or through an
Affiliate thereof, may make Peso Loans to the Mexican Borrowers, the interest
payments with respect to which can be made free of withholding taxes.


 


“Mexican Lending Office” means, with respect to any Mexican
Lender, the office of such Lender specified as its “Mexican Lending Office” opposite
its name on Schedule II  (Applicable Lending Offices and Addresses for Notices)
or on the Assignment and Acceptance by which it became a Mexican
Lender or such other office of such Lender as such Lender may from time to time
specify to the Company and the Administrative Agent.


 


“Mexico” means the United Mexican States.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


26

















 


“Mortgage Supporting Documents” means, with respect to a
Mortgage for a parcel of Real Property, each the following:


 


(a)           (i) evidence in form
and substance reasonably satisfactory to the Administrative Agent that the
recording of counterparts of such Mortgage in the recording offices specified
in such Mortgage will create a valid and enforceable first priority lien on
property described therein in favor of the Administrative Agent for the benefit
of the Secured Parties (or in favor of such other trustee as may be required or
desired under local law) subject only to (A) Liens permitted under Section 8.2 (Liens, Etc.) and (B)
such other Liens as the Administrative Agent may reasonably approve and (ii) an
opinion of counsel in each state in which any such Mortgage is to be recorded
in form and substance and from counsel reasonably satisfactory to the
Administrative Agent;


 


(b)           (i) a Mortgagee’s Title
Insurance Policy dated a date reasonably satisfactory to the Administrative
Agent, which shall (A) be in an amount not less than the appraised value
(determined by reference to an appraisal) of such parcel of Real Property in
form and substance satisfactory to the Administrative Agent, (B) be issued at
ordinary rates, (C) insure that the Lien granted pursuant to the Mortgage
insured thereby creates a valid first Lien on such parcel of Real Property free
and clear of all defects and encumbrances, except for Liens permitted under Section 8.2 (Liens, Etc.) and for such defects and
encumbrances as may be approved by the Administrative Agent, (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 - 1992 (or such local
equivalent thereof as is reasonably satisfactory to the Administrative Agent),
(F) contain a comprehensive lender’s endorsement (including, but not limited
to, a revolving credit endorsement and a floating rate endorsement), (G) be
issued by Chicago Title Insurance Company, First American Title Insurance
Company, Lawyers Title Insurance Corporation or any other title company
reasonably satisfactory to the Administrative Agent (including any such title
companies acting as co-insurers or reinsurers) and (H) be otherwise in form and
substance reasonably satisfactory to the Administrative Agent and (ii) a copy
of all documents referred to, or listed as exceptions to title, in such title
policy (or policies) in each case in form and substance reasonably satisfactory
to the Administrative Agent;


 


(c)           copies of the most
recent survey (if any) of such parcel of Real Property in the possession of the
applicable Loan Party;


 


(d)           evidence in form and
substance reasonably satisfactory to the Administrative Agent that all premiums
in respect of each Mortgagee’s Title Insurance Policy, all recording fees and
stamp, documentary, intangible or mortgage taxes, if any, in connection with
the Mortgage have been paid;


 


(e)           if such parcel of
Real Property is not used as a theatre for viewing movies, a Phase I
environmental report with respect to such parcel of Real Property, dated a date
not more than two years prior to the Closing Date, in form and substance
reasonably satisfactory to the Administrative Agent; and


 


(f)            such other
agreements, documents and instruments in form and substance reasonably satisfactory
to the Administrative Agent as the Administrative Agent deems necessary or
appropriate to create, register or otherwise perfect, maintain, evidence the


 


27

















 


existence,
substance, form or validity of, or enforce a valid and enforceable first
priority lien on such parcel of Real Property in favor of the Administrative
Agent for the benefit of the Secured Parties (or in favor of such other trustee
as may be required or desired under local law) subject only to (A) Liens
permitted under Section 8.2 (Liens,
Etc.) and (B) such other Liens as the Administrative Agent may
reasonably approve.


 


“Mortgaged
Real Property” means the Real Properties listed on Schedule 1.1 (Mortgaged Real Property) and any other Real
Property of any Loan Party that becomes subject to a Mortgage.


 


“Mortgagee’s Title Insurance Policy” means a mortgagee’s
title policy (or policies) or marked-up unconditional binder (or binders) for
such insurance (or other evidence reasonably acceptable to the Administrative
Agent proving ownership thereof).


 


“Mortgages” means the mortgages, deeds of trust or other real
estate security documents made or required herein to be made by the Company or
any other Loan Party, each in form and substance reasonably satisfactory to the
Administrative Agent.


 


“Multiemployer Plan” means a multiemployer plan, as defined
in Section 400l(a)(3) of ERISA, to which the Company or any of its
Subsidiaries or any ERISA Affiliate has, or within the five (5) plan years preceding
the date of this Agreement has had, any obligation to contribute.


 


“Multiplex” means any theatre owned by the Company or its
Subsidiary which has ten or less screens for viewing movies.


 


“Net Cash Proceeds” means proceeds received by the Company or
any of its Subsidiaries after the Closing Date in cash or 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, and casualty insurance
settlements and condemnation awards, but in each case only as and when
received) from any (a) Asset Sale (other than an Asset Sale
permitted under Section 8.4(a), (c),
(d), (e), (f) or (j) (Sale of Assets)) or Property
Loss Event, net of (i) the costs,
fees and expenses actually incurred in connection therewith (including, without
limitation, attorneys’ fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, transfer taxes,
deed or mortgage recording taxes, other customary expenses and brokerage,
consultant and other customary fees), (ii) taxes paid or reasonably estimated
to be payable as a result thereof, (iii) any amount required to be paid or
prepaid on Indebtedness (other than the Obligations) secured by the assets
subject to such Asset Sale or Property Loss Event (including any associated
premium or penalty),
and (iv) any reserve for adjustment in respect of (x) the sale price
of such asset or assets established in accordance with GAAP and (y) any
liabilities associated with such asset or assets and retained by the Company or
any of its Subsidiaries after such sale or other disposition thereof,
including, without limitation, pension and other post-employment benefit liabilities
and liabilities related to environmental matters or against any indemnification
obligations associated with such transaction, with it being understood that “Net Cash Proceeds” shall include, without limitation, any
cash or Cash Equivalents (1) received upon the Disposition of any non-cash
consideration received by the Company or any of its Subsidiaries in any such
Disposition and (2) upon the reversal (without the satisfaction of any
applicable liabilities in cash in a corresponding amount) of any reserve described
in subclause (iv) above or, if such liabilities have not been satisfied in
cash and such reserve not reversed within 365 days after such Asset Sale
or Property Loss Event, the


 


28

















 


amount of such reserve;  provided, however, that evidence of each of clauses
(i), (ii), (iii)  and (iv) above is provided to the Administrative Agent, or (b)
any Debt Issuance, net of underwriting discounts, brokers’ and advisors’ fees
and other costs and expenses incurred in connection with such transaction; provided,
however, that evidence
of such costs is provided to the Administrative Agent.


 


“Net Indebtedness” means, with respect to any Person at any
time, (i) the outstanding principal amount (or in the case of Indebtedness
issued at discount, the accreted amount) of Indebtedness of such Person
(determined on a Consolidated basis) as of such time minus (ii) cash and Cash Equivalents of such Person
(determined on a Consolidated basis) at such time; provided, however,
that, in determining the amount of Net Indebtedness of such Person for purposes
of this definition, the amount of Indebtedness of such Person consisting of
Revolving Loans and any other Indebtedness that consists of a revolving line of
credit as of any date shall be deemed to be the aggregate outstanding principal
amount thereof on the last day of each fiscal quarter ending during the four
Fiscal Quarters most recently ended on or prior to such date, divided by four
(4) (with the amount of Indebtedness under any revolving line of credit as of
the end of any Fiscal Quarter prior to the Closing Date deemed to be $0 for
purposes of such calculation).


 


“Net Senior Secured Indebtedness” means, with respect to any
Person, without duplication, all Net Indebtedness of such Person and its
Subsidiaries, excluding any subordinated Indebtedness and other unsecured
Indebtedness and any Capital Lease Obligation.


 


“Net Senior Secured Leverage Ratio” means, with respect to
any Person, as of any date of determination, on a Pro Forma Basis, the ratio of
(i) Net Senior Secured Indebtedness of such Person and its Subsidiaries as of
such date to (ii) Annualized EBITDA for such Person and its Subsidiaries for
the four most recent Fiscal Quarters ended on such date for which financial statements
are available.


 


“New Subordinated Note Indenture” means the Indenture, dated
as of January 26, 2006, pursuant to which the New Subordinated Notes were
issued between the Company and HSBC, as the initial trustee, as amended,
supplemented or otherwise modified and in effect from time to time in
accordance with Section 8.11
(Modification of Debt Agreements).


 


“New Subordinated Notes” means the Company’s 11% Senior
Subordinated Notes due 2016 issued pursuant to the New Subordinated Note
Indenture in the original principal amount of $325,000,000 and any additional
notes issued pursuant to the New Subordinated Note Indenture which have terms
(other than interest rate, issuance price, issuance date, series and title)
which are the same as the New Subordinated Note Indenture.


 


 “Non-Consenting
Lender” has the meaning specified in Section 11.1(c) (Amendments, Waivers, Etc.).


 


“Non-Funding Lender” has the meaning specified in Section 2.2 (Borrowing Procedures).


 


“Non-Recourse Indebtedness” means Indebtedness as to which
(i) neither the Company nor any of its Subsidiaries (a) provides credit support
(including any undertaking, agreement or instrument which would constitute
Indebtedness), (b) is directly or indirectly liable or (c) constitutes the
lender (in each case, other than pursuant to and in compliance with


 


29

















 


Section 8.3  (Investments)) and (ii) no default with respect to such
Indebtedness (including any rights which the holders thereof may have to take
enforcement action against the relevant Unrestricted Subsidiary or its assets)
would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Company or its Subsidiaries (other than Non-Recourse
Indebtedness) to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity; provided, however,
that notwithstanding the foregoing, guaranties of Capitalized Lease Obligations
of any Unrestricted Subsidiary relating to leased property in service outside
the United States shall not cause such Capitalized Lease Obligations to not be
Non-Recourse Indebtedness. 


 


“Non-U.S. Lender” means each Lender or Issuer (or the
Administrative Agent) that is a Non-U.S. Person.


 


“Non-U.S. Person” means any Person that is not a Domestic
Person.


 


“Note” means any Revolving Dollar Note, Peso Loan Note or
Term Loan Note.


 


“Notice of Borrowing” has the meaning specified in Section 2.2 (Borrowing Procedures).


 


“Notice of Conversion or Continuation” has the meaning
specified in Section 2.11 (Conversion/Continuation
Option).


 


“Obligations” means the Loans, the Letter of Credit
Obligations and all other amounts, obligations, covenants and duties owing by
the Borrowers to any Agent, any Lender, any Issuer, any Affiliate of any of
them or any Indemnitee, of every type and description (whether by reason of an
extension of credit, opening or amendment of a letter of credit or payment of
any draft drawn or other payment thereunder, loan, guaranty, indemnification,
foreign exchange or currency swap transaction, interest rate hedging
transaction or otherwise), present or future, arising under this Agreement, any
other Loan Document (including Cash Management Documents and Hedging Contracts
that are Loan Documents), whether direct or indirect (including those acquired
by assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired and whether or not evidenced by any
note, guaranty or other instrument or for the payment of money, including all
letter of credit, cash management and other fees, interest, charges, expenses,
attorneys’ fees and disbursements, Cash Management Obligations and other sums
chargeable to the Borrowers under this Agreement, any other Loan Document
(including Cash Management Documents and Hedging Contracts that are Loan
Documents) and all obligations of the Company under any Loan Document to provide cash collateral for any Letter of
Credit Obligation.


 


“Patriot Act” means the USA Patriot Act of 2001 (31 U.S.C.
5318 et seq.).


 


“PBGC” means the Pension Benefit Guaranty Corporation or any
successor thereto.


 


“Perfection Certificate” means a perfection certificate in
form and substance satisfactory to the Administrative Agent. 


 


“Permit” means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.


 


30

















 


“Permitted Acquisition” means any Proposed Acquisition
subject to the satisfaction of each of the following conditions:


 


(a)           each applicable Loan Party and any
such newly created or acquired Subsidiary shall, or will within the times
specified therein, have complied with the requirements of Section 7.11 (Additional Collateral and
Guaranties);


 


(b)           (i) immediately before and
immediately after giving Pro Forma Effect to any such purchase or other
acquisition, no Default or Event of Default shall have occurred and be
continuing and (ii) immediately after giving effect to such Proposed
Acquisition, Holdings, the Company and its Subsidiaries shall be in Pro Forma
Compliance with the covenants set forth in Article V
(Financial Covenant), such compliance to be determined on the basis
of the financial information most recently delivered to the Administrative
Agent and the Lenders pursuant to Section 6.1
(Financial Statements) as though such purchase or other acquisition
had been consummated as of the first day of the fiscal period covered thereby
and evidenced by a certificate from the Chief Financial Officer of the Company
demonstrating such compliance calculation in reasonable detail; and


 


(c)           the Company shall have delivered to
the Administrative Agent, on behalf of the Lenders, no later than five (5)
Business Days after the date on which any such Proposed Acquisition is
consummated, a certificate of a Responsible Officer, in form and substance
reasonably satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this definition have been satisfied or will be
satisfied on or prior to the consummation of such Proposed Acquisition.


 


“Permitted Holder”
means:


 


(a)           any member of the Apollo Group; 


 


(b)           any member of the J.P. Morgan
Partners Group; 


 


(c)           any member of the Bain Capital Group;


 


(d)           any member of the Carlyle Group; 


 


(e)           any member of the Spectrum Group;


 


(f)            any Co-Investor; provided, however, that
to the extent any Co-Investor acquires securities of Holdings in excess of the
amount of such securities held by such Co-Investor on the Closing Date, such
excess securities shall not be deemed to be held by a Permitted Holder; and


 


(g)           any Subsidiary, any employee stock
purchase plan, stock option plan or other stock incentive plan or program,
retirement plan or automatic reinvestment plan or any substantially similar
plan of the Company or any Subsidiary or any Person holding securities of Holdings
for or pursuant to the terms of any such employee benefit plan; provided, that if any lender or other Person shall foreclose
on or otherwise realize upon or exercise any remedy with respect to any
security interest in or Lien on any securities of Holdings held by any Person
listed


 


31

















 


in this clause (g),
then such securities shall no longer be deemed to be held by a Permitted
Holder.


 


“Permitted Joint Venture” means any Joint Venture entered
into by the Company or any of its Subsidiaries with one or more third parties
(i) to which the Company or its Subsidiaries shall have contributed certain
International Assets or the assets used in the business of National Cinema
Network, Inc., and (ii) of which the Company shall own at least 33% (but not
more than 50%) of the outstanding Stock. 


 


“Permitted Refinancing” means, with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any Indebtedness
of such Person; provided, however, that (a) the principal amount (or
accreted value, if applicable) thereof does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so modified, refinanced,
refunded, renewed or extended, except by an amount equal to unpaid accrued
interest and premium thereon plus
other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such modification, refinancing, refunding, renewal or extension
and by an amount equal to any existing commitments unutilized thereunder or as
otherwise permitted pursuant to Section 8.1
(Indebtedness), (b) such modification, refinancing, refunding,
renewal or extension has a final maturity date equal to or later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness
being modified, refinanced, refunded, renewed or extended is subordinated in
right of payment to the Obligations, such modification, refinancing, refunding,
renewal or extension is subordinated in right of payment to the Obligations on
terms at least as favorable to the Lenders as those contained in the
documentation governing the Indebtedness being modified, refinanced, refunded,
renewed or extended, (d) the terms and conditions (including, if applicable, as
to collateral) of any such modified, refinanced, refunded, renewed or extended
Indebtedness are not materially less favorable to the Loan Parties, the Lenders
or the Secured Parties than the terms and conditions of the Indebtedness being
modified, refinanced, refunded, renewed or extended, (e) such modification,
refinancing, refunding, renewal or extension is incurred by the Person who is
the obligor on the Indebtedness being modified, refinanced, refunded, renewed
or extended, and (f) at the time thereof, no Event of Default shall have
occurred and be continuing. 


 


“Permitted Subordinated Indebtedness” means any unsecured
Indebtedness of the Company that (a) is expressly subordinated to the prior
payment in full in cash of the Obligations on terms and conditions no less
favorable to the Lenders than the terms and conditions set forth in the New
Subordinated Note Indenture, (b) will not mature prior to the date that is
ninety-one (91) days after the Term Loan Maturity Date, (c) has no scheduled
amortization or payments of principal prior to the Term Loan Maturity Date and
(d) has covenant, default and remedy provisions no more restrictive, or
mandatory prepayment, repurchase or redemption provisions no more onerous or
expansive in scope, taken as a whole, than those set forth in the New
Subordinated Note Indenture. 


 


“Person” means an individual, partnership, corporation
(including a business trust), joint stock company, estate, trust, limited
liability company, unincorporated association, joint venture or other entity or
a Governmental Authority.


 


“Peso” or the sign “P”
each means the lawful money of Mexico.


 


32

















 


“Peso Available Credit” means, at any time, (a) the lesser of
(i) the then effective Revolving Credit Commitments and (ii) $25,000,000 minus (b) the aggregate Peso Outstandings
at such time.


 


“Peso Base Rate” means a rate of interest per annum equal to (a) in the case of any
Peso Swing Loan, the Peso Swing Lender’s internal funding costs for funding
such Peso Swing Loan as determined by the Peso Swing Lender and (ii) in the
case of any Peso TIIE Rate Loan converted into a Peso Base Rate Loan, the
Mexican Facility Agent’s internal funding costs for funding such Peso Base Rate
Loan as determined by the Mexican Facility Agent, in each case, as notified to
the applicable Borrower.  The
determination by the Peso Swing Lender or the Mexican Facility Agent, as the
case may be, of the Peso Base Rate shall be conclusive absent manifest error.


 


“Peso Base Rate Loan” means a Loan that bears interest based
on the Peso Base Rate.


 


“Peso Borrowing” means Peso Loans made on the same day by the
Mexican Lenders ratably according to their respective Peso Commitments.


 


“Peso Commitment” means, with respect to each Mexican Lender,
the commitment of such Lender to (i) make Peso Loans to the Mexican Borrowers
pursuant to Section 2.1(a) hereof
and acquire interests in other Peso Outstandings in the aggregate principal
amount outstanding not to exceed the amount set forth opposite such Lender’s
name on Schedule I  (Commitments) under the caption “Peso Commitment,” as amended to reflect each Assignment and
Acceptance executed by such Lender and as such amount may be reduced pursuant
to this Agreement.


 


“Peso Loan” has the meaning specified in Section 2.1(a) (The Commitments).


 


“Peso Loan Note” means a promissory note of the applicable
Mexican Borrower payable to the order of any Mexican Lender in a principal
amount equal to the amount of such Lender’s Peso Commitment or evidencing the
aggregate Indebtedness of such Mexican Borrower to such Lender resulting from
the Peso Loans owing to such Lender.


 


 “Peso
Outstandings” means, at any particular time, the sum of the Dollar
Equivalent of (a) the principal amount of the Peso Loans outstanding at such
time and (b) the principal amount of the Peso Swing Loans outstanding at such
time.


 


“Peso Spot Rate” means, on any day, the rate at which Pesos
may be exchanged into Dollars, at (a) the spot (same day) rate announced by the
Mexican Facility Agent and (i) quoted at 12:15 p.m. (Mexico City time) on
Reuters Monitor Screen (Page MEX01 or any successor page for quoting such rate)
on such day (or, if such day is not a Business Day, on the immediately
preceding Business Day) or (ii) if such rate is not so quoted on Reuters
Monitor Screen for the relevant date of determination, then the rate as
published by Banco de Mexico in the Diario Oficial de la Federacion to be in
effect on such day (or, if such day is not a Business Day, on the immediately
preceding Business Day) or (b) if such rate is not so published or quoted as
described in clause (a) for the
relevant date of determination, the “Peso
Spot Rate” shall be the rate of exchange at which in accordance with
normal banking procedures the Mexican Facility Agent could purchase Dollars for
Pesos on a customary basis in the Mexican Facility Agent’s Mexico City office
at 11:00 a.m. (Mexico City time) on the date of such determination (or, if such


 


33

















 


day is not a Business Day, on
the immediately preceding Business Day), and such determination shall be
conclusive absent manifest error.


 


“Peso Swing Lender” means Banamex or any other Mexican Lender
that becomes the Mexican Facility Agent or agrees, with the approval of the
Administrative Agent, the Mexican Facility Agent and the Borrowers, to act as
the Peso Swing Lender hereunder, in each case, in its capacity as the Peso
Swing Lender hereunder. 


 


“Peso Swing Loan” has the meaning specified in Section 2.3 (Swing Loans).


 


“Peso Swing Loan Sublimit” means $5,000,000.


 


“Peso TIIE Rate” means, for each Interest Period with respect
to Peso Loans, the Tasa de Interés Interbancaria de Equilibrio (the Interbank
Equilibrium Interest Rate) for Pesos for a period of twenty-eight (28) days
published in the “Diario Oficial de la
Federación” (Official Gazette of the Federation) and as replicated
as set forth under the heading “TIIE”
or its equivalent as published by Banco de México on its internet website page,
http://www.banxico.org.mx/, or on the Reuters Screen MEX06 Page across from the
caption “TIIE”, in either case,
as of 1:00 p.m., Mexico City time, on the day that is one Business Day prior to
the commencement of the relevant Interest Period; provided, however,
in the event of any discrepancy between the rate published in the Diario
Oficial de la Federación and the rate published by the Banco de México on its
internet website page or the Reuters Screen MEX06 Page on the day that is one Business
Day prior to the commencement of the relevant Interest Period, the rate
published in the Diario Oficial de la Federación will govern; provided, further,
that, if the rate is not published in the Diario Oficial de la Federación,
rates replicated by the Banco de México on its internet website page or on the
Reuters Screen MEX06 Page shall not be used. 
If, for any Interest Period, the TIIE is not published in the Diario
Oficial de la Federación by 1:00 p.m., Mexico City time, on the day that is one
Business Day prior to the commencement of the relevant Interest Period, the
Mexican Facility Agent shall notify the relevant Mexican Borrower and shall
instead determine TIIE on the second Business Day prior to the commencement of
the relevant Interest Period by calculating the arithmetic mean (rounded upward
to the nearest five decimal places) of the quotations advised to Mexican
Facility Agent at approximately 11:00 a.m. of the mid-market cost of funds for
Pesos for a period of twenty-eight (28) days by the Mexico City offices of five
major banks in the Mexican interbank market selected by the Mexican Facility
Agent; provided, however, that if fewer than two quotations
are provided, the rate for that interest determination date will be determined
by the Mexican Facility Agent using a representative rate and the Mexican
Facility Agent shall advise the relevant Mexican Borrower in advance of its
final determination.


 


“Peso TIIE Rate Loan” means a Loan that bears interest based
on the Peso TIIE Rate. 


 


“Pledge and Security Agreement” means an agreement, in
substantially the form of Exhibit I
(Form of Pledge and Security Agreement), executed by each Loan Party (other than
the Mexican Borrowers).


 


“Pledged Debt Instruments” has the meaning specified in the
Pledge and Security Agreement.


 


“Pledged Stock” has the meaning specified in the Pledge and
Security Agreement.


 


34

















 


“Prior
Transactions” means, collectively, (i) the acquisition of the
Company by Holdings, a company formed by the J.P. Morgan Partners Group, the
Apollo Group and certain other co-investors, in December 2004 and (ii) the
acquisition of Loews by Loews Holdings, a company formed by the Bain Capital
Group, the Carlyle Group and the Spectrum Group, in July 2004.


 


“Process
Agent” has the meaning specified in Section
11.12(b) (Submission to Jurisdiction; Service of Process). 


 


“Pro Forma Basis,” “Pro
Forma Compliance” or “Pro Forma
Effect” means, for purposes of calculating compliance with any test
under this Agreement in respect of any of the transactions referred to in clauses (a) through (d) of the definition of “Annualized EBITDA” or the incurrence or
retirement of Indebtedness, such transaction, incurrence or retirement shall be
treated as if such transaction, incurrence or retirement had occurred on the
first day of the applicable period of measurement in such test or covenant; provided, however,
that pro forma effect shall only be given to operating expense reductions or
similar anticipated benefits from any transaction to the extent (a)(i) directly
attributable to such transaction, (ii) expected to have a continuing impact on
the Company and its Subsidiaries and (iii) factually supportable and (b) that
such adjustments and the bases therefor are set forth in reasonable detail in a
certificate of the Chief Financial Officer of the Company delivered to the
Administrative Agent and dated the relevant date of determination and which
certifies that the Company reasonably anticipates that such expense reductions
or other benefits will be realized, or all necessary steps for the realization
thereof taken, within twelve months following such date; provided, further,
that any determination of Annualized EBITDA of an Annualized Theatre shall be
as determined in good faith by the Company, the calculation of which shall be
set forth in reasonable detail in a certificate of the Chief Financial Officer
delivered to the Administrative Agent and dated the date of relevant
determination; provided, further, that if any such Indebtedness
being incurred or retired has a floating or formula rate, shall have an implied
rate of interest for the applicable period for purposes of this definition
determined by utilizing the rate which is or would be in effect with respect to
such Indebtedness as at the relevant date of determination.


 


“Projections” means those financial projections dated January
2006 covering the fiscal years ending in 2006 through 2010 inclusive, to be
delivered to the Lenders by the Company.


 


“Property Loss Event” means (a) any loss of or damage to
property of the Company or any of its Subsidiaries  that results in
the receipt by such Person of proceeds of insurance whose Dollar Equivalent
exceeds (i) $10,000,000 for a single transaction or series of transactions or
(ii) $20,000,000 in the aggregate in any Fiscal Year or (b) any taking of
property of the Company or any of its Subsidiaries that results in the receipt
by such Person of a compensation payment in respect thereof whose Dollar
Equivalent exceeds (i) $10,000,000 for a single transaction or series of transactions
or (ii) $20,000,000 in the aggregate in any Fiscal Year.


 


“Proposed Acquisition” means the proposed acquisition by the
Company or any of its Subsidiaries of all or substantially all of the assets or
Stock of any Proposed Acquisition Target, or the merger of any Proposed
Acquisition Target with or into the Company or any Subsidiary of the Company
(and, in the case of a merger with the Company, with the Company being the
surviving corporation).


 


35

















 


“Proposed Acquisition Target” means any Person or any
operating division, branch, business unit or line of business of such Person
subject to a Proposed Acquisition. 


 


“Purchasing Lender” has the meaning
specified in Section 11.7 (Sharing of
Payments, Etc.).


 


“Qualifying IPO” means the issuance by Holdings or the
Company of its common Stock in an underwritten primary public offering (other
than a public offering pursuant to a registration statement on Form S-8)
pursuant to an effective registration statement filed with the Securities and
Exchange Commission in accordance with the Securities Act of 1933 (whether
alone or in connection with a secondary public offering).


 


“Ratable Portion” or (other than in the expression “equally and ratably”) “ratably” means, with respect to any Lender, (a)
with respect to the Revolving Credit Facility, the percentage obtained by
dividing (i) the Revolving Credit Commitment of such Lender by (ii) the
aggregate Revolving Credit Commitments of all Lenders (or, at any time after the
Revolving Credit Termination Date, the percentage obtained by dividing the
aggregate outstanding principal balance of the Revolving Credit Outstandings
owing to such Lender by the aggregate outstanding principal balance of the
Revolving Credit Outstandings owing to all Lenders), (b) with respect to the
Mexican Facility, the percentage obtained by dividing (i) the Peso Commitment
of such Lender by (ii) the aggregate Peso Commitments of all Lenders (or, at
any time after the Revolving Credit Termination Date, the percentage obtained
by dividing the aggregate outstanding principal balance of the Peso
Outstandings owing to such Lender by the aggregate outstanding principal
balance of the Peso Outstandings owing to all Lenders) and (c) with respect to
the Term Loan Facility, the percentage obtained by dividing (i) the Term Loan
Commitment of such Lender by (ii) the aggregate Term Loan Commitments of all
Lenders (or, at any time after the Closing Date, the percentage obtained by
dividing the principal amount of such Lender’s Term Loans by the aggregate Term
Loans of all Lenders).


 


“Real Property” of any Person means the Land of such Person,
together with the right, title and interest of such Person, if any, in and to
the streets, the Land lying in the bed of any streets, roads or avenues, opened
or proposed, in front of, the air space and development rights pertaining to
the Land and the right to use such air space and development rights, all rights
of way, privileges, liberties, tenements, hereditaments and appurtenances
belonging or in any way appertaining thereto, all fixtures, all easements now
or hereafter benefiting the Land and all royalties and rights appertaining to
the use and enjoyment of the Land, including all alley, vault, drainage,
mineral, water, oil and gas rights, together with all of the buildings and
other improvements now or hereafter erected on the Land and any fixtures
appurtenant thereto.


 


“Register” has the meaning specified in Section
2.7(b) (Evidence of Debt).


 


“Reimbursement Date” has the meaning specified in Section 2.4(h) (Letters of Credit).


 


“Reimbursement Obligations” means, as and when matured, the
obligation of the Company to pay, on the date payment is made or scheduled to
be made to the beneficiary under each such Letter of Credit (or at such other
date as may be specified in the applicable Letter of Credit Reimbursement
Agreement) and in the currency drawn (or in such other currency as may be
specified in the applicable Letter of Credit Reimbursement Agreement), all
amounts of each draft and other requests for payments drawn under Letters of
Credit, and all other matured


 


36

















 


reimbursement or repayment
obligations of the Company to any Issuer with respect to amounts drawn under
Letters of Credit.


 


“Related Documents” means the Merger Agreement and each other
document and instrument executed with respect thereof.


 


“Release” means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration, in each case, of any Contaminant into the indoor or outdoor
environment or into or out of any property, including the movement of
Contaminants through or in the air, soil, surface water, ground water or
property.


 


“Remedial Action” means all actions required pursuant to
Environmental Law to (a) clean up, remove, treat or in any other way remediate
any Contaminant in the indoor or outdoor environment, (b) reasonably prevent
the Release or reasonably minimize the further Release so that a Contaminant
does not migrate or endanger or threaten to endanger public health or welfare
or the indoor or outdoor environment or (c) perform pre-remedial studies and
investigations and post-remedial monitoring and care.


 


“Requirement of Law” means, with respect to any Person, the
common law and all federal, state, local and foreign laws, treaties, rules and
regulations, orders, judgments, decrees and other determinations of,
concessions, grants, franchises, licenses and other Contractual Obligations
with, any Governmental Authority or arbitrator, applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.


 


“Requisite Lenders” means, collectively, (a) on and prior to
the Closing Date, Lenders having more than fifty percent (50%) of the aggregate
outstanding amount of the Commitments, (b) after the Closing Date and on and
prior to the Revolving Credit Termination Date, Lenders having more than fifty
percent (50%) of the sum of the aggregate outstanding amount of the Revolving
Credit Commitments and the principal amount of all Term Loans then outstanding
and (c) after the Revolving Credit Termination Date, Lenders having more than
fifty percent (50%) of the sum of the aggregate Revolving Credit Outstandings
and the principal amount of all Term Loans then outstanding.  A Non-Funding Lender shall not be included in
the calculation of “Requisite Lenders.”


 


“Requisite Mexican Lenders” means, collectively, Mexican
Lenders having more than fifty percent (50%) of the aggregate outstanding amount of the Peso Commitments or,
after the Revolving Credit Termination Date, more than fifty percent (50%) of
the aggregate Peso Outstandings.  A
Non-Funding Lender shall not be included in the calculation of “Requisite Mexican Lenders.”


 


“Requisite Revolving Credit Lenders” means, collectively,
Revolving Credit Lenders having more than fifty percent (50%) of the aggregate outstanding amount of
the Revolving Credit Commitments or, after the Revolving Credit Termination
Date, more than fifty percent (50%) of the aggregate Revolving Credit
Outstandings.  A Non-Funding Lender shall
not be included in the calculation of “Requisite
Revolving Credit Lenders.”


 


“Requisite Term Lenders” means, collectively, Term Lenders
having more than 50% of the aggregate outstanding amount of the Term Loan
Commitments or, after the Closing Date, more than fifty percent (50%) of the
principal amount of all Term Loans then outstanding.


 


37

















 


“Responsible Officer” means, with respect to any Person, any
of the principal executive officers, managing members or general partners of
such Person but, in any event, with respect to financial matters, the chief
financial officer, treasurer or controller of such Person.


 


“Restricted Payment” means (a) any dividend, distribution or
any other payment whether direct or indirect, on account of any Stock or Stock
Equivalent of the Company or any of its Subsidiaries now or hereafter
outstanding, (b) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any Stock or
Stock Equivalent of the Company or any of its Subsidiaries now or hereafter
outstanding and (c) any redemption, prepayment, defeasement, repurchase or
other satisfaction prior to the scheduled maturity of any Subordinated Debt,
any other subordinated Indebtedness of the Company or any of its Subsidiaries
or any Disqualified Stock, or the setting aside of any funds for any of the
foregoing.


 


“Revolving Commitment Increase” has the meaning specified in Section 2.1(c)(i)
(Facility Increases).


 


“Revolving Credit Borrowing” means any Revolving Dollar
Borrowing or any Peso Borrowing.


 


“Revolving Credit Commitment” means, with respect to each
Revolving Credit Lender, the commitment of such Revolving Credit Lender to make
Revolving Dollar Loans to the Company pursuant to Section 2.1(a) hereof and acquire interests in other
Revolving Credit Outstandings in the aggregate principal amount outstanding not
to exceed the amount set forth opposite such Revolving Credit Lender’s name on Schedule I  (Commitments) under the caption “Revolving Credit Commitment,” as amended to reflect each Assignment and Acceptance
executed by such Revolving Credit Lender and as such amount may be reduced
pursuant to this Agreement.


 


“Revolving Credit Facility” means the Revolving Credit
Commitments and the provisions herein related to the Revolving Loans, Swing
Loans, Letters of Credit and the Mexican Facility.


 


“Revolving Credit Lender” means each Lender that (a) has a
Revolving Credit Commitment, (b) holds a Revolving Dollar Loan or (c)
participates in any Letter of Credit, Peso Loans or Swing Loans.


 


“Revolving Credit Outstandings” means, at any particular
time, the sum of the Dollar Equivalent of (a) the principal amount of the
Revolving Loans outstanding at such time and (b) the Letter of Credit
Obligations outstanding at such time.


 


“Revolving Credit Termination Date” shall mean the earliest
of (a) the Scheduled Termination Date, (b) the date of termination of all of
the Revolving Credit Commitments pursuant to Section 2.5
(Reduction and Termination of the Commitments) and (c) the date on
which the Obligations become due and payable pursuant to Section 9.2 (Remedies).


 


“Revolving Dollar Borrowing” means Revolving Dollar Loans
made on the same day by the Revolving Credit Lenders ratably according to their
respective Revolving Credit Commitments.


 


38

















 


“Revolving
Dollar Loan” has the meaning
specified in Section 2.1(a) (The
Commitments).


 


“Revolving Dollar Note” means a promissory note of the
Company payable to the order of any Revolving Credit Lender in a principal
amount equal to the amount of such Lender’s Revolving Credit Commitment or evidencing
the aggregate Indebtedness of the Company to such Lender resulting from the
Revolving Dollar Loans owing to such Revolving Credit Lender.


 


 “Revolving
Loan” means each of the Revolving Dollar Loans, the Peso Loans and
the Swing Loans.


 


“S&P” means Standard & Poor’s Rating Services.


 


“SAR” means any stock appreciation rights or similar phantom
stock rights. 


 


“Sarbanes-Oxley Act” means the United States Sarbanes-Oxley
Act of 2002.


 


“Scheduled Termination Date” means the sixth anniversary of
the Closing Date.


 


“Secured Obligations” means, in the case of any Borrower, the
Obligations of such Borrower, and, in the case of any other Loan Party, the
obligations of such Loan Party under the Guaranty and the other Loan Documents
to which it is a party.


 


“Secured Parties” means the Lenders, the Issuers, the Agents
and any other holder of any Secured Obligation.


 


“Securities Account” has the meaning given to such term in
the UCC.


 


“Security” means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness, whether
secured, unsecured, convertible or subordinated, or any certificate of
interest, share or participation in, any temporary or interim certificate for
the purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing, but shall not include any evidence of the
Obligations.


 


“Selling Lender” has the meaning specified in Section 11.7 (Sharing of Payments, Etc.).


 


“Senior Indebtedness” means with respect to any Person,
without duplication, all Indebtedness of such Person and its Subsidiaries; provided, however,
that Senior Indebtedness will not include: (a) any obligation of the Company to
any Subsidiary or any obligation of a Subsidiary to the Company or another
Subsidiary, (b) any liability for Federal, state, foreign, local or other taxes
owed or owing by the Company or any of its Subsidiaries, (c) any accounts
payable or other liability to trade creditors arising in the ordinary course of
business (including guarantees thereof or instruments evidencing such
liabilities), (d) any Indebtedness, guarantee or obligation of the Company or
any of its Subsidiaries that is expressly subordinate or junior in right of
payment to any other Indebtedness, guarantee or obligation of the Company or
any of its Subsidiaries, as the case may be, or (e) any capital stock.


 


“Senior Leverage Ratio” means, as of any date of
determination, on a Pro Forma Basis, the ratio of (i) Senior Indebtedness of
the Company and its Subsidiaries as of such date to


 


39

















 


(ii) Annualized EBITDA for the
Company and its Subsidiaries for the four most recent Fiscal Quarters ended
immediately preceding the date of such determination for which financial
statements are available.


 


“Senior Note Indentures” means the 2010 Senior Note
Indenture, the 2012 Senior Note Indenture and the Holdings Senior Note
Indenture. 


 


“Senior Notes” means the 2010 Senior Notes, the 2012 Senior
Notes and the Holdings Senior Notes. 


 


“Significant Subsidiary” means any Subsidiary that would be a
“Significant Subsidiary” of the
Company within the meaning of Rule 1-02 under Regulation S-X under the
Securities Act of 1933.


 


“Solvent” means, with respect to any Person as of any date of
determination, that, as of such date, (a) the value of the assets of such
Person (both at fair value and present fair saleable value) is greater than the
total amount of liabilities (including contingent and unliquidated liabilities)
of such Person, (b) such Person is able to pay all liabilities of such Person
as such liabilities mature and (c) such Person does not have unreasonably small
capital.  In computing the amount of
contingent or unliquidated liabilities at any time, such liabilities shall be
computed at the amount that, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


“Special Purpose Vehicle” means any special purpose funding
vehicle identified as such in writing by any Lender to the Administrative
Agent.


 


“Spectrum Group” means (i) Spectrum Equity Investors IV, L.P.,
(ii) Spectrum Equity Investors Parallel IV, L.P., (iii) Spectrum IV Investment
Managers’ Fund, L.P. and (iv) any Affiliates of Spectrum Equity Investors IV,
L.P., Spectrum Equity Investors Parallel IV, L.P. and Spectrum IV Investment
Managers’ Fund, L.P.


 


“Sponsor Management Agreement” means the Amended and Restated
Fee Agreement, dated as of January 26, 2006, by and among Holdings, the
Company, J.P. Morgan Partners (BHCA), L.P., Apollo Management V, L.P. and certain
of its affiliates, Bain Capital Partners, LLC, TC Group, L.L.C. and Applegate
and Collatos, Inc.


 


“Standby Letter of Credit” means any Letter of Credit that is
not a Documentary Letter of Credit.


 


“Stock” means shares of capital stock (whether denominated as
common stock or preferred stock), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated)
of or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.


 


“Stock Equivalents” means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.


 


“Subordinated Debt” means the Subordinated Notes and any
Permitted Subordinated Indebtedness.


 


40

















 


“Subordinated Note Indentures” means the 2011 Subordinated
Note Indenture, the 2012 Subordinated Note Indenture, the 2014 Subordinated
Note Indenture and the New Subordinated Note Indenture. 


 


“Subordinated Notes” means the 2011 Subordinated Notes, the
2012 Subordinated Notes, the 2014 Subordinated Notes and the New Subordinated
Notes. 


 


“Subsidiary” of any Person means (i) any corporation which
more than 50% of the outstanding shares of Capital Stock of which having
ordinary voting power for the election of directors is owned directly or
indirectly by such Person, and (ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person, directly or
indirectly, has more than a 50% equity interest, and, except as otherwise
indicated herein, references to Subsidiaries shall refer to Subsidiaries of the
Company.  Notwithstanding the foregoing,
for purposes of this Agreement, an Unrestricted Subsidiary shall not be deemed
a Subsidiary of the Company, other than for purposes of the definition of “Unrestricted Subsidiary” and Sections 4.3(a) (Subsidiaries; Borrower Information), 4.17 (Environmental Matters), 6.9
(Environmental Matters) and 7.10 (Environmental),
unless the Company shall have designated in writing to the Administrative Agent
an Unrestricted Subsidiary as a Subsidiary.


 


“Substitute Institution” has the meaning specified in Section 2.17 (Substitution of Lenders).


 


“Substitution Notice” has the meaning specified in Section 2.17 (Substitution of Lenders).


 


“Swing Lender” means each of the Dollar Swing Lender and the
Peso Swing Lender.


 


“Swing Loan” means each of the Dollar Swing Loans and the
Peso Swing Loans.


 


“Swing Loan Request” has the meaning specified in Section 2.3(c) (Swing Loans).


 


“Syndication Agent” means J.P. Morgan Securities Inc.


 


“Tax Affiliate” means, with respect to any Person, (a) any
Subsidiary of such Person and (b) any Affiliate of such Person with which such
Person files or is required to file consolidated, combined or unitary tax
returns.


 


“Tax Return” has the meaning specified in Section 4.8(a) (Taxes).


 


“Taxes” has the meaning specified in Section 2.16(a) (Taxes).


 


“Term Lender” means each Lender that has a Term Loan
Commitment or that holds a Term Loan.


 


“Term Loan” has the meaning specified in Section 2.1(b) (The Commitments).


 


41

















 


“Term Loan Borrowing” means a borrowing consisting of Term
Loans made on the same day by the Term Lenders ratably according to their
respective Term Loan Commitments.


 


“Term Loan Commitment” means, with respect
to each Term Lender, the commitment of such Lender to make Term Loans to the
Company in the aggregate principal amount outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule I
(Commitments) under the caption “Term Loan Commitment” as amended to reflect each Assignment and
Acceptance executed by such Lender and as such amount may be reduced pursuant
to this Agreement.


 


“Term Loan Facility” means the Term Loan Commitments and the
provisions herein related to the Term Loans.


 


“Term Loan Increase” has the meaning specified in Section
2.1(c)(i) (Facility Increases).


 


“Term Loan Maturity Date” means the seventh anniversary of
the Closing Date.


 


“Term Loan Note” means a promissory note of the Company
payable to the order of any Term Lender in a principal amount equal to the
amount of the Term Loan owing to such Lender.


 


“Title IV Plan” means a pension plan, other than a
Multiemployer Plan, subject to Title IV of ERISA and that is sponsored or
maintained by the Company or any of its Subsidiaries or any ERISA Affiliate or
to which the Company or any of its Subsidiaries or any ERISA Affiliate has, or
within the five (5) plan years preceding the date of this Agreement has had,
any obligation to contribute.


 


“Transactions” shall mean, collectively, the Merger, the
issuance of the New Subordinated Notes and all other transactions consummated
under the Loan Documents, the Related Documents and the New Subordinated Note
Indenture.


 


“UCC” has the meaning specified in the Pledge and Security
Agreement.


 


“Unrestricted Subsidiary” means a Subsidiary of the Company
designated in writing to the Administrative Agent (i) whose properties and
assets, to the extent they secure any Indebtedness at any time, secure only
Non-Recourse Indebtedness and (ii) that has no (nor will have any) Indebtedness
other than Non-Recourse Indebtedness. 
Notwithstanding the foregoing, no Subsidiary may be designated an
Unrestricted Subsidiary by the Company if at the time of such designation it is
a Significant Subsidiary.


 


“Unused Commitment Fee” has
the meaning specified in Section 2.12(a)
(Fees).


 


“U.S. Lender” means each Lender or Issuer (or the
Administrative Agent) that is a Domestic Person.


 


“Voting Stock” means Stock of any Person having ordinary
power to vote in the election of members of the board of directors, managers,
trustees or other controlling Persons, of


 


42

















 


such Person (irrespective of
whether, at the time, Stock of any other class or classes of such entity shall
have or might have voting power by reason of the happening of any contingency).


 


“Weighted Average Life to Maturity” means, when applied to
any Indebtedness at any date, the number of years obtained by dividing: (a) the
sum of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by (b) the then outstanding
principal amount of such Indebtedness. 


 


“Wholly-Owned Subsidiary” of any Person means any Subsidiary
of such Person, all of the Stock of which (other than director’s qualifying
shares or as may be required by law) is owned by such Person, either directly
or indirectly through one or more Wholly-Owned Subsidiaries of such Person.


 


“Withdrawal Liability” means, with respect to the Company or
any of its Subsidiaries at any time, the aggregate liability incurred (whether
or not assessed) with respect to all Multiemployer Plans pursuant to Section
4201 of ERISA or for increases in contributions required to be made pursuant to
Section 4243 of ERISA.


 


“Working Capital” means, for any Person at any date, the
amount, if any, by which the Consolidated Current Assets of such Person at such
date exceeds the Consolidated Current Liabilities of such Person at such date.


 


“2010 Senior Note Indenture” means the Indenture, dated as of
August 18, 2004, pursuant to which the 2010 Senior Notes were issued between
the Company (as successor to Marquee Inc.) and HSBC, as the initial trustee.


 


“2010 Senior Notes” means the Company’s Floating Rate Notes
due 2010 issued pursuant to the 2010 Senior Note Indenture in the original
principal amount of $250,000,000 and any additional notes issued pursuant to
the 2010 Senior Note Indenture which have terms (other than interest rate,
issuance price, issuance date, series and title) which are the same as the 2010
Senior Note Indenture.


 


“2012 Senior Note Indenture” means the Indenture, dated as of
August 18, 2004, pursuant to which the 2012 Senior Notes were issued between
the Company (as successor to Marquee Inc.) and HSBC, as the initial trustee.


 


“2012 Senior Notes” means the Company’s 85/8% Notes due 2012
issued pursuant to the 2012 Senior Note Indenture in the original principal
amount of $250,000,000 and any additional notes issued pursuant to the 2012
Senior Note Indenture which have terms (other than interest rate, issuance
price, issuance date, series and title) which are the same as the 2012 Senior
Note Indenture.


 


“2011 Subordinated Note Indenture” means the Indenture, dated
as of January 27, 1999, pursuant to which the 2011 Subordinated Notes were
issued between the Company and The Bank of New York, as the initial trustee, as
amended, supplemented or otherwise modified and in effect from time to time in
accordance with Section 8.11
(Modification of Debt Agreements).


 


43

















 


“2011 Subordinated Notes” means the Company’s 91⁄2% Senior
Subordinated Notes due 2011 issued pursuant to the 2011 Subordinated Note
Indenture in the original principal amount of $298,880,000 and any additional
notes issued pursuant to the 2011 Subordinated Note Indenture which have terms
(other than interest rate, issuance price, issuance date, series and title)
which are the same as the 2011 Subordinated Note Indenture.


 


“2012 Subordinated Note Indenture” means the Indenture dated
as of January 16, 2002 pursuant to which the 2012 Subordinated Notes were
issued between the Company and HSBC, as the initial trustee, as amended,
supplemented or otherwise modified and in effect from time to time in
accordance with Section 8.11
(Modification of Debt Agreements).


 


“2012 Subordinated Notes” means the Company’s 97/8% Senior Subordinated Notes due
2012 issued pursuant to the 2012 Subordinated Note Indenture in the original
principal amount of $175,000,000 and any additional notes issued pursuant to
the 2012 Subordinated Note Indenture which have terms (other than interest
rate, issuance price, issuance date, series and title) which are the same as
the 2012 Subordinated Note Indenture.


 


“2014 Subordinated Note Indenture” means the Indenture dated
as of February 24, 2004 pursuant to which the 2014 Subordinated Notes were
issued between the Company and HSBC, as the initial trustee, as amended,
supplemented or otherwise modified and in effect from time to time in
accordance with Section 8.11
(Modification of Debt Agreements).


 


“2014 Subordinated Notes” means the Company’s 8% Senior
Subordinated Notes due 2014 issued pursuant to the 2014 Subordinated Note
Indenture in the original principal amount of $300,000,000 and any additional
notes issued pursuant to the 2014 Subordinated Note Indenture which have terms
(other than interest rate, issuance price, issuance date, series and title)
which are the same as the 2014 Subordinated Note Indenture.


 


Section 1.2            Computation of Time Periods


 


In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including” and the words “to” and “until” each
mean “to but excluding” and the word “through” means
“to and including.”


 


Section 1.3            Accounting Terms and Principles


 


(a)           Except as set forth below, all
accounting terms not specifically defined herein shall be construed in
conformity with GAAP and all accounting determinations required to be made
pursuant hereto (including for purpose of measuring compliance with Article V (Financial
Covenant)) shall, unless expressly otherwise provided herein, be
made in conformity with GAAP.


 


(b)           If at any time any change in GAAP
would affect the computation of any financial ratio or requirement, and either
the Company or the Administrative Agent shall so request, the Administrative
Agent and the Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Requisite Lenders); provided, however, that, until so amended,
(i) such ratio or requirement shall continue to be computed in accordance with
GAAP, as applicable, prior to such change therein and (ii) the Company shall
provide to the Administrative Agent and the Lenders a written reconciliation,
in form and substance reasonably satisfactory to the


 


44

















 


Administrative Agent, between
calculations of such ratio or requirement made before and after giving effect
to such change in GAAP.


 


(c)           For purposes of this Agreement, all
references to Holdings or the Company shall give effect to the Merger.


 


(d)           For purposes of making all financial
calculations to determine compliance with Article V
(Financial Covenant) and any other financial
ratio hereunder, all components of such calculations shall be adjusted to
include or exclude, as the case may be, without duplication, such components of
such calculations attributable to any business or assets that have been
acquired by the Company or any of its Subsidiaries (including through Permitted
Acquisitions) after the first day of the applicable period of determination and
prior to the end of such period, as determined in good faith by the Company on
a Pro Forma Basis.


 


Section 1.4            Conversion of Foreign Currencies


 


(a)           Indebtedness.  Indebtedness denominated in any currency
other than Dollars shall be calculated using the Dollar Equivalent thereof as
of the date of the Financial Statements on which such Indebtedness is
reflected.


 


(b)           Dollar
Equivalents.  The
Administrative Agent shall determine the Dollar Equivalent of any amount as
required hereby, and a determination thereof by the Administrative Agent shall
be conclusive absent manifest error.  The
Administrative Agent may, but shall not be obligated to, rely on any
determination of the Dollar Equivalent of any amount made by any Loan Party in
any document delivered to the Administrative Agent.  The Administrative Agent may determine or
redetermine the Dollar Equivalent of any amount on any date either in its own
discretion or upon the request of any Lender or Issuer.


 


(c)           Rounding-Off.  The Administrative Agent may set up
appropriate rounding off mechanisms or otherwise round-off amounts hereunder to
the nearest higher or lower amount in whole Dollar or cent to ensure amounts
owing by any party hereunder or that otherwise need to be calculated or
converted hereunder are expressed in whole Dollars or in whole cents, as may be
necessary or appropriate.


 


Section 1.5            Certain Terms


 


(a)           The terms “herein,” “hereof,”
“hereto” and “hereunder” and similar terms refer to this
Agreement as a whole and not to any particular Article, Section, subsection or
clause in, this Agreement.


 


(b)           Unless otherwise expressly indicated
herein, (i) references in this Agreement to an Exhibit, Schedule, Article,
Section, clause or sub-clause refer to the appropriate Exhibit or Schedule to,
or Article, Section, clause or sub-clause in this Agreement and (ii) the words “above” and “below”, when following a reference to a clause or a
sub-clause of any Loan Document, refer to a clause or sub-clause within,
respectively, the same Section or clause.


 


(c)           Each agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto. 
Unless the prior written consent of the Requisite Lenders is required
hereunder for an amendment, restatement, supplement or other modification to
any such


 


45

















 


agreement and such consent is
not obtained, references in this Agreement to such agreement shall be to such
agreement as so amended, restated, supplemented or modified.


 


(d)           References in this Agreement to any
statute shall be to such statute as amended or modified from time to time and
to any successor legislation thereto, in each case as in effect at the time any
such reference is operative.


 


(e)           The term “including” when used in any Loan Document means “including without limitation” except when
used in the computation of time periods.


 


(f)            The terms “Lender,” “Issuer,”
“Administrative Agent” and “Mexican Facility Agent” include, without
limitation, their respective successors.


 


(g)           Upon the appointment of any successor
Administrative Agent pursuant to Section 10.7 (Successor
Agent), references to Citicorp in Section 10.4
(The Agents Individually) and to Citibank in the definitions of Base
Rate, Dollar Equivalent and Eurodollar Base Rate shall be deemed to refer to
the financial institution then acting as the Administrative Agent or one of its
Affiliates if it so designates.


 


ARTICLE II



THE FACILITIES


 


Section 2.1            The Commitments


 


(a)           Revolving
Credit Commitments.  On the
terms and subject to the conditions contained in this Agreement, (i) each
Revolving Credit Lender severally agrees to make loans in Dollars (each a “Revolving Dollar Loan”) to the Company
from time to time on any Business Day during the period from the Closing Date
until the Revolving Credit Termination Date in an aggregate principal amount at
any time outstanding for all such loans by such Revolving Credit Lender not to
exceed such Revolving Credit Lender’s Revolving Credit Commitment and (ii) each
Mexican Lender severally agrees to make loans in Pesos (each a “Peso Loan”) to either of the Mexican
Borrowers from time to time on any Business Day during the period from the date
hereof until the Revolving Credit Termination Date in an aggregate principal
amount at any time outstanding for all such loans by such Mexican Lender not to
exceed such Mexican Lender’s Peso Commitment; provided,
however, that at no time shall
any Revolving Credit Lender be obligated to make a Revolving Loan in excess of
such Revolving Credit Lender’s Ratable Portion of the Available Credit; provided, further,
that at no time shall any Mexican Lender be obligated to make a Peso Loan in
excess of such Mexican Lender’s Ratable Portion of the Peso Available
Credit.  Within the limits of the
Revolving Credit Commitment of each Revolving Credit Lender, the Available
Credit and the Peso Available Credit, amounts of Revolving Loans repaid may be
reborrowed by the Borrowers under this Section 2.1.


 


(b)           Term
Loan Commitments.  On the
terms and subject to the conditions contained in this Agreement, each Term
Lender severally agrees to make a loan in Dollars (each a “Term Loan”) to the Company on the Closing
Date in an aggregate principal amount not to exceed such Lender’s Term Loan
Commitment.  Amounts of Term Loans repaid
or prepaid may not be reborrowed.


 


46

















 


(c)           Facility Increases.  


 


(i)            The Company may from time to time
after the Closing Date, with the consent of the Administrative Agent, request
(i) one or more increases in the Revolving Credit Commitments (each a “Revolving Commitment Increase”) or (ii)
one or more increases in the Term Loan Commitments or additional tranches of
term loans (each a “Term Loan Increase”);
provided, however, that (A) the aggregate principal
amount of all Facility Increases shall not exceed $300,000,000 and (B) each
Facility Increase shall be in an amount not less than $25,000,000 (or, in the
case of additional term loans on terms different from the existing Term Loans,
$50,000,000).  Nothing in this Agreement
shall be construed to obligate the Administrative Agent, the Mexican Facility
Agent, any Arranger or any Lender to negotiate, solicit, provide or commit to
any Facility Increase.  The Administrative
Agent shall promptly notify each Lender of each proposed Facility Increase and
of the proposed terms and conditions therefor agreed between the Company and
the Administrative Agent.  Each such
Lender (and each of their Affiliates and Approved Funds) may, in its sole
discretion, commit to participate in such Facility Increase by forwarding its
commitment therefor to the Administrative Agent.  The Administrative Agent, upon receipt of
written commitments from Eligible Assignees in form and substance satisfactory
to the Administrative Agent, shall allocate, in its sole discretion, to each
such Eligible Assignee commitments with respect to such Facility Increase not
to exceed the amount of written commitments received from such Eligible
Assignee.  Each Facility Increase shall
become effective on a date agreed by the Company and the Administrative Agent
(each a “Facility Increase Date”);
provided, however, that the conditions precedent set
forth in Section 3.4 (Conditions Precedent
to Each Facility Increase) shall have been satisfied on or prior to
each such Facility Increase Date.  The
Administrative Agent shall notify the Lenders and the Company, on or before
1:00 p.m., New York City time, on the first Business Day following a Facility
Increase Date of the effectiveness of a Facility Increase and shall record in
the Register all applicable additional information in respect of such Facility
Increase.


 


(ii)           (A) The loans and commitments
extended pursuant to any Facility Increase shall rank pari passu in right of payment with all
other Loans and Commitments, (B) the Weighted Average Life to Maturity of the
additional Term Loans under any Term Loan Increase shall not be shorter than
the remaining average life to maturity of the Term Loan Facility prior to giving
effect to such Term Loan Increase and (C) the final maturity date of the
additional Term Loans shall not be earlier than the Term Loan Maturity Date.


 


(iii)          From and after the Facility Increase
Date for any Revolving Commitment Increase, (A) the commitments under such
Revolving Commitment Increase shall be deemed for all purposes part of the
Revolving Credit Commitments, (B) each Eligible Assignee participating in such
Revolving Commitment Increase shall become a Revolving Credit Lender and (C)
the commitments under each Revolving Credit Commitment Increase shall have the
same terms and conditions as the Revolving Credit Commitments.  On the Facility Increase Date for any
Revolving Credit Commitment Increase, each Lender or Eligible Assignee
participating in such Revolving Credit Commitment Increase shall purchase and
assume from each existing Revolving Credit Lender having Revolving Loans and
participations in Letters of Credit, Peso Loans and Swing Loans outstanding on
such Facility Increase Date, without recourse or warranty, an undivided
interest and participation, to the extent of such Lender’s Ratable Portion of
the new Revolving Credit Commitments (after giving effect to such Revolving


 


47

















 


Credit Commitment Increase), in the aggregate
outstanding Revolving Loans and participations in Letters of Credit, Peso Loans
and Swing Loans, so as to ensure that, on the Facility Increase Date after
giving effect to such Revolving Credit Commitment Increase, each Revolving
Credit Lender is owed only its Ratable Portion of the Revolving Loans and
participations in Letters of Credit, Peso Loans and Swing Loans outstanding on
such Facility Increase Date.  


 


Section 2.2            Borrowing Procedures


 


(a)           Borrowings in Dollars.  


 


(i)            Each Revolving Dollar Borrowing or
Term Loan Borrowing shall be made on notice given by the Company to the Administrative
Agent not later than 1:00 p.m. (New York time) (i) one Business Day, in the
case of a Borrowing of Base Rate Loans and (ii) three Business Days, in the
case of a Borrowing of Eurodollar Rate Loans, prior to the date of the proposed
Borrowing.  Each such notice shall be in
substantially the form of Exhibit C
(Form of Notice of Borrowing) (a “Notice of Borrowing”), specifying (A) the
date of such proposed Borrowing, (B) the aggregate amount of such proposed
Borrowing, (C) whether any portion of the proposed Borrowing will be of Base
Rate Loans or Eurodollar Rate Loans and (D) for each Eurodollar Rate Loan, the
initial Interest Period or Periods thereof. 
Loans shall be made as Base Rate Loans unless, subject to Section 2.14 (Special Provisions Governing Eurodollar Rate Loans),
the Notice of Borrowing specifies that all or a portion thereof shall be
Eurodollar Rate Loans.  Notwithstanding
anything to the contrary contained in Section 2.3(a)
(Swing Loans), if any Notice of
Borrowing requests a Borrowing of Base Rate Loans, the Administrative Agent may
make a Dollar Swing Loan available to the Company in an aggregate amount not to
exceed such proposed Borrowing, and the aggregate amount of the corresponding
proposed Borrowing shall be reduced accordingly by the principal amount of such
Swing Loan.  Each Borrowing shall be in
an aggregate amount of not less than $1,000,000 or an integral multiple of
$1,000,000 in excess thereof.


 


(ii)           The Administrative Agent shall give
to each Lender prompt notice of the Administrative Agent’s receipt of a Notice
of Borrowing with respect to Borrowings denominated in Dollars and, if
Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the
applicable interest rate determined pursuant to Section 2.14(a) (Determination
of Interest Rate).  Each
Lender shall, before 11:00 am. (New York time) on the date of the proposed
Borrowing, make available to the Administrative Agent at its address referred
to in Section 11.8 (Notices, Etc.), in immediately available
funds, such Lender’s Ratable Portion of such proposed Borrowing.  Upon fulfillment (or due waiver in accordance
with Section 11.1 (Amendments, Waivers, Etc.)) (i) on the
Closing Date, of the applicable conditions set forth Section 3.1 (Conditions
Precedent to Initial Loans and Letters of Credit) and (ii) at any
time (including the Closing Date), of the applicable conditions set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of
Credit), and after the Administrative Agent’s receipt of such funds,
the Administrative Agent shall make such funds available to the Company.


 


48

















 


(b)           Peso Borrowings.  


 


(i)            Each Peso Borrowing shall be made
pursuant to a Notice of Borrowing given by any Mexican Borrower and the Company to the
Mexican Facility Agent (with a copy to the Administrative Agent) not later than
1:00 p.m. (Mexico City time) three Business Days prior to the date of the
proposed Borrowing.  Each Notice of
Borrowing shall (A) specify the date of such proposed Borrowing, (B) specify the
aggregate amount of such proposed Borrowing, (C) specify the account to which
such funds are to be disbursed and (D) be in writing and be executed by the
applicable Mexican Borrower and the Company. 
Peso Loans shall be made as Peso TIIE Rate Loans.  Notwithstanding anything to the contrary
contained in Section 2.3(a)
(Swing Loans), the Mexican
Facility Agent may make a Peso Swing Loan available to such Mexican Borrower in an aggregate amount not to exceed such
proposed Borrowing, and the aggregate amount of the corresponding proposed
Borrowing shall be reduced accordingly by the principal amount of such Swing
Loan.  Each Borrowing shall be in an
aggregate amount of not less than P5,000,000 or an integral multiple of
P1,000,000 in excess thereof.


 


(ii)           The Mexican Facility Agent shall give to
each Mexican Lender prompt notice
of the Mexican Facility Agent’s
receipt of a Notice of Borrowing with respect to Peso Borrowings and the
applicable interest rate determined pursuant to Section 2.14(a) (Determination
of Interest Rate).  Each
Lender shall, before 11:00 am. (Mexico
City time) on the date of the proposed Borrowing, make available to the Mexican Facility Agent at its address
referred to in Section 11.8
(Notices, Etc.), in immediately
available funds, such Lender’s Ratable Portion of such proposed Borrowing.  Upon fulfillment (or due waiver in accordance
with Section 11.1 (Amendments, Waivers, Etc.)) (i) on the
Closing Date, of the applicable conditions set forth Section 3.1 (Conditions
Precedent to Initial Loans and Letters of Credit) and (ii) at any
time (including the Closing Date), of the applicable conditions set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of
Credit), and after the Mexican
Facility Agent’s receipt of such funds, the Mexican Facility Agent shall make such funds available to the applicable Mexican Borrower.


 


(c)           Unless the Administrative Agent or the Mexican Facility Agent, as the case may
be, shall have received notice from a Lender prior to the date of any
proposed Borrowing that such Lender will not make available to the applicable Agent such Lender’s Ratable Portion of
such Borrowing (or any portion thereof), such Agent, as the case may be, may assume that such Lender has made such
Ratable Portion available to such Agent on the date of such Borrowing in
accordance with this Section 2.2
and such Agent may, in reliance
upon such assumption, make available to the relevant Borrower on such date a corresponding amount.  If and to the extent that such Lender shall
not have so made such Ratable Portion available to the applicable Agent, such
Lender and the relevant Borrower
severally agree to repay to such Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to such Borrower
until the date such amount is repaid to such Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate (or, in the case of any Mexican Lender, the
Peso Base Rate) for the first Business Day and thereafter at the
interest rate applicable at the time to the Loans comprising such
Borrowing.  If such Lender shall repay to
such Agent such corresponding amount, such corresponding amount so repaid shall
constitute such Lender’s Loan as part of such Borrowing for purposes of this
Agreement.  If the relevant Borrower
shall repay to the applicable Agent such corresponding


 


49

















 


amount, such payment shall not
relieve such Lender of any obligation it may have hereunder to such Borrower.


 


(d)           The failure of any Lender to make on
the date specified any Loan or any payment required by it (such Lender being a “Non-Funding Lender”), including any
payment in respect of its participation in the Peso Loans, Swing Loans and Letter
of Credit Obligations, shall not relieve any other Lender of its obligations to
make such Loan or payment on such date but no such other Lender shall be
responsible for the failure of any Non-Funding Lender to make a Loan or payment
required under this Agreement.


 


Section 2.3            Swing Loans


 


(a)           Dollar
Swing Loans.  On the terms and
subject to the conditions contained in this Agreement, the Dollar Swing Lender
shall make loans in Dollars (each a “Dollar
Swing Loan”) otherwise available to the Company under the Revolving
Credit Facility from time to time on any Business Day during the period from
the date hereof until the Revolving Credit Termination Date in an aggregate
principal amount at any time outstanding (together with the aggregate outstanding
principal amount of any other Loan made by the Dollar Swing Lender hereunder in
its capacity as a Lender or the Dollar Swing Lender) not to exceed the Dollar
Swing Loan Sublimit; provided, however, that at no time shall the Dollar
Swing Lender make any Dollar Swing Loan to the extent that, after giving effect
to such Dollar Swing Loan, the aggregate Revolving Credit Outstandings would
exceed the Revolving Credit Commitments in effect at such time.  Each Dollar Swing Loan shall be a Base Rate
Loan and must be repaid in full within seven days after its making or, if
sooner, upon any Revolving Dollar Borrowing hereunder and shall in any event
mature no later than the Revolving Credit Termination Date.  Within the limits set forth in the first
sentence of this clause (a),
amounts of Dollar Swing Loans repaid may be reborrowed under this clause (a).


 


(b)           Peso
Swing Loans.  On the terms and
subject to the conditions contained in this Agreement, the Peso Swing Lender shall
make loans in Pesos (each a “Peso Swing Loan”)
otherwise available to the Mexican Borrowers under the Mexican Facility from
time to time on any Business Day during the period from the date hereof until
the Revolving Credit Termination Date in an aggregate principal amount at any
time outstanding (together with the aggregate outstanding principal amount of
any other Loan made by the Peso Swing Lender hereunder in its capacity as a
Lender or the Peso Swing Lender) not to exceed the Peso Swing Loan Sublimit; provided, however,
that at no time shall the Peso Swing Lender make any Peso Swing Loan to the
extent that, after giving effect to such Swing Loan, (i) the aggregate Peso
Outstandings would exceed the Peso Commitments in effect at such time or (ii)
the aggregate Revolving Credit Outstandings would exceed the Revolving Credit
Commitments in effect at such time.  Each
Peso Swing Loan shall be a Peso Base Rate Loan and must be repaid in full
within seven days after its making or, if sooner, upon any Peso Borrowing
hereunder and shall in any event mature no later than the Revolving Credit
Termination Date.  Within the limits set
forth in the first sentence of this clause
(b), amounts of Peso Swing Loans repaid may be reborrowed under this
clause (b).


 


(c)           In order to request a Swing Loan, the
applicable Borrower shall telecopy (or forward by electronic mail or similar
means) to the applicable Agent (and, in the case of a Peso Swing Loan, with a
copy to the Administrative Agent) a duly completed request in substantially the
form of Exhibit D (Form of Swing Loan Request) (a “Swing Loan Request”), setting forth the
requested amount and date of such Swing Loan and, with respect to Peso Swing


 


50

















 


Loans, specifying the account
to which such funds are to be disbursed, to be received by such Agent not later
than 1:00 p.m. (Local Time) on the day of the proposed borrowing; provided, however, that
all Swing Loan Requests for Peso Swing Loans shall be in writing and be
executed by the applicable Mexican Borrower and the Company.  The applicable Agent shall promptly notify
the applicable Swing Lender of the details of the requested Swing Loan.  Subject to the terms of this Agreement, each
Swing Lender may make a Swing Loan available to the applicable Agent and, in
turn, such Agent shall make such amounts available to the applicable Borrower
on the date of the relevant Swing Loan Request. 
No Swing Lender shall make any Swing Loan in the period commencing on
the first Business Day after it receives written notice from any Agent or any Revolving
Credit Lender that one or more of the conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan
and Letter of Credit) shall not on such date be satisfied, and
ending when such conditions are satisfied. 
No Swing Lender shall otherwise be required to determine that, or take
notice whether, the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan
and Letter of Credit) have been satisfied in connection with the
making of any Swing Loan.


 


(d)           Each Swing Lender shall notify the
applicable Agent in writing (which writing may be a telecopy or electronic
mail) weekly, by no later than 10:00 a.m. (Local Time) on the first Business
Day of each week, of the aggregate principal amount of its Swing Loans then
outstanding.


 


(e)           (i)            With
respect to the Dollar Swing Loans, (A) the Dollar Swing Lender may demand at
any time that each Revolving Credit Lender pay to the Administrative Agent, for
the account of such Swing Lender, in the manner provided in clause (f) below, such Revolving Credit
Lender’s Ratable Portion of all or a portion of the applicable Dollar Swing
Loans then outstanding, which demand shall be made through the Administrative
Agent, shall be in writing and shall specify the outstanding principal amount
of such Swing Loans demanded to be paid and (B) upon the occurrence of a
Default or an Event of Default under Section 9.1(f)
(Events of Default), each Revolving Credit Lender shall immediately
acquire, without recourse or warranty, an undivided participation in each
Dollar Swing Loan, by payment to the Administrative Agent, in immediately
available funds, an amount equal to such Revolving Credit Lender’s Ratable
Portion of such Swing Loan pursuant to clause
(f) below.  


 


(ii)           With respect to the Peso Swing Loans,
(A) the Peso Swing Lender may demand at any time that each Mexican Lender pay
to the Mexican Facility Agent, for the account of such Swing Lender, in the
manner provided in clause (f) below,
such Mexican Lender’s Ratable Portion of all or a portion of the applicable
Peso Swing Loans then outstanding, which demand shall be made through the
Mexican Facility Agent, shall be in writing and shall specify the outstanding
principal amount of such Swing Loans demanded to be paid and (B) upon the
occurrence of a Default or an Event of Default under Section 9.1(f) (Events of Default), each Mexican Lender
shall immediately acquire, without recourse or warranty, an undivided
participation in each Peso Swing Loan, by payment to the Mexican Facility Agent,
in immediately available funds, an amount equal to such Mexican Lender’s
Ratable Portion of such Swing Loan pursuant to clause
(f) below.  


 


(f)            Each Agent shall forward each notice
referred to in clause (d) above
and each demand referred to in clause (e)
above to each applicable Lender on the day such notice or such demand is
received by such Agent (except that any such notice or demand received by such
Agent after 1:00 p.m. (Local Time) on any Business Day or any such demand
received on a day


 


51

















 


that is not a Business Day
shall not be required to be forwarded to the applicable Lenders by such Agent
until the next succeeding Business Day), together with a statement prepared by
such Agent specifying the amount of each applicable Lender’s Ratable Portion of
the aggregate principal amount of the Swing Loans stated to be outstanding in
such notice or demanded to be paid pursuant to such demand, and,
notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan
and Letter of Credit) and 2.1(a)
(Revolving Credit Commitments)
shall have been satisfied (which conditions precedent the Revolving Credit
Lenders hereby irrevocably waive), each applicable Lender shall, before 11:00
a.m. (Local Time) on the Business Day next succeeding the date of such Lender’s
receipt of such notice or demand, make available to such Agent, in immediately
available funds, for the account of the applicable Swing Lender, the amount specified
in such statement.  Upon such payment by
a Lender, such Lender shall, except as provided in clause (g) below, be deemed to have made a Revolving Loan to
the applicable Borrower.  Each Agent
shall use such funds to repay the applicable Swing Loans to the applicable
Swing Lender.  To the extent that any
Lender fails to make such payment available to such Agent for the account of
any Swing Lender, the Borrowers shall repay such Swing Loan on demand.


 


(g)           Upon the occurrence of a Default or
an Event of Default under Section 9.1(f)
(Events of Default), each Revolving Credit Lender shall acquire,
without recourse or warranty, an undivided participation in each Dollar Swing
Loan otherwise required to be repaid by such Revolving Credit Lender pursuant
to clause (f) above and each
Mexican Lender shall acquire, without recourse or warranty, an undivided
participation in each Peso Swing Loan otherwise required to be repaid by such
Revolving Credit Lender pursuant to clause (f)
above, in each case, which participation shall be in a principal amount equal
to such Lender’s Ratable Portion of such Swing Loan, by paying to the
applicable Swing Lender on the date on which such Lender would otherwise have
been required to make a payment in respect of such Swing Loan pursuant to clause (f) above, in immediately available
funds, an amount equal to such Lender’s Ratable Portion of such Swing
Loan.  If all or part of such amount is
not in fact made available by any applicable Lender to any Swing Lender on such
date, such Swing Loan Lender shall be entitled to recover any such unpaid
amount on demand from such Lender together with interest accrued from such date
(i) in the case of any Revolving Credit Lender, at the Federal Funds Rate and
(ii) in the case of any Mexican Lender, at the Peso Base Rate, for the first
Business Day after such payment was due and thereafter at the rate of interest
then applicable to Base Rate Loans.


 


(h)           From and after the date on which any
Lender (i) is deemed to have made a Revolving Loan pursuant to clause (f) above with respect to any Swing
Loan or (ii) purchases an undivided participation interest in a Swing Loan
pursuant to clause (g) above, the
applicable Swing Lender shall promptly distribute to such Lender such Lender’s
Ratable Portion of all payments of principal of and interest received by such
Swing Lender on account of such Swing Loan other than those received from a
Lender pursuant to clause (f) or (g) above.


 


Section 2.4            Letters of Credit


 


(a)           On the terms and subject to the
conditions contained in this Agreement, each Issuer agrees to Issue at the
request of the Company and for the account of the Company (or for the joint and
several account of the Company and a Subsidiary of the Company) one or more
Letters of Credit from time to time on any Business Day during the period
commencing on the Closing Date and ending on the earlier of the Revolving
Credit Termination Date and (x) 30 days prior to the Scheduled Termination Date,
in the case of a Documentary Letter of Credit and (y) 5 days prior to the
Scheduled Termination Date, in the case of a Standby Letter of Credit; provided,


 


52

















 


however, that no Issuer shall be under any
obligation to Issue (and, upon the occurrence of any of the events described in
clauses (ii), (iii), (iv),
(v), and (vi)(A) below, shall not Issue) any Letter
of Credit upon the occurrence of any of the following: 


 


(i)            any order, judgment or decree of any
Governmental Authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuer from Issuing such Letter of Credit or any Requirement of
Law applicable to such Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over
such Issuer shall prohibit, or request that such Issuer refrain from, the
Issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon such Issuer with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which such Issuer is not
otherwise compensated) not in effect on the date of this Agreement or result in
any unreimbursed loss, cost or expense that was not applicable, in effect or
known to such Issuer as of the date of this Agreement and that such Issuer in
good faith deems material to such Issuer;


 


(ii)           such Issuer shall have received any
written notice of the type described in clause
(d) below;


 


(iii)          after giving effect to the Issuance of
such Letter of Credit, the aggregate Revolving Credit Outstandings would exceed
the aggregate Revolving Credit Commitments in effect at such time;


 


(iv)          after giving effect to the Issuance of
such Letter of Credit, the sum of (i) the Dollar Equivalents of the Letter of
Credit Undrawn Amounts at such time and (ii) the Dollar Equivalents of the
Reimbursement Obligations at such time exceeds the Letter of Credit Sublimit;


 


(v)           (A)          such
Letter of Credit is requested to be denominated in any Alternative Currency and
the Issuer receives written notice from the Administrative Agent at or before
11:00 a.m. (New York time) on the date of the proposed Issuance of such Letter
of Credit that, immediately after giving effect to the Issuance of such Letter
of Credit, all Letter of Credit Obligations at such time in respect of each
Letter of Credit denominated in currencies other than Dollars would exceed
$5,000,000 or (B) such Letter of Credit is requested to be denominated in any
currency other than Dollars or an Alternative Currency; or


 


(vi)          (A)          any
fees due in connection with a requested Issuance have not been paid, (B) such
Letter of Credit is requested to be Issued in a form that is not acceptable to
such Issuer or (C) the Issuer for such Letter of Credit shall not have
received, in form and substance reasonably acceptable to it and, if applicable,
duly executed by the Company, applications, agreements and other documentation
(collectively, a “Letter of Credit
Reimbursement Agreement”) such Issuer generally employs in the
ordinary course of its business for the Issuance of letters of credit of the
type of such Letter of Credit.


 


None of the Revolving Credit
Lenders (other than the Issuers in their capacity as such) shall have any
obligation to Issue any Letter of Credit.


 


53

















 


(b)           In no event shall the expiration date
of any Letter of Credit (i) be more than one year after the date of issuance
thereof or (ii) be less than five days prior to the Scheduled Termination Date;
provided, however, that any Letter of Credit with a
term less than or equal to one year may provide for the renewal thereof for
additional periods less than or equal to one year, as long as, (x) on or before
the expiration of each such term and each such period, the Company and the
Issuer of such Letter of Credit shall have the option to prevent such renewal
and (y) neither the Issuer nor the Company shall permit any such renewal to
extend the expiration date of any Letter of Credit beyond the date set forth in
clause (ii) above.


 


(c)           In connection with the Issuance of
each Letter of Credit, the Company shall give the relevant Issuer and the
Administrative Agent at least two Business Days’ prior written notice, in
substantially the form of Exhibit E
(Form of Letter of Credit Request)
(or in such other written or electronic form as is acceptable to the Issuer),
of the requested Issuance of such Letter of Credit (a “Letter of Credit Request”).  Such notice shall be irrevocable and shall
specify the Issuer of such Letter of Credit, the currency of issuance and face
amount of the Letter of Credit requested (whose Dollar Equivalent shall not be
less than $500,000 (or such lesser amount as mutually agreed between the
Company and the relevant Issuer)), the date of Issuance of such requested
Letter of Credit, the date on which such Letter of Credit is to expire (which
date shall be a Business Day) and, in the case of an issuance, the Person for
whose benefit the requested Letter of Credit is to be issued.  Such notice, to be effective, must be
received by the relevant Issuer and the Administrative Agent not later than
1:00 p.m. (New York time) on the second Business Day prior to the requested
Issuance of such Letter of Credit.


 


(d)           Subject to the satisfaction of the
conditions set forth in this Section 2.4,
the relevant Issuer shall, on the requested date, Issue a Letter of Credit on
behalf of the Company in accordance with such Issuer’s usual and customary
business practices.  No Issuer shall
Issue any Letter of Credit in the period commencing on the first Business Day
after it receives written notice from any Revolving Credit Lender that one or
more of the conditions precedent contained in Section 3.2
(Conditions Precedent to Each Loan and Letter of Credit) or clause (a) above (other than those
conditions set forth in clauses (a)(i),
(a)(vi)(B) and (C) above and, to the extent such clause
relates to fees owing to the Issuer of such Letter of Credit and its
Affiliates, clause (a)(vi)(A)
above) are not on such date satisfied or duly waived and ending when such
conditions are satisfied or duly waived. 
No Issuer shall otherwise be required to determine that, or take notice
whether, the conditions precedent set forth in Section 3.2
(Conditions Precedent to Each Loan and Letter of Credit) have been
satisfied in connection with the Issuance of any Letter of Credit.


 


(e)           The Company agrees that, if requested
by the Issuer of any Letter of Credit, it shall execute a Letter of Credit
Reimbursement Agreement in respect to any Letter of Credit Issued
hereunder.  In the event of any conflict
between the terms of any Letter of Credit Reimbursement Agreement and this
Agreement, the terms of this Agreement shall govern.


 


(f)            Each Issuer shall comply with the
following:


 


(i)            give the Administrative Agent
written notice (or telephonic notice confirmed promptly thereafter in writing),
which writing may be a telecopy or electronic mail, of the Issuance of any
Letter of Credit Issued by it, of all drawings under any Letter of Credit
Issued by it and of the payment (or the failure to pay when due) by the Company
of any Reimbursement Obligation when due (which notice the


 


54

















 


Administrative Agent shall promptly transmit by
telecopy, electronic mail or similar transmission to each Revolving Credit
Lender);


 


(ii)           upon the request of any Revolving
Credit Lender, furnish to such Revolving Credit Lender copies of any Letter of
Credit Reimbursement Agreement to which such Issuer is a party and such other
documentation as may reasonably be requested by such Revolving Credit Lender;
and


 


(iii)          no later than 10 Business Days
following the last day of each calendar month, provide to the Administrative
Agent (and the Administrative Agent shall provide a copy to each Revolving
Credit Lender requesting the same) and the Company separate schedules for
Documentary Letters of Credit and Standby Letters of Credit issued by it, in
form and substance reasonably satisfactory to the Administrative Agent, setting
forth the aggregate Letter of Credit Obligations, in each case outstanding at
the end of each month and any information requested by the Company or the
Administrative Agent relating thereto.


 


(g)           Immediately upon the issuance by an
Issuer of a Letter of Credit in accordance with the terms and conditions of
this Agreement, such Issuer shall be deemed to have sold and transferred to
each Revolving Credit Lender, and each Revolving Credit Lender shall be deemed
irrevocably and unconditionally to have purchased and received from such
Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such Revolving Credit Lender’s Ratable Portion of the
Revolving Credit Commitments, in such Letter of Credit and the obligations of
the Company with respect thereto (including all Letter of Credit Obligations
with respect thereto) and any security therefor and guaranty pertaining
thereto.


 


(h)           The Company agrees to pay to the
Issuer of any Letter of Credit the amount of all Reimbursement Obligations
owing to such Issuer under any Letter of Credit issued for its account no later
than the date that is the next succeeding Business Day after the Company
receives written notice from such Issuer that payment has been made under such
Letter of Credit (the “Reimbursement Date”),
irrespective of any claim, set-off, defense or other right that the Company may
have at any time against such Issuer or any other Person.  In the event that any Issuer makes any
payment under any Letter of Credit and the Company shall not have repaid such
amount to such Issuer pursuant to this clause
(h) or any such payment by the Company is rescinded or set aside for
any reason, such Reimbursement Obligation shall be payable on demand with
interest thereon computed (i) from the date on which such Reimbursement
Obligation arose to the Reimbursement Date, at the rate of interest applicable
during such period to Revolving Loans that are Base Rate Loans and (ii) from
the Reimbursement Date until the date of repayment in full, at the rate of
interest applicable during such period to past due Revolving Loans that are
Base Rate Loans, and such Issuer shall promptly notify the Administrative
Agent, which shall promptly notify each Revolving Credit Lender of such
failure, and each Revolving Credit Lender shall promptly and unconditionally
pay to the Administrative Agent for the account of such Issuer the amount of
such Revolving Credit Lender’s Ratable Portion of such payment (or the Dollar
Equivalent thereof if such payment was made in any currency other than Dollars)
in immediately available Dollars.  If the
Administrative Agent so notifies such Revolving Credit Lender prior to 11:00
a.m. (New York time) on any Business Day, such Revolving Credit Lender shall
make available to the Administrative Agent for the account of such Issuer its
Ratable Portion of the amount of such payment on such Business Day in
immediately available funds.  Upon such
payment by a Revolving Credit Lender, such Revolving Credit Lender shall,
except during the continuance of a Default or Event of Default under Section 9.1(f) (Events of Default)


 


55

















 


and notwithstanding whether or
not the conditions precedent set forth in Section 3.2
(Conditions Precedent to Each Loan and Letter of Credit) shall have
been satisfied (which conditions precedent the Revolving Credit Lenders hereby
irrevocably waive), be deemed to have made a Revolving Loan to the Company in
the principal amount of such payment. 
Whenever any Issuer receives from the Company a payment of a
Reimbursement Obligation as to which the Administrative Agent has received for
the account of such Issuer any payment from a Revolving Credit Lender pursuant
to this clause (h), such Issuer
shall pay over to the Administrative Agent any amount received in excess of
such Reimbursement Obligation and, upon receipt of such amount, the
Administrative Agent shall promptly pay over to each Revolving Credit Lender,
in immediately available funds, an amount equal to such Revolving Credit Lender’s
Ratable Portion of the amount of such payment adjusted, if necessary, to
reflect the respective amounts the Revolving Credit Lenders have paid in
respect of such Reimbursement Obligation.


 


(i)            If and to the extent such Revolving
Credit Lender shall not have so made its Ratable Portion of the amount of the payment
required by clause (h) above
available to the Administrative Agent for the account of such Issuer, such
Revolving Credit Lender agrees to pay to the Administrative Agent for the
account of such Issuer forthwith on demand any such unpaid amount together with
interest thereon, for the first Business Day after payment was first due at the
Federal Funds Rate and, thereafter, until such amount is repaid to the
Administrative Agent for the account of such Issuer, at a rate per annum equal
to the rate applicable to Base Rate Loans under the Facility.


 


(j)            The Company’s obligation to pay each
Reimbursement Obligation and the obligations of the Revolving Credit Lenders to
make payments to the Administrative Agent for the account of the Issuers with
respect to Letters of Credit shall be absolute, unconditional and irrevocable
and shall be performed strictly in accordance with the terms of this Agreement,
under any and all circumstances whatsoever, including the occurrence of any
Default or Event of Default, and irrespective of any of the following:


 


(i)            any lack of validity or
enforceability of any Letter of Credit or any Loan Document, or any term or
provision therein;


 


(ii)           any amendment or waiver of or any
consent to departure from all or any of the provisions of any Letter of Credit
or any Loan Document;


 


(iii)          the existence of any claim, set-off,
defense or other right that the Borrowers, any other party guaranteeing, or
otherwise obligated with, the Borrowers, any Subsidiary or other Affiliate
thereof or any other Person may at any time have against the beneficiary under
any Letter of Credit, any Issuer, the Administrative Agent or any Lender or any
other Person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreement or transaction;


 


(iv)          any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect;


 


(v)           payment by the Issuer under a Letter
of Credit against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit; and


 


56



















 


(vi)          any other act or omission to act or
delay of any kind of the Issuer, the Lenders, the Administrative Agent or any
other Person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this Section 2.4, constitute a legal or
equitable discharge of the Company’s obligations hereunder.


 


Any action taken or omitted to
be taken by the relevant Issuer under or in connection with any Letter of
Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not result in any liability of such Issuer to the Company or
any Lender.  In determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof, the Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary and, in making any payment under any
Letter of Credit, the Issuer may rely exclusively on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever, and any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall,
in each case, be deemed not to constitute willful misconduct or gross
negligence of the Issuer.


 


(k)           Schedule 2.4 (Existing
Letters of Credit) contains a schedule of certain letters of credit
issued prior to the Closing Date for the account of the Company.  On the Closing Date (i) such letters of
credit, to the extent outstanding, shall be automatically and without further
action by the parties thereto converted to Letters of Credit issued pursuant to
this Section 2.4 for the account of the
Company and subject to the provisions hereof, and for this purpose the fees
specified in Section 2.12(b) (Fees) shall
be payable (in substitution for any fees set forth in the applicable letter of
credit reimbursement agreements or applications relating to such letters of
credit) as if such letters of credit had been issued on the Closing Date, (ii)
the issuers of such Letters of Credit shall be deemed to be “Issuers” hereunder solely for the purpose of maintaining
such letters of credit, for purposes of Section 2.16(f)
relating to the obligation to provide the appropriate forms, certificates and
statements to the Company and the Administrative Agent and any updates required
by Section 2.16(f) and for purposes of
Section 2.7 relating to the entries
to be made in the Register, (iii) the Dollar Equivalent of the face amount of
such letters of credit shall be included in the calculation of Letter of Credit
Obligations and (iv) all liabilities of the Company with respect to such
letters of credit shall constitute Obligations. 
No letter of credit converted in accordance with this clause (k) shall be amended, extended or renewed without the
prior written consent of the Administrative Agent.


 


Section 2.5            Reduction and Termination of the
Commitments


 


Upon at least three
Business Days’ prior notice to (i) the Administrative Agent, the Company may
terminate in whole or reduce in part ratably the unused portions of the
respective Revolving Credit Commitments of the Revolving Credit Lenders or,
prior to the Closing Date, the unused portions the Term Loan Commitments of the
Term Loan Lenders and (ii) the Mexican Facility Agent (with a copy to the
Administrative Agent), the Mexican Borrowers may terminate in whole or reduce
in part ratably the unused portions of the respective


 


57

















 


Peso Commitments of the Mexican
Lenders; provided, however, that each partial reduction shall
be in an aggregate amount of not less than $1,000,000 or an integral multiple
of $1,000,000 in excess thereof.  Any
unused Term Loan Commitment shall terminate on the Closing Date.  In addition, all outstanding Revolving Credit
Commitments shall terminate on the Revolving Credit Termination Date.


 


Section 2.6            Repayment of Loans


 


(a)           Each Borrower promises to repay the
entire unpaid principal amount of the Revolving Loans and the Swing Loans owing
by it on the Scheduled Termination Date or earlier, if otherwise required by
the terms hereof.


 


(b)           The Company promises to repay the
Term Loans at the dates and in the amounts set forth below:


 




	
  DATE

  	
   

  	
  AMOUNT

  	
   

  
	
  March 31, 2006

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  June 30, 2006

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  September 30, 2006

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  March 31, 2007

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  June 30, 2007

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  September 30, 2007

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  March 31, 2008

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  1,625,000

  	
   

  






 


58

















 




	
  DATE

  	
   

  	
   

  	
  AMOUNT

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  1,625,000

  	
   

  
	
  Term Loan Maturity Date

  	
   

  	
  $

  	
  606,125,000

  	
   

  






 


provided,
however, that the Company shall
repay the entire unpaid principal amount of the Term Loans on the Term Loan
Maturity Date.


 


Section 2.7            Evidence of Debt


 


(a)           Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
Indebtedness of the Borrowers 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.


 


(b)           (i)            The
Administrative Agent, acting as agent of the Borrowers solely for this purpose
and for tax purposes, shall establish and maintain at its address referred to
in Section 11.8 (Notices, Etc.)
a record of ownership (the “Register”)
in which the Administrative Agent agrees to register by book entry the
Administrative Agent’s, each Lender’s and each Issuer’s interest in each Loan,
each Letter of Credit and each Reimbursement Obligation, and in the right to
receive any payments hereunder and any assignment of any such interest or
rights.  In addition, the Administrative
Agent, acting as agent of the Borrowers solely for this purpose and for tax
purposes, shall establish and maintain accounts in the Register in accordance
with its usual practice in which it shall record (i) the names and addresses of
the Lenders and the Issuers, (ii) the Commitments of each Lender from time to
time, (iii) the amount of each Loan made and, if a Eurodollar Rate Loan, the
Interest Period applicable thereto, (iv) the amount of any principal or
interest due and payable, and paid, by the Borrowers to, or for the account of,
each Lender hereunder, (v) the amount that is due and payable, and paid, by the
Company to, or for the account of, each Issuer, including the amount of Letter
Credit Obligations (specifying the amount of any Reimbursement Obligations) due
and payable to an Issuer, and (vi) the amount of any sum received by the
Administrative Agent hereunder from the Borrowers, whether such sum constitutes
principal or interest (and the type of Loan to which it applies), fees,
expenses or other amounts due under the Loan Documents and each Lender’s and
Issuer’s, as the case may be, share thereof, if applicable.


 


(ii)           Notwithstanding anything to the
contrary contained in this Agreement, the Loans (including the Notes evidencing
such Loans) and the Reimbursement Obligations are registered obligations and
the right, title, and interest of the Lenders and the Issuers and their
assignees in and to such Loans or Reimbursement Obligations, as the case may
be, shall be transferable only upon notation of such transfer in the
Register.  A Note shall only evidence the
Lender’s or a registered assignee’s right, title and interest in and to the
related Loan, and in no event is any such Note to be considered a bearer
instrument or obligation.  This Section 2.7(b) and Section 11.2 shall be construed so
that the Loans and Reimbursement Obligations are at all times maintained in “registered form” within the meaning of
Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related
regulations (or any successor provisions of the Code or such regulations).


 


59

















 


(c)           The entries made in the Register and
in the accounts therein maintained pursuant to clauses
(a) and (b) above
shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided,
however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of each Borrower to
repay the Loans owing by it in accordance with their terms.  In addition, the Loan Parties, the
Administrative Agent, the Lenders and the Issuers shall treat each Person whose
name is recorded in the Register as a Lender or as an Issuer, as applicable,
for all purposes of this Agreement. 
Information contained in the Register with respect to any Lender or
Issuer shall be available for inspection by the Borrowers, the Administrative
Agent, such Lender or such Issuer at any reasonable time and from time to time
upon reasonable prior notice.


 


(d)           Notwithstanding any other provision
of the Agreement, in the event that any Lender requests that a Borrower execute
and deliver a promissory note or notes payable to such Lender in order to
evidence the Indebtedness owing to such Lender by such Borrower hereunder, such
Borrower shall promptly execute and deliver a Note or Notes to such Lender
evidencing any Term Loans and Revolving Loans, as the case may be, of such
Lender, substantially in the forms of Exhibit B-1 (Form of
Revolving Dollar Note), Exhibit B-2 (Form of Peso
Loan Note) or Exhibit B-3 (Form of Term
Loan Note), respectively.


 


Section 2.8            Optional Prepayments


 


(a)           Revolving
Loans.  Each Borrower may,
upon (i) one Business Day’s prior notice in the case of Base Rate Loans and
(ii) at least three Business Days’ prior notice in the case of Eurodollar Rate
Loans or Peso TIIE Rate Loans to the applicable Agent (and in the case of any
prepayment of Peso Loans, with a copy to the Administrative Agent) stating the
proposed date and aggregate principal amount of the prepayment, prepay the
outstanding principal amount of the Revolving Loans and Swing Loans owing by it
in whole or in part at any time in the applicable currencies; provided, however,
that, if any prepayment of any Eurodollar Rate Loan or Peso TIIE Rate Loan is
made by a Borrower other than on the last day of an Interest Period for such
Loan, such Borrower shall also pay any amount owing pursuant to Section 2.14(e) (Breakage Costs).  Each partial prepayment of (i) Base Rate
Loans shall be in an aggregate amount not less than $500,000 or integral
multiples of $100,000 in excess thereof, (b) Eurodollar Rate Loans shall be in
an aggregate amount not less than $1,000,000 or integral multiples of $500,000
in excess thereof and (c) Peso TIIE Rate Loans shall be in an aggregate amount
not less than P5,000,000 or integral multiples of P1,000,000 in excess thereof.


 


(b)           Term
Loans.  The Company may, upon (i)
at least one Business Day’s prior notice in the case of Base Rate Loans and
(ii) at least three Business Days’ prior notice in the case of Eurodollar Rate
Loans to the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, prepay the outstanding principal amount of the Term
Loans, in whole or in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided,
however, that if any prepayment
of any Eurodollar Rate Loan is made by the Company other than on the last day
of an Interest Period for such Loan, the Company shall also pay any amounts
owing pursuant to Section 2.14(e) (Breakage
Costs).  Each partial
prepayment of (i) Base Rate Loans shall be in an aggregate amount not less than
$500,000 or integral multiples of $100,000 in excess thereof and (ii)
Eurodollar Rate Loans shall be in an aggregate amount not less than $1,000,000
or integral multiples of $500,000 in excess thereof, and any such partial
prepayment shall be applied to the remaining installments of the Term Loans as
directed by the Company.  Upon the giving
of such notice of prepayment, the principal


 


60

















 


amount of the Term Loans
specified to be prepaid shall become due and payable on the date specified for
such prepayment.


 


(c)           Notwithstanding anything to the
contrary contained in this Agreement, the relevant Borrower may rescind any
notice of prepayment under Section 2.8(a) or (b) if
such prepayment would have resulted from a refinancing of all of the
Facilities, which refinancing shall not be consummated or shall otherwise be
delayed.


 


(d)           No Borrower shall have the right to
prepay the principal amount of any Revolving Loan or any Term Loan other than
as provided in this Section 2.8.  


 


Section 2.9            Mandatory Prepayments


 


(a)           The Company shall prepay the Term Loans
in accordance with clause (c)
below:


 


(i)            within ten Business Days of receipt
by the Company or any of its Subsidiaries of Net Cash Proceeds arising from (A)
any Asset Sale permitted under Section 8.4(g)
(Sale of Assets) in excess
of $250,000,000, in an amount equal to 100% of such Net Cash Proceeds in excess of $250,000,000 and (B) any
other Asset Sale or any Property Loss Event, in an amount equal to 100% of such
Net Cash Proceeds; and


 


(ii)           within ten Business Days of receipt
by the Company or any of its Subsidiaries of Net Cash Proceeds arising from any
Debt Issuance (other than any Debt Issuance permitted by this Agreement (other
than pursuant to Section 8.1(g)), in an amount
equal to 100% of such Net Cash Proceeds. 



 


(b)           If the Net Senior Secured Leverage
Ratio as of the last day of any Fiscal Year (commencing with the fiscal year
ended on or around March 31, 2007) is greater than 2.5 to 1.0, the Company
shall prepay the Term Loans in accordance with clause (c)
below, within ten Business Days after the delivery of Financial Statements
pursuant to Section 6.1(b) (Financial
Statements) for such Fiscal Year, in an amount equal to (i) 50% of
Excess Cash Flow of the Company and its Subsidiaries for such Fiscal Year minus (ii) any optional prepayment of Term Loans made
pursuant to Section 2.8(b) (Optional Prepayments) in
such Fiscal Year.


 


(c)           Subject to the provisions of Section 2.13(g) (Payments and Computations), any
prepayments made by the Company required to be applied in accordance with this clause (c), except in connection with a Deferred
Prepayment Event, shall be applied to repay the outstanding principal balance
of the Term Loans, until such Term Loans shall have been prepaid in full.  All repayments of the Term Loans made
pursuant to this clause (c) shall be applied
to reduce the remaining installments of such outstanding principal amounts of
the Term Loans (i) in the stated order of their maturities for eight quarterly
installments and then (ii) to reduce the remaining installments on a pro rata
basis; provided, however, that (A) upon a
Deferred Prepayment Event, the prepayments required above shall be reduced by
the Deferred Prepayment Amount in respect of such Deferred Prepayment Event and
(B) on the earlier of (1) the occurrence of an Event of Default and (2) the
Deferred Prepayment Date, the remaining balance of such Deferred Prepayment
Amount shall be applied as set forth above.


 


(d)           If at any time, the aggregate
principal amount of (i) the Revolving Credit Outstandings exceed the aggregate Revolving
Credit Commitments at such time, the Company


 


61

















 


shall forthwith prepay the
Swing Loans first and then the other Revolving Loans then outstanding in an
amount equal to such excess or (ii) the Peso Outstandings exceed the aggregate
Peso Commitments at such time, the Mexican Borrowers shall forthwith prepay the
Peso Swing Loans first and then the Peso Loans then outstanding in an amount
equal to such excess; provided, however, that,
to the extent such excess results solely by reason of a change in exchange
rates, the Borrowers shall not be required to make such prepayment unless the
amount of such excess causes the Revolving Credit Outstandings or the Peso
Outstandings to exceed the Revolving Credit Commitments or Peso Commitments, as
applicable, by more than 105%.  If any
such excess remains after repayment in full of the aggregate outstanding Swing
Loans and Revolving Loans, the Company shall provide cash collateral for the
Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of
Credit) in an amount equal to 105% of such excess.


 


Section 2.10         Interest


 


(a)           Rate of Interest.  


 


(i)            Subject to the terms and conditions set forth
in this Agreement, at the option of the Company, all Revolving Dollar Loans and
Term Loans shall be made as Base Rate Loans or Eurodollar Rate Loans; provided,
however, that all such Loans
shall be made as Base Rate Loans unless, subject to Section 2.14 (Special
Provisions Governing Eurodollar Rate Loans), the
Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar
Rate Loans, as the case may be.  All
Dollar Swing Loans shall be made
as Base Rate Loans, all Peso Swing Loans shall be made as Peso Base Rate Loans
and all Peso Loans shall be made as Peso TIIE Rate Loans, subject to conversion
pursuant to Section 2.3 (Swing
Loans) or Section 2.18 (Special
Provisions Governing Peso Loans).


 


(ii)           All Loans and the outstanding amount
of all other Obligations (other than pursuant to Hedging Contracts that are
Loan Documents, to the extent such Hedging Contracts provide for the accrual of
interest on unpaid obligations) shall bear interest, in the case of Loans, on
the unpaid principal amount thereof from the date such Loans are made and, in
the case of such other Obligations, from the date such other Obligations are
due and payable until, in all cases, paid in full, except as otherwise provided
in clause (c) below, as follows:


 


(A)          if a Base Rate Loan or such other
Obligation, at a rate per annum
equal to the sum of (A) the Base Rate as in effect from time to time and (B) the Applicable Margin;


 


(B)           if a Eurodollar Rate Loan, at a rate per annum equal to the sum of (A) the Eurodollar
Rate determined for the applicable Interest Period and (B) the Applicable Margin in effect
from time to time during such Interest Period;


 


(C)           if a Peso Base Rate Loan, at a rate per annum equal to the sum of (A) the Peso
Base Rate as in effect from time to time and (B) the Applicable Margin; and


 


62

















 


(D)          if a Peso TIIE Rate Loan, at a rate per annum equal to the sum of (A) the Peso
TIIE Rate determined for the applicable Interest Period and (B) the Applicable Margin in effect
from time to time during such Interest Period.


 


(b)           Interest
Payments.  (i) Interest
accrued on each Base Rate Loan (other than Swing Loans) shall be payable in
arrears (A) on the first Business Day of each calendar quarter, commencing on
the first such day following the making of such Base Rate Loan, (B) in the case
of Base Rate Loans that are Term Loans, upon the payment or prepayment thereof
in full or in part on the principal amount paid or prepaid and (C) if not
previously paid in full, at maturity (whether by acceleration or otherwise) of
such Loan, (ii) interest accrued on Dollar Swing Loans shall be payable in
arrears on the first Business Day of the immediately succeeding calendar
quarter, (iii) Interest accrued on each Peso Base Rate Loan and each Peso Swing
Loan shall be payable in arrears (A) on the first Business Day of each calendar
quarter, commencing on the first such day following the making of such Peso
Base Rate Loan or Peso Swing Loan, (B) upon the payment or prepayment thereof
in full or in part on the principal amount paid or prepaid and (C) if not
previously paid in full, at maturity (whether by acceleration or otherwise) of
such Loan, (iv) interest accrued on each Eurodollar Rate Loan and each
Peso TIIE Rate Loan shall be payable in arrears (A) on the last day of each
Interest Period applicable to such Loan and, if such Interest Period has a
duration of more than three months, on each date during such Interest Period
occurring every three months from the first day of such Interest Period, (B)
upon the payment or prepayment thereof in full or in part on the principal
amount paid or prepaid and (C) if not previously paid in full, at maturity (whether
by acceleration or otherwise) of such Loan and (v) interest accrued on the
amount of all other Obligations shall be payable on demand from and after the
time such Obligation becomes due and payable (whether by acceleration or
otherwise).


 


(c)           Default
Interest.  Notwithstanding the
rates of interest specified in clause (a)
above or elsewhere herein, effective immediately upon the occurrence of an
Event of Default under Section 9.1(a) or (b) (Events of Default) and for as long thereafter as such
Event of Default shall be continuing, the principal balance of all Loans and
the amount of all other Obligations then due and payable shall bear interest at
a rate that is two percent per annum in excess of the rate of interest
applicable to such Loans or other Obligations from time to time.  Such interest shall be payable on the date
that would otherwise be applicable to such interest pursuant to clause (b) above or otherwise
on demand.


 


Section 2.11         Conversion/Continuation Option


 


(a)           Each applicable Borrower may elect
(i) at any time on any Business Day to convert Base Rate Loans (other than
Swing Loans) or any portion thereof to Eurodollar Rate Loans and (ii) at the
end of any applicable Interest Period, (A) to convert Eurodollar Rate Loans or
any portion thereof into Base Rate Loans or (B) to continue Eurodollar Rate
Loans or Peso TIIE Rate Loans, or any portion thereof, for an additional
Interest Period; provided, however, that (i) the aggregate amount of
the Base Rate Loans for each Interest Period must be in the amount of at least
$500,000 or an integral multiple of $100,000 in excess thereof, (ii) the
aggregate amount of the Eurodollar Rate Loans for each Interest Period must be
in the amount of at least $1,000,000 or an integral multiple of $500,000 in excess
thereof and (iii) the aggregate amount of the Peso TIIE Rate Loans for each
Interest Period must be in the amount of at least P5,000,000 or an integral
multiple of P1,000,000 in excess thereof. 
Each conversion or continuation shall be allocated among the Loans of
each Lender in accordance with such Lender’s Ratable Portion.  Each such election shall be in substantially
the form of Exhibit F (Form of Notice of Conversion


 


63

















 


or Continuation) (a “Notice of Conversion or Continuation”) and
shall be made by giving the applicable Agent at least three Business Days’
prior written notice specifying (A) the amount and type of Loan being converted
or continued, (B) in the case of a conversion to or a continuation of
Eurodollar Rate Loans, the applicable Interest Period and (C) in the case of a
conversion, the date of such conversion.


 


(b)           Each Agent shall promptly notify each
applicable Lender of its receipt of a Notice of Conversion or Continuation and
of the options selected therein. 
Notwithstanding the foregoing, no conversion in whole or in part of Base
Rate Loans to Eurodollar Rate Loans and no continuation in whole or in part of
Eurodollar Rate Loans upon the expiration of any applicable Interest Period shall
be permitted at any time at which (i) a Default or an Event of Default shall
have occurred and be continuing or (ii) the continuation of, or conversion
into, a Eurodollar Rate Loan would violate any provision of Section 2.14 (Special Provisions Governing
Eurodollar Rate Loans).  If,
within the time period required under the terms of this Section 2.11, the  Administrative Agent does not receive a Notice
of Conversion or Continuation from the Company containing a permitted election
to continue any Eurodollar Rate Loans for an additional Interest Period or to
convert any such Loans, then, upon the expiration of the applicable Interest
Period, such Loans shall be automatically converted to Base Rate Loans.  If, within the time period required under the
terms of this Section 2.11, the  Mexican Facility Agent does not receive a
Notice of Conversion or Continuation from the applicable Mexican Borrower
containing a permitted election to continue any Peso TIIE Rate Loan for an
additional Interest Period, then, upon the expiration of the applicable
Interest Period, such Loans shall automatically be continued for an additional
Interest Period.  Each Notice of
Conversion or Continuation shall be irrevocable.


 


Section 2.12         Fees


 


(a)           Unused
Commitment Fee.  The Company agrees
to pay in immediately available Dollars to each Revolving Credit Lender a
commitment fee on the actual daily amount by which the Revolving Credit
Commitment of such Revolving Credit Lender exceeds such Lender’s Ratable
Portion of the sum of (i) the aggregate outstanding principal amount of Revolving
Dollar Loans and (ii) the outstanding amount of the aggregate Letter of Credit
Obligations (the “Unused Commitment Fee”)
from the date hereof through the Revolving Credit Termination Date at the
Applicable Unused Commitment Fee Rate, payable in arrears (x) on the first
Business Day of each calendar quarter, commencing on the first such Business
Day following the Closing Date and (y) on the Revolving Credit Termination
Date.


 


(b)           Letter
of Credit Fees.  The Company agrees
to pay the following amounts with respect to Letters of Credit issued by any
Issuer:


 


(i)            to the Administrative Agent for the
account of each Issuer of a Letter of Credit, with respect to each Letter of
Credit issued by such Issuer, an issuance fee equal to 0.25% per annum of the
Dollar Equivalent of the maximum undrawn face amount of such Letter of Credit,
payable in arrears (A) on the first Business Day of each calendar quarter,
commencing on the first such Business Day following the issuance of such Letter
of Credit and (B) on the Revolving Credit Termination Date;


 


(ii)           to the Administrative Agent for the
ratable benefit of the Revolving Credit Lenders, with respect to each Letter of
Credit, a fee accruing in Dollars at a rate per annum equal to (A) the
Applicable Margin for Revolving Loans that are


 


64

















 


Eurodollar Rate Loans minus
(B) 0.25% on the Dollar Equivalent of the maximum undrawn face amount of such
Letter of Credit, payable in arrears (1) on the first Business Day of each
calendar quarter, commencing on the first such Business Day following the
issuance of such Letter of Credit and (2) on the Revolving Credit Termination
Date; provided, however, that during the continuance of an
Event of Default under Section 9.1(a) or (b) (Events of Default), such fee shall be increased by two
percent per annum (instead of, and not in addition to, any increase pursuant to
Section 2.10(c) (Interest))
and shall be payable on demand; and


 


(iii)          to the Issuer of any Letter of Credit,
with respect to the issuance, amendment or transfer of each Letter of Credit
and each drawing made thereunder, customary documentary and processing charges
in accordance with such Issuer’s standard schedule for such charges in effect
at the time of issuance, amendment, transfer or drawing, as the case may be.


 


(c)           Additional
Fees.  The Company has agreed
to pay to the Administrative Agent and the Arrangers additional fees, the
amount and dates of payment of which are embodied in the Fee Letter.


 


Section 2.13         Payments and Computations


 


(a)           The Borrowers shall make each payment
hereunder (including fees and expenses) not later than 2:00 p.m. (Local Time)
on the day when due, in the currency specified herein (or, if no such currency
is specified, in Dollars) to the applicable Agent at its address referred to in
Section 11.8 (Notices, Etc.)
in immediately available funds without set-off or counterclaim.  Each Agent shall promptly thereafter cause to
be distributed immediately available funds relating to the payment of
principal, interest or fees to the applicable Lenders, in accordance with the
application of payments set forth in clause (f)
or (g) below, as applicable, for
the account of their respective Applicable Lending Offices; provided, however,
that amounts payable pursuant to Section 2.15
(Capital Adequacy), Section 2.16
(Taxes) or Section 2.14(c)
or (d)  (Special Provisions Governing Eurodollar Rate Loans)
shall be paid only to the affected Lender or Lenders and amounts payable with
respect to Swing Loans shall be paid only to the applicable Swing Lender.  Payments received by any Agent after 2:00 p.m.
(Local Time) shall be deemed to be received on the next Business Day.


 


(b)           All computations of interest and of
fees shall be made by the applicable Agent on the basis of a year of 360 days
(or 365/366 days in the case of Obligations bearing interest at the Base Rate
and the Unused Commitment Fee), in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest and fees are payable. 
Each determination by such Agent of a rate of interest hereunder shall
be conclusive and binding for all purposes, absent manifest error.


 


(c)           Each payment by the Borrowers of any
Loan, Reimbursement Obligation (including interest or fees in respect thereof)
and each reimbursement of various costs, expenses or other Obligation shall be
made in the currency in which such Loan was made, such Letter of Credit issued
or such cost, expense or other Obligation was incurred; provided, however,
that (i) the Letter of Credit Reimbursement Agreement for a Letter of
Credit may specify another currency for the Reimbursement Obligation in respect
of such Letter of Credit and (ii) other than for payments in respect of a Loan
or Reimbursement Obligation, Loan Documents duly executed


 


65

















 


by the Administrative Agent or
any Hedging Contract may specify other currencies of payment for Obligations created
by or directly related to such Loan Document or Hedging Contract.


 


(d)           Whenever any payment hereunder shall
be stated to be due on a day other than a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest or fees, as the case may be; provided,
however, that if such extension
would cause payment of interest on or principal of any Eurodollar Rate Loan or
Peso TIIE Rate Loan to be made in the next calendar month, such payment shall
be made on the immediately preceding Business Day.  All repayments of any Loans denominated in
Dollars shall be applied to repay such Loans outstanding as Base Rate Loans or Eurodollar
Rate Loans as notified by the Company to the Administrative Agent in writing
(which writing may be by telecopy or electronic mail) not later than 1:00 p.m.
(New York time) one Business Day prior to the scheduled date of such payment,
with those Eurodollar Rate Loans having earlier expiring Eurodollar Interest
Periods being repaid prior to those having later expiring Eurodollar Interest
Periods; provided, however,
that if the Company fails to so notify the Administrative Agent, such payment
shall be applied first, to repay
such Loans outstanding as Base Rate Loans and then,
to repay such Loans outstanding as Eurodollar Rate Loans.  All repayments of any Loans denominated in
Pesos shall be applied to repay such Loans outstanding as Peso Base Rate Loans
or Peso TIIE Rate Loans as notified by the applicable Mexican Borrower to the Mexican
Facility Agent in writing (which writing may be by telecopy or electronic mail)
not later than 1:00 p.m. (Mexico City time) one Business Day prior to the
scheduled date of such payment; provided, however, that if such Mexican Borrower fails to so notify
the Mexican Facility Agent, such payment shall be applied first, to repay such Loans outstanding as
Peso Base Rate Loans and then, to
repay such Loans outstanding as Peso TIIE Rate Loans.  


 


(e)           Unless any Agent shall have received
notice from the applicable Borrower to the Lenders prior to the date on which
any payment is due hereunder that such Borrower will not make such payment in
full, such Agent may assume that such Borrower has made such payment in full to
such Agent on such date and such Agent may, in reliance upon such assumption,
cause to be distributed to each applicable Lender on such due date an amount
equal to the amount then due such Lender. 
If and to the extent that such Borrower shall not have made such payment
in full to such Agent, each applicable Lender shall repay to such Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon (in the case of the Administrative Agent, at the Federal Funds
Rate for the first Business Day and thereafter, at the rate applicable to Base
Rate Loans and, in the case of the Mexican Facility Agent, at the Peso Base
Rate) for each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to such Agent.


 


(f)            Except for payments and other
amounts received by any Agent and applied in accordance with the provisions of clause (g) below (or required to be
applied in accordance with Section 2.9(c)
(Mandatory Prepayments)), all payments and any other amounts
received by each Agent from or for the benefit of the Borrowers shall be
applied as follows: first, to pay
principal of, and interest on, any portion of the Loans such Agent may have
advanced pursuant to the express provisions of this Agreement on behalf of any
Lender, for which such Agent has not then been reimbursed by such Lender or the
Borrowers, second, to pay all
other Obligations then due and payable and third,
as the Company so designates.  Payments in
respect of Swing Loans received by any Agent shall be distributed to the
applicable Swing Lender; payments in respect of Revolving Loans received by any
Agent shall be distributed to each


 


66

















 


Revolving Credit Lender in
accordance with such Lender’s Ratable Portion of the Revolving Credit
Commitments; payments in respect of the Term Loans received by any Agent shall
be distributed to each Term Lender in accordance with such Lender’s Ratable
Portion of the Term Loans; and all payments of fees and all other payments in
respect of any other Obligation shall be allocated among such of the Lenders
and Issuers as are entitled thereto and, for such payments allocated to the
Lenders, in proportion to their respective Ratable Portions.


 


(g)           The Borrowers hereby irrevocably
waive the right to direct the application of any and all payments in respect of
the Obligations and any proceeds of Collateral after the occurrence and during
the continuance of an Event of Default and agrees that, notwithstanding the
provisions of Section 2.9(c) (Mandatory
Prepayments) and clause (f)
above, each Agent may, and, upon either (A) the written direction of the
Requisite Lenders or (B) the acceleration of the Obligations pursuant to Section 9.2 (Remedies) shall, apply
all payments in respect of any Obligations and all funds on deposit in any Cash
Collateral Account and all other proceeds of Collateral in the following order:


 


(i)            first,
to pay Secured Obligations in respect of any expense reimbursements or
indemnities then due to any Agent;


 


(ii)           second,
to pay Secured Obligations in respect of any expense reimbursements or
indemnities and Cash Management Obligations then due to the Lenders and the
Issuers;


 


(iii)          third,
to pay Secured Obligations in respect of any fees then due to any Agent, the
Lenders and the Issuers;


 


(iv)          fourth,
to pay interest then due and payable in respect of the Loans and Reimbursement
Obligations;


 


(v)           fifth,
to pay or prepay principal amounts on the Loans and Reimbursement Obligations, to
provide cash collateral for outstanding Letter of Credit Undrawn Amounts in the
manner described in Section 9.3 (Actions
in Respect of Letters of Credit) and to pay Cash Management
Obligations and amounts owing with respect to Hedging Contracts, ratably to the
aggregate principal amount of such Loans, Reimbursement Obligations and Letter
of Credit Undrawn Amounts, Cash Management Obligations and Obligations owing
with respect to Hedging Contracts; and


 


(vi)          sixth,
to the ratable payment of all other Secured Obligations;


 


provided,
however, that if sufficient funds
are not available to fund all payments to be made in respect of any Secured
Obligation described in any of clauses Error! Reference source not found.,
(i), (ii), (iii), (iv) and (v)
above, the available funds being applied with respect to any such Secured
Obligation (unless otherwise specified in such clause) shall be allocated to
the payment of such Secured Obligation ratably, based on the proportion of each
Agent’s, Lender’s or Issuer’s interest in the aggregate outstanding Secured
Obligations described in such clauses; provided,
further, that payments that would
otherwise be allocated to the Revolving Credit Lenders shall be allocated first to pay interest on and principal of
any portion of the Revolving Loans that any Agent may have advanced on behalf
of any Lender for which such Agent has not then been reimbursed by such Lender
or the Borrowers, second to repay Swing Loans until
such Loans are repaid in full and then
to repay the Revolving Loans.  The order
of priority set forth in clauses


 


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Error! Reference source not found.,
(i), (ii), (iii), (iv) and (v)
above may at any time and from time to time be changed by the agreement of the
Requisite Lenders without necessity of notice to or consent of or approval by
the Borrowers, any Secured Party that is not a Lender or Issuer or by any other
Person that is not a Lender or Issuer. 
The order of priority set forth in clauses
Error! Reference source not found.,
(i) and (ii) above may be changed only with the
prior written consent of the Agents in addition to that of the Requisite
Lenders.


 


Section 2.14         Special Provisions Governing Eurodollar
Rate Loans and Peso TIIE Rate Loans


 


(a)           Determination of Interest
Rate


 


The Eurodollar Rate for each
Interest Period for Eurodollar Rate Loans shall be determined by the
Administrative Agent pursuant to the procedures set forth in the definition of “Eurodollar Rate.”  The Peso TIIE Rate for each Interest Period
for Peso Loans shall be determined by the Mexican Facility Agent pursuant to
the procedures set forth in the definition of “Peso
TIIE Rate.”  The
Administrative Agent’s or the Mexican Facility Agent’s determination, as the
case may be, shall be presumed to be correct absent manifest error and shall be
binding on the Borrowers.


 


(b)           Interest Rate
Unascertainable, Inadequate or Unfair


 


(i)            In the event that (A) the
Administrative Agent determines that adequate and fair means do not exist for
ascertaining the applicable interest rates by reference to which the Eurodollar
Rate then being determined is to be fixed or (B) the Requisite Lenders notify
the Administrative Agent that the Eurodollar Rate for any Interest Period will
not adequately reflect the cost to the Lenders of making or maintaining such
Loans in the applicable currency for such Interest Period, the Administrative
Agent shall forthwith so notify the Company and the Lenders, whereupon each
Eurodollar Rate Loan shall automatically, on the last day of the current
Interest Period for such Loan, convert into a Base Rate Loan and the
obligations of the Lenders to make Eurodollar Rate Loans or to convert Base
Rate Loans into Eurodollar Rate Loans shall be suspended until the Administrative
Agent shall notify the Company that the Requisite Lenders have determined that
the circumstances causing such suspension no longer exist.


 


(ii)           In the event that (A) the Mexican
Facility Agent determines that adequate and fair means do not exist for ascertaining
the applicable interest rates by reference to which the Peso TIIE Rate then
being determined is to be fixed or (B) the Requisite Mexican Lenders notify the
Mexican Facility Agent that the Peso TIIE Rate for any Interest Period will not
adequately reflect the cost to the Lenders of making or maintaining such Loans
in the applicable currency for such Interest Period, the Mexican Facility Agent
shall forthwith so notify the Borrowers and the Lenders, whereupon each Peso
TIIE Rate Loan shall automatically, on the last day of the current Interest
Period for such Loan, convert into a Peso Base Rate Loan and the obligations of
the Lenders to make Peso TIIE Rate Loans shall be suspended until the Mexican
Facility Agent shall notify the Borrowers that the Requisite Mexican Lenders
have determined that the circumstances causing such suspension no longer exist.


 


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(c)           Increased Costs


 


If at any time any Lender
determines that the introduction of, or any change in or in the interpretation
of, any law, treaty or governmental rule, regulation or order (other than any
change by way of imposition or increase of reserve requirements included in
determining the Eurodollar Rate) or the compliance by such Lender with any
guideline, request or directive from any central bank or other Governmental
Authority (whether or not having the force of law), shall have the effect of
increasing the cost to such Lender (except with respect to Taxes, which shall
be governed by Section 2.16) of agreeing to make
or making, funding or maintaining any Eurodollar Rate Loans or Peso TIIE Rate
Loans, then the Borrowers shall from time to time, upon demand by such Lender
(with a copy of such demand to the applicable Agent), pay to the applicable
Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. 
A certificate as to the amount of such increased cost, submitted to the
Borrowers and the applicable Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.


 


(d)           Illegality


 


Notwithstanding any other
provision of this Agreement, if any Lender determines that the introduction of,
or any change in or in the interpretation of, any law, treaty or governmental
rule, regulation or order after the date of this Agreement shall make it
unlawful, or any central bank or other Governmental Authority shall assert that
it is unlawful, for any Lender or its applicable Lending Office to make
Eurodollar Rate Loans or Peso TIIE Rate Loans or to continue to fund or
maintain Eurodollar Rate Loans or Peso TIIE Rate Loans, then, on notice thereof
and demand therefor by such Lender to the Borrowers through the applicable
Agent, (i) the obligation of such Lender to make or to continue Eurodollar Rate
Loans or Peso TIIE Rate Loans and to convert Base Rate Loans into Eurodollar
Rate Loans shall be suspended, and each such Lender shall make a Base Rate Loan
as part of any requested Borrowing of Eurodollar Rate Loans or a Peso Base Rate
Loan as part of any requested Borrowing of Peso TIIE Rate Loans and (ii) if the
affected Eurodollar Rate Loans or Peso TIIE Rate Loans are then outstanding,
the applicable Borrower shall immediately convert each such Loan into a Base
Rate Loan or Peso Base Rate Loan, as applicable.  If, at any time after a Lender gives notice
under this clause (d), such
Lender determines that it may lawfully make Eurodollar Rate Loans or Peso TIIE
Rate Loans, such Lender shall promptly give notice of that determination to the
Borrowers and the applicable Agent, and the applicable Agent shall promptly
transmit the notice to each other Lender. 
Each Borrower’s right to request, and such Lender’s obligation, if any,
to make Eurodollar Rate Loans or Peso TIIE Rate Loans, as applicable, shall
thereupon be restored.


 


(e)           Breakage Costs


 


In addition to all amounts
required to be paid by the Borrowers pursuant to Section 2.10 (Interest), the applicable Borrower shall
compensate each Lender, upon written request, for all losses, expenses and
liabilities (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Lender’s Eurodollar Rate Loans or Peso TIIE Rate Loans
to such Borrower but excluding any loss of the Applicable Margin on the
relevant Loans) that such Lender may sustain (i) if for any reason (other than
solely by reason of such Lender being a Non-Funding Lender) a proposed
Borrowing, conversion into or continuation of Eurodollar Rate Loans or Peso
TIIE Rate Loans does not occur on a date specified therefor in a Notice of
Borrowing or a Notice of Conversion or Continuation given by a Borrower or in a
telephonic request by it for borrowing or


 


69

















 


conversion or continuation or a
successive Interest Period does not commence after notice therefor is given
pursuant to Section 2.11 (Conversion/Continuation
Option), (ii) if for any reason any Eurodollar Rate Loan or Peso
TIIE Rate Loan is prepaid (including mandatorily pursuant to Section 2.9 (Mandatory Prepayments))
on a date that is not the last day of the applicable Interest Period, (iii) as
a consequence of a required conversion of a Eurodollar Rate Loan to a Base Rate
Loan or Peso TIIE Rate Loan to a Peso Base Rate Loan as a result of any of the
events indicated in clause (d)
above or (iv) as a consequence of any failure by any Borrower to repay
Eurodollar Rate Loans or Peso TIIE Rate Loans when required by the terms
hereof.  The Lender making demand for
such compensation shall deliver to applicable Borrower concurrently with such
demand a written statement as to such losses, expenses and liabilities, and
this statement shall be conclusive and binding for all purposes as to the amount
of compensation due to such Lender, absent manifest error.


 


Section 2.15         Capital Adequacy


 


If at any time any Lender
determines that (a) the adoption of, or any change in or in the interpretation
of, any law, treaty or governmental rule, regulation or order after the date of
this Agreement regarding capital adequacy, (b) compliance with any such law,
treaty, rule, regulation or order or (c) compliance with any guideline or
request or directive from any central bank or other Governmental Authority (whether
or not having the force of law) shall have the effect of reducing the rate of
return on such Lender’s (or any corporation controlling such Lender’s) 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, compliance or
interpretation, then, upon demand from time to time by such Lender (with a copy
of such demand to the applicable Agent), the Borrowers shall pay to the applicable
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender for such
reduction.  A certificate as to such
amounts submitted to the Borrowers and the applicable Agent by such Lender
shall be conclusive and binding for all purposes absent manifest error.


 


Section 2.16         Taxes


 


(a)           Except as otherwise provided in this Section 2.16, any and all payments by
any Loan Party under each Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding (i) in the case of each Lender, each Issuer and each Agent (A) taxes
measured by its net income, branch profits and franchise taxes imposed on it,
and similar taxes imposed by the jurisdiction (or any political subdivision
thereof) under the laws of which such Lender, such Issuer or such Agent (as the
case may be) is organized, (B) any U.S. or Mexican withholding taxes payable
with respect to payments under the Loan Documents under laws (including any
statute, treaty or regulation) in effect at the time a Lender becomes a party
hereto or designates a new Applicable Lending Office, but not excluding any U.S.
withholding taxes payable to the extent such Lender or its assignor (if any)
was entitled, at the time of assignment or designation of a new Applicable
Lending Office, to receive additional amounts from the Loan Parties with
respect to such withholding tax pursuant to this Section 2.16
and (C) any withholding taxes attributable to a Lender’s failure to comply with
Section 2.16(f), and (ii) in the case of
each Lender or each Issuer, except to the extent arising solely as a result of
entering into this Agreement, taxes measured by its net income, branch profits and
franchise taxes imposed on it as a result of a present or former connection
between such Lender or such Issuer (as the case may be) and the jurisdiction of
the Governmental Authority


 


70

















 


imposing such tax or any taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as “Taxes”).  If any Taxes shall be required by law to be
deducted from or in respect of any sum payable under any Loan Document to any
Lender, any Issuer or any Agent (w) the sum payable shall be increased as may
be necessary so that, after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.16), such Lender, such
Issuer or such Agent (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (x) the relevant Loan
Party shall make such deductions, (y) the relevant Loan Party shall pay the
full amount deducted to the relevant taxing authority or other authority in
accordance with applicable law and (z) the relevant Loan Party shall deliver to
the applicable Agent evidence of such payment.


 


(b)           In addition, each Loan Party agrees
to pay any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies of the United States or any political
subdivision thereof or any applicable foreign jurisdiction, and all liabilities
with respect thereto, in each case arising from any payment made under any Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, any Loan Document (collectively, “Other
Taxes”).


 


(c)           Each Loan Party shall, jointly and
severally, indemnify each Lender, each Issuer and each Agent for the full
amount of Taxes and Other Taxes (including any Taxes and Other Taxes imposed by
any jurisdiction on amounts payable under this Section 2.16)
paid by such Lender, such Issuer or such Agent (as the case may be) and any
liability (including for penalties, interest and expenses) arising therefrom or
with respect thereto.  This
indemnification shall be made within 30 days from the date such Lender, such
Issuer or such Agent (as the case may be) makes written demand therefor, which
demand shall include reasonable supporting documentation of the imposition of
such Taxes or Other Taxes.


 


(d)           Within 30 days after the date of any
payment of Taxes or Other Taxes by any Loan Party, the Borrowers shall furnish
to the Administrative Agent, at its address referred to in Section 11.8 (Notices, Etc.), the
original or a certified copy of a receipt evidencing payment thereof.


 


(e)           Without prejudice to the survival of
any other agreement of any Loan Party hereunder or under the Guaranty, the
agreements and obligations of such Loan Party contained in this Section 2.16 shall survive the
payment in full of the Obligations.


 


(f)            (i)            Each
Non-U.S.  Lender that is entitled to an
exemption from U.S. withholding tax, or that is subject to such tax at a
reduced rate under an applicable tax treaty, shall (v) on or prior to the
Closing Date in the case of each Non-U.S. lender that is a signatory hereto,
(w) on or prior to the date of the Assignment and Acceptance pursuant to which
such Non-U.S. Lender becomes a Lender, on or prior to the date a successor
Issuer becomes an Issuer or the date a successor Administrative Agent becomes
the Administrative Agent hereunder, (x) on or prior to the date on which
any such form or certification expires or becomes obsolete, (y) after the
occurrence of any event requiring a change in the most recent form or
certification previously delivered by it to the Borrowers and the
Administrative Agent, and (z) from time to time if requested by the Borrowers
or the Administrative Agent, provide the Administrative Agent and the Borrowers
with two completed originals of each of the following, as applicable:


 


71

















 


(A)          Form W-8ECI (claiming exemption from
U.S. withholding tax because the income is effectively connected with a U.S.
trade or business) or any successor form;


 


(B)           Form W-8BEN (claiming exemption from,
or a reduction of, U.S.  withholding tax
under an income tax treaty) or any successor form;


 


(C)           in the case of a Non-U.S. Lender
claiming exemption under Sections 871(h) or 881(c) of the Code, a Form W-8BEN
(claiming exemption from U.S. withholding tax under the portfolio interest
exemption) or any successor form; or


 


(D)          any other applicable form, certificate
or document prescribed by the IRS certifying as to such Non-U.S. Lender’s
entitlement to such exemption from U.S. withholding tax or reduced rate with
respect to all payments to be made to such Non-U.S. Lender under the Loan
Documents.


 


(ii)           Each Lender entitled to complete
exemption from Mexican withholding taxes shall provide, at any time reasonably
requested by the Borrowers, the Administrative Agent or the Mexican Facility
Agent, any applicable form, certificate or document certifying as to such
Lender’s entitlement to complete exemption from Mexican withholding taxes with
respect to all payments to be made to such Lender under the Loan Documents.


 


(iii)          Unless the Borrowers and the applicable
Agent have received forms or other documents satisfactory to them indicating
that payments under any Loan Document to or for a Lender are not subject to
Mexican withholding tax, in the case of a Mexican Lender, or, in the case of
all other Lenders, are not subject to U.S. withholding tax or are subject to U.S.
withholding tax at a rate reduced by an applicable tax treaty, the Loan Parties
and the applicable Agent shall withhold amounts required to be withheld by
applicable Requirements of Law from such payments at the applicable statutory
rate and pay over such amounts to the applicable taxing authority.  If the Borrowers and the Administrative Agent
have received forms or other documents indicating that payments under any Loan
Document to or for a Non-U.S. Lender are subject to U.S. withholding tax at a
rate reduced by an applicable tax treaty, the Loan Parties and the
Administrative Agent shall withhold amounts at such reduced rate and pay over
such amounts to the applicable taxing authority.


 


(iv)          Each U.S. Lender shall (v) on or prior
to the Closing Date in the case of each U.S. Lender that is a signatory hereto,
(w) on or prior to the date of the Assignment and Acceptance pursuant to
which such U.S. Lender becomes a Lender, on or prior to the date a successor
Issuer becomes an Issuer or on or prior to the date a successor Administrative
Agent becomes the Administrative Agent hereunder, (x) on or prior to the date
on which any such form or certification expires or becomes obsolete, (y) after
the occurrence of any event requiring a change in the most recent form or
certification previously delivered by it to the Borrowers and the
Administrative Agent, and (z) from time to time if requested by the
Borrowers or the Administrative Agent, provide the Administrative Agent and the
Borrowers with two completed originals of Form W-9 (certifying that such U.S.
Lender is entitled to an exemption from U.S. backup


 


72

















 


withholding tax) or any successor form.  Solely for purposes of this Section 2.16(f), a U.S. Lender shall
not include a Lender, an Issuer or an Administrative Agent that may be treated
as an exempt recipient based on the indicators described in Treasury Regulation
section 1.6049-4(c)(1)(ii). 


 


(g)           Any Lender claiming any additional
amounts payable pursuant to this Section 2.16
shall use its reasonable efforts (consistent with its internal policies and
Requirements of Law) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or reduce the
amount of, any such additional amounts that would be payable or may thereafter
accrue and would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender.


 


(h)           Notwithstanding anything to the
contrary contained herein, the Borrowers shall not be liable to any Mexican
Lender with respect to any Taxes imposed or levied by the applicable taxing
authorities of Mexico at a rate in excess of payments to banks established
pursuant to the laws of Mexico and authorized to engage in the business of
banking by the Mexican competent authorities.


 


Section 2.17         Substitution of Lenders


 


(a)           In the event that (i)(A) any Lender
makes a claim under Section 2.14(c) (Increased
Costs) or Section 2.15 (Capital
Adequacy), (B) it becomes illegal for any Lender to continue to fund
or make any Eurodollar Rate Loan and such Lender notifies the Borrowers
pursuant to Section 2.14(d) (Illegality), (C)
any Loan Party is required to make any payment pursuant to Section 2.16
(Taxes) that is attributable to a particular Lender or (D) any
Lender becomes a Non-Funding Lender, (ii) in the case of clause
(i)(A) above, as a consequence of increased costs in respect of
which such claim is made, the effective rate of interest payable to such Lender
under this Agreement with respect to its Loans materially exceeds the effective
average annual rate of interest payable to the Requisite Lenders under this
Agreement and (iii) in the case of clause (i)(A),(B)
and (C) above, Lenders holding at least 75%
of the Commitments are not subject to such increased costs or illegality,
payment or proceedings (any such Lender, an “Affected
Lender”), the Borrowers may substitute any Lender and, if reasonably
acceptable to the Administrative Agent, any other Eligible Assignee (a “Substitute Institution”) for such Affected Lender hereunder,
after delivery of a written notice (a “Substitution Notice”)
by the Borrowers to the Administrative Agent and the Affected Lender within a
reasonable time (in any case not to exceed 90 days) following the occurrence of
any of the events described in clause (i)
above that the Borrowers intends to make such substitution; provided, however, that, if more than one Lender claims increased
costs, illegality or right to payment arising from the same act or condition
and such claims are received by the Borrowers within 30 days of each other,
then the Borrowers may substitute all, but not (except to the extent the
Borrowers have already substituted one of such Affected Lenders before
Borrowers’ receipt of the other Affected Lenders’ claim) less than all, Lenders
making such claims.


 


(b)           If the Substitution Notice was
properly issued under this Section 2.17,
the Affected Lender shall sell, and the Substitute Institution shall purchase,
all rights and claims of such Affected Lender under the Loan Documents and the
Substitute Institution shall assume, and the Affected Lender shall be relieved
of, the Affected Lender’s Revolving Credit Commitments and all other prior
unperformed obligations of the Affected Lender under the Loan Documents (other
than in respect of any damages (which pursuant to Section 11.5, do not include exemplary or punitive
damages, to the extent permitted by applicable law) in respect of any such


 


73

















 


unperformed obligations).  Such purchase and sale (and the corresponding
assignment of all rights and claims hereunder) shall be recorded in the
Register maintained by the Administrative Agent and shall be effective on (and
not earlier than) the later of (i) the receipt by the Affected Lender of its
Ratable Portion of the Revolving Credit Outstandings, the Term Loans, together
with any other Obligations owing to it, (ii) the receipt by the Administrative
Agent of an agreement in form and substance satisfactory to it and the
Borrowers whereby the Substitute Institution shall agree to be bound by the
terms hereof and (iii) the payment in full to the Affected Lender in cash of
all fees, unreimbursed costs and expenses and indemnities accrued and unpaid
through such effective date.  Upon the
effectiveness of such sale, purchase and assumption, the Substitute Institution
shall become a “Lender” hereunder
for all purposes of this Agreement having a Commitment in the amount of such
Affected Lender’s Commitment assumed by it and such Commitment of the Affected
Lender shall be terminated; provided,
however, that all indemnities
under the Loan Documents shall continue in favor of such Affected Lender.


 


(c)           Each Lender agrees that, if it
becomes an Affected Lender and its rights and claims are assigned hereunder to
a Substitute Institution pursuant to this Section 2.17,
it shall execute and deliver to the Administrative Agent an Assignment and Acceptance
to evidence such assignment, together with any Note (if such Loans are
evidenced by a Note) evidencing the Loans subject to such Assignment and
Acceptance; provided, however, that the failure of any Affected
Lender to execute an Assignment and Acceptance shall not render such assignment
invalid.


 


Section 2.18         Special Provisions Governing Peso Loans


 


(a)           At any time (i) after the occurrence
and during the continuance of any Default or Event of Default, the
Administrative Agent may (and, upon the request of any Mexican Lender, shall),
or (ii) upon the replacement of any Peso Loan with a Revolving Dollar Loan
pursuant to this Section 2.18,
the Administrative Agent shall, demand that each Revolving Credit Lender pay in
Dollars to the Administrative Agent, for the account of the Mexican Lenders, in
the manner provided in clause (b)
below, such Revolving Credit Lender’s Pro Rata Share of the Dollar Equivalent
of the aggregate Peso Outstandings and related accrued but unpaid interest at
such time, which demand shall be made through the Administrative Agent, shall
be in writing and shall specify the outstanding principal amount and interest
of the Peso Loans.


 


(b)           The Administrative Agent shall
forward each demand referred to in clause
(a) to each Revolving Credit Lender, on the day such demand is
received by the Administrative Agent (except that any such demand received by
the Administrative Agent after 1:00 p.m. (New York time) on any Business Day or
any such demand that is received on a day that is not a Business Day shall not
be required to be forwarded to the applicable Revolving Credit Lender by the Administrative
Agent until the next succeeding Business Day), together with a statement
prepared by the Administrative Agent specifying the amount of each applicable
Revolving Credit Lender’s ratable portion of the aggregate Peso Outstandings
and the Dollar Equivalent thereof demanded to be paid and, whether or not the
conditions set forth in Section 2.1
(Revolving Credit Commitments) or 3.2
(Conditions Precedent to Each Loan and Letter of Credit) shall be
satisfied (which conditions the Revolving Credit Lenders hereby irrevocably
waive), each Revolving Credit Lender shall, before 11:00 a.m. (New York time)
on the Business Day next succeeding the date of such Revolving Credit Lender’s
receipt of such demand, make available to the Administrative Agent, in
immediately available funds in Dollars for the account of each Mexican Lender,
the amount specified in such Demand. 
Upon such payment by a Revolving Credit Lender, such Revolving Credit
Lender shall, except as provided in clause (c) below,
be deemed to have made a Revolving Dollar Loan to the applicable Borrower in
the


 


74

















 


principal amount of such
payment and bearing interest at the Base Rate. 
The Administrative Agent shall use such funds to repay the applicable
Peso Loans to the applicable Mexican Lender. 
To the extent that any Revolving Credit Lender fails to make such
payment available to the Administrative Agent for the accounts of the Mexican
Lenders, the applicable Borrower agrees to pay such Peso Loan on demand.  As of the date of any such demand, the Peso
Loans (together with any interest then accrued thereon) shall, immediately and
without further action, become due and payable and, to the extent not otherwise
repaid pursuant to this clause (b),
the applicable Borrower agrees, as a separate and independent obligation, to
pay to the Mexican Facility Agent, for the account of any Mexican Lender
entitled thereto, any amounts to which any Mexican Lender may be entitled
pursuant to Section 11.4 (Indemnities)
and which shall not otherwise have been repaid by the Revolving Credit Lenders
pursuant to this Section 2.18.


 


(c)           Upon the occurrence of an Event of
Default under Section 9.1(f), the
Peso Loans shall automatically, immediately, and without notice of any kind,
convert to Revolving Dollar Loans (based upon the Dollar Equivalent of the
aggregate Peso Outstandings at the time of the occurrence of such Event of Default)
bearing interest at the Base Rate, whereupon each Revolving Credit Lender shall
acquire, without recourse or warranty, an undivided participation in each Peso
Loan otherwise required to be repaid by such Revolving Credit Lender pursuant
to clause (b) above, which
participation shall be in a principal amount equal to such Revolving Credit
Lender’s Ratable Portion by paying to the Administrative Agent for the benefit
of the Mexican Lenders on the date on which such Revolving Credit Lender would
otherwise have been required to make a payment in respect of such Peso Loan
pursuant to clause (b) above, in
immediately available funds in Dollars, an amount equal to such Revolving
Credit Lender’s Ratable Portion thereof. 
Subject to clause (e)
below, if all or part of such amount is not in fact made available by such
Revolving Credit Lender to the Administrative Agent on such date, the Mexican
Lenders shall be entitled to recover any such unpaid amount on demand from such
Revolving Credit Lender together with interest accrued from such date at the
Base Rate.  As of the date of any such
Event of Default under Section 9.1(f),
all Peso Loans (together with any interest then accrued thereon) shall,
immediately and without further action, become due and payable and, to the
extent not otherwise repaid hereunder, the Company agrees, as a separate and
independent obligation, to pay to the Administrative Agent, for the account of
any Mexican Lender entitled thereto, any amounts to which any Mexican Lender
may be entitled to pursuant to Section 11.4
(Indemnities) and which shall not otherwise have been repaid by the
Revolving Credit Lenders pursuant to this Section
2.18.


 


(d)           From and after the date on which any
Revolving Credit Lender (i) is deemed to have made a Revolving Dollar Loan
pursuant to clause (b) above with
respect to any Peso Loan or (ii) purchases an undivided participation interest
in a Peso Loan pursuant to clause (c)
above, the Mexican Facility Agent and the Mexican Lenders shall promptly
distribute to such Revolving Credit Lender such Revolving Credit Lender’s Pro
Rata Share of all payments of principal amount and interest received by the Mexican
Facility Agent or the Mexican Lenders on account of such Peso Loan in excess of
those amounts the Mexican Lender was entitled to receive pursuant to clause (b) or (c) above.


 


(e)           Notwithstanding the foregoing, a
Revolving Credit Lender shall not have any obligation to acquire a
participation in a Peso Loan pursuant to the foregoing paragraphs if a Default
or Event of Default shall have occurred and be continuing at the time such Peso
Loan was made and such Revolving Credit Lender shall have notified the Mexican
Lenders in writing prior to the time such Peso Loan was made, that such Default
or Event of Default has occurred and that


 


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such Revolving Credit Lender
will not acquire participations in Peso Loans made while such Default or Event
of Default is continuing. 


 


ARTICLE III



CONDITIONS TO LOANS AND LETTERS OF CREDIT


 


Section 3.1            Conditions Precedent to Initial
Loans and Letters of Credit


 


The obligation of each Lender
to make the Loans requested to be made by it on the Closing Date and the
obligation of each Issuer to Issue Letters of Credit on the Closing Date is subject
to the satisfaction or due waiver in accordance with Section 11.1 (Amendments, Waivers, Etc.) of each of the
following conditions precedent:


 


(a)           Certain
Documents.  The Administrative
Agent shall have received on or prior to the Closing Date (and, to the extent
any Borrowing of any Eurodollar Rate Loans or any Peso TIIE Rate Loans is
requested to be made on the Closing Date, in respect of the Notice of Borrowing
for such Loans, at least three Business Days prior to the Closing Date) each of
the following (except as otherwise provided in Section 7.14
(Post-Closing Matters)), each dated the Closing Date unless
otherwise indicated or agreed to by the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent and in sufficient
copies for each Lender:


 


(i)            this Agreement, duly executed and
delivered by the Borrowers and, for the account of each Lender requesting the
same, a Note of each Borrower conforming to the requirements set forth herein;


 


(ii)           the Guaranty, duly executed and
delivered by the Company and each other Guarantor;


 


(iii)          the Pledge and Security Agreement,
duly executed and delivered by the Company and each other Guarantor, together
with each of the following:


 


(A)          evidence (including a Perfection
Certificate certified by a Responsible Officer of the Company) reasonably satisfactory
to the Administrative Agent that, upon the filing and recording of instruments
delivered at the Closing, the Administrative Agent (for the benefit of the
Secured Parties) shall have a valid and perfected first priority security
interest in the Collateral, including (x) such documents duly executed by each
Loan Party (other than the Mexican Borrowers) as the Administrative Agent may reasonably
request with respect to the perfection of its security interests in the
Collateral (including financing statements under the UCC, patent, trademark and
copyright security agreements suitable for filing with the Patent and Trademark
Office or the Copyright Office, as the case may be, and other applicable
documents under the laws of any jurisdiction with respect to the perfection of
Liens created by the Pledge and Security Agreement) and (y) copies of UCC
search reports as of a recent date listing all effective financing statements
that name any Loan Party as debtor, together with copies of such financing
statements, none of which shall cover the Collateral except for those that
shall be terminated on the Closing Date or are otherwise permitted hereunder;


 


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(B)           all certificates, instruments and
other documents representing all Pledged Stock being pledged pursuant to such
Pledge and Security Agreement and stock powers for such certificates,
instruments and other documents executed in blank; and


 


(C)           all instruments representing Pledged
Debt Instruments being pledged pursuant to such Pledge and Security Agreement
duly endorsed in favor of the Administrative Agent or in blank;


 


(iv)          the Foreign Pledge Agreements, duly
executed and delivered by the Loan Parties party thereto, together with all
certificates, instruments and other documents representing all Pledged Stock
being pledged pursuant to such Foreign Pledge Agreements and stock powers for
such certificates, instruments and other documents executed in blank;


 


(v)           Mortgages for all of the Mortgaged
Real Property listed on Schedule 1.1, duly
executed and delivered by the Loan Parties party thereto, together with all
Mortgage Supporting Documents relating thereto;


 


(vi)          a favorable opinion of (A) Latham
& Watkins LLP, counsel to the Loan Parties, in substantially the form of Exhibit G (Form of Opinion of counsel for the Loan Parties),
and (B) counsel to the Loan Parties in each of the jurisdictions listed on Schedule 3.1(a) (Opinion Jurisdictions), in each case
addressed to the Agents, the Lenders and the Issuers and addressing such other
matters as any Lender through the Administrative Agent may reasonably request;


 


(vii)         a copy of each Related Document, the
Sponsor Management Agreement and the New Subordinated Note Indenture, each certified
as being true and correct by a Responsible Officer of the Company;


 


(viii)        a copy of the articles or certificate of
incorporation (or equivalent Constituent Document) of each Loan Party,
certified as of a recent date by the Secretary of State of the state of
organization of such Loan Party, together with certificates of such official
attesting to the good standing of each such Loan Party;


 


(ix)           a certificate of the Secretary or an
Assistant Secretary of each Loan Party certifying (A) the names and true
signatures of each officer of such Loan Party that has been authorized to
execute and deliver any Loan Document or other document required hereunder to
be executed and delivered by or on behalf of such Loan Party, (B) the by-laws
(or equivalent Constituent Document) of such Loan Party as in effect on the
date of such certification, (C) the resolutions of such Loan Party’s Board of
Directors (or equivalent governing body) approving and authorizing the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and (D) that there have been no changes in the
certificate of incorporation (or equivalent Constituent Document) of such Loan
Party from the certificate of incorporation (or equivalent Constituent
Document) delivered pursuant to clause (viii)
above;


 


(x)            a certificate of the Chief Financial
Officer of the Company, stating that the Company and its Subsidiaries are
Solvent on a Consolidated basis, after


 


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giving effect to the initial Loans and Letters of
Credit, the application of the proceeds thereof in accordance with Section 7.9 (Application of Proceeds), the
consummation of the other Transactions and the payment of all estimated legal,
accounting and other fees related hereto and thereto;


 


(xi)           a certificate of a Responsible
Officer of the Company, in form and substance reasonably satisfactory to the Administrative
Agent, to the effect that (A) the conditions set forth in Sections
3.1(e)(v), 3.1(e)(vi), 3.1(g), 3.1(h) and 3.2(b) have been satisfied and (B) no litigation not listed
on Schedule 4.7 (Litigation) has been
commenced against any Loan Party or any of its Subsidiaries that would have a
Material Adverse Effect;


 


(xii)          evidence reasonably satisfactory to
the Administrative Agent that the insurance policies required by Section 7.5 (Maintenance of Insurance)
and any Collateral Document are in full force and effect, together with, unless
otherwise agreed by the Administrative Agent, endorsements naming the
Administrative Agent, on behalf of the Secured Parties, as an additional
insured or loss payee, as applicable, under all insurance policies to be
maintained with respect to the properties of the Company and each other Loan
Party (other than the Mexican Borrowers); and


 


(xiii)         such other certificates, documents,
agreements and information respecting any Loan Party as any Lender through the
Administrative Agent may reasonably request.


 


(b)           Fees
and Expenses Paid.  There shall
have been paid to the Administrative Agent, for the account of the
Administrative Agent, the Arrangers and the Lenders, as applicable, all fees
and expenses (including reasonable fees and expenses of counsel) due and
payable on or before the Closing Date (including all such fees described in the
Fee Letter).


 


(c)           Refinancing
of Existing Credit Agreements. 
(i) All obligations under
the Existing Credit Agreements shall have been repaid in full, (ii) each
Existing Credit Agreement and all Loan Documents (as defined therein) shall
have been terminated on terms reasonably satisfactory to the Administrative
Agent and (iii) the Administrative Agent shall have received a payoff letter
duly executed and delivered by the respective borrowers and agents thereunder
or other evidence of such termination, in each case, in form and substance reasonably
satisfactory to the Administrative Agent.


 


(d)           Debt
Ratings.  The Facilities shall
have been rated by S&P and Moody’s.


 


(e)           Merger.  The Administrative Agent shall be reasonably
satisfied that (i) the terms and conditions of the Merger Agreement shall
not have been amended, waived or modified without the approval of the
Administrative Agent (other than any such waivers or amendments as are not,
taken as a whole, materially adverse to the Administrative Agent and the
Lenders), (ii) the Merger Agreement and the other Related Documents shall have
been approved by all corporate action of Holdings, the Company and each of the
other parties thereto, shall have been executed and delivered by each such
party and shall be in full force and effect, (iii) all necessary consents and
authorizations from, notices to and filings with any Governmental Authority and
material third party consents in each case in connection with the Merger shall
have


 


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been obtained and shall be in
effect, except to the extent as would not have a Material Adverse Effect, (iv) subject
only to the funding of the initial Loans hereunder, the Merger shall have been
consummated in accordance with the Merger Agreement and all applicable
Requirements of Law, (v) all representations and warranties contained in the
Merger Agreement and the other Related Documents with respect to the consents
and approvals needed to consummate the Merger shall be true and correct in all
material respects on the Closing Date and (vi) no change shall have occurred
since March 31, 2005 that, individually or in the aggregate, has had, or would
reasonably be expected to have, a “Material Adverse Effect”
(as defined in the Merger Agreement).


 


(f)            Consents,
Etc.  Each of the Company and
its Subsidiaries shall have received all consents and authorizations required
pursuant to any material Contractual Obligation with any other Person and shall
have obtained all Permits of, and effected all notices to and filings with, any
Governmental Authority, in each case, as may be necessary to allow each of the
Company and its Subsidiaries lawfully (i) to execute, deliver and perform, in
all material respects, their respective obligations hereunder and under the
Loan Documents to which each of them, respectively, is, or shall be, a party
and each other agreement or instrument to be executed and delivered by each of
them, respectively, pursuant thereto or in connection therewith and (ii) to
create and perfect the Liens on the Collateral to be owned by each of them in
the manner and for the purpose contemplated by the Loan Documents.


 


(g)           Existing
Credit Agreements.  The
representations and warranties set forth in (i) the Existing AMC Credit
Agreement with respect to the historical business and operations of the Company
and its Subsidiaries on or prior to the Closing Date and (ii) the Existing
Loews Credit Agreement with respect to the historical business and operations
of Loews and its Subsidiaries on or prior to the Closing Date shall be true and
correct on and as of the Closing Date and shall be true and correct in all
material respects on and as of the Closing Date with the same effect as though
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects as of such earlier date.


 


(h)           Indentures.  On a Pro Forma Basis, after giving effect to
the Transactions, no Event of Default (as defined in the applicable Indenture)
and no other event that, with the passing of time or the giving of notice or
both, would become such Event of Default shall have occurred and be continuing
under any of the Indentures.


 


(i)            Appointment of Process
Agent.  The Administrative
Agent shall have received evidence reasonably satisfactory to it that the
Process Agent required by Section 11.12(b)
shall have been duly appointed.


 


Section 3.2            Conditions Precedent to Each Loan
and Letter of Credit


 


The obligation of each Lender
on any date (including the Closing Date) to make any Loan and of each Issuer on
any date (including the Closing Date) to Issue any Letter of Credit is subject
to the satisfaction of each of the following conditions precedent:


 


(a)           Request
for Borrowing or Issuance of Letter of Credit.  With respect to any Loan, the applicable
Agent shall have received a duly executed Notice of Borrowing (or, in the case
of Swing Loans, a duly executed Swing Loan Request), and, with respect to any
Letter of


 


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Credit, the Administrative
Agent and the Issuer shall have received a duly executed Letter of Credit
Request.


 


(b)           Representations
and Warranties; No Defaults. 
The following statements shall be true on the date of such Loan or
Issuance, both before and after giving effect thereto and, in the case of any
Loan, to the application of the proceeds thereof:


 


(i)            in the case of Loans made or Letters
of Credit Issued on the Closing Date, the representations and warranties set
forth in Article IV (Representations and Warranties)
(other than those set forth in Sections 4.4(a), 4.4(b), 4.5,
4.7, 4.8, 4.9, 4.11, 4.14, 4.15, 4.16, 4.17, 4.18 and 4.19) and in the other Loan Documents shall be true and
correct in all material respects on and as of the Closing Date with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall have been true and correct in
all material respects as of such earlier date;


 


(ii)           in the case of Loans made or Letters
of Credit Issued on any date after the Closing Date, the representations and
warranties set forth in Article IV (Representations
and Warranties) and in the other Loan Documents shall be true and
correct in all material respects on and as of such date with the same effect as
though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects as of such earlier date; and


 


(iii)          no Default or Event of Default shall
have occurred and be continuing; provided, however,
that, in the case of Loans made or Letters of Credit Issued on the Closing
Date, any Default or Event of Default arising from the breach of any
representation or warranty set forth in the Loan Documents shall not constitute
a failure of this condition unless it constitutes a failure of the condition
set forth in Section 3.2(b)(i) above.


 


(c)           No
Legal Impediments.  The making
of the Loans or the Issuance of such Letter of Credit on such date does not
violate any Requirement of Law on the date of or immediately following such
Loan or Issuance of such Letter of Credit and is not enjoined, temporarily,
preliminarily or permanently.


 


Each submission by any Borrower
to any Agent of a Notice of Borrowing or a Swing Loan Request and the
acceptance by such Borrower of the proceeds of each Loan requested therein, and
each submission by the Company to an Issuer of a Letter of Credit Request, and
the Issuance of each Letter of Credit requested therein, shall be deemed to
constitute a representation and warranty by the Borrowers as to the matters
specified in clause (b) above on the date of the making of such Loan or
the Issuance of such Letter of Credit.


 


Section 3.3            Determinations of Initial Borrowing
Conditions


 


For purposes of determining
compliance with the conditions specified in Section 3.1 (Conditions
Precedent to Initial Loans and Letters of Credit), each Lender shall
be deemed to have consented to, approved, accepted or be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to the Lenders unless an officer of the
Administrative Agent responsible for the transactions


 


80

















 


contemplated by the Loan
Documents shall have received notice from such Lender prior to the initial
Borrowing, borrowing of Swing Loans or Issuance or deemed Issuance hereunder
specifying its objection thereto and such Lender shall not have made available
to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or
Swing Loans.


 


Section 3.4            Conditions Precedent to Each
Facility Increase  


 


The effectiveness of each
Facility Increase shall be subject to the satisfaction of each of the following
conditions precedent:


 


(a)           Certain
Documents.  The Administrative
Agent shall have received on or prior to the Facility Increase Date for such
Facility Increase each of the following, each dated such Facility Increase Date
unless otherwise indicated or agreed to by the Administrative Agent, in form
and substance reasonably satisfactory to the Administrative Agent:


 


(i)            written commitments duly executed by
existing Lenders or Eligible Assignees in an aggregate amount equal to the
amount of the proposed Facility Increase (as agreed between the Company and the
Administrative Agent) and, in the case of each such Eligible Assignee, an
assumption agreement in form and substance satisfactory to the Administrative
Agent and duly executed by the Company, the Administrative Agent and such
Eligible Assignee;


 


(ii)           an amendment to this Agreement,
effective as of the Facility Increase Date and executed by the Company and the
Administrative Agent, to the extent necessary to implement terms and conditions
of the Facility Increase (including interest rates, fees and scheduled
repayment dates and maturity), as agreed by the Company and the Administrative
Agent, which, in any event, except for interest, fees, scheduled repayment
dates and maturity, shall not be applied materially differently to the Facility
Increase and the existing Facilities; 


 


(iii)          for the account of each Lender or
Eligible Assignee participating in such Facility Increase having requested the
same by notice to the Administrative Agent and the Company received by each at
least three Business Days prior to the Facility Increase Date (or such later
date as may be agreed by the Company), Notes in each applicable Facility
conforming to the requirements set forth in Section
2.7(d);


 


(iv)          for each Loan Party executing any Loan
Document as part of such Facility Increase, a certificate of the secretary,
assistant secretary or other officer of such Loan Party in charge of
maintaining books and records of such Loan Party certifying as to the
resolutions of such Loan Party’s board of directors or other appropriate
governing body approving and authorizing the execution, delivery and
performance of each document executed as part of such Facility Increase to
which such Loan Party is a party;


 


(v)           duly executed favorable opinions of
counsel to the Loan Parties in New York and such other local jurisdictions
reasonably requested by the Administrative Agent, each addressed to the Agents,
the Issuers and the Lenders and addressing such matters as the Administrative
Agent may reasonably request; and


 


81

















 


(vi)          such other document as the
Administrative Agent may reasonably request.


 


(b)           Fees
and Expenses.  There shall
have been paid to the Administrative Agent, for the account of the
Administrative Agent, the Arrangers, any Lender (including any Person becoming a Lender as part of
such Facility Increase on such Facility Increase Date) or any Issuer, as the
case may be, all fees and expenses due and payable on or before the Facility
Increase Date for such Facility Increase.


 


(c)           Conditions
to Extensions of Credit.  As
of the Facility Increase Date for such Facility Increase, (i) the conditions
precedent set forth in Section 3.2
shall have been satisfied both before and after giving effect to such Facility
Increase, (ii) such Facility Increase shall be made on the terms and conditions
set forth in Section 2.1(c) and
(iii) the Company and its Subsidiaries shall be in
compliance with Article V as of
the most recently ended Fiscal Quarter for which Financial Statements were
delivered hereunder on a pro forma
basis both before and after giving effect to such Facility Increase.


 


ARTICLE IV



REPRESENTATIONS AND WARRANTIES


 


To induce the Lenders, the
Issuers and the Agents to enter into this Agreement, the Company and, with
respect to the Mexican Borrowers and their respective Subsidiaries only, the
Mexican Borrowers represent and warrant each of the following to the Lenders,
the Issuers and the Agents, on and as of the Closing Date and after giving
effect to the Merger and the making of the Loans and the other financial
accommodations on the Closing Date and on and as of each date as required by Section 3.2(b)(ii) (Conditions Precedent to Each Loan and Letter of
Credit):


 


Section 4.1            Corporate Existence; Compliance with
Law


 


Each of the Company and its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) is duly qualified to do
business as a foreign entity and in good standing under the laws of each
jurisdiction where such qualification is necessary, except where the failure to
be so qualified or in good standing would not, in the aggregate, have a
Material Adverse Effect, (c) has all requisite power and authority and the
legal right to own and operate its properties, to lease the property it
operates under lease and to conduct its business as currently conducted, (d) is
in compliance with its Constituent Documents except where the failure to be in
compliance would not, in the aggregate, have a Material Adverse Effect, (e) is
in compliance with all applicable Requirements of Law except where the failure
to be in compliance would not, in the aggregate, have a Material Adverse Effect
and (f) has all necessary Permits from or by, has made all necessary filings
with, and has given all necessary notices to, each Governmental Authority
having jurisdiction, to the extent required for such ownership, operation and
conduct, except for Permits or filings or notices that can be obtained or made
by the taking of ministerial action to secure the grant or transfer thereof or
the failure to obtain or make would not, in the aggregate, have a Material
Adverse Effect.


 


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Section 4.2            Corporate Power; Authorization;
Enforceable Obligations


 


(a)           The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party and
the consummation of the transactions contemplated thereby:


 


(i)            are within such Loan Party’s
corporate, limited liability company, partnership or other powers;


 


(ii)           have been or, at the time of delivery
thereof pursuant to Article III (Conditions
to Loans and Letters of Credit) will have been duly authorized by
all necessary corporate or other organizational action, including the consent
of shareholders, partners and members where required;


 


(iii)          do not and will not (A) contravene or
violate such Loan Party’s respective Constituent Documents, (B) violate any
other Requirement of Law applicable to such Loan Party (including Regulations
T, U and X of the Federal Reserve Board), or any order or decree of any
Governmental Authority or arbitrator applicable to such Loan Party, (C)
conflict with or result in the breach of, or constitute a default under, or
result in or permit the termination or acceleration of, any Indenture or any
notes issued pursuant thereto, (D) conflict with or result in the breach of, or
constitute a default under, or result in or permit the termination or
acceleration of, any Related Document or any other material Contractual
Obligation of such Loan Party or any of its Subsidiaries, except to the extent
such conflict, breach, default, termination or acceleration would not have a
Material Adverse Effect, or (E) result in the creation or imposition of any
Lien upon any property of such Loan Party or any of its Subsidiaries, other
than those in favor of the Secured Parties pursuant to the Collateral Documents
or as permitted by Section 8.2 (Liens, Etc.);
and


 


(iv)          do not require the consent of,
authorization by, approval of, notice to, or filing or registration with, any
Governmental Authority or any other Person, other than those listed on Schedule 4.2  (Consents) and that have been or will be,
prior to the Closing Date, obtained or made, copies of which have been or will
be delivered to the Administrative Agent pursuant to Section 3.1 (Conditions Precedent to Initial Loans and Letters of
Credit), and each of which on the Closing Date will be in full force
and effect and, with respect to the Collateral, filings required to perfect the
Liens created by the Collateral Documents.


 


(b)           This Agreement has been, and each of
the other Loan Documents will have been upon delivery thereof pursuant to the
terms of this Agreement, duly executed and delivered by each Loan Party party
thereto.  This Agreement is, and the
other Loan Documents will be, when delivered hereunder, the legal, valid and
binding obligation of each Loan Party party thereto, enforceable against such
Loan Party in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors’ rights generally and by general principles of
equity.


 


(c)           The Obligations constitute “Senior Indebtedness,” “Senior Secured Financing” or “Designated Senior Indebtedness” (or any
comparable term) under and as defined in the Subordinated Note Indentures and
any documentation with respect to any other subordinated Indebtedness of the
Company and each of its Subsidiaries.  No
other Indebtedness


 


83

















 


qualifies as “Senior Secured Financing” or “Designated Senior Indebtedness” (or any
comparable term) under the Subordinated Note Indentures.


 


Section 4.3            Subsidiaries; Borrower Information


 


(a)           Set forth on Schedule 4.3(a)
(Ownership of Subsidiaries) is a complete and accurate list showing,
as of the Closing Date, all Subsidiaries of the Company and, as to each such
Subsidiary, the jurisdiction of its organization, the number of shares of each
class of Stock authorized (if applicable), the number outstanding on the
Closing Date, the number and percentage of the outstanding shares of each such
class owned (directly or indirectly) by the Company and whether it is a
Subsidiary or an Unrestricted Subsidiary. 
No Stock of any Subsidiary of the Company that is a Loan Party is
subject to any outstanding option, warrant, right of conversion or purchase of
any similar right.  All of the
outstanding Stock of each Subsidiary of the Company owned (directly or
indirectly) by the Company has been validly issued, is fully paid and
non-assessable (to the extent applicable) and is owned by the Company or a
Subsidiary of the Company, free and clear of all Liens (other than the Lien in
favor of the Secured Parties created pursuant to the Collateral Documents and
nonconsensual Liens permitted by Section 8.2 (Liens, Etc.)),
options, warrants, rights of conversion or purchase or any similar rights.  Neither the Company nor any other Loan Party
is a party to, or has knowledge of, any agreement restricting the transfer or
hypothecation of any Stock of any such Subsidiary, other than the Loan
Documents and the Indentures.


 


(b)           Schedule 4.3(b) (Borrower
Information) sets forth as of the Closing Date the name, address of
principal place of business and tax identification number of each Borrower.


 


Section 4.4            Financial Statements


 


(a)           The Consolidated balance sheet of the
Company and its Subsidiaries as at March 31, 2005, and the related Consolidated
statements of income, retained earnings and cash flows of the Company and its
Subsidiaries for the fiscal year then ended, certified by PriceWaterhouseCoopers
LLP, and the Consolidated balance sheet of the Company and its Subsidiaries as
at September 29, 2005, and the related Consolidated statements of income,
retained earnings and cash flows of the Company and its Subsidiaries for the
twenty-six weeks then ended, copies of which have been furnished to each
Lender, fairly present, subject, in the case of said balance sheet as at
September 29, 2005, and said statements of income, retained earnings and cash
flows for the twenty-six weeks then ended, to the absence of footnote
disclosure and normal year-end audit adjustments, the Consolidated financial condition
of the Company and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Company and its Subsidiaries for the period
ended on such dates, all in conformity with GAAP.


 


(b)           Neither the Company nor any of the
Company’s Subsidiaries has any material obligation, contingent liability or
liability for taxes, long-term leases or unusual forward or long-term
commitment that is not reflected in the Financial Statements referred to in clause (a) above or in the notes thereto
and not otherwise permitted by this Agreement.


 


(c)           The Projections reflect projections
for the five year period beginning with the fiscal year ending in 2006, on a
year by year basis.  The Projections are
based upon estimates and assumptions stated therein, all of which the Company
believed to be reasonable and fair in light of conditions and facts known to
the Company at the time of delivery of the


 


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Projections and, as of such
time, reflect the Company’s good faith and reasonable estimates of the future
financial performance of the Company and its Subsidiaries and of the other
information projected therein for the periods set forth therein (it being
understood that actual results may vary materially from the Projections).


 


(d)           The unaudited Consolidated balance
sheet of the Company and its Subsidiaries, a copy of which has been furnished
to the Administrative Agent, has been prepared as of September 29, 2005,
reflects as of such date, on a Pro Forma Basis, the Consolidated financial
condition of the Company and its Subsidiaries, and the assumptions expressed
therein, were reasonable based on the information available to the Company at
the time so furnished.


 


Section 4.5            Material Adverse Change


 


Since March 31, 2005, there has
been no Material Adverse Change and there have been no events or developments
that, in the aggregate, have had a Material Adverse Effect.


 


Section 4.6            Solvency


 


Both before and after giving
effect to (a) the Loans and Letter of Credit Obligations to be made or extended
on the Closing Date or such other date as Loans and Letter of Credit
Obligations requested hereunder are made or extended, (b) the disbursement of
the proceeds of such Loans pursuant to the instructions of the Borrowers, (c)
the Merger and the consummation of the other Transactions and (d) the payment
and accrual of all transaction costs in connection with the foregoing, the
Company and its Subsidiaries, on a Consolidated basis, are Solvent.


 


Section 4.7            Litigation


 


Except as set forth on Schedule 4.7  (Litigation), there are no pending (or, to
the knowledge of the Company, threatened) actions, investigations or
proceedings affecting the Company or any of its Subsidiaries before any court,
Governmental Authority or arbitrator other than those that, in the aggregate,
would not have a Material Adverse Effect. 
The performance of any action by any Loan Party required or contemplated
by any Loan Document is not restrained or enjoined (either temporarily,
preliminarily or permanently).


 


Section 4.8            Taxes


 


(a)           All federal, state, local and foreign
income and franchise and other material tax returns, reports and statements
(collectively, the “Tax Returns”)
required to be filed by the Company or any of its Tax Affiliates have been filed
with the appropriate Governmental Authorities in all jurisdictions in which
such Tax Returns are required to be filed, all such Tax Returns are true and
correct in all material respects, and all taxes, charges and other impositions
reflected therein or otherwise due and payable have been paid prior to the date
on which any fine, penalty, interest, late charge or loss may be added thereto
for non-payment thereof except where contested in good faith and by appropriate
proceedings if adequate reserves therefor have been established on the books of
the Company or such Tax Affiliate in conformity with GAAP or where the failure
to pay such taxes would not have a Material Adverse Effect.  Except as would not have a Material Adverse
Effect, no Tax Return is under audit or examination by any Governmental
Authority and no notice of such an audit or examination or any assertion of any
claim for Taxes has been given or made by any Governmental Authority.  Proper and accurate


 


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amounts have been withheld by
the Company and each of its Tax Affiliates from their respective employees for
all periods in full and complete compliance with the tax, social security and
unemployment withholding provisions of applicable Requirements of Law and such
withholdings have been timely paid to the respective Governmental Authorities,
except where the failure to pay such withholdings would not have a Material
Adverse Effect.


 


(b)           None of the Company or any of its Tax
Affiliates has executed or filed with the IRS or any other Governmental
Authority any agreement or other document extending, or having the effect of
extending, the period for the filing of any federal, state, local or foreign
income or franchise or other material Tax Return or the assessment or
collection of any material charges.


 


Section 4.9            Full Disclosure


 


The written information
prepared or furnished by or on behalf of the Company in connection with this
Agreement or the consummation of the transactions contemplated hereunder, taken
as a whole, including the information contained in the Disclosure Documents and
the Related Documents, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements contained
therein or herein not misleading.  


 


Section 4.10         Margin Regulations


 


None of the Borrowers is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U of the Federal
Reserve Board), and no proceeds of any Loan will be used to purchase or carry
any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock in contravention of Regulation T,
U or X of the Federal Reserve Board.


 


Section 4.11         No Burdensome Restrictions; No Defaults


 


(a)           None of the Company or any of its
Subsidiaries (i) is a party to any Contractual Obligation the compliance with
one or more of which would have, in the aggregate, a Material Adverse Effect or
the performance of which by any thereof, either unconditionally or upon the
happening of an event, would result in the creation of a Lien (other than a
Lien permitted under Section 8.2 (Liens,
Etc.)) on the assets of any thereof or (ii) is subject to one or
more charter or corporate restrictions that would, in the aggregate, have a
Material Adverse Effect.


 


(b)           None of the Company or any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
owed by it and, to the knowledge of any Loan Party, no other party is in
default under or with respect to any Contractual Obligation owed to any Loan
Party or to any Subsidiary of any Loan Party, other than, in either case, those
defaults that, in the aggregate, would not have a Material Adverse Effect.


 


(c)           No Default or Event of Default has
occurred and is continuing.


 


(d)           To the knowledge of any Loan Party,
there are no Requirements of Law applicable to any Loan Party or any Subsidiary
of any Loan Party the compliance with which by such Loan Party or such Subsidiary,
as the case may be, would, in the aggregate, have a Material Adverse Effect.


 


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Section 4.12         Investment Company Act


 


None of the Company or any of
its Subsidiaries is an “investment company”
as defined in, or is required to be registered as an “investment
company” under, the Investment Company Act of 1940, as amended.


 


Section 4.13         Use of Proceeds


 


The proceeds of the Loans and
the Letters of Credit are being used by the Borrowers (and, to the extent
distributed to them by the Borrowers, each other Loan Party) solely (a) to
refinance all Indebtedness and other obligations outstanding under the Existing
Credit Agreements, (b) to pay costs, fees and expenses related to the
Transactions, (c) for the payment of transaction costs, fees and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby and (d) for working capital and general corporate purposes.


 


Section 4.14         Insurance


 


Schedule
4.14 sets forth as of the Closing Date a summary of
all insurance policies maintained by the Company and its Subsidiaries.  All material policies of insurance of any
kind or nature of the Company or any of its Subsidiaries, including policies of
life, fire, theft, product liability, public liability, property damage, other
casualty, employee fidelity, workers’ compensation and employee health and
welfare insurance, are in full force and effect and are of a nature and provide
such coverage as the Company believes in its commercially reasonable judgment
is sufficient and as is customarily carried by businesses of the size and
character of such Person.  


 


Section 4.15         Labor Matters


 


(a)           There are no strikes, work stoppages,
slowdowns or lockouts pending or threatened against or involving the Company or
any of its Subsidiaries, other than those that, in the aggregate, would not
have a Material Adverse Effect.


 


(b)           There are no unfair labor practices,
grievances, complaints or arbitrations pending, or, to any Loan Party’s
knowledge, threatened, against or involving the Company or any of its
Subsidiaries, nor are there any arbitrations or grievances threatened involving
the Company or any of its Subsidiaries, other than those that, in the
aggregate, would not have a Material Adverse Effect.


 


(c)           Except as set forth on Schedule 4.15 (Labor Matters), as of the Closing Date, there
is no collective bargaining agreement covering any employee of the Company or
its Subsidiaries.


 


(d)           Schedule 4.15 (Labor
Matters) sets forth, as of the date hereof, all material consulting
agreements, executive employment agreements, executive compensation plans,
deferred compensation agreements, employee stock purchase and stock option
plans and severance plans of the Company and any of its Subsidiaries.


 


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Section 4.16         ERISA


 


(a)           Schedule 4.16 (List of
Plans) separately identifies as of the date hereof all Title IV
Plans and all Multiemployer Plans.


 


(b)           Each employee benefit plan of the
Company or any of the Company’s Subsidiaries intended to qualify under Section
401 of the Code does so qualify, and any trust created thereunder is exempt
from tax under the provisions of Section 501 of the Code, except where such
failures, in the aggregate, would not have a Material Adverse Effect.


 


(c)           Each Title IV Plan is in compliance
in all material respects with applicable provisions of ERISA, the Code and
other Requirements of Law except for noncompliance that, in the aggregate,
would not have a Material Adverse Effect.


 


(d)           There has been no, nor is there
reasonably expected to occur, any ERISA Event other than those that, in the
aggregate, would not have a Material Adverse Effect.


 


(e)           Except to the extent set forth on Schedule 4.16 (List of Plans), none of the Company, any of
the Company’s Subsidiaries or any ERISA Affiliate would have any Withdrawal
Liability as a result of a complete withdrawal as of the date hereof from any
Multiemployer Plan, other than those that, in the aggregate, would not have a
Material Adverse Effect.


 


Section 4.17         Environmental Matters


 


(a)           The operations of the Company and
each of its Subsidiaries are in compliance with all Environmental Laws,
including obtaining and complying with all required environmental, health and
safety Permits, other than non-compliances that, in the aggregate, would not
have a Material Adverse Effect.


 


(b)           Except as disclosed on Schedule 4.17 (Environmental Matters), none of the Company
or any of its Subsidiaries or any Real Property currently or, to the knowledge
of any Loan Party, previously owned, operated or leased by or for the Company
or any of its Subsidiaries is subject to any pending or, to the knowledge of
any Loan Party, threatened, claim, order, agreement, notice of violation,
notice of potential liability or is the subject of any pending or threatened proceeding
or governmental investigation under or pursuant to Environmental Laws other
than those that, in the aggregate, are not reasonably likely to have a Material
Adverse Effect.


 


(c)           Except as disclosed on Schedule 4.17 (Environmental Matters), none of the Real
Property owned or operated by the Company or any of its Subsidiaries is a
treatment, storage or disposal facility requiring a Permit under the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the regulations
thereunder or any state analog.


 


(d)           There are no facts, circumstances or
conditions arising out of or relating to the operations or ownership of the
Company or of Real Property owned, operated or leased by the Company or any of
its Subsidiaries that are not specifically included in the financial
information furnished to the Lenders which could reasonably be expected to
result in the Company incurring Environmental Liabilities and Costs other than
those that, in the aggregate, would not have a reasonable likelihood of having a
Material Adverse Effect.


 


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(e)           As of the date hereof, no
Environmental Lien has attached to any property of the Company or any of its
Subsidiaries and, to the knowledge of any Loan Party, no Government Authority
has undertaken any Remedial Action at any Real Property owned or leased by any
Loan Party.


 


(f)            The Company and each of its
Subsidiaries has made available to the Lenders copies of all material environmental,
health or safety audits, studies, assessments, inspections, investigations or
other environmental health and safety reports relating to the operations of the
Company or any of its Subsidiaries or any Real Property of any of them that are
in the possession, custody or control of the Company or any of its Subsidiaries
which reveals known or potential material Environmental Liabilities and Costs.


 


Section 4.18         Intellectual Property


 


The Company and its
Subsidiaries own or license or otherwise have the right to use all licenses,
permits, patents, patent applications, trademarks, trademark applications,
service marks, trade names, copyrights, copyright applications, Internet domain
names, franchises, authorizations and other intellectual property rights
(including all Intellectual Property as defined in the Pledge and Security
Agreement) that are necessary for the operations of their respective
businesses, without infringement upon or conflict with the rights of any other
Person with respect thereto, including all trade names associated with any private
label brands of the Company or any of its Subsidiaries, except to the extent
the failure to own, license or otherwise have the right to use would not have a
Material Adverse Effect.  To any Loan
Party’s knowledge, no license, permit, patent, patent application, trademark,
trademark application, service mark, trade name, copyright, copyright
application, Internet domain name, franchise, authorization, other intellectual
property right (including all “Intellectual
Property” as defined in the Pledge and Security Agreement), slogan
or other advertising device, product, process, method, substance, part or
component, or other material now employed, or now contemplated to be employed,
by the Company or any of its Subsidiaries infringes upon or conflicts with any
rights owned by any other Person, except for such infringments and conflicts
which would not have a Material Adverse Effect. 
No claim or litigation regarding any of the foregoing is pending or, to
the knowledge of any Loan Party, threatened which would have a Material Adverse
Effect.


 


Section 4.19         Title; Real Property


 


(a)           Each of the Company and its
Subsidiaries has good and marketable title to, or valid leasehold interests in,
all Real Property and good title to all personal property, in each case that is
purported to be owned or leased by it, including those reflected on the most
recent Financial Statements delivered by the Company, and none of such
properties and assets is subject to any Lien, except Liens permitted under Section 8.2 (Liens, Etc.). 


 


(b)           Set forth on Schedule 4.19 (Real Property) is a
complete and accurate list of all Real Property of each Loan Party and showing,
as of the Closing Date, the current street address (including, where
applicable, county, state and other relevant jurisdictions), record owner and,
where applicable, lessee thereof.


 


(c)           No Loan Party owns or holds, or is
obligated under or a party to, any lease, option, right of first refusal or
other contractual right to purchase, acquire, sell, assign, dispose of or lease
any Mortgaged Real Property of such Loan Party.


 


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(d)           No portion of any Real Property of
any Loan Party or any of its Subsidiaries has suffered any material damage by
fire or other casualty loss that has not heretofore been substantially repaired
and restored to its original condition. 
Except as disclosed to the Administrative Agent, no portion of any Real
Property of any Loan Party or any of its Subsidiaries subject to a Mortgage in
favor of the Administrative Agent is located in a special flood hazard area as
designated by any federal Governmental Authority.


 


(e)           All Permits required to have been
issued or appropriate to enable all Real Property of the Company or any of its
Subsidiaries to be lawfully occupied and used for all of the purposes for which
they are currently occupied and used have been lawfully issued and are in full
force and effect, other than those that, in the aggregate, would not have a
Material Adverse Effect.


 


(f)            None of the Company or any of its
Subsidiaries has received any notice, or has any knowledge, of any pending,
threatened or contemplated condemnation proceeding affecting any Real Property
of the Company or any of its Subsidiaries or any part thereof, except those
that, in the aggregate, would not have a Material Adverse Effect.


 


Section 4.20         Related Documents


 


(a)           The execution, delivery and
performance by the Company or any of its Subsidiaries of the Related Documents
to which it is a party and the consummation of the transactions contemplated
thereby by such Person:


 


(i)            are within such Person’s respective
corporate, limited liability company or partnership powers;


 


(ii)           at the Closing Date will have been
duly authorized by all necessary corporate or other action, including the
consent of stockholders where required;


 


(iii)          do not and will not (A) contravene or
violate the Company’s or any of its Subsidiaries’ respective Constituent
Documents, (B) violate any other Requirement of Law applicable to such Person,
or any order or decree of any Governmental Authority or arbitrator, except for
those that, in the aggregate, would not have a Material Adverse Effect, (C)
conflict with or result in the breach of, constitute a default under, or result
in or permit the termination or acceleration of, any Contractual Obligation of
such Person, except for those that, in the aggregate, would not have a Material
Adverse Effect or (D) result in the creation or imposition of any Lien upon any
property of the Company or any of its Subsidiaries other than a Lien permitted
under Section 8.2 (Liens, Etc.);
and


 


(iv)          do not require the consent of,
authorization by, approval of, notice to, or filing or registration with, any
Governmental Authority or any other Person, other than those that (A) will have
been obtained at the Closing Date, each of which will be in full force and
effect on the Closing Date, none of which will on the Closing Date impose
materially adverse conditions upon the exercise of control by the Company over
any of its Subsidiaries and (B) in the aggregate, if not obtained, would not
have a Material Adverse Effect.


 


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(b)           Each of the Related Documents has
been or at the Closing Date will have been duly executed and delivered by the
Company and each of its Subsidiaries party thereto and at the Closing Date will
be the legal, valid and binding obligation of each such Person party thereto,
enforceable against such Person in accordance with its terms.


 


Section 4.21         New Subordinated Notes


 


The proceeds of the New
Subordinated Notes are being used by the Company solely in accordance with the
Disclosure Documents.


 


ARTICLE V



FINANCIAL COVENANT 


 


As long as any Revolving Credit
Commitment remains outstanding and unless the Requisite Revolving Credit
Lenders otherwise consent in writing, commencing with the Fiscal Quarter ending
on or around September 30, 2006, the Company and its Subsidiaries shall
maintain on the last day of each Fiscal Quarter, a Net Senior Secured Leverage
Ratio of not more than 3.25 to 1.0.


 


ARTICLE VI



REPORTING COVENANTS


 


The Company agrees with the
Lenders, the Issuers and the Agents to each of the following, as long as any
Obligation (other than Cash Management Obligations, Obligations arising under
Cash Management Documents and Hedging Contracts and contingent indemnification
obligations as to which no claim is pending) or any Commitment remains
outstanding and, in each case, unless the Requisite Lenders otherwise consent
in writing:


 


Section 6.1            Financial Statements


 


The Company shall furnish to
the Administrative Agent (and the Administrative Agent will forward to or post
on the Approved Electronic Platform for the Lenders) each of the following:


 


(a)           Quarterly
Reports.  Within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year,
financial information regarding the Company and its Subsidiaries consisting of a
Consolidated unaudited balance sheet as of the close of such quarter and the
related statements of income and cash flow for such quarter and that portion of
the Fiscal Year ending as of the close of such quarter, setting forth in
comparative form the figures for the corresponding period in the prior year, in
each case certified by a Responsible Officer of the Company as fairly presenting
the Consolidated financial position of the Company and its Subsidiaries as at
the dates indicated and the results of their operations and cash flow for the
periods indicated in accordance with GAAP (subject to the absence of footnote
disclosure and normal year-end audit adjustments).


 


(b)           Annual
Reports.  Within 90 days after
the end of each Fiscal Year, financial information regarding the Company and
its Subsidiaries consisting of a Consolidated balance sheet of the Company and
its Subsidiaries as of the end of such year and related


 


91

















 


statements of income and cash
flows of the Company and its Subsidiaries for such Fiscal Year, all prepared in
conformity with GAAP and certified, in the case of such Consolidated Financial
Statements, without qualification as to the scope of the audit or as to the
Company being a going concern by the Company’s Accountants, together with the
report of such accounting firm stating that (i) such Financial Statements
fairly present the Consolidated financial position of the Company and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except for changes with which the Company’s
Accountants shall concur and that shall have been disclosed in the notes to the
Financial Statements) and (ii) the examination by the Company’s Accountants in
connection with such Consolidated Financial Statements has been made in
accordance with generally accepted auditing standards.


 


(c)           Compliance
Certificate.  Together with
each delivery of any Financial Statement pursuant to clause  (a) or (b) above, a certificate of a Responsible
Officer of the Company in substantially the form of Exhibit J
(Form of Compliance Certificate) (each, a “Compliance Certificate”) (i) showing in
reasonable detail the calculations used in determining the Net Senior Secured
Leverage Ratio (for purposes of determining the Applicable Margin and the
Applicable Unused Commitment Fee Rate) and demonstrating compliance with the
financial covenant contained in Article V
(Financial Covenant) and (ii) stating that no Default or Event of Default has
occurred and is continuing or, if a Default or an Event of Default has occurred
and is continuing, stating the nature thereof and the action that the Company
proposes to take with respect thereto.


 


(d)           Corporate Chart and Other
Collateral Updates.  Together
with each delivery of any Financial Statement pursuant to clause (b)
above, (i) a certificate of a Responsible Officer of the Company certifying
that the Corporate Chart attached thereto (or the last Corporate Chart
delivered pursuant to this clause (d)) is
true, correct, complete and current as of the date of such Financial Statement
and (ii) a certificate of a Responsible Officer of the Company in form and
substance reasonably satisfactory to the Administrative Agent that all
certificates, statements, updates and other documents (including updated
schedules) required to be delivered pursuant to the Collateral Documents by any
Loan Party in the preceding Fiscal Year have been delivered thereunder (or such
delivery requirement was otherwise duly waived or extended).


 


(e)           Business
Plan.  Not later than 90 days after
the end of each Fiscal Year, and containing substantially the types of
financial information contained in the Projections, (i) the annual business
plan of the Company and its Subsidiaries for the next succeeding Fiscal Year
approved by the Board of Directors of the Company and (ii) forecasts prepared
by management of the Company for each fiscal quarter in the next succeeding
Fiscal Year, including, (x) a projected year-end Consolidated balance sheet and
income statement and statement of cash flows and (y) a statement of all of the
material assumptions on which such forecasts are based.


 


Section 6.2            Default Notices


 


(a)           As soon as practicable, and in any
event within five Business Days after a Responsible Officer of any Loan Party
has actual knowledge of the existence of any Default or Event of Default, the
Company shall give the Administrative Agent notice specifying the nature of
such Default or Event of Default, including the anticipated effect thereof,
which notice, if given by telephone, shall be promptly confirmed in writing on
the next Business Day (and the Administrative Agent will forward to or post on
the Approved Electronic Platform for the Lenders any such written notice).


 


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(b)           As soon as practicable after a
Responsible Officer of any Loan Party has actual knowledge of the existence of
any event having had a Material Adverse Effect or having any reasonable
likelihood of causing or resulting in a Material Adverse Change, the Company
shall give the Administrative Agent notice specifying the nature of such event,
including the anticipated effect thereof, which notice, if given by telephone,
shall be promptly confirmed in writing on the next Business Day.


 


Section 6.3            Litigation


 


Promptly after the commencement
thereof, the Company shall give the Administrative Agent written notice of the
commencement of all actions, suits and proceedings before any domestic or
foreign Governmental Authority or arbitrator affecting the Company or any of
Subsidiary of the Company that (i) seeks injunctive or similar relief or (ii)
in the reasonable judgment of the Company or such Subsidiary, expose the
Company or such Subsidiary to liability in an amount aggregating $25,000,000 or
more or that, if adversely determined, would have a Material Adverse Effect.


 


Section 6.4            SEC Filings; Press Releases


 


Promptly after the sending or
filing thereof, the Company shall send the Administrative Agent notice (and, to
the extent not publicly available on the Securities and Exchange Commission’s
EDGAR database, copies) of (a) all reports and registration statements that the
Company or any of its Subsidiaries files with the Securities and Exchange
Commission or any national or foreign securities exchange or the National
Association of Securities Dealers, Inc., and (b) all other statements
concerning material changes or developments in the business of such Loan Party
made available by any Loan Party to the public.


 


Section 6.5            Labor Relations


 


Promptly after becoming aware
of the same, the Company shall give the Administrative Agent written notice of
(a) any material labor dispute to which the Company or any of its Subsidiaries
is or may become a party, including any strikes, lockouts or other disputes
relating to any of such Person’s plants and other facilities, and (b) any
Worker Adjustment and Retraining Notification Act or related liability incurred
with respect to the closing of any plant or other facility of any such Person,
in each case to the extent that such matter would reasonably be expected to
have a Material Adverse Effect.


 


Section 6.6            Tax Returns


 


Upon the reasonable request of
any Lender, through the Administrative Agent, the Company shall provide copies
of all federal, state, local and foreign tax returns and reports filed by the
Company or any Subsidiary of the Company in respect of taxes measured by income
(excluding sales, use and like taxes).


 


Section 6.7            Insurance


 


As soon as is practicable and
in any event within 90 days after the end of each Fiscal Year, the Company
shall furnish the Administrative Agent with (a) a report in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders outlining all material
insurance coverage maintained as of the date of such report by the Company or
any


 


93

















 


Subsidiary of the Company and
the duration of such coverage and (b) an insurance broker’s statement that all
premiums then due and payable with respect to such coverage have been paid and
confirming, with respect to any insurance maintained by the Company or any Loan
Party, that the Administrative Agent has been named as loss payee or additional
insured, as applicable.


 


Section 6.8            ERISA Matters


 


The Company shall furnish the
Administrative Agent each of the following:


 


(a)           subject to paragraphs
(b) and (c) below, promptly
and in any event within 30 days after the Company or any Subsidiary of the
Company or any ERISA Affiliate knows or has reason to know that any ERISA Event
has occurred, written notice describing such event, other than those that, in
the aggregate, would not reasonably be likely to have a Material Adverse Effect;


 


(b)           promptly and in any event within 10
days after the Company or any Subsidiary of the Company or any ERISA Affiliate
knows or has reason to know that a request for a minimum funding waiver under
Section 412 of the Code has been filed with respect to any Title IV Plan or
Multiemployer Plan, a written statement of a Responsible Officer of the Company
describing such ERISA Event or waiver request and the action, if any, the
Company, its Subsidiaries and ERISA Affiliates propose to take with respect
thereto and a copy of any notice filed with the PBGC or the IRS pertaining
thereto; and


 


(c)           simultaneously with the date that the
Company or any Subsidiary of the Company or any ERISA Affiliate files a notice
of intent to terminate any Title IV Plan, if such termination would require
material additional contributions in order to be considered a standard
termination within the meaning of Section 4041(b) of ERISA, a copy of each
notice.


 


Section 6.9            Environmental Matters


 


(a)           The Company shall provide the
Administrative Agent promptly and in any event within 30 days after the Company
or any Subsidiary of the Company learning of any of the following, written
notice of each of the following:


 


(i)            that any Loan Party is, or is
reasonably likely to be, liable to any Person as a result of a Release or
threatened Release that would reasonably be expected to have a Material Adverse
Effect.


 


(ii)           the receipt by any Loan Party of
notification that any real or personal property of such Loan Party is or is
reasonably likely to be subject to any Environmental Lien;


 


(iii)          the receipt by any Loan Party of any
notice of violation of or potential liability under any Environmental Law,
except for violations or liabilities the consequence of which, in the
aggregate, would not be reasonably likely to have a Material Adverse Effect;


 


(iv)          the commencement of any judicial or
administrative proceeding or investigation alleging a violation of or liability
under any Environmental Law, that, in


 


94

















 


the aggregate, if adversely determined, would have a
reasonable likelihood of having a Material Adverse Effect; and


 


(v)           any proposed action by any Loan Party
or any of its Subsidiaries or any proposed change in Environmental Laws that,
in the aggregate, have a reasonable likelihood of requiring the Loan Parties to
make additional capital improvements to obtain compliance with Environmental
Laws that, in the aggregate, would have a Material Adverse Effect.


 


(b)           The Company shall promptly and in any
event within 30 days after receipt by the Company or any Subsidiary of the
Company of a written request by any Lender through the Administrative Agent, a
report providing an update of the status of any environmental, health or safety
compliance, hazard or liability issue identified in any notice or report
delivered by the Company pursuant to Section 6.9(a) of
this Agreement.


 


Section 6.10         Other Information


 


The Company shall provide the
Administrative Agent or any Lender with such other information respecting the
business, properties, condition, financial or otherwise, or operations of the
Company or any Subsidiary of the Company as the Administrative Agent or such
Lender through the Administrative Agent may from time to time reasonably
request.


 


ARTICLE VII



AFFIRMATIVE COVENANTS


 


The Company and, with respect
to the Mexican Borrowers and their respective Subsidiaries only, the Mexican Borrowers
agree with the Lenders, the Issuers and the Agents to each of the following, as
long as any Obligation (other than Cash Management Obligations, Obligations
arising under Cash Management Documents and Hedging Contracts and contingent
indemnification obligations as to which no claim is pending) or any Commitment
remains outstanding and, in each case, unless the Requisite Lenders otherwise
consent in writing:


 


Section 7.1            Preservation of Corporate Existence,
Etc.


 


The Company shall, and shall
cause each Subsidiary of the Company to, preserve and maintain its legal
existence, rights (charter and statutory) and franchises, except as permitted
by Sections 8.4 (Sale of Assets)
and 8.6 (Restriction on Fundamental Changes).


 


Section 7.2            Compliance with Laws, Etc.


 


The Company shall, and shall
cause each Subsidiary of the Company to, comply with all applicable
Requirements of Law, Contractual Obligations and Permits, except where the
failure so to comply would not, in the aggregate, have a Material Adverse Effect.


 


Section 7.3            Conduct of Business


 


The Company shall, and shall
cause each Subsidiary of the Company to, use its reasonable efforts to preserve
its business and the goodwill and business of the customers, advertisers,
suppliers and others having business relations with the Company or any of its


 


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Subsidiaries, except in each
case where the failure to comply with the above would not, in the aggregate,
have a Material Adverse Effect.


 


Section 7.4            Payment of Taxes, Etc.


 


The Company shall, and shall
cause each Subsidiary of the Company to, pay and discharge before the same
shall become delinquent, all material lawful governmental claims, taxes,
assessments, charges and levies, except where contested in good faith, by
proper proceedings and adequate reserves therefor have been established on the
books of the Company or the appropriate Subsidiary in conformity with GAAP.


 


Section 7.5            Maintenance of Insurance


 


The Company shall (a) maintain
for, itself, and the Company shall cause to be maintained for each Subsidiary
of the Company, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same or similar general areas in which the Company or such Subsidiary operates and
(b) cause all such insurance relating to any Loan Party to name the
Administrative Agent on behalf of the Secured Parties as additional insured or
loss payee, as appropriate.


 


Section 7.6            Access


 


The Company shall, and shall
cause each Subsidiary of the Company to, from time to time permit any agents,
representatives and independent contractors of the Administrative Agent and
each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants (subject to such
independent public accountants’ customary procedures), all at the reasonable
expense of the Company and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to the Company; provided, however, that, excluding any such visits
and inspections during the continuation of an Event of Default, only the
Administrative Agent on behalf of the Lenders may exercise rights of the
Administrative Agent and the Lenders under this Section 7.6 and the Administrative Agent shall not exercise
such rights more often than two times during any calendar year absent the
existence of an Event of Default and only one such time shall be at the Company’s
expense; provided, further, that, during an Event of Default,
the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Company at any time during normal business hours and upon
reasonable advance notice.  The
Administrative Agent and the Lenders shall give the Company the opportunity to
participate in any discussions with the Company’s independent public
accountants.


 


Section 7.7            Keeping of Books


 


The Company shall, and shall
cause each Subsidiary of the Company to keep, proper books and records in
conformity with GAAP or Local GAAP, as applicable.


 


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Section 7.8            Maintenance of Properties, Etc.


 


The Company shall, and shall
cause each Subsidiary of the Company to, maintain and preserve (a) (i) in good
working order and condition all of its properties necessary in the conduct of
its business and (ii) all rights, permits, licenses, approvals and privileges
(including all Permits) used or useful or necessary in the conduct of its
business; provided, however, that the Company and its
Subsidiaries may close or otherwise cease to operate theatres and remove
fixtures and personalty therefrom upon the expiration or other termination of
the applicable lease if the board of directors of the Company or such
Subsidiary, as the case may be, determines in good faith that the maintenance
and continued operation thereof is no longer desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, and (b) all
registered patents, trademarks, trade names, copyrights and service marks used
or useful or necessary in their respective businesses, except where failure to
so maintain and preserve the items set forth in clauses (a) and (b)
above would not, in the aggregate, have a Material Adverse Effect.


 


Section 7.9            Application of Proceeds


 


The Company (and, to the extent
distributed to them by the Company, each Loan Party) shall use the entire
amount of the proceeds of the Loans as provided in Section 4.13 (Use of Proceeds).


 


Section 7.10         Environmental


 


The Company shall, and shall
cause each Subsidiary of the Company to, comply with Environmental Laws and,
without limiting the foregoing, the Company shall, at its sole cost and
expense, upon receipt of any written notification or otherwise obtaining
knowledge of any Release that has any reasonable likelihood of any of the
Company or any Subsidiary of the Company incurring Environmental Liabilities
and Costs, (a) conduct, or pay for consultants to conduct, reasonable tests
or assessments of environmental conditions at such operations or properties,
including the investigation and testing of subsurface conditions and (b) take
such Remedial Action as required by Environmental Laws or as any Governmental
Authority requires to address the Release and otherwise ensure compliance with
Environmental Laws, in each case, except where the failure to conduct such
tests or assessments, take such Remedial Action or otherwise ensure compliance
would not, in the aggregate, have a Material Adverse Effect.


 


Section 7.11         Additional Collateral and Guaranties


 


(a)           Upon the formation or acquisition of
any new direct or indirect Subsidiary by any Loan Party or the designation in
accordance with Section 7.13 (Designation
of Unrestricted Subsidiaries) of any existing direct or indirect
Unrestricted Subsidiary as a Subsidiary or any Subsidiary guaranteeing any
Indebtedness of any Domestic Loan Party, the Company shall, in each case, at
the Company’s expense, within thirty (30) days after such formation,
acquisition, designation or guarantee or such longer period as the
Administrative Agent may agree in its reasonable discretion:


 


(i)            cause each such Subsidiary that is
(x) a Wholly-Owned Subsidiary that is a Domestic Subsidiary, (y) a
non-Wholly-Owned Subsidiary that is a Domestic Subsidiary that has guaranteed
the Indebtedness of any Loan Party or (z) a Foreign Subsidiary that has
guaranteed the Indebtedness of any Domestic Loan Party, to


 


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duly execute and deliver to the Administrative Agent a
guaranty or guaranty supplement, in form and substance reasonably satisfactory
to the Administrative Agent, guaranteeing the Obligations of each Borrower;


 


(ii)           cause each such Subsidiary that is
required to become a Guarantor pursuant to this Section 7.11 to furnish to the Administrative Agent a
description of the real properties owned and leased by such Subsidiary in
detail reasonably satisfactory to the Administrative Agent;


 


(iii)          cause each such Subsidiary that is
required to become a Guarantor pursuant to this Section 7.11, at the request of the Administrative
Agent, to duly execute and deliver to the Administrative Agent Mortgages,
Mortgage Supporting Documents, joinders, amendments and other Collateral
Documents, as specified by and in form and substance reasonably satisfactory to
the Administrative Agent (consistent with the Mortgages, Mortgage Supporting
Documents and other Collateral Documents in effect on the Closing Date, if
applicable), granting a Lien in substantially all of the personal property of
such Subsidiary, all owned Real Property with a value in excess of $5,000,000
individually or $15,000,000 in the aggregate for all such Subsidiaries (provided, that, if a mortgage tax will be
owed, the amount secured by the Mortgage shall be limited to the fair market
value of the property at the time the Mortgage is entered into), in each case,
securing the Secured Obligations of such Subsidiary under its Guaranty;


 


(iv)          (x) cause each such Subsidiary that is
required to become a Guarantor pursuant to this Section 7.11 to deliver any and all certificates,
instruments and other documents representing all Pledged Stock, Pledged Debt
Instruments and all other Stock, Stock Equivalents and other debt Securities
owned by such Subsidiary accompanied by undated Stock powers or other
appropriate instruments of transfer executed or endorsed in blank and (y) cause
each Loan Party that is a direct or indirect parent of such Subsidiary that is
required to provide a guaranty pursuant to this Section 7.11 to deliver any and all certificates,
instruments or other documents representing the outstanding Stock or Stock
Equivalents of such Subsidiary held by such direct or indirect parent, accompanied
by undated Stock powers or other appropriate instruments of transfer executed
in blank and instruments evidencing the intercompany debt issued by such
Subsidiary and held by such direct or indirect parent, endorsed in blank to the
Administrative Agent;


 


(v)           take and cause such Subsidiary and
each Loan Party that is a direct or indirect parent of such Subsidiary to take
whatever action (including the recording of Mortgages, the filing of UCC
financing statements, the giving of notices and the endorsement of notices on
title documents and delivery of Pledged Stock and Pledged Debt Instruments) as
may be necessary in the reasonable opinion of the Administrative Agent to vest
in the Administrative Agent (or in any representative of the Administrative
Agent designated by it) valid, perfected and enforceable first-priority Liens
on the properties purported to be subject to the Mortgages and other Collateral
Documents delivered pursuant to this Section 7.11,
subject only to Liens permitted under Section  8.2 (Liens, Etc.), enforceable against all third parties in
accordance with their terms; and


 


(vi)          deliver to the Administrative Agent a
signed copy of an opinion, addressed to the Administrative Agent and the other
Secured Parties, of counsel for the


 


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Loan Parties reasonably acceptable to the
Administrative Agent as to such matters set forth in this Section 7.11 as the Administrative Agent
may reasonably request.


 


(b)           For the avoidance of doubt, (i) no Foreign
Subsidiary shall be obligated to guarantee the obligations of any Borrower (unless
such Subsidiary is a guarantor of any Indebtedness of any Domestic Loan Party) and
(ii) (A) no assets of any Foreign Subsidiary shall be required to be pledged to
support obligations of any Borrower (unless such assets are pledged to support
any Indebtedness of any Domestic Loan Party) and (B) no more than 65% of the
voting stock (within the meaning of Section 956 of the Code and the Treasury
Regulations thereunder) of any Foreign Subsidiary shall be required to be
pledged by the Company or any of its Subsidiaries to support the obligations of
any Borrower (unless such stock has been pledged to support any Indebtedness of
any Domestic Loan Party).


 


(c)           Upon the acquisition of (x) any
personal property by any Loan Party (other than property that would constitute
Excluded Property (as defined in the Pledge and Security Agreement)) or (y) fee
owned Real Property with a value in excess of $5,000,000 individually by any
Loan Party or $15,000,000 in the aggregate for all Loan Parties (provided that,
if a mortgage tax will be owed, the amount secured by the Lien referred to
below shall be limited to the fair market value of the property at the time the
applicable Mortgage is entered into), and such personal property and/or fee
owned Real Property shall not already be subject to a valid, perfected and
enforceable first-priority Lien in favor of the Administrative Agent for the
benefit of the Secured Parties, subject only to Liens permitted under Section 8.2 (Liens, Etc.), the Company shall give notice
thereof to the Administrative Agent within thirty (30) days after such
acquisition and shall, if requested by the Administrative Agent or the
Requisite Lenders, cause such assets to be subjected to a Lien securing the
Secured Obligations and will take, or cause the relevant Loan Party to take,
such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect or record such Lien, including, without
limitation, executing and delivering to the Administrative Agent Mortgages,
Mortgage Supporting Documents, joinders, amendments and other Collateral
Documents, as specified by and in form and substance reasonably satisfactory to
the Administrative Agent (consistent with the Mortgages, Mortgage Supporting
Documents and other Collateral Documents in effect on the Closing Date, if
applicable).


 


(d)           Notwithstanding the foregoing, (x)
the Administrative Agent shall not take a security interest in those assets as
to which the Administrative Agent shall determine, in its reasonable
discretion, that the cost of obtaining such Lien (including any mortgage,
stamp, intangibles or other tax) are excessive in relation to the benefit to
the Lenders of the security afforded thereby and (y) Liens required to be
granted pursuant to this Section 7.11
shall be subject to exceptions and limitations consistent with those set forth
in the Collateral Documents as in effect on the Closing Date (to the extent
appropriate in the applicable jurisdiction).


 


Section 7.12         Cash Collateral Accounts


 


The Administrative Agent may
establish one or more Cash Collateral Accounts with such depositaries and
Securities Intermediaries as it in its sole discretion shall determine.  The Company agrees that each such Cash
Collateral Account shall meet the requirements set forth in the definition of “Cash Collateral Account”.  Without limiting the foregoing, funds on
deposit in any Cash Collateral Account may be invested (but the Administrative
Agent shall be under no obligation to make any such investment) in Cash
Equivalents at the direction of the Administrative Agent and, except during the
continuance of an Event of Default, the


 


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Administrative Agent agrees
with the Company to issue Entitlement Orders for such investments in Cash
Equivalents as requested by the Company; provided,
however, that the Administrative
Agent shall not have any responsibility for, or bear any risk of loss of, any
such investment or income thereon.  None
of the Company, any of its Subsidiaries or any other Loan Party or Person
claiming on behalf of or through the Company, any Subsidiary of the Company or
any other Loan Party shall have any right to demand payment of any funds held
in any Cash Collateral Account at any time prior to the termination of all
outstanding Letters of Credit and the payment in full of all then outstanding
and payable monetary Obligations.


 


Section 7.13         Designation of Unrestricted
Subsidiaries


 


The board of directors of the
Company may at any time designate any Subsidiary as an Unrestricted Subsidiary
or any Unrestricted Subsidiary as a Subsidiary; provided,
however, that (i) immediately before and
after such designation, no Default shall have occurred and be continuing, (ii)
immediately after giving effect to such designation, the Company and its
Subsidiaries shall be in compliance, on a Pro Forma Basis, with the covenants
set forth in Article V (Financial Covenant)
(and, as a condition precedent to the effectiveness of any such designation,
the Company shall deliver to the Administrative Agent a certificate setting
forth in reasonable detail the calculations demonstrating such compliance),
(iii) neither Mexican Borrower may be designated as an Unrestricted Subsidiary,
(iv) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of
any Indenture and (v) no Unrestricted Subsidiary that is designated as a
Subsidiary may be redesignated as an Unrestricted Subsidiary at any time prior
to twelve (12) months after being so designated as a Subsidiary.  The designation of any Subsidiary as an
Unrestricted Subsidiary shall constitute an Investment by the Company therein
at the date of designation in an amount equal to the net book value of the
Company’s Investment therein.  The
designation of any Unrestricted Subsidiary as a Subsidiary shall constitute the
incurrence at the time of designation of any Indebtedness or Liens of such
Subsidiary existing at such time.


 


Section 7.14         Post-Closing Matters


 


The Company shall, and shall
cause each of its Subsidiaries to, deliver each of the documents, instruments
and agreements and take each of the actions set forth on Schedule
7.14 (Post-Closing Matters) within the time periods set forth on
such Schedule.


 


ARTICLE VIII



NEGATIVE COVENANTS


 


The Company and, with respect
to the Mexican Borrowers and their respective Subsidiaries only, the Mexican
Borrowers agree with the Lenders, the Issuers and the Agents to each of the
following, as long as any Obligation (other than Cash Management Obligations,
Obligations arising under Cash Management Documents and Hedging Contracts and contingent
indemnification obligations as to which no claim is pending) or any Commitment
remains outstanding and, in each case, unless the Requisite Lenders otherwise
consent in writing:


 


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Section 8.1            Indebtedness


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, directly or indirectly, create,
incur, assume or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness, except the following Indebtedness:


 


(a)           the Secured Obligations (other than
in respect of Hedging Contracts)
and Guaranty Obligations in respect thereto;


 


(b)           (i) Indebtedness existing on the date
of this Agreement and disclosed on Schedule 8.1 (Existing
Indebtedness), (ii) Indebtedness under the New Subordinated Notes in
an aggregate principal amount not to exceed $325,000,000 and (iii) any Permitted
Refinancing thereof;


 


(c)           Permitted Subordinated Indebtedness; provided, however,
that (i) both immediately prior to and after giving effect thereto, no Default
or Event of Default shall exist or result therefrom and (ii) the Company and
its Subsidiaries will be in Pro Forma Compliance with Article V (Financial Covenant) after
giving effect to the incurrence or issuance of such Indebtedness; 


 


(d)           Guaranty Obligations incurred by the
Company or any of its Subsidiaries in respect of Indebtedness of the Company or
any Subsidiary that is otherwise permitted by this Section 8.1 (other than clause (a) above); provided,
however, that (i) none of the
Company and its Subsidiaries shall be permitted to Guarantee any Indebtedness
arising under any Indenture (or any Permitted Refinancing thereof) unless such
Subsidiary shall have also Guaranteed the Obligations substantially on the
terms set forth in the Guaranty and (ii) if the Indebtedness being Guaranteed
is subordinated to the Obligations, then the Guaranty Obligations with respect
to such Indebtedness shall be subordinated to the Guaranty Obligations with
respect to the Obligations on terms at least as favorable to the Lenders as
those contained in the subordination provisions of such Indebtedness;


 


(e)           Indebtedness of (i) any Domestic
Loan Party owing to any other Domestic Loan Party, (ii) any Domestic
Subsidiary that is not a Loan Party owing to (A) any other Domestic
Subsidiary that is not a Loan Party or (B) the Company or a Loan Party in
respect of an Investment permitted under Section
8.3(c) (Investments), (iii) any
Domestic Loan Party owing to any Foreign Subsidiary, (iv) any Foreign
Subsidiary owing to any other Foreign Subsidiary and (v) any Foreign
Subsidiary or any Subsidiary that is not a Loan Party owing to any Domestic
Loan Party in respect of an Investment permitted under Section 8.3(c) (Investments); provided, however,
that all such Indebtedness of any Loan Party owing to any Subsidiary that is
not a Loan Party (or to any Mexican Borrower) must be expressly subordinated to
the Obligations;


 


(f)            (i) Capital Lease Obligations and
purchase money Indebtedness (including Indebtedness in respect of mortgage,
industrial revenue bond, industrial development bond and similar financings) to
finance the purchase, repair or improvement of fixed or capital assets and
incurred concurrently with or within 270 days of the purchase, repair or
improvement of the property subject to the Liens permitted under Section 8.2(i) (Liens, Etc.) (including
permitted sale-leaseback transactions) and (ii) any Permitted Refinancing
thereof;


 


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(g)           (i) Indebtedness denominated in Pesos
of Foreign Subsidiaries domiciled in Mexico, in an aggregate principal amount
at any time outstanding for all such Indebtedness not to exceed $30,000,000, to
the extent that the Net Cash Proceeds of any such Indebtedness are applied to
prepay the Loans to the extent required pursuant to Section 2.9 (Mandatory Prepayments) and (ii) any Permitted
Refinancing thereof;


 


(h)           Indebtedness in respect of Interest
Rate Contracts and other Hedging Contracts permitted under Section 8.15 (No Speculative Transactions);


 


(i)            (i) Indebtedness of the Company and
its Subsidiaries (A) assumed in connection with any Permitted Acquisition; provided, however,
that such Indebtedness is not incurred in contemplation of such Permitted
Acquisition or (B) owed to the seller of any property acquired in a Permitted
Acquisition on an unsecured subordinated basis, which subordination shall be on
terms reasonably satisfactory to the Administrative Agent, in each case, so
long as (1) both immediately prior to and after giving effect thereto, no
Default or Event of Default shall exist or result therefrom and (2) the Company
and its Subsidiaries will be in Pro Forma Compliance with Article V (Financial Covenant) after
giving effect to such Permitted Acquisition and the incurrence or issuance of
such Indebtedness and (ii) any Permitted Refinancing thereof;


 


(j)            Indebtedness representing deferred
compensation to employees of the Company and its Subsidiaries incurred in the
ordinary course of business; 


 


(k)           Indebtedness consisting of promissory
notes issued by the Company or any of its Subsidiaries to current or former
officers, directors, employees or consultants, their respective estates,
spouses or former spouses to finance the purchase or redemption of Stock or
Stock Equivalents of Holdings or the Company, or to finance a Restricted
Payment with respect to SARs, in each case, to the extent permitted by Section 8.5 (Restricted Payments);


 


(l)            Indebtedness incurred by the Company
or its Subsidiaries in a Permitted Acquisition or Asset Sale in respect of
agreements providing for indemnification, the adjustment of the purchase price
or similar adjustments; 


 


(m)          Indebtedness consisting of obligations
of the Company or its Subsidiaries under deferred employee compensation or
other similar arrangements incurred by such Person in connection with the
Transactions and Permitted Acquisitions;


 


(n)           Cash Management Obligations and other
Indebtedness in respect of netting services, overdraft protections and similar
arrangements, in each case, in connection with Deposit Accounts; 


 


(o)           Indebtedness consisting of (i) the
financing of insurance premiums or (ii) take-or-pay obligations contained in
supply arrangements, in each case, in the ordinary course of business; 


 


(p)           Indebtedness incurred by the Company
or any of its Subsidiaries constituting reimbursement obligations with respect
to letters of credit issued in the ordinary course of business, including,
without limitation, letters of credit in respect of workers’ compensation
claims, health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance or other Indebtedness with respect to
reimbursement or similar obligations regarding workers’ compensation claims; provided, however,
that, upon the


 


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drawing of such letters of
credit or the incurrence of such Indebtedness, such obligations shall be
reimbursed within 30 days following such drawing or incurrence;


 


(q)           obligations in respect of performance
and surety bonds and performance and completion guarantees provided by the
Company or any of its Subsidiaries, or obligations in respect of letters of
credit related thereto, in each case, in the ordinary course of business or
consistent with past practice;


 


(r)            in the case of any Foreign
Subsidiary, Indebtedness in an aggregate principal amount not to exceed $40,000,000
at any time outstanding (i) to the extent such Indebtedness is utilized within
90 days of the incurrence thereof to finance a Permitted Acquisition, and (ii)
incurred in connection with any substantially contemporaneous Permitted
Refinancing of such Indebtedness;


 


(s)           Indebtedness not otherwise permitted
under this Section 8.1; provided, however,
that, (i) both immediately prior to and after giving effect thereto, no Default
or Event of Default shall exist or result therefrom, (ii) the Company and its
Subsidiaries will be in Pro Forma Compliance with Article V
(Financial Covenant) after giving effect to the incurrence or
issuance of such Indebtedness and (iii) as of the date any such Indebtedness is
Incurred, after giving Pro Forma Effect to such Indebtedness, (A) the Company’s
Annualized EBITDA Ratio for the four full Fiscal Quarters immediately preceding
such date shall be greater than or equal to 2.0 to 1.0 and (B) the Company’s
Senior Leverage Ratio as of such date shall be less than or equal to 3.25 to
1.0; and


 


(t)            all premiums (if any), interest
(including post-petition interest), fees, expenses, charges and additional or
contingent interest on obligations described in clauses (a)
through (s) above.


 


Section 8.2            Liens, Etc.


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, create or suffer to exist, any Lien
upon or with respect to any of their respective properties or assets, whether
now owned or hereafter acquired, or assign, or permit any of its Subsidiaries
to assign, any right to receive income, except for the following:


 


(a)           Liens created pursuant to the Loan
Documents;


 


(b)           Liens existing on the date of this
Agreement and disclosed on Schedule 8.2
(Existing Liens) or, to the extent not listed in such schedule,
where the property or assets subject to such Liens have a Fair Market Value
that does not exceed $5,000,000 in the aggregate, and any modifications,
replacements, renewals or extensions thereof; provided,
however, that (i) the Lien does
not extend to any additional property other than (A) after-acquired property
that is affixed or incorporated into the property covered by such Lien or
financed by Indebtedness permitted under Section
8.1 (Indebtedness) and (B) proceeds and products thereof and (ii)
the renewal, extension or refinancing of the obligations secured by such Liens
is permitted by Section 8.1 (Indebtedness);


 


(c)           Liens for taxes, assessments or
governmental charges which are not overdue for a period of more than 30 days or
which are being contested in good faith and by


 


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appropriate actions diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;


 


(d)           statutory Liens of landlords,
carriers, warehousemen, mechanics, materialmen, repairmen, construction
contractors or other like Liens arising in the ordinary course of business
which secure amounts not overdue for a period of more than thirty 30 days or if
more than 30 days overdue, are unfiled and no other action has been taken to
enforce such Lien or which are being contested in good faith and by appropriate
actions diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person;


 


(e)           (i) pledges or deposits in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance and other social security legislation and (ii) pledges
and deposits in the ordinary course of business securing liability for
reimbursement or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of) insurance
carriers providing property, casualty or liability insurance to the Company or
any of its Subsidiaries;


 


(f)            deposits to secure the performance
of bids, trade contracts, governmental contracts and leases (other than
Indebtedness for borrowed money), statutory obligations, surety, stay, customs
and appeal bonds, performance bonds and other obligations of a like nature
(including those to secure health, safety and environmental obligations)
incurred in the ordinary course of business;


 


(g)           easements, rights-of-way,
restrictions, encroachments, protrusions and other similar encumbrances and
title defects affecting real property which, in the aggregate, do not
materially interfere with the ordinary conduct of the business of the
applicable Person;


 


(h)           Liens securing judgments for the
payment of money not constituting an Event of Default under Section 9.1(g) (Events of Default);


 


(i)            Liens securing Indebtedness
permitted under Section 8.1(f)
(Indebtedness); provided,
however, that (i) such Liens
attach concurrently with or within two hundred and seventy (270) days after the
acquisition, repair, replacement, construction or improvement (as applicable)
of the property subject to such Liens, (ii) such Liens do not at any time
encumber any property except for accessions to such property other than the
property financed by such Indebtedness and the proceeds and the products
thereof and (iii) with respect to Capitalized Leases, such Liens do not at any
time extend to or cover any assets (except for accessions to such assets) other
than the assets subject to such Capitalized Leases; provided, further,
that individual financings of equipment provided by one lender may be
cross-collateralized to other financings of equipment provided by such lender;


 


(j)            leases, licenses, subleases or
sublicenses granted to others in the ordinary course of business, which do not
(i) interfere in any material respect with the business of the Company or any
of its material Subsidiaries or (ii) secure any Indebtedness;


 


(k)           Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods in the ordinary course of business;


 


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(l)            Liens (i) of a collection bank
arising under Section 4-210 of the Uniform Commercial Code on items in the
course of collection, (ii) attaching to commodity trading accounts or other
commodities brokerage accounts incurred in the ordinary course of business; and
(iii) in favor of a banking institution arising as a matter of law encumbering
deposits (including the right of set-off) and which are within the general
parameters customary in the banking industry;


 


(m)          Liens (i) on cash advances in favor of
the seller of any property to be acquired in an Investment permitted pursuant
to Sections 8.3(c) to be applied
against the purchase price for such Investment, and (ii) consisting of an
agreement to Dispose of any property in an Asset Sale permitted under Section 8.4 (Sale of Assets), in each
case, solely to the extent such Investment or Disposition, as the case may be,
would have been permitted on the date of the creation of such Lien;


 


(n)           Liens on property of any Foreign
Subsidiary that does not constitute Collateral, which Liens secure Indebtedness
of such Foreign Subsidiary permitted under Section
8.1 (Indebtedness);


 


(o)           Liens in favor of the Company or
another Loan Party securing Indebtedness permitted under Section 8.1(e) (Indebtedness);


 


(p)           Liens existing on property at the
time of its acquisition or existing on the property of any Person at the time
such Person becomes a Subsidiary, in each case after the date hereof (other
than Liens on the Equity Interests of any Person that becomes a Subsidiary); provided that (i) such Lien was not created in contemplation
of such acquisition or such Person becoming a Subsidiary, (ii) such Lien does
not extend to or cover any other assets or property (other than the proceeds or
products thereof and other than after-acquired property subjected to a Lien
securing Indebtedness and other obligations incurred prior to such time and
which Indebtedness and other obligations are permitted hereunder that require,
pursuant to their terms at such time, a pledge of after-acquired property, it
being understood that such requirement shall not be permitted to apply to any
property to which such requirement would not have applied but for such
acquisition), and (iii) the Indebtedness secured thereby is permitted under Section 8.1(f), (i) or (m) (Indebtedness);


 


(q)           Liens arising from precautionary UCC
financing statement filings regarding leases entered into by the Company or any
of its Subsidiaries in the ordinary course of business;


 


(r)            Liens arising out of conditional
sale, title retention, consignment or similar arrangements for sale of goods
entered into by the Company or any of its Subsidiaries in the ordinary course
of business permitted by this Agreement;


 


(s)           Liens deemed to exist in connection
with Investments in repurchase agreements under Section 8.3 (Investments);


 


(t)            Liens encumbering reasonable
customary initial deposits and margin deposits and similar Liens attaching to
commodity trading accounts or other brokerage accounts incurred in the ordinary
course of business and not for speculative purposes;


 


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(u)           Liens that are contractual rights of
set-off (i) relating to the establishment of depository relations with banks
not given in connection with the issuance of Indebtedness, (ii) relating to
pooled deposit or sweep accounts of the Company or any Subsidiary to permit
satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of the Company and its Subsidiaries or (iii) relating to
purchase orders and other agreements entered into with customers or the Company
or any Subsidiary in the ordinary course of business; 


 


(v)           Liens solely on any cash earnest
money deposits made by the Company or any of its Subsidiaries in connection
with any letter of intent or purchase agreement permitted hereunder;


 


(w)          Permitted Exceptions (as defined in
the Mortgages); 


 


(x)            other Liens securing Indebtedness at
any time outstanding in an aggregate principal amount not to exceed $25,000,000;


 


(y)           in the case of leased Real Property,
(i) liens on the fee interest in the land held by the landlord under the
applicable lease, (ii) rights of the landlord under the applicable lease, (iii)
all superior, underlying and ground leases and all renewals, amendments,
modifications, replacements, substitutions and extensions thereof; and 


 


(z)            licenses, sublicenses or similar
rights to use any patent, trademark, copyright or other intellectual property
right granted to others by the Company or any of its Subsidiaries in the
ordinary course of business, which do not interfere in any material respect
with the business of the Company or such Subsidiary.


 


Section 8.3            Investments


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, make or maintain, directly or
indirectly, any Investment, except for the following:


 


(a)           Investments existing on the date of
this Agreement and disclosed on Schedule 8.3 (Existing
Investments);


 


(b)           advances or extensions of credit on
terms customary in the industry in the form of accounts or other receivables
incurred or pre-paid film rentals, and loans and advances made in settlement of
such accounts receivable, all in the ordinary course of business consistent
with past practice;


 


(c)           Investments by (i) any Loan Party in
any other Loan Party, (ii) any Subsidiary that is not a Loan Party in the
Company or any other Subsidiary or (iii) any Loan Party in a Subsidiary that is
not a Loan Party; provided, however, that the Dollar Equivalent of the
aggregate outstanding amount of all Investments permitted pursuant to this clause (iii) shall not exceed $100,000,000
at any time;


 


(d)           any Investment in Cash Equivalents; provided, however,
that, in the case of all of the foregoing obligations, they mature within 12
months of the date of purchase (unless required to mature earlier pursuant to
the definition of “Cash Equivalents”);


 


106

















 


(e)           so long as no Default or Event of
Default has occurred and is continuing or would result from such Investment,
Investments by the Company or any Subsidiary of the Company in another Person,
if (i) as a result of such Investment, (A) such other Person becomes a Loan
Party or (B) such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all of its assets to, the Company or
another Loan Party and (ii) such other Person is engaged substantially only in
the lines of business permitted under Section
8.8 (Change in Nature of Business);


 


(f)            loans or advances to employees of
the Company or any Subsidiary in the ordinary course of business consistent
with past practices, not to exceed $2,000,000 in aggregate amount at any time
outstanding;


 


(g)           refundable construction advances made
with respect to the construction of motion picture exhibition theatres in the
ordinary course of business consistent with past practice;


 


(h)           so long as immediately before or
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing, Investments consisting of contributions of International
Assets to Permitted Joint Ventures; provided,
however, that the aggregate net
book value of all International Assets contributed by the Company and its
Subsidiaries to any Permitted Joint Venture shall not exceed $150,000,000
either individually or in the aggregate;


 


(i)            Investments by the Company or any
Subsidiary in connection with a Permitted Acquisition;


 


(j)            Investments made using Stock of the
Company; provided, however,
that (i) immediately before and immediately after giving Pro Forma Effect to
any such Investment, no Default or Event of Default shall have occurred and be
continuing and (ii) immediately after giving effect to such Investment, the
Company and its Subsidiaries shall be in Pro Forma Compliance with the covenant
set forth in Article V (Financial Covenant),
such compliance to be determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1 (Financial Statements) as though such Investment
had been consummated as of the first day of the fiscal period covered thereby
and evidenced by a certificate from the Chief Financial Officer of the Company
demonstrating such compliance calculation in reasonable detail; and


 


(k)           Investments not otherwise permitted
under this Section 8.3; provided, however,
that the aggregate amount of all such Investments, together with the aggregate
amount of all Restricted Payments made under Section
8.5(h) (Restricted Payments) shall not at any time exceed the sum of
(x) $150,000,000 plus (y) the
Available Amount plus (z) an
amount equal to the lesser of the return of cash with respect to any such
Investment and the initial amount of such Investment, in either case, less the
cost of disposition of such Investment; provided,
further, that in the event the
Company or any of its Subsidiaries makes an Investment in any Person under this
clause (k), and after the date of
making such Investment, such Person becomes a Guarantor, such Investment will
be reclassified as having been incurred under clause
(c) of this Section and the amount invested in such Investment will
become available for incurrence under this clause
(k) at such time. 


 


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Section 8.4            Sale of Assets


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, sell, convey, transfer, lease or
otherwise dispose (“Dispose” or “Disposition”) of, any of their respective
assets or any interest therein (including the sale or factoring at maturity or
collection of any accounts) to any Person (including any Unrestricted
Subsidiary), or permit or suffer any other Person to acquire any interest in
any of their respective assets or issue or sell any shares of their Stock or
any Stock Equivalents (any such disposition being an “Asset Sale”), except for the following:


 


(a)           any Asset Sale to any Loan Party;


 


(b)           sale or disposition of Stock or Stock
Equivalents of any Unrestricted Subsidiary;


 


(c)           transfers of assets that constitute
Investments in Unrestricted Subsidiaries permitted by Section 8.3(k) (Investments) hereof;


 


(d)           any Asset Sale where the Dollar
Equivalent of the Fair Market Value of the assets subject to such Asset Sale is
less than $5,000,000 individually or $35,000,000 in the aggregate;


 


(e)           (i) 
Dispositions of inventory in the ordinary course of business and (ii)
Dispositions of property or assets (other than operating theatres) that have
become obsolete, damaged, worn or surplus in the ordinary course of business;


 


(f)            like kind exchanges of theatres for
other theatres or property, in each case, for Fair Market Value;


 


(g)           as long as no Default or Event of
Default is continuing or would result therefrom, any Asset Sale for not less
than Fair Market Value of assets set forth on Schedule
8.4(g) (Asset Sales); provided,
however, that an amount equal to
all Net Cash Proceeds of such Asset Sale in excess of $250,000,000 are applied
to the payment of the Obligations as set forth in, and to the extent required
by, Section 2.9 (Mandatory Prepayments);


 


(h)           as long as no Default or Event of
Default is continuing or would result therefrom, any sale or disposition of any
Multiplex theatre for not less than Fair Market Value; provided, however,
that an amount equal to all Net Cash Proceeds of such sale or disposition are
applied to the payment of the Obligations as set forth in, and to the extent
required by, Section 2.9 (Mandatory
Prepayments);


 


(i)            as long as (i) no Default or Event
of Default is continuing or would result therefrom and (ii) at least 75% of the
aggregate consideration received by the Company or any Subsidiary from such
Asset Sale is in cash or Cash Equivalents, any other Asset Sale for not less
than Fair Market Value; provided,
however, that (A) the Dollar
Equivalent of the aggregate consideration received during any Fiscal Year for
all such Asset Sales shall not exceed $90,000,000 and (B) an amount equal to
all Net Cash Proceeds of such Asset Sale are applied to the payment of the
Obligations as set forth in, and to the extent required by, Section 2.9 (Mandatory Prepayments);


 


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(j)            any non-exclusive license of
patents, trademarks, copyrights or other intellectual property owned by the
Company or any of its Subsidiaries, which license is granted in the ordinary
course of business and which does not interfere in any material respect with
the business of the Company or such Subsidiary; and


 


(k)           any Asset Sale if the assets Disposed
of in such Asset Sale are contemporaneously leased back to the Company or the
applicable Subsidiary on fair market terms (whether pursuant to an operating
lease or a lease giving rise to a Capital Lease Obligation).


 


Section 8.5            Restricted Payments


 


The Company shall not, nor
shall permit any of its Subsidiaries to, directly or indirectly, declare,
order, pay, make or set apart any sum for any Restricted Payment, except for
the following:


 


(a)           (i) Restricted Payments by any
Subsidiary of the Company to any Loan Party and (ii) Restricted Payments by a
non-Wholly-Owned Subsidiary of the Company to its shareholders generally so
long as the Company or any Subsidiary which owns the equity interest or
interests in the non-Wholly-Owned Subsidiary paying such dividends receives at
least its proportionate share thereof (based on its relative holdings of equity
interests in the non-Wholly-Owned Subsidiary paying such dividends and taking
into account the relative preferences, if any, of the various classes of equity
interests in such Subsidiary);


 


(b)           dividends and distributions declared
and paid on the common Stock of the Company and payable only in common Stock of
the Company;


 


(c)           cash dividends on the Stock of the Company
to Holdings paid and declared in any Fiscal Year solely for the purpose of
funding the following:


 


(i)            ordinary operating expenses of
Holdings not in excess of $4,000,000 in the aggregate in any Fiscal Year; 


 


(ii)           reasonable and customary indemnification
claims made by directors or officers of Holdings attributable to the ownership
or operations of the Company and its Subsidiaries;


 


(iii)          payments by Holdings in respect of
foreign, federal, state or local taxes owing by Holdings in respect of the Company
and its Subsidiaries, but not greater than the amount that would be payable by
the Company and its Subsidiaries, on a consolidated, combined or unitary basis;


 


(iv)          the Restricted Payments permitted to
be made by Holdings under clause (g)
below; 


 


(v)           fees and expenses (other than to
Affiliates) related to any unsuccessful equity or debt offering permitted by
this Agreement; and


 


(vi)          management fees permitted to be paid
under Section 8.8(d) (Transactions with Affiliates);


 


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(d)           Restricted Payments by the Company to
pay (or make Restricted Payments to allow the Holdings to pay) for the
repurchase, retirement or other acquisition or retirement for value of common
Stock of the Company or Holdings held by any future, present or former
employee, director or consultant of the Company, Holdings or any of their
Subsidiaries pursuant to any management equity plan or stock option plan or any
other management or employee benefit plan or agreement, or may make Restricted
Payments in respect of SARs; provided,
however, that the aggregate
amount of Restricted Payments made under this clause
(d) does not exceed in any calendar year $10,000,000 (with unused
amounts in any calendar year being permitted to be carried over to the two
succeeding calendar years); provided,
further, that such amount in any
calendar year may be increased by an amount not to exceed (i) the Net Cash
Proceeds from the sale of Stock (other than Disqualified Stock) to members of
management, directors or consultants of Holdings or its Subsidiaries that
occurs after the Closing Date plus
(ii) the amount of any cash bonuses otherwise payable to members of management,
directors or consultants of Holdings or any of its Subsidiaries in connection
with the Transactions that are foregone in return for the receipt of Stock of
the Company or Holdings pursuant to a deferred compensation plan plus (iii) the cash proceeds of key man
life insurance policies received by Holdings, the Company or its Subsidiaries after
the Closing Date (provided, that
Holdings may elect to apply all or any portion of the aggregate increase
contemplated by clauses (i), (ii) and (iii)
above in any calendar year) less
(iv) the amount of any Restricted Payments previously made pursuant to clauses (i), (ii) and (iii)
above;


 


(e)           Restricted Payments of up to (i) in
the event the Net Senior Secured Leverage Ratio is equal to or less than 1.5 to
1.0, but greater than 1.0 to 1.0, 25%, (ii) in the event the Net Senior Secured
Leverage Ratio is equal to or less than 1.0 to 1.0, but greater than 0.75 to
1.0, 50% and (iii) in the event the Net Senior Secured Leverage Ratio is equal
to or less than 0.75 to 1.0, 75% of the aggregate amount of Net Cash Proceeds
received during the Fiscal Year immediately preceding such Restricted Payment,
from all Asset Sales consummated during such Fiscal Year under Section 8.4(g) (Sale of Assets) to the
extent such Net Cash Proceeds are not required to prepay the Loans under Section 2.9(a)(i)(A) (Mandatory Prepayments);


 


(f)            (i) the repurchase of Stock or
Subordinated Debt, if such repurchase is completed through the issuance of
Stock or new Permitted Subordinated Indebtedness, (ii) regularly scheduled or
otherwise required repayments or redemptions of Subordinated Debt and (iii)
renewals, extensions, refinancings and refundings of Subordinated Debt, as long
as such renewal, extension, refinancing or refunding is permitted under Section 8.1 (Indebtedness); 


 


(g)           the repurchase of company granted
stock awards or options necessary to satisfy obligations attributable to tax
withholding; and


 


(h)           Restricted Payments not otherwise
permitted under this Section 8.5;
provided, however, that the aggregate amount of all
such Restricted Payments, together with the aggregate amount of all Investments
made under Section 8.3(k), shall
not exceed (i) $150,000,000 plus
(ii) the Available Amount;


 


provided,
however, that the Restricted
Payments described in clauses (c)
through (h) above shall not be
permitted if either (A) an Event of Default or Default shall have occurred and
be continuing at the date of declaration or payment thereof or would result
therefrom or (B) such Restricted Payment is prohibited under the terms of any
Indebtedness (other than the Obligations) of the Company or any of its
Subsidiaries.


 


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Section 8.6            Restriction on Fundamental Changes


 


The Company shall not, nor
shall permit any of its Subsidiaries to, (i) merge with any Person, (ii)
consolidate with any Person or (iii) liquidate, wind up or dissolve itself,
except that:


 


(a)           any Subsidiary may merge with (i) any
Borrower (including a merger, the purpose of which is to reorganize such
Borrower into a new jurisdiction); provided,
however, that such Borrower shall
be the continuing or surviving Person (and, in the case of any such transaction
involving a Domestic Loan Party, the continuing or surviving Person shall be
organized under the laws of any state of the United States of America or the
District of Columbia) or (ii) any one or more other Subsidiaries; provided, however,
that when any Subsidiary that is a Loan Party is merging with another
Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B)
to the extent constituting an Investment, such Investment must be an Investment
permitted under Section 8.3(c) (Investments)
or Indebtedness permitted under Section
8.1(e) (Indebtedness);


 


(b)           (i) any Subsidiary that is not a Loan
Party may merge or consolidate with or into any other Subsidiary that is not a
Loan Party and (ii) any Subsidiary (other than a Borrower) may liquidate, wind
up, dissolve or change its legal form if the Company determines in good faith
that such action is in the best interests of the Company and if not materially
disadvantageous to the Lenders;


 


(c)           so long as no Default or Event of
Default exists or would result therefrom, any Subsidiary may merge with any
other Person in order to effect an Investment permitted pursuant to Section 8.3 (Investments); provided, however,
that (i) the continuing or surviving Person shall be a Subsidiary, which
together with each of its Subsidiaries, shall have complied with the
requirements of Section 7.11 (Additional
Collateral and Guaranties) and (ii) to the extent constituting an
Investment, such Investment must be a permitted Investment in accordance with Section 8.3 (Investments);


 


(d)           the Company and its Subsidiaries may
consummate the Merger; and


 


(e)           so long as no Default or Event of
Default exists or would result therefrom, a merger, dissolution, liquidation or
consolidation, the purpose of which is to effect an Asset Sale permitted
pursuant to Section 8.4 (Sale of Assets),
may be effected.


 


Section 8.7            Change in Nature of Business


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, make any material change in the
nature or conduct of its business as carried on at the date hereof, whether in
connection with a Permitted Acquisition or otherwise.


 


Section 8.8            Transactions with Affiliates


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, enter into any transaction of any
kind with any Affiliate of the Company, whether or not in the ordinary course
of business, other than:


 


111

















 


(a)           transactions among (i) the Loan
Parties or (ii) Grupo Cinemex and its Subsidiaries;


 


(b)           on fair and reasonable terms
substantially as favorable to the Company or such Subsidiary as would be
obtainable by the Company or such Subsidiary at the time in a comparable arm’s-length
transaction with a Person other than an Affiliate;


 


(c)           the payment of fees and expenses in
connection with the consummation of the Transactions;


 


(d)           so long as no Event of Default shall
have occurred and be continuing under Section
9.1(f) hereof, any payments of management, consulting monitoring and
advisory fees to the Permitted Holders (plus
any unpaid management and monitoring fees within such amount accrued in any
prior year) and related indemnities and reasonable out-of-pocket expenses
attributable to the ownership or operations of the Company and its
Subsidiaries, and in each case pursuant to the Sponsor Management Agreement as
in effect on the Closing Date;


 


(e)           equity issuances, repurchases,
retirement or other acquisition of Stock by the Company permitted under Section 8.5  (Restricted Payments) hereof;


 


(f)            loans and other transactions by the
Company and its Subsidiaries to the extent permitted under this Article VIII (Negative Covenants);


 


(g)           employment and severance arrangements
between Holdings, the Company and its Subsidiaries and their respective
officers and employees in the ordinary course of business;


 


(h)           payments by Holdings, the Company and
its Subsidiaries pursuant to the tax sharing agreements among Holdings, the
Company and its Subsidiaries on customary terms to the extent attributable to
the ownership or operation of the Company and its Subsidiaries;


 


(i)            the payment of customary fees and
reasonable out-of-pocket cost to, and indemnities provided on behalf of,
directors, officers, employees and consultants of Holdings, the Company and the
Subsidiaries in the ordinary course of business to the extent attributable to
the ownership or operation of the Company and its Subsidiaries, as determined
in good faith by the board of directors of the Company or senior management
thereof;


 


(j)            transactions pursuant to permitted
agreements in existence on the Closing Date and set forth on Schedule 8.8 hereto or any amendment
thereto to the extent such an amendment is not adverse to the Lenders in any material
respect;


 


(k)           dividends, redemptions and
repurchases permitted under Section 8.5  (Restricted
Payments) hereof; and


 


(l)            payments by the Company and any
Subsidiaries to the Permitted Holders made for any customary financial
advisory, financing, underwriting or placement services or in respect of other
investment banking activities, including in connection with acquisitions or divestitures,
which payments are (i) pursuant to the Sponsor Management Agreement as in effect
on the Closing Date and (ii) approved by the majority of the members of the
board of directors or


 


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a majority of the disinterested
members of the board of directors of the Company, in each case in good faith.


 


Section 8.9            Limitations on Restrictions on
Subsidiary Distributions; No New Negative Pledge


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, (a) agree to enter into or suffer
to exist or become effective any consensual encumbrance or restriction of any
kind on the ability of such Subsidiary to pay dividends or make any other
distribution or transfer of funds or assets or make loans or advances to or
other Investments in, or pay any Indebtedness owed to, the Company or any
Subsidiary of the Company or (b) enter into or suffer to exist or become
effective any agreement prohibiting or limiting the ability of the Company or
any Subsidiary of the Company to create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, to secure the Obligations, including any agreement
requiring any other Indebtedness or Contractual Obligation to be equally and
ratably secured with the Obligations; provided,
however, that the foregoing shall
not apply to Contractual Obligations which (i) (A) exist on the date hereof and
(to the extent not otherwise permitted by this Section
8.9) are listed on Schedule 8.9
and (B) to the extent Contractual Obligations permitted by clause (A) are set forth in an agreement
evidencing Indebtedness, are set forth in any agreement evidencing any
permitted renewal, extension or refinancing of such Indebtedness so long as
such renewal, extension or refinancing does not expand the scope of such
Contractual Obligation, (ii) are binding on a Subsidiary at the time such
Subsidiary first becomes a Subsidiary of the Company, so long as such
Contractual Obligations were not entered into in contemplation of such Person
becoming a Subsidiary of the Company, (iii) represent Indebtedness of a Subsidiary
of the Company which is not a Loan Party which is permitted by Section 8.1 (Indebtedness), (iv) arise in
connection with any Asset Sale permitted by Section
8.4 (Sale of Assets), (v) are customary provisions in joint venture
agreements and other similar agreements applicable to joint ventures permitted
under Section 8.3 (Investments)
and applicable solely to such joint venture entered into in the ordinary course
of business, (vi) are negative pledges and restrictions on Liens in favor of
any holder of Indebtedness permitted under Section
8.1 (Indebtedness), but solely to the extent any negative pledge
relates to the property financed by or the subject of such Indebtedness (and
excluding in any event any Indebtedness arising under any Indenture or Subordinated
Debt), (vii) are customary restrictions on leases, subleases, licenses or asset
sale agreements otherwise permitted hereby so long as such restrictions may
relate to the assets subject thereto, (viii) comprise restrictions imposed by
any agreement relating to secured Indebtedness permitted pursuant to Section 8.1(f) (Indebtedness) to the
extent that such restrictions apply only to the property or assets securing
such Indebtedness, (ix) are customary provisions restricting subletting or
assignment of any lease governing a leasehold interest, (x) are customary
provisions restricting assignment of any agreement entered into in the ordinary
course of business and (xi) are restrictions on cash or other deposits imposed
by customers under contracts entered into in the ordinary course of business.


 


Section 8.10         Modification of Related Documents


 


The Company shall not, nor
shall it permit any of its Subsidiaries to alter, rescind, terminate, amend,
supplement, waive or otherwise modify any provision of any Related Document, except
for modifications that are not materially adverse to the interests of the
Secured Parties under the Loan Documents or in the Collateral.


 


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Section 8.11         Modification of Debt Agreements


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, change or amend the terms of any of
the Subordinated Note Indentures, or any other subordinated notes or other subordinated
debt securities (or any indenture or agreement or other material document
entered into in connection therewith) if the effect of such amendment is to (a)
increase the interest rate on such Indebtedness, (b) change the dates upon
which payments of principal or interest are due on such Indebtedness other than
to extend such dates, (c) change any default or event of default other than to
delete or make less restrictive any default provision therein, or add any
covenant with respect to such Indebtedness, (d) change the subordination
provisions of such Indebtedness, (e) change the redemption or prepayment
provisions of such Indebtedness other than to extend the dates therefor or to
reduce the premiums payable in connection therewith or (f) change or amend any
other term in a manner materially adverse to the interests of the Secured
Parties under the Loan Documents or in the Collateral.


 


Section 8.12         Modification of Constituent Documents


 


The Company shall not, nor
permit any of its Subsidiaries to, change its capital structure (including in
the terms of its outstanding Stock) or otherwise amend its Constituent
Documents in a manner materially adverse to the Secured Parties.


 


Section 8.13         Accounting Changes; Fiscal Year


 


The Company shall not, and
shall not permit any Subsidiary of the Company to, change its (a) accounting
treatment and reporting practices or tax reporting treatment, except as
required by GAAP or any Requirement of Law and disclosed to the Lenders and the
Administrative Agent or (b) Fiscal Year.


 


Section 8.14         Margin Regulations


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, use all or any portion of the
proceeds of any credit extended hereunder to purchase or carry margin stock
(within the meaning of Regulation U of the Federal Reserve Board) in
contravention of Regulation U of the Federal Reserve Board.


 


Section 8.15         No Speculative Transactions


 


The Company shall not, nor
shall it permit any of its Subsidiaries to, engage in any speculative
transaction or in any transaction involving Hedging Contracts, except for the
sole purpose of hedging in the ordinary course of business and consistent with
industry practices.


 


Section 8.16         Designation of Senior Debt


 


The Company shall not, nor
permit any of its Subsidiaries to, designate any Indebtedness, other than the
Obligations and the Senior Notes, as “Senior
Indebtedness,” “Senior Secured
Financing” or “Designated Senior
Indebtedness” (or any comparable term) under and as defined in the
Subordinated Note Indentures and any documentation with respect to any other
subordinated Indebtedness of the Company and each of its Subsidiaries.


 


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ARTICLE IX



EVENTS OF DEFAULT


 


Section 9.1            Events of Default


 


Each of the following events
shall be an “Event of Default”:


 


(a)           any Borrower shall fail to pay any
principal of any Loan or any Reimbursement Obligation when the same becomes due
and payable; or


 


(b)           any Borrower shall fail to pay any
interest on any Loan, any fee under any of the Loan Documents or any other
Obligation (other than one referred to in clause
(a) above) and such non-payment continues for a period of five
Business Days after the due date therefor; or


 


(c)           any representation or warranty made
or deemed made by any Loan Party in any Loan Document or by any Loan Party (or
any of its officers) in connection with any Loan Document shall prove to have
been incorrect in any material respect when made or deemed made; or


 


(d)           any Loan Party shall fail to perform
or observe:


 


(i)            any term, covenant or agreement
contained in Article V (Financial Covenant),
as such Article may be waived, amended or otherwise modified from time to time
by the Requisite Revolving Credit Lenders pursuant to Section 11.1 (Amendments, Waivers, Etc.);


 


(ii)           any term, covenant or agreement
contained in Section 6.1 (Financial Statements),
6.2(a) (Default Notices), 7.1 (Preservation of Corporate Existence, Etc.) (solely with
respect to the Loan Parties), 7.6 (Access), 7.9 (Application of Proceeds), or 7.11 (Additional
Collateral and Guaranties) or Article VIII (Negative
Covenants); or 


 


(iii)          any other term, covenant or agreement
contained in this Agreement or in any other Loan Document if such failure under
this clause (iii) shall remain unremedied for
30 days after the date on which written notice thereof shall have been given to
the Company by the Administrative Agent or any Lender; or


 


(e)           (i) the Company or any other Loan
Party or any Significant Subsidiary of the Company (other than the Mexican
Borrowers and their respective Subsidiaries if no Peso Outstandings or Peso
Commitments remain outstanding and all outstanding Indebtedness of the Mexican
Borrowers and their respective Subsidiaries is Non-Recourse Indebtedness) shall
fail to make any payment on any Indebtedness of the Company or any such
Subsidiary (other than the Obligations) or any Guaranty Obligation in respect
of Indebtedness of any other Person, and, in each case, such failure relates to
Indebtedness having a principal amount of $25,000,000 or more, when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), (ii) any other event shall occur or
condition shall exist under any agreement or instrument relating to any such
Indebtedness, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Indebtedness or


 


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(iii) any such Indebtedness
shall become or be declared to be due and payable, or be required to be prepaid
or repurchased (other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof; or


 


(f)            (i) the Company or any other Loan
Party with assets greater than $1,000,000 or any Significant Subsidiary of the
Company (other than the Mexican Borrowers and their respective Subsidiaries if
no Peso Outstandings or Peso Commitments remain outstanding and all outstanding
Indebtedness of the Mexican Borrowers and their respective Subsidiaries is
Non-Recourse Indebtedness) shall generally not pay its debts as such debts become
due, shall admit in writing its inability to pay its debts generally or shall
make a general assignment for the benefit of creditors, (ii) any proceeding
shall be instituted by or against the Company or any other Loan Party with
assets greater than $1,000,000 or any Significant Subsidiary of the Company (other
than the Mexican Borrowers and their respective Subsidiaries if no Peso
Outstandings or Peso Commitments remain outstanding and all outstanding
Indebtedness of the Mexican Borrowers and their respective Subsidiaries is Non-Recourse
Indebtedness) seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts, under any Requirement of Law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a custodian, receiver,
trustee or other similar official for it or for any substantial part of its
property; provided, however, that, in the case of any such
proceedings instituted against the Company or any such Loan Party or any such Significant
Subsidiary (but not instituted by the Company or such Loan Party or such Subsidiary)
either such proceedings shall remain undismissed or unstayed for a period of 60
days or more or any action sought in such proceedings shall occur or (iii) the
Company or any other Loan Party with assets greater than $1,000,000 or any
Significant Subsidiary of the Company (other than the Mexican Borrowers and
their respective Subsidiaries if no Peso Outstandings or Peso Commitments
remain outstanding and all outstanding Indebtedness of the Mexican Borrowers
and their respective Subsidiaries is Non-Recourse Indebtedness) shall take any
corporate (or equivalent) action to authorize any action set forth in clauses (i) or (ii) above; or


 


(g)           one or more judgments or orders (or
other similar process) involving, in the case of money judgments, an aggregate
amount whose Dollar Equivalent exceeds $25,000,000, to the extent not covered
by insurance, shall be rendered against the Company or any other Loan Party or
any Significant Subsidiary of the Company (other than the Mexican Borrowers and
their respective Subsidiaries if no Peso Outstandings or Peso Commitments
remain outstanding and all outstanding Indebtedness of the Mexican Borrowers
and their respective Subsidiaries is Non-Recourse Indebtedness) and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or


 


(h)           an ERISA Event shall occur and the
Dollar Equivalent of the amount of all liabilities and deficiencies resulting
therefrom, whether or not assessed, exceeds $25,000,000 in the aggregate; or


 


(i)            any material provision of any Loan
Document after delivery thereof shall for any reason fail or cease to be valid
and binding on, or enforceable against, any Loan Party party thereto, or any
Loan Party shall state in writing that any provision of any Loan Document after
delivery thereof is for any reason not valid and binding on, or enforceable
against, any Loan Party party thereto; or


 


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(j)            any Collateral Document shall for
any reason fail or cease to create a valid and enforceable Lien on any
Collateral in excess of $5,000,000 in the aggregate purported to be covered
thereby or, except as permitted by the Loan Documents, such Lien shall fail or
cease to be a perfected and first priority Lien, or any Loan Party shall so
state in writing; or


 


(k)           there shall occur any Change of
Control; or


 


(l)            any of the Obligations shall cease
to be “Senior Indebtedness,” “Senior Secured Financing” or “Designated Senior Indebtedness” (or any
comparable term) under and as defined in the Subordinated Note Indentures and
any documentation with respect to any other subordinated Indebtedness of the
Company or any of its Subsidiaries.


 


Section 9.2            Remedies


 


During the continuance of any
Event of Default, the Administrative Agent (a) may, and, at the request of
the Requisite Lenders, shall, by notice to the Company declare that all or any
portion of the Commitments be terminated, whereupon the obligation of each
Lender to make any Loan and each Issuer to Issue any Letter of Credit shall
immediately terminate and (b) may and, at the request of the Requisite
Lenders, shall, by notice to the Company, declare the Loans, all interest
thereon and all other amounts and Obligations payable under this Agreement to
be forthwith due and payable, whereupon the Loans, all such interest and all
such amounts and Obligations shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrowers; provided, however,
that upon the occurrence of the Events of Default specified in Section 9.1(f) (Events of Default),
(x) the Commitments of each Lender to make Loans and the commitments of each
Lender and Issuer to Issue or participate in Letters of Credit shall each
automatically be terminated and (y) the Loans, all such interest and all such
amounts and Obligations shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which
are hereby expressly waived by the Borrowers. 
In addition to the remedies set forth above, the Administrative Agent
may exercise any remedies provided for by the Collateral Documents in
accordance with the terms thereof or any other remedies provided by applicable
law.


 


Section 9.3            Actions in Respect of Letters of
Credit


 


At any time (i) upon the
Revolving Credit Termination Date, (ii) after the Revolving Credit Termination
Date when the aggregate funds on deposit in Cash Collateral Accounts shall be
less than 105% of the Letter of Credit Obligations and (iii) as may be required
by Section 2.9(d) (Mandatory Prepayments),
the Company shall pay to the Administrative Agent in immediately available
funds at the Administrative Agent’s office referred to in Section 11.8 (Notices, Etc.), for
deposit in a Cash Collateral Account, (x) in the case of clauses  (i)
and (ii) above, the amount required
to that, after such payment, the aggregate funds on deposit in the Cash
Collateral Accounts equals or exceeds 105% of the sum of all outstanding Letter
of Credit Obligations and (y) in the case of clause
(iii) above, the amount required
by Section 2.9(d) (Mandatory Prepayments).  The Administrative Agent may, from time to
time after funds are deposited in any Cash Collateral Account, apply funds then
held in such Cash Collateral Account to the payment of any amounts, in
accordance with Section 2.9(d) (Mandatory Prepayments) and
Section 2.13(g) (Payments and
Computations), as shall have become or shall become due and payable
by the Company to the Issuers or Lenders in respect of the Letter of Credit
Obligations.


 


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The Administrative Agent shall promptly give written notice of any such
application; provided, however, that the failure to give such
written notice shall not invalidate any such application.


 


Section 9.4                                   Rescission


 


If at any time after termination of the Commitments or acceleration of
the maturity of the Loans, the Borrowers shall pay all arrears of interest and
all payments on account of principal of the Loans and Reimbursement Obligations
that shall have become due otherwise than by acceleration (with interest on
principal and, to the extent permitted by law, on overdue interest, at the
rates specified herein) and all Events of Default and Defaults (other than
non-payment of principal of and accrued interest on the Loans due and payable
solely by virtue of acceleration) shall be remedied or waived pursuant to Section 11.1 (Amendments, Waivers, Etc.),
then upon the written consent of the Requisite Lenders and written notice to
the Company, the termination of the Commitments or the acceleration and their consequences
may be rescinded and annulled; provided,
however, that such action shall
not affect any subsequent Event of Default or Default or impair any right or
remedy consequent thereon.  The
provisions of the preceding sentence are intended merely to bind the Lenders
and the Issuers to a decision that may be made at the election of the Requisite
Lenders, and such provisions are not intended to benefit the Borrowers and do
not give the Borrowers the right to require the Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are met.


 


ARTICLE X



THE AGENTS


 


Section 10.1                            Authorization and Action


 


(a)                                  Each
Lender and each Issuer hereby appoints Citicorp as the Administrative Agent,
and Banamex as the Mexican Facility Agent, hereunder and each Lender and each
Issuer authorizes each Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to such Agent under such agreements and to exercise such powers as
are reasonably incidental thereto. 
Without limiting the foregoing, each Lender and each Issuer hereby (i) authorizes
each Agent to execute and deliver, and to perform its obligations under, each
of the Loan Documents to which such Agent is a party, to exercise all rights,
powers and remedies that such Agent may have under such Loan Documents and (ii) authorizes
the Administrative Agent act as agent for the Lenders, Issuers and the other
Secured Parties under the Collateral Documents.


 


(b)                                 As
to any matters not expressly provided for by this Agreement and the other Loan
Documents (including enforcement or collection), no Agent shall be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Requisite Lenders, and such
instructions shall be binding upon all Lenders and each Issuer; provided, however,
that no Agent shall be required to take any action that (i) such Agent in
good faith believes exposes it to personal liability unless such Agent receives
an indemnification satisfactory to it from the Lenders and the Issuers with
respect to such action or (ii) is contrary to this Agreement or applicable
law.  Each Agent agrees to give to each
Lender and each Issuer, if applicable, prompt notice of each notice given to it
by any Loan Party pursuant to the terms of this Agreement or the other Loan
Documents.


 


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(c)                                  In
performing its functions and duties hereunder and under the other Loan
Documents, each Agent is acting solely on behalf of the Lenders and the Issuers
except to the limited extent provided in Section 2.7(b),
and its duties are entirely administrative in nature.  No Agent assumes and shall not be deemed to
have assumed any obligation other than as expressly set forth herein and in the
other Loan Documents or any other relationship as the agent, fiduciary or
trustee of or for any Lender, Issuer or holder of any other Obligation.  Each Agent may perform any of its duties
under any Loan Document by or through its agents or employees.


 


(d)                                 None
of the Arrangers, the Syndication Agent and the Co-Documentation Agents shall
have any obligations or duties whatsoever in such capacity under this Agreement
or any other Loan Document and shall incur no liability hereunder or thereunder
in such capacity.


 


Section 10.2                            Agent’s Reliance, Etc.


 


None of the Administrative Agent, the Mexican Facility Agent or any of
their respective Affiliates, directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it, him, her or them
under or in connection with this Agreement or the other Loan Documents, except
for its, his, her or their own gross negligence or willful misconduct.  Without limiting the foregoing, any Agent (a) may
treat the payee of any Note as its holder until such Note has been assigned in
accordance with Section 11.2(e) (Assignments
and Participations), (b) may rely on the Register to the extent
set forth in Section 2.7 (Evidence of
Debt), (c) may consult with legal counsel (including counsel to
the Borrowers or any other Loan Party), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts, (d) makes no warranty or representation
to any Lender or Issuer and shall not be responsible to any Lender or Issuer
for any statements, warranties or representations made by or on behalf of the
Company or any of its Subsidiaries in or in connection with this Agreement or
any other Loan Document, (e) shall not have any duty to ascertain or to
inquire either as to the performance or observance of any term, covenant or
condition of this Agreement or any other Loan Document, as to the financial
condition of any Loan Party or as to the existence or possible existence of any
Default or Event of Default, (f) shall not be responsible to any Lender or
Issuer for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the attachment, perfection or priority of any Lien
created or purported to be created under or in connection with, this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto or thereto and (g) shall incur no liability under or in respect of
this Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which writing may be a telecopy or
electronic mail) or any telephone message believed by it to be genuine and
signed or sent by the proper party or parties.


 


Section 10.3                            Posting of Approved
Electronic Communications


 


(a)                                  Each
of the Lenders, the Issuers and the Borrowers agree, and the Borrowers shall
cause each Guarantor to agree, that any Agent may, but shall not be obligated
to, make the Approved Electronic Communications available to the Lenders and
Issuers by posting such Approved Electronic Communications on IntraLinksTM or a
substantially similar electronic platform chosen by such Agent to be its
electronic transmission system (the “Approved
Electronic Platform”).


 


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(b)                                 Although
the Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified
by each Agent from time to time (including, as of the Closing Date, a dual
firewall and a User ID/Password Authorization System) and the Approved
Electronic Platform is secured through a single-user-per-deal authorization
method whereby each user may access the Approved Electronic Platform only on a
deal-by-deal basis, each of the Lenders, the Issuers and the Borrowers
acknowledges and agrees, and the Borrowers shall cause each Guarantor to
acknowledge and agree, that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution. 
In consideration for the convenience and other benefits afforded by such
distribution and for the other consideration provided hereunder, the receipt
and sufficiency of which is hereby acknowledged, each of the Lenders, the
Issuers and the Borrowers hereby approves, and the Borrowers shall cause each
Guarantor to approve, distribution of the Approved Electronic Communications
through the Approved Electronic Platform and understands and assumes, and the
Borrowers shall cause each Guarantor to understand and assume, the risks of
such distribution.


 


(c)                                  THE APPROVED ELECTRONIC PLATFORM AND THE
APPROVED ELECTRONIC COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”.  NONE OF THE AGENTS OR ANY OF ITS AFFILIATES
OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (THE “AGENT AFFILIATES”)
WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED ELECTRONIC
COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM AND EACH EXPRESSLY
DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND
THE APPROVED ELECTRONIC COMMUNICATIONS. 
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY THE AGENT AFFILIATES IN CONNECTION WITH THE
APPROVED ELECTRONIC PLATFORM OR THE APPROVED ELECTRONIC COMMUNICATIONS.


 


(d)                                 Each
of the Lenders, the Issuers and the Borrowers agree, and the Borrowers shall
cause each Guarantor to agree, that each Agent may, but (except as may be
required by applicable law) shall not be obligated to, store the Approved
Electronic Communications on the Approved Electronic Platform in accordance
with such Agent’s generally-applicable document retention procedures and
policies.


 


Section 10.4                            The Agents Individually


 


With respect to its Ratable Portion, Citicorp and Banamex shall have
and may exercise the same rights and powers hereunder and is subject to the
same obligations and liabilities as and to the extent set forth herein for any
other Lender.  The terms “Lenders”, “Revolving Credit Lenders”, “Term
Lenders”, “Requisite Lenders”
and any similar terms shall, unless the context clearly otherwise indicates,
include, without limitation, each Agent in its individual capacity as a Lender,
a Revolving Credit Lender, Term Lender or as one of the Requisite Lenders.  Citicorp, Banamex and their respective Affiliates
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with, any Loan Party as if Citicorp were not
acting as the Administrative Agent and Banamex were not acting as the Mexican
Facility Agent.


 


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Section 10.5                            Lender Credit Decision


 


Each Lender and each Issuer acknowledges that it shall, independently
and without reliance upon any Agent or any other Lender, conduct its own
independent investigation of the financial condition and affairs of the
Borrowers and each other Loan Party in connection with the making and
continuance of the Loans and with the issuance of the Letters of Credit.  Each Lender and each Issuer also acknowledges
that it shall, 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 decisions in taking or not taking
action under this Agreement and other Loan Documents.  Except for the documents expressly required
by any Loan Document to be transmitted by any Agent to the Lenders or the
Issuers, no Agent shall have any duty or responsibility to provide any Lender
or any Issuer with any credit or other information concerning the business,
prospects, operations, property, financial or other condition or
creditworthiness of any Loan Party or any Affiliate of any Loan Party that may
come into the possession of such Agent or any Affiliate thereof or any employee
or agent of any of the foregoing.


 


Section 10.6                            Indemnification


 


Each Lender agrees to indemnify each Agent and each of its Affiliates,
and each of their respective directors, officers, employees, agents and
advisors (to the extent not reimbursed by the Borrowers and without limiting
their obligation to do so), from and against such Lender’s aggregate Ratable
Portion of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements (including reasonable
fees, expenses and disbursements of financial and legal advisors) of any kind
or nature whatsoever that may be imposed on, incurred by, or asserted against,
such Agent or any of its Affiliates, directors, officers, employees, agents and
advisors in any way relating to or arising out of this Agreement or the other
Loan Documents or any action taken or omitted by such Agent under this
Agreement or the other Loan Documents; provided,
however, that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s or such Affiliate’s gross negligence or willful
misconduct.  Without limiting the
foregoing, each Lender agrees to reimburse each Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including reasonable fees,
expenses and disbursements of financial and legal advisors) incurred by such
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of its rights or
responsibilities under, this Agreement or the other Loan Documents, to the
extent that such Agent is not reimbursed for such expenses by the Borrowers or
another Loan Party.


 


Section 10.7                            Successor Agents


 


Any Agent may resign at any time by giving 30 days’ prior written
notice thereof to the Lenders and the Borrowers.  Upon any such resignation, the Requisite
Lenders shall have the right to appoint a successor Agent.  If no successor Agent shall have been so
appointed by the Requisite Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent’s giving of notice of resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
selected from among the Lenders.  In
either case, such appointment shall be subject to the prior written approval of
the Company (which approval may not be unreasonably withheld and shall not be
required upon the occurrence and during the continuance


 


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of an Event of Default).  Upon
the acceptance of any appointment as Agent by a successor Agent, such successor
Agent shall succeed to, and become vested with, all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement and the other
Loan Documents.  Prior to any retiring
Agent’s resignation hereunder as Agent, the retiring Agent shall take such
action as may be reasonably necessary to assign to the successor Agent its
rights as Agent under the Loan Documents. 
After such resignation, the retiring Agent shall continue to have the
benefit of this Article X as
to any actions taken or omitted to be taken by it while it was Agent under this
Agreement and the other Loan Documents.


 


Section 10.8                            Concerning the Collateral
and the Collateral Documents


 


(a)                                  Each
Lender and each Issuer agrees that any action taken by any Agent or the
Requisite Lenders (or, where required by the express terms of this Agreement, a
greater proportion of the Lenders) in accordance with the provisions of this
Agreement or of the other Loan Documents, and the exercise by such Agent or the
Requisite Lenders (or, where so required, such greater proportion) of the
powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders, Issuers and other Secured Parties. 
Without limiting the generality of the foregoing, the Administrative
Agent shall have the sole and exclusive right and authority to (i) act as
the disbursing and collecting agent for the Lenders and the Issuers with
respect to all payments and collections arising in connection herewith and with
the Collateral Documents, (ii) execute and deliver each Collateral
Document and accept delivery of each such agreement delivered by the Company or
any of its Subsidiaries, (iii) act as collateral agent for the Lenders,
the Issuers and the other Secured Parties for purposes of the perfection of all
security interests and Liens created by such agreements and all other purposes
stated therein, provided, however, that the Administrative Agent
hereby appoints, authorizes and directs the Mexican Facility Agent and each
Lender and Issuer to act as collateral sub-agent for the Administrative Agent,
the Lenders and the Issuers for purposes of the perfection of all security
interests and Liens with respect to the Collateral, including any Deposit
Accounts maintained by a Loan Party with, and cash and Cash Equivalents held
by, such Lender or such Issuer, (iv) manage, supervise and otherwise deal
with the Collateral, (v) take such action as is necessary or desirable to
maintain the perfection and priority of the security interests and Liens
created or purported to be created by the Collateral Documents and (vi) except
as may be otherwise specifically restricted by the terms hereof or of any other
Loan Document, exercise all remedies given to the Agents, the Lenders, the
Issuers and the other Secured Parties with respect to the Collateral under the
Loan Documents relating thereto, applicable law or otherwise.


 


(b)                                 Each
of the Lenders and the Issuers hereby consents to the release and hereby
directs, in accordance with the terms hereof, the Administrative Agent to
release (or, in the case of clause (ii) below,
release or subordinate) any Lien held by the Administrative Agent for the
benefit of the Lenders and the Issuers against any of the following:


 


(i)                                     all
of the Collateral and all Loan Parties, upon termination of the Commitments and
payment and satisfaction in full of all Loans, all Reimbursement Obligations
and all other Obligations that the Administrative Agent has been notified in
writing are then due and payable (and, in respect of contingent Letter of
Credit Obligations, with respect to which cash collateral has been deposited or
a back-up letter of credit has been issued, in either case in the appropriate
currency and on terms satisfactory to the Administrative Agent and the
applicable Issuers);


 


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(ii)                                  any
assets that are subject to a Lien permitted by Section 8.2(i) (Liens, Etc.); and


 


(iii)                               any part of the
Collateral sold or disposed of by a Loan Party if such sale or disposition is
permitted by this Agreement (or permitted pursuant to a waiver of or consent to
a transaction otherwise prohibited by this Agreement).


 


Each of the Lenders and the Issuers hereby directs the Administrative
Agent to execute and deliver or file such termination and partial release
statements and do such other things as are necessary to release Liens to be
released pursuant to this Section 10.8
promptly upon the effectiveness of any such release.


 


Section 10.9                            Collateral Matters Relating
to Related Obligations


 


The benefit of the Loan Documents and of the provisions of this
Agreement relating to the Collateral shall extend to and be available in
respect of any Secured Obligation arising under any Hedging Contract or Cash
Management Obligation or that is otherwise owed to Persons other than the
Administrative Agent, the Lenders and the Issuers (collectively, “Related Obligations”) solely on the
condition and understanding, as among the Administrative Agent and all Secured
Parties, that (a) the Related Obligations shall be entitled to the benefit
of the Loan Documents and the Collateral to the extent expressly set forth in
this Agreement and the other Loan Documents and to such extent the
Administrative Agent shall hold, and have the right and power to act with
respect to, the Guaranty and the Collateral on behalf of and as agent for the
holders of the Related Obligations, but the Administrative Agent is otherwise
acting solely as agent for the Lenders and the Issuers and shall have no
fiduciary duty, duty of loyalty, duty of care, duty of disclosure or other
obligation whatsoever to any holder of Related Obligations, (b) all
matters, acts and omissions relating in any manner to the Guaranty, the
Collateral, or the omission, creation, perfection, priority, abandonment or
release of any Lien, shall be governed solely by the provisions of this
Agreement and the other Loan Documents and no separate Lien, right, power or
remedy shall arise or exist in favor of any Secured Party under any separate
instrument or agreement or in respect of any Related Obligation, (c) each
Secured Party shall be bound by all actions taken or omitted, in accordance
with the provisions of this Agreement and the other Loan Documents, by the
Administrative Agent and the Requisite Lenders, each of whom shall be entitled
to act at its sole discretion and exclusively in its own interest given its own
Commitments and its own interest in the Loans, Letter of Credit Obligations and
other Obligations to it arising under this Agreement or the other Loan
Documents, without any duty or liability to any other Secured Party or as to
any Related Obligation and without regard to whether any Related Obligation
remains outstanding or is deprived of the benefit of the Collateral or becomes
unsecured or is otherwise affected or put in jeopardy thereby, (d) no
holder of Related Obligations and no other Secured Party (except the
Administrative Agent, the Lenders and the Issuers, to the extent set forth in
this Agreement) shall have any right to be notified of, or to direct, require
or be heard with respect to, any action taken or omitted in respect of the
Collateral or under this Agreement or the Loan Documents and (e) no holder
of any Related Obligation shall exercise any right of setoff, banker’s lien or
similar right except to the extent provided in Section 11.6
(Right of Set-off) and then only to the extent such right is
exercised in compliance with Section 11.7
(Sharing of Payments, Etc.).


 


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ARTICLE XI



MISCELLANEOUS


 


Section 11.1                            Amendments, Waivers, Etc.


 


(a)                                  No
amendment or waiver of any provision of this Agreement or any other Loan
Document (other than the Fee Letter) nor consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be in
writing and (x) in the case of any such waiver or consent, signed by the
Requisite Lenders (or by the Administrative Agent with the consent of the
Requisite Lenders) and (y) in the case of any other amendment, by the Requisite
Lenders (or by the Administrative Agent with the consent of the Requisite
Lenders) and the Company or the applicable Loan Party, as the case may be, and
then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no amendment, waiver or consent shall, unless in writing and signed by
each Lender directly affected thereby, in addition to the Requisite Lenders (or
the Administrative Agent with the consent thereof), do any of the following:


 


(i)                                     waive
any condition specified in Section 3.1 (Conditions
Precedent to Initial Loans and Letters of Credit) or 3.2(b) or (c) (Conditions
Precedent to Each Loan and Letter of Credit), except with respect to
a condition based upon another provision hereof, the waiver of which requires
only the concurrence of the Requisite Lenders and, in the case of the
conditions specified in Section 3.1 (Conditions
Precedent to Initial Loans and Letters of Credit), subject to the
provisions of Section 3.3 (Determinations of Initial
Borrowing Conditions);


 


(ii)                                  increase
the Commitment of such Lender or subject such Lender to any additional
obligation; 


 


(iii)                               extend the scheduled
final maturity of any Loan owing to such Lender, or waive, reduce or postpone
any scheduled date fixed for the payment or reduction of principal or interest
of any such Loan or fees owing to such Lender (it being understood that Section 2.9 (Mandatory Prepayments) does
not provide for scheduled dates fixed for payment) or for the reduction of such
Lender’s Commitment;


 


(iv)                              forgive,
reduce, or release any Borrower from its obligations to repay, the principal
amount of any Loan or Reimbursement Obligation owing to such Lender (other than
by the payment or prepayment thereof);


 


(v)                                 reduce
the rate of interest on any Loan or Reimbursement Obligation outstanding and
owing to such Lender or any fee payable hereunder to such Lender;


 


(vi)                              expressly
subordinate any of the Secured Obligations or any Liens securing the Secured
Obligations;


 


(vii)                           postpone any scheduled date
fixed for payment of interest or fees owing to such Lender or waive any such
payment;


 


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(viii)                        change the aggregate Ratable
Portions of Lenders required for any or all Lenders to take any action
hereunder;


 


(ix)                                (A)                              release
all or substantially all of the Collateral except as provided in Section 10.8(b) (Concerning the Collateral and the Collateral
Documents), (B) release any Borrower from its payment
obligation to such Lender under this Agreement or the Notes owing to such Lender
(if any), (C) release any material Guarantor or all or substantially all
of the Guarantors from its or their obligations under the Guaranty except in
connection with the sale or other disposition of a Guarantor (or all or
substantially all of the assets thereof) permitted by this Agreement (or
permitted pursuant to a waiver or consent of a transaction otherwise prohibited
by this Agreement) or (D) amend, modify or waive the proviso
in Section 11.10 (Binding Effect); or


 


(x)                                   amend
Section 10.8(b) (Concerning the
Collateral and the Collateral Documents), Section 11.7
(Sharing of Payments, Etc.), this Section 11.1
or any definition of the terms “Requisite Lenders,”
“Requisite Revolving Credit Lenders,” “Requisite Term Lenders” or “Ratable
Portion”;


 


and provided, further, that (A) any modification of
the application of payments to the Term Loans pursuant to Section 2.9 (Mandatory Prepayments)
shall require the consent of the Requisite Term Lenders, (B) no amendment,
waiver or consent shall, unless in writing and signed by any Special Purpose
Vehicle that has been granted an option pursuant to Section 11.2(e) (Assignments and Participations),
affect the grant or nature of such option or the right or duties of such Special
Purpose Vehicle hereunder, (C) no amendment, waiver or consent shall,
unless in writing and signed by the applicable Agent in addition to the Lenders
required above to take such action, affect the rights or duties of such Agent
under this Agreement or the other Loan Documents, (D) no amendment, waiver
or consent shall, unless in writing and signed by the applicable Swing Lender
in addition to the Lenders required above to take such action, affect the
rights or duties of such Swing Lender under this Agreement or the other Loan
Documents and (E) the Requisite Mexican Lenders (or the Administrative
Agent with the prior written consent thereof), on the one hand, and the
Borrowers, on the other hand, may amend, supplement or otherwise modify or
waive any of the terms and provisions (and related definitions) related solely
to the borrowings (but not including any conditions to such borrowings) and
payment procedures with respect to the Mexican Facility; provided, further,
that (w) the Administrative Agent may, at the request of the Company and
without the consent of any Lender, release Grupo Cinemex and Cadena as
Borrowers hereunder if no Peso Outstandings or Peso Commitments remain
outstanding, (x) the Administrative Agent may, with the consent of the Company,
amend, modify or supplement this Agreement to cure any ambiguity, omission,
defect or inconsistency, so long as such amendment, modification or supplement
does not adversely affect the rights of any Lender or any Issuer, (y) the
Administrative Agent and the Company may amend, modify or supplement this
Agreement to the extent necessary to implement the terms of a Facility Increase
in accordance with the terms hereof and (z) the Requisite Revolving Credit
Lenders (or the Administrative Agent with the prior written consent thereof),
on the one hand, and the Company, on the other hand, may amend, supplement or
otherwise modify or waive any of the terms and provisions (and related
definitions) of Article V (Financial
Covenant).


 


(b)                                 The
Administrative Agent may, but shall have no obligation to, with the written
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender.  Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. 
No notice to or demand on any Borrower in any case shall entitle such
Borrower to any


 


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other or further notice or demand in similar or other circumstances.


 


(c)                                  If,
in connection with any proposed amendment, modification, waiver or termination
requiring the consent of all Revolving Credit Lenders or Term Lenders, the
consent of Requisite Lenders is obtained but the consent of any Revolving
Credit Lender or Term Lender whose consent is required is not obtained (any
such Lender whose consent is not obtained as described in this Section 11.1 being referred to as a “Non-Consenting Lender”), then, at the
Company’s request, an Eligible Assignee reasonably acceptable to the
Administrative Agent shall have the right to purchase from such Non-Consenting
Lender, and such Non-Consenting Lender agrees that it shall, upon the
Administrative Agent’s request, sell and assign to the Lender acting as the
Administrative Agent or such Eligible Assignee, all of the Revolving Credit
Commitments and Revolving Credit Outstandings of such Non-Consenting Lender if
such Non-Consenting Lender is a Revolving Credit Lender and all of the Term
Loans of such Non-Consenting Lender if such Non-Consenting Lender is a Term
Lender, in each case, for an amount equal to the principal balance of all such
Revolving Loans or Term Loans, as applicable, held by the Non-Consenting Lender
and all accrued and unpaid interest and fees with respect thereto through the
date of sale; provided, however, that such purchase and sale shall
be recorded in the Register maintained by the Administrative Agent and not be
effective until (x) the Administrative Agent shall have received from such
Eligible Assignee an agreement in form and substance reasonably satisfactory to
the Administrative Agent and the Company whereby such Eligible Assignee shall
agree to be bound by the terms hereof and (y) such Non-Consenting Lender shall
have received payments of all Revolving Loans or Term Loans, as applicable,
held by it and all accrued and unpaid interest and fees with respect thereto
through the date of the sale.  Each
Lender agrees that, if it becomes a Non-Consenting Lender, it shall execute and
deliver to the Administrative Agent an Assignment and Acceptance to evidence
such sale and purchase and shall deliver to the Administrative Agent any Note
(if the assigning Lender’s Loans are evidenced by Notes) subject to such
Assignment and Acceptance; provided,
however, that the failure of any
Non-Consenting Lender to execute an Assignment and Acceptance shall not render
such sale and purchase (and the corresponding assignment) invalid and such
assignment shall be recorded in the Register.


 


Section 11.2                            Assignments and
Participations


 


(a)                                  Each
Lender may sell, transfer, negotiate or assign to one or more Eligible
Assignees all or a portion of its rights and obligations hereunder (including
all of its rights and obligations with respect to the Term Loans, the Revolving
Loans, the Swing Loans and the Letters of Credit); provided, however,
that (i)(A) if any such assignment shall be of the assigning Lender’s
Revolving Credit Outstandings and Revolving Credit Commitments, such assignment
shall cover the same percentage of such Lender’s Revolving Credit Outstandings
and Revolving Credit Commitments, (B) if any such assignment shall be of
the assigning Lender’s Peso Outstandings and Peso Commitments, such assignment
shall cover the same percentage of such Lender’s Peso Outstandings and Peso
Commitments and (C) if any such assignment shall be of the assigning
Lender’s Term Loans and Term Loan Commitments, such assignment shall cover the
same percentage of such Lender’s Term Loans and Term Loan Commitments, (ii) the
aggregate amount being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event (if less than the Assignor’s entire interest) be less than
(x) in the case of Revolving Credit Outstandings and Revolving Credit
Commitments, $5,000,000 or an integral multiple of $1,000,000 in excess thereof,
(y) in the case of Peso Outstandings and Peso Commitments, $1,000,000 or an
integral


 


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multiple of $1,000,000 in excess thereof and (z) in the case of Term
Loans and Term Loan Commitments, $1,000,000 or an integral multiple of
$1,000,000 in excess thereof, except, in either case, (A) with the consent
of the Company and the Administrative Agent or (B) if such assignment is
being made to a Lender or an Affiliate or Approved Fund of a Lender, and (iii) if
such Eligible Assignee is not, prior to the date of such assignment, a Lender
or an Affiliate or Approved Fund of a Lender, such assignment shall be subject
to the prior consent of the Administrative Agent, the Company and, with respect
to assignments of Revolving Credit Outstandings and Revolving Credit
Commitments, each Issuer (which consents shall not be unreasonably withheld or
delayed); provided, further, that, notwithstanding any other
provision of this Section 11.2,
the consent of the Company shall not be required for any assignment occurring
when any Event of Default under Section 9.1(a),
(b) or (f) shall have occurred and be
continuing.  Any such assignment need not
be ratable as among the Term Loan Facility and the Revolving Credit Facility.


 


(b)                                 The
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note (if the assigning Lender’s Loans are
evidenced by a Note) subject to such assignment.  Upon the execution, delivery, acceptance and
recording in the Register of any Assignment and Acceptance and, other than in
respect of assignments made pursuant to Section 2.17
(Substitution of Lenders) and Section 11.1(c) (Amendments,
Waivers, Etc.), the receipt by the Administrative Agent from the
assignee of an assignment fee in the amount of $3,500 from and after the
effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall become a party hereto and, to the extent that rights
and obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment and Acceptance, have the rights and obligations of
a Lender, and if such Lender were an Issuer, of such Issuer hereunder and
thereunder, and (ii) the Notes (if any) corresponding to the Loans
assigned thereby shall be transferred to such assignee by notation in the
Register and (iii) the assignor thereunder shall, to the extent that
rights and obligations under this Agreement have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights (except for those
surviving the payment in full of the Obligations) and be released from its
obligations under the Loan Documents, other than those relating to events or
circumstances occurring prior to such assignment (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender’s rights and obligations under the Loan Documents, such Lender shall
cease to be a party hereto).


 


(c)                                  The
Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy
of each Assignment and Acceptance delivered to and accepted by it and shall
record in the Register the names and addresses of the Lenders and Issuers and
the principal amount of the Loans and Reimbursement Obligations owing to each
Lender from time to time and the Commitments of each Lender.  Any assignment pursuant to this Section 11.2 shall not be effective
until such assignment is recorded in the Register. 


 


(d)                                 Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender and
an assignee, the Administrative Agent shall, if such Assignment and Acceptance
has been completed, (i) accept such Assignment and Acceptance, (ii) record
or cause to be recorded the information contained therein in the Register and (iii) give
prompt notice thereof to the Company. 
Within five Business Days after its receipt of such notice, each
Borrower, at its own expense, shall, if requested by such assignee, execute and
deliver to the Administrative Agent new Notes to the order of such assignee in
an amount equal to the


 


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Commitments and Loans assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has surrendered any Note for exchange
in connection with the assignment and has retained Commitments or Loans
hereunder, new Notes to the order of the assigning Lender in an amount equal to
the Commitments and Loans retained by it hereunder.  Such new Notes shall be dated the same date
as the surrendered Notes and be in substantially the form of Exhibit B-1 (Form of Revolving Dollar Note), Exhibit B-2 (Form of Peso Loan Note) or Exhibit B-3 (Form of Term Loan Note), as
applicable.


 


(e)                                  In
addition to the other assignment rights provided in this Section 11.2, each Lender may do each
of the following:


 


(i)                                     grant
to a Special Purpose Vehicle the option to make all or any part of any Loan
that such Lender would otherwise be required to make hereunder and the exercise
of such option by any such Special Purpose Vehicle and the making of Loans
pursuant thereto shall satisfy (once and to the extent that such Loans are
made) the obligation of such Lender to make such Loans thereunder; provided, however,
that (x) nothing herein shall constitute a commitment or an offer to
commit by such a Special Purpose Vehicle to make Loans hereunder and no such
Special Purpose Vehicle shall be liable for any indemnity or other Obligation
(other than the making of Loans for which such Special Purpose Vehicle shall
have exercised an option, and then only in accordance with the relevant option
agreement) and (y) such Lender’s obligations under the Loan Documents shall
remain unchanged, such Lender shall remain responsible to the other parties for
the performance of its obligations under the terms of this Agreement and shall
remain the holder of the Obligations for all purposes hereunder; and


 


(ii)                                  assign,
as collateral or otherwise, any of its rights under this Agreement, whether now
owned or hereafter acquired (including rights to payments of principal or
interest on the Loans), to (A) without notice to or consent of the
Administrative Agent or the Borrowers, any Federal Reserve Bank (pursuant to
Regulation A of the Federal Reserve Board) and (B) without notice to or consent
of the Administrative Agent or the Borrowers, (1) any holder of, or
trustee or other representative for the benefit of, the holders of such Lender’s
Securities and (2) any Special Purpose Vehicle to which such Lender has
granted an option pursuant to clause (i) above;


 


provided, however, that no such assignment or grant
shall release such Lender from any of its obligations hereunder except as
expressly provided in clause (i) above
and except, in the case of a subsequent foreclosure pursuant to an assignment
as collateral, if such foreclosure is made in compliance with the other
provisions of this Section 11.2 other
than this clause (e) or clause (f) below.  Each party hereto acknowledges and agrees
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior debt of any such Special
Purpose Vehicle, such party shall not institute against, or join any other
Person in instituting against, any Special Purpose Vehicle that has been
granted an option pursuant to this clause (e) any
bankruptcy, reorganization, insolvency or liquidation proceeding (such
agreement shall survive the payment in full of the Obligations).  The terms of the designation of, or
assignment to, such Special Purpose Vehicle shall not restrict such Lender’s
ability to, or grant such Special Purpose Vehicle the right to, consent to any
amendment or waiver to this Agreement or any other Loan Document or to the
departure by the Borrowers from any provision of this Agreement or any other
Loan Document without the consent of such Special Purpose Vehicle except, as
long as the Administrative Agent and the Lenders, Issuers and other Secured
Parties


 


128

















 


shall continue to, and shall be entitled to continue to, deal solely
and directly with such Lender in connection with such Lender’s obligations
under this Agreement, to the extent any such consent would reduce the principal
amount of, or the rate of interest on, any Obligations, amend this clause (e) or postpone any scheduled
date of payment of such principal or interest. 
Each Special Purpose Vehicle shall be entitled to the benefits of Sections 2.15 (Capital Adequacy) and 2.16 (Taxes) and of 2.14(d) (Illegality) as if it were such
Lender; provided, however, that anything herein to the
contrary notwithstanding, no Borrower shall, at any time, be obligated to make any
payment under Section 2.15 (Capital
Adequacy), 2.16 (Taxes)
or 2.14(d) (Illegality) to any such Special
Purpose Vehicle and any such Lender in excess of the amount the Borrowers would
have been obligated to pay to such Lender in respect of such interest if such
Special Purpose Vehicle had not been assigned the rights of such Lender
hereunder; and provided, further, that such Special Purpose Vehicle
shall have no direct right to enforce any of the terms of this Agreement
against the Borrowers, the Administrative Agent or the other Lenders.


 


(f)                                    Each
Lender may sell participations to one or more Persons (except to the Persons
designated by the Company in writing to the Administrative Agent on or prior to
the Closing Date) in or to all or a portion of its rights and obligations under
the Loan Documents (including all its rights and obligations with respect to
the Term Loans, Revolving Loans and Letters of Credit).  The terms of such participation shall not, in
any event, require the participant’s consent to any amendments, waivers or
other modifications of any provision of any Loan Documents, the consent to any
departure by any Loan Party therefrom, or to the exercising or refraining from
exercising any powers or rights such Lender may have under or in respect of the
Loan Documents (including the right to enforce the obligations of the Loan
Parties), except if any such amendment, waiver or other modification or consent
would (i) reduce the amount, or postpone any date fixed for, any amount
(whether of principal, interest or fees) payable to such participant under the
Loan Documents, to which such participant would otherwise be entitled under
such participation or (ii) result in the release of all or substantially
all of the Collateral other than in accordance with Section 10.8(b) (Concerning the Collateral and the Collateral
Documents).  In the event of
the sale of any participation by any Lender, (w) such Lender’s obligations
under the Loan Documents shall remain unchanged, (x) such Lender shall remain
solely responsible to the other parties for the performance of such
obligations, (y) such Lender shall remain the holder of such Obligations for
all purposes of this Agreement and (z) the Borrowers, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement.  Each participant shall be
entitled to the benefits of Sections 2.15 (Capital
Adequacy) and 2.16 (Taxes)
and of 2.14(d) (Illegality)
as if it were a Lender; provided, however, that anything herein to the contrary
notwithstanding, the Borrowers shall not, at any time, be obligated to make any
payment under Section 2.15 (Capital
Adequacy), 2.16 (Taxes)
or 2.14(d) (Illegality) to
the participants in the rights and obligations of any Lender (together with
such Lender) in excess of the amount the Borrowers would have been obligated to
pay to such Lender in respect of such interest had such participation not been
sold; and provided, further, that such participant in the
rights and obligations of such Lender shall have no direct right to enforce any
of the terms of this Agreement against the Borrowers, the Administrative Agent
or the other Lenders.


 


(g)                                 Any
Issuer may at any time assign its rights and obligations hereunder to any other
Lender by an instrument in form and substance satisfactory to the Company, the
Administrative Agent, such Issuer and such Lender, subject to the provisions of
Section 2.7(b) (Evidence of Debt)
relating to notations of transfer in the Register.  If any Issuer ceases to be a


 


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Lender hereunder by virtue of any assignment made pursuant to this Section 11.2, then, as of the
effective date of such cessation, such Issuer’s obligations to Issue Letters of
Credit pursuant to Section 2.4 (Letters
of Credit) shall terminate and such Issuer shall be an Issuer
hereunder only with respect to outstanding Letters of Credit issued prior to
such date.


 


Section 11.3                            Costs and Expenses


 


(a)                                  The
Company agrees upon demand to pay, or reimburse each Agent for, all of such
Agent’s reasonable out-of-pocket audit, legal, appraisal, valuation, filing,
document duplication and reproduction and investigation expenses and for all
other reasonable out-of-pocket costs and expenses of every type and nature
(including the reasonable fees, expenses and disbursements of the Agents’
counsel, Weil, Gotshal & Manges LLP, local legal counsel, auditors,
accountants, appraisers, printers, insurance and environmental advisors, and
other consultants and agents) incurred by such Agent in connection with any of
the following: (i) the Administrative Agent’s audit and investigation of
the Company and its Subsidiaries in connection with the preparation,
negotiation or execution of any Loan Document or the Administrative Agent’s
periodic audits of the Company or any of its Subsidiaries, as the case may be, (ii) the
preparation, negotiation, execution or interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any condition set forth in Article III
(Conditions to Loans and Letters of Credit)), any Loan Document or any
proposal letter or commitment letter issued in connection therewith, or the
making of the Loans hereunder, (iii) the creation, perfection or
protection of the Liens under any Loan Document (including any reasonable fees,
disbursements and expenses for local counsel in various jurisdictions), (iv) the
ongoing administration of this Agreement and the Loans, including consultation
with attorneys in connection therewith and with respect to any Agent’s rights and
responsibilities hereunder and under the other Loan Documents, (v) the
protection, collection or enforcement of any Obligation or the enforcement of
any Loan Document, (vi) the commencement, defense or intervention in any
court proceeding relating in any way to the Obligations, any Loan Party, any of
the Company’s Subsidiaries, the Merger, the Related Documents, this Agreement
or any other Loan Document, (vii) the response to, and preparation for,
any subpoena or request for document production with which any Agent is served
or deposition or other proceeding in which such Agent is called to testify, in
each case, relating in any way to the Obligations, any Loan Party, any of the
Company’s Subsidiaries, the Merger, the Related Documents, this Agreement or
any other Loan Document or (viii) any amendment, consent, waiver,
assignment, restatement, or supplement to any Loan Document or the preparation,
negotiation and execution of the same.


 


(b)                                 The
Company further agrees to pay or reimburse each Agent and each of the Lenders
and Issuers upon demand for all out-of-pocket costs and expenses, including
reasonable attorneys’ fees (including allocated costs of internal counsel and
costs of settlement), incurred by such Agent, such Lenders or such Issuers in
connection with any of the following: (i) in enforcing any Loan Document
or Obligation or any security therefor or exercising or enforcing any other
right or remedy available by reason of an Event of Default, (ii) in
connection with any refinancing or restructuring of the credit arrangements
provided hereunder in the nature of a “work-out”
or in any insolvency or bankruptcy proceeding, (iii) in commencing,
defending or intervening in any litigation or in filing a petition, complaint,
answer, motion or other pleadings in any legal proceeding relating to the
Obligations, any Loan Party, any of the Company’s Subsidiaries and related to
or arising out of the transactions contemplated hereby or by any other Loan
Document or Related Document or (iv) in taking any other action in or with
respect to any suit or proceeding (bankruptcy or otherwise) described in clause (i), (ii) or (iii) above; provided,


 


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however, that the Company’s
obligations under this paragraph (b) to
pay or reimburse the Agents, the Lenders and the Issuers for the expenses of counsel
shall be limited to one outside counsel to the Administrative Agent, one
outside counsel to the Mexican Facility Agent and one outside counsel to the
Lenders and the Issuers and, in each case, any reasonably appropriate local counsel
in each relevant jurisdiction, and if the interests of any Lender or group of
Lenders (other than all of the Lenders) are distinctly or disproportionately affected,
one additional outside counsel for such Lender or group of Lenders.


 


Section 11.4                            Indemnities


 


(a)                                  The
Company agrees to indemnify and hold harmless each Agent, Arranger, Lender,
Issuer (including each Person obligated on a Hedging Contract that is a Loan
Document if such Person was a Lender or Issuer at the time of it entered into
such Hedging Contract) and Co-Documentation Agent, the Syndication Agent and
each of their respective Affiliates, and each of the directors, officers,
employees, agents, trustees, representatives, attorneys, consultants and
advisors of or to any of the foregoing (including those retained in connection
with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions
to Loans and Letters of Credit)
(each such Person being an “Indemnitee”)
from and against any and all claims, damages, liabilities, obligations, losses,
penalties, actions, judgments, suits, costs, disbursements and expenses, joint
or several, of any kind or nature (including fees, disbursements and expenses
of financial and legal advisors to any such Indemnitee) that may be imposed on,
incurred by or asserted against any such Indemnitee in connection with or
arising out of any investigation, litigation or proceeding, whether or not such
investigation, litigation or proceeding is brought by any such indemnitee or
any of its directors, security holders or creditors or any such Indemnitee,
director, security holder or creditor is a party thereto, whether direct,
indirect, or consequential and whether based on any federal, state or local law
or other statutory regulation, securities or commercial law or regulation, or
under common law or in equity, or on contract, tort or otherwise, in any manner
relating to or arising out of this Agreement, any other Loan Document, any
Obligation, any Letter of Credit, any Disclosure Document, any Related
Document, or any act, event or transaction related or attendant to any thereof,
or the use or intended use of the proceeds of the Loans or Letters of Credit or
in connection with any investigation of any potential matter covered hereby
(collectively, the “Indemnified Matters”);
provided, however, that the Borrowers shall not have
any liability under this Section 11.4
to an Indemnitee with respect to any Indemnified Matter that has resulted
primarily from the gross negligence or willful misconduct of that Indemnitee,
as determined by a court of competent jurisdiction in a final non-appealable
judgment or order.  Without limiting the
foregoing, “Indemnified Matters”
include (i) all Environmental Liabilities and Costs arising from or
connected with the past, present or future operations of the Company or any of
its Subsidiaries involving any property subject to a Collateral Document, or
damage to real or personal property or natural resources or harm or injury
alleged to have resulted from any Release of Contaminants on, upon or into such
property or migrating from such property, (ii) any costs or liabilities
incurred in connection with any Remedial Action concerning the Company or any
of its Subsidiaries, (iii) any costs or liabilities incurred in connection
with any Environmental Lien on Real Property or any asset owned or leased by
the Company or any of its Subsidiaries and (iv) any costs or liabilities
concerning the Company or any of its Subsidiaries, including their operations
and owned or leased Real Property, incurred in connection with any other matter
under any Environmental Law, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property
transfer laws, whether, with respect to any such matter, such Indemnitee is a
mortgagee pursuant to any


 


131

















 


leasehold mortgage, a mortgagee in possession, the successor in
interest to the Company or any of its Subsidiaries, or the owner, lessee or
operator of any property of the Company or any of its Subsidiaries by virtue of
foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and
(iv) above, to the extent
(x) incurred following foreclosure by the Administrative Agent, any Lender or
any Issuer, or the Administrative Agent, any Lender or any Issuer having become
the successor in interest to the Company or any of its Subsidiaries and (y) to
the extent attributable solely to acts or omissions of the Administrative
Agent, such Lender or such Issuer or any agent on behalf of the Administrative
Agent, such Lender or such Issuer or any other Indemnitee.


 


(b)                                 The
Company shall indemnify each Agent, Arranger, Lender, Issuer, Co-Documentation
Agent and Syndication Agent for, and hold such Agent, Arranger, Lender, Issuer,
Co-Documentation Agent and Syndication Agent harmless from and against, any and
all claims for brokerage commissions, fees and other compensation made against
the Agents, the Arrangers, the Lenders, the Issuers, the Co-Documentation
Agents and the Syndication Agent for any broker, finder or consultant with
respect to any agreement, arrangement or understanding made by or on behalf of
any Loan Party or any of its Subsidiaries in connection with the transactions
contemplated by this Agreement.


 


(c)                                  The
Company, at the request of any Indemnitee, shall have the obligation to defend
against any investigation, litigation or proceeding or requested Remedial
Action, in each case contemplated in clause (a) above,
and the Company, in any event, may participate in the defense thereof with
legal counsel of the Company’s choice. 
In the event that such Indemnitee requests the Company to defend against
such investigation, litigation or proceeding or requested Remedial Action, the Company
shall promptly do so and such Indemnitee shall have the right to have legal
counsel of its choice participate in such defense.  No action taken by legal counsel chosen by
such Indemnitee in defending against any such investigation, litigation or
proceeding or requested Remedial Action, shall vitiate or in any way impair the
Company’s obligation and duty hereunder to indemnify and hold harmless such
Indemnitee.


 


(d)                                 The
Borrowers agree that any indemnification or other protection provided to any
Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan
Document shall (i) survive payment in full of the Obligations and (ii) inure
to the benefit of any Person that was at any time an Indemnitee under this
Agreement or any other Loan Document.


 


Section 11.5                            Limitation of Liability


 


(a)                                  Each
Borrower agrees that no Indemnitee shall have any liability (whether in
contract, tort or otherwise) to any Loan Party or any of their respective
Subsidiaries or any of their respective equity holders or creditors for or in
connection with the transactions contemplated hereby and in the other Loan
Documents and Related Documents, except to the extent such liability is
determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted primarily from such Indemnitee’s gross negligence
or willful misconduct.  In no event,
however, shall any Indemnitee be liable on any theory of liability for any
special, indirect, consequential or punitive damages (including, without
limitation, any loss of profits, business or anticipated savings).  Each Borrower hereby waives, releases and agrees
(each for itself and on behalf of its Subsidiaries) not to sue upon any such
claim for any special, indirect, consequential or punitive damages, whether or
not accrued and whether or not known or suspected to exist in its favor.


 


132

















 


(b)                                 IN
NO EVENT SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY TO ANY LOAN PARTY,
LENDER, ISSUER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES
(WHETHER IN TORT OR CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY OR ANY
AGENT AFFILIATE’S TRANSMISSION OF APPROVED ELECTRONIC COMMUNICATIONS THROUGH
THE INTERNET OR ANY USE OF THE APPROVED ELECTRONIC PLATFORM, EXCEPT TO THE
EXTENT SUCH LIABILITY OF ANY AGENT AFFILIATE IS FOUND IN A FINAL NON-APPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FORM SUCH
AGENT AFFILIATE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.


 


Section 11.6                            Right of Set-off


 


Upon the occurrence and during the continuance of any Event of Default
each Lender and each Affiliate of a Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other Indebtedness at any time owing by such Lender or its
Affiliates to or for the credit or the account of any Borrower against any and
all of the Obligations now or hereafter existing whether or not such Lender
shall have made any demand under this Agreement or any other Loan Document and
even though such Obligations may be unmatured. 
Each Lender agrees promptly to notify such Borrower after any such
set-off and application made by such Lender or its Affiliates; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.  Each Lender
agrees that it shall not, without the express consent of the Requisite Lenders
(and that, it shall, to the extent lawfully entitled to do so, upon the request
of the Requisite Lenders) exercise its set-off rights under this Section 11.6 against any deposit
accounts of the Loan Parties and their Subsidiaries maintained with such Lender
or any Affiliate thereof.  The rights of
each Lender under this Section 11.6
are in addition to the other rights and remedies (including other rights of
set-off) that such Lender may have.


 


Section 11.7                            Sharing of Payments, Etc.


 


(a)                                  If
any Lender (directly or through an Affiliate thereof) obtains any payment
(whether voluntary, involuntary, through the exercise of any right of set-off
(including pursuant to Section 11.6
(Right of Set-off)) or otherwise)
of the Loans owing to it, any interest thereon, fees in respect thereof or
amounts due pursuant to Section 11.3 (Costs
and Expenses) or 11.4 (Indemnities)
(other than payments pursuant to Section 2.14
(Special Provisions Governing Eurodollar Rate Loans), 2.15 (Capital Adequacy) or 2.16 (Taxes) or otherwise receives any
Collateral or any “Proceeds” (as
defined in the Pledge and Security Agreement) of Collateral (other than
payments pursuant to Section 2.14 (Special
Provisions Governing Eurodollar Rate Loans), 2.15 (Capital Adequacy) or 2.16 (Taxes)) (in each case, whether
voluntary, involuntary, through the exercise of any right of set-off  (including pursuant to Section 11.6  (Right of Set-off)) or otherwise) in
excess of its Ratable Portion of all payments of such Obligations obtained by
all the Lenders, such Lender (a “Purchasing
Lender”) shall forthwith purchase from the other Lenders (each, a “Selling Lender”) such participations in
their Loans or other Obligations as shall be necessary to cause such Purchasing
Lender to share the excess payment ratably with each of them.


 


133

















 


(b)                                 If
all or any portion of any payment received by a Purchasing Lender is thereafter
recovered from such Purchasing Lender, such purchase from each Selling Lender
shall be rescinded and such Selling Lender shall repay to the Purchasing Lender
the purchase price to the extent of such recovery together with an amount equal
to such Selling Lender’s ratable share (according to the proportion of (i) the
amount of such Selling Lender’s required repayment in relation to (ii) the
total amount so recovered from the Purchasing Lender) of any interest or other
amount paid or payable by the Purchasing Lender in respect of the total amount
so recovered.


 


(c)                                  The
Borrowers agree that any Purchasing Lender so purchasing a participation from a
Selling Lender pursuant to this Section 11.7
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrowers in the amount of such
participation.


 


Section 11.8                            Notices, Etc.


 


(a)                                  Addresses for Notices.  All notices, demands, requests, consents and
other communications provided for in this Agreement shall be given in writing,
or by any telecommunication device capable of creating a written record
(including electronic mail), and addressed to the party to be notified as
follows:


 


(i)                                     if
to the Company:


 


AMC ENTERTAINMENT INC.

920 Main Street

Kansas City, MO 64105

Attention: General Counsel

Telecopy no: (816) 480-4700

E-Mail Address: kconnor@amctheatres.com


 


(ii)                                  if
to any Mexican Borrower:


 


GRUPO CINEMEX, S.A. DE C.V.


Blvd. Manuel Avila Camacho No. 40 Piso
16 


Lomas de Chapultepec 


C.P. 11000, México, D.F. 


Attention:  Miguel Angel Dávila Guzmán 


Telecopy no:  52 (55) 52 01 58 89 


E-mail Address:  migueld@cinemex.net


 


with a copy to:


 


AMC ENTERTAINMENT INC.

920 Main Street

Kansas City, MO 64105

Attention:  General Counsel

Telecopy no:  (816) 480-4700

E-Mail Address: kconnor@amctheatres.com


 


134

















 


(iii)                               if to any Lender, at its
Applicable Lending Office specified opposite its name on Schedule II
(Applicable Lending Offices and Addresses for Notices) or on the
signature page of any applicable Assignment and Acceptance;


 


(iv)                              if
to any Issuer, at the address set forth under its name on Schedule II
(Applicable Lending Offices and Addresses for Notices); and


 


(v)                                 if
to the Administrative Agent or the Dollar Swing Lender:


 


CITICORP NORTH AMERICA, INC.

390 Greenwich Street

New York, New York 10013

Attention:  Rob Ziemer

Telecopy no:  (646) 291-1655

E-Mail Address:  rob.ziemer@citigroup.com


 


with a copy to:


 


CITICORP NORTH AMERICA, INC.


Global Loans Support Services


2 Penns Way, Suite 110


New Castle, Delaware 19720


Attention: 
Kwasi Bame


Telecopy no: 
(212) 994-0975


E-Mail Address:  kwasi.bame@citigroup.com


 


and with a further copy to:



WEIL, GOTSHAL & MANGES, LLP

767 Fifth Avenue

New York, New York 10153-0119

Attention:  Daniel S. Dokos

Telecopy no:  (212) 310-8007

E-Mail Address:  daniel.dokos@weil.com


 


135

















 


(vi)                              if
to the Mexican Facility Agent or the Peso Swing Lender:


 


BANCO NACIONAL DE MEXICO, S.A., INTEGRANTE 


 


DEL GRUPO FINANCIERO BANAMEX

Act. Roberto Medellín No. 800 4° Piso Sur.

Col. Santa Fe.

C.P. 01210

Mexico, D.F. Mexico


Attention:    Antonio Munoz Gómez

Mónica Flores Solano

Francisco Medina Patino


Telecopy no:  (52-55) 22-62-29-27 and (52-55) 22-62-29-12


E-Mail Address:     antoniomunoz@banamex.com

monflore@banamex.com

fmedinapati@banamex.com


 


with a copy to:


CITICORP NORTH
AMERICA, INC.

390 Greenwich Street

New York, New York 10013

Attention:  Rob Ziemer

Telecopy no:  (646) 291-1655

E-Mail Address:  rob.ziemer@citigroup.com


 


or at such other address as shall be notified in writing (x) in the
case of any Borrower, each Agent and Swing Lender, to the other parties and (y)
in the case of all other parties, to the Company and the Administrative Agent.


 


(b)                                 Effectiveness of Notices.  All notices, demands, requests, consents and
other communications described in clause (a) above
shall be effective (i) if delivered by hand, including any overnight
courier service, upon personal delivery, (ii) if delivered by mail, when
deposited in the mails, (iii) if delivered by posting to an Approved
Electronic Platform (to the extent permitted by Section 10.3 to be delivered thereunder), an Internet
website or a similar telecommunication device requiring a user prior access to
such Approved Electronic Platform, website or other device (to the extent
permitted by Section 10.3 to
be delivered thereunder), when such notice, demand, request, consent and other
communication shall have been made generally available on such Approved
Electronic Platform, Internet website or similar device to the class of Person
being notified (regardless of whether any such Person must accomplish, and
whether or not any such Person shall have accomplished, any action prior to
obtaining access to such items, including registration, disclosure of contact
information, compliance with a standard user agreement or undertaking a duty of
confidentiality) and such Person has been notified that such communication has
been posted to the Approved Electronic Platform and (iv) if delivered by
electronic mail or any other telecommunications device, when transmitted to an
electronic mail address (or by another means of electronic delivery) as
provided in clause (a) above;
provided, however, that notices and communications
to any Agent pursuant to Article II (The Facilities)
or Article X (The Agents)
shall not be effective until received by such Agent.


 


136

















 


(c)                                  Use of Electronic Platform. 
Notwithstanding clause (a) and
(b) above (unless the
Administrative Agent requests that the provisions of clause (a) and
(b) above be followed) and any
other provision in this Agreement or any other Loan Document providing for the
delivery of any Approved Electronic Communication by any other means the Loan
Parties shall deliver all Approved Electronic Communications to the
Administrative Agent by properly transmitting such Approved Electronic
Communications in an electronic/soft medium in a format acceptable to the
Administrative Agent to oploanswebadmin@citigroup.com or such other electronic
mail address (or similar means of electronic delivery) as the Administrative
Agent may notify the Borrowers.  Nothing
in this clause (c) shall prejudice the
right of any Agent or Lender or Issuer to deliver any Approved Electronic
Communication to any Loan Party in any manner authorized in this Agreement or
to request that the Borrowers effect delivery in such manner.


 


Section 11.9                            No Waiver; Remedies


 


No failure on the part of any Lender, Issuer or Agent to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.


 


Section 11.10                     Binding Effect


 


This Agreement shall become effective when it shall have been executed
by the Borrowers and the Agents and when the Administrative Agent shall have
been notified by each Lender and Issuer that such Lender or Issuer has executed
it and thereafter shall be binding upon and inure solely to the benefit of the
Borrowers, the Agents and each Lender and Issuer and, in each case, their
respective successors and assigns; provided,
however, that the Borrowers shall
not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.


 


Section 11.11                     Governing Law


 


This Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.


 


Section 11.12                     Submission to Jurisdiction;
Service of Process


 


(a)                                  Any
legal action or proceeding with respect to this Agreement or any other Loan
Document may be brought in the courts of the State of New York located in the
City of New York or of the United States of America for the Southern District
of New York, and, by execution and delivery of this Agreement, each party
hereto hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts.  The parties hereto hereby irrevocably waive
any objection, including any objection to the laying of venue or based on the
grounds of forum non conveniens,
that any of them may now or hereafter have to the bringing of any such action
or proceeding in such respective jurisdictions.


 


(b)                                 The
Company hereby irrevocably consents to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding
brought in the United States of America arising out of or in connection with
this Agreement or any other Loan Document by the mailing (by registered or
certified mail, postage prepaid) or delivering of a copy


 


137

















 


of such process to such Borrower at its address specified in Section 11.8 (Notices, Etc.).  Each Mexican Borrower hereby irrevocably
designates, appoints and empowers Corporation Services Company (telephone no: (212)
299-5600) (telecopy no: (212) 299-5656) (the “Process
Agent”), in the case of any suit, action or proceeding brought in
the United States of America as its designee, appointee and agent to receive,
accept and acknowledge for and on its behalf, and in respect of its property,
service of any and all legal process, summons, notices and documents that may
be served in any action or proceeding arising out of or in connection with this
Agreement or any Loan Document.  Such
service may be made by mailing (by registered or certified mail, postage
prepaid) or delivering a copy of such process to such Mexican Borrower in care
of the Process Agent at the Process Agent’s above address, and each Mexican
Borrower hereby irrevocably authorizes and directs the Process Agent to accept
such service on its behalf.  As an
alternative method of service, each Mexican Borrower irrevocably consents to
the service of any and all process in any such action or proceeding by the
mailing (by registered or certified mail, postage prepaid) of copies of such
process to the Process Agent or such Mexican Borrower at its address specified
in Section 11.8 (Notices, Etc.).  Each Borrower agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. 


 


(c)                                  Nothing
contained in this Section 11.12
shall affect the right of any Agent or any Lender to serve process in any other
manner permitted by law or commence legal proceedings or otherwise proceed
against such Borrower or any other Loan Party in any other jurisdiction.


 


(d)                                 If
for the purposes of obtaining judgment in any court it is necessary to convert
a sum due hereunder in Dollars into another currency, the parties hereto agree,
to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase Dollars with such other
currency at the spot rate of exchange quoted by the Administrative Agent at
11:00 a.m. (New York time) on the Business Day preceding that on which
final judgment is given, for the purchase of Dollars, for delivery two Business
Days thereafter.


 


Section 11.13                     Waiver of Jury Trial


 


EACH OF THE AGENTS, THE LENDERS, THE ISSUERS AND THE BORROWERS IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT.


 


Section 11.14                     Marshaling; Payments Set Aside


 


None of the Agents, Lenders or Issuers shall be under any obligation to
marshal any assets in favor of any Borrower or any other party or against or in
payment of any or all of the Obligations. 
To the extent that any Borrower makes a payment or payments to the
Agents, the Lenders or the Issuers or any such Person receives payment from the
proceeds of the Collateral or exercise their rights of setoff, and such payment
or payments or the proceeds of such enforcement or setoff or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, receiver or any other party, then
to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, right and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.


 


138

















 


Section 11.15                     Section Titles


 


The section titles contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto, except when used to reference
a section.  Any reference to the number
of a clause, sub-clause or subsection hereof immediately followed by a
reference in parenthesis to the title of the Section containing such
clause, sub-clause or subsection is a reference to such clause, sub-clause
or subsection and not to the entire Section; provided, however,
that, in case of direct conflict between the reference to the title and the
reference to the number of such Section, the reference to the title shall
govern absent manifest error.  If any
reference to the number of a Section (but not to any clause, sub-clause or
subsection thereof) is followed immediately by a reference in parenthesis
to the title of a Section, the title reference shall govern in case of direct
conflict absent manifest error.


 


Section 11.16                     Execution in Counterparts


 


This Agreement may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. 
Signature pages may be detached from multiple separate counterparts
and attached to a single counterpart so that all signature pages are
attached to the same document.  Delivery
of an executed signature page of this Agreement by facsimile transmission,
electronic mail or by posting on the Approved Electronic Platform shall be as
effective as delivery of a manually executed counterpart hereof.  A set of the copies of this Agreement signed
by all parties shall be lodged with the Company and the Administrative Agent.


 


Section 11.17                     Entire Agreement


 


This Agreement, together with all of the other Loan Documents and all
certificates and documents delivered hereunder or thereunder, embodies the
entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof.  In the event of any conflict between the
terms of this Agreement and any other Loan Document, the terms of this
Agreement shall govern.


 


Section 11.18                     Confidentiality


 


Each Lender and each Agent agree to keep information obtained by it
pursuant hereto and the other Loan Documents confidential in accordance with
such Lender’s or Agent’s, as the case may be, customary practices and agrees
that it shall only use such information in connection with the transactions
contemplated by this Agreement and not disclose any such information other than
(a) to such Lender’s or Agent’s, as the case may be, employees,
representatives and agents that are or are expected to be involved in the
evaluation of such information in connection with the transactions contemplated
by this Agreement and are advised of the confidential nature of such
information, (b) to the extent such information presently is or hereafter
becomes available to such Lender or Agent, as the case may be, on a
non-confidential basis from a source other than any Borrower or any other Loan
Party, (c) to the extent disclosure is required by law, regulation or
judicial order or requested or required by bank regulators or auditors or (d) to
current or prospective assignees, participants and Special Purpose Vehicle
grantees of any option described in Section 11.2(f) (Assignments
and Participations), contractual counterparties in any Hedging
Contract permitted hereunder and to their respective legal or


 


139

















 


financial advisors, in each case and to the extent such assignees,
participants, grantees or counterparties agree to be bound by, and to cause
their advisors to comply with, the provisions of this Section 11.18.  Notwithstanding any other provision in this
Agreement, the Agents hereby agree that the Borrowers (and each of their
respective officers, directors, employees, accountants, attorneys and other
advisors) may disclose to any and all persons, without limitation of any kind,
the U.S. tax treatment and U.S. tax structure of the Facility and the
transactions contemplated hereby and all materials of any kind (including
opinions and other tax analyses) that are provided to it relating to such U.S.
tax treatment and U.S. tax structure.


 


Section 11.19                     Patriot Act Notice. 


 


Each Lender subject to the Patriot Act hereby notifies the Borrowers
that, pursuant to Section 326 of the Patriot Act, it is required to
obtain, verify and record information that identifies the Borrowers, including
the name and address of the Borrowers and other information that will allow
such Lender to identify the Borrowers in accordance with the Patriot Act.


 


Section 11.20                     Designated Senior Debt


 


All Obligations shall be “Senior Indebtedness”,
“Senior Secured Financing” and “Designated Senior Debt” (or any comparable term) for purposes
of the Subordinated Note Indentures and any other subordinated Indebtedness of
the Company and its Subsidiaries.


 


[SIGNATURE PAGES FOLLOW]


 


140

















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


 


	
   

  	
  AMC ENTERTAINMENT INC.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig R. Ramsey

  	
   

  
	
   

  	
  Name: Craig R. Ramsey

  
	
   

  	
  Title: Executive Vice President &
  Chief

  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GRUPO CINEMEX, S.A. DE C.V.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Miguel Ángel Dávila Guzmán

  	
   

  
	
   

  	
  Name: Miguel Ángel Dávila Guzmán

  
	
   

  	
  Title: President & Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CADENA MEXICANA DE EXHIBICIÓN,

  S.A. DE C.V.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Miguel Ángel Dávila Guzmán

  	
   

  
	
   

  	
  Name: Miguel Ángel Dávila Guzmán

  
	
   

  	
  Title: President & Chief Executive
  Officer

  



 


 


[SIGNATURE PAGE TO AMC
ENTERTAINMENT INC. CREDIT AGREEMENT]


 

















 


	
   

  	
  CITICORP NORTH AMERICA, INC.,

  
	
   

  	
  as Administrative Agent, Dollar Swing
  Lender and Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rob Ziemer

  	
   

  
	
   

  	
  Name: Rob Ziemer

  
	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  BANCO NACIONAL DE MEXICO, S.A.,

  INTEGRANTE DEL GRUPO FINANCIERO

  BANAMEX,

  
	
   

  	
  as Mexican Facility Agent, Peso Swing
  Lender

  and Mexican Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Roberto Luis Castillo

  	
   

  
	
   

  	
  Name: Roberto Luis Castillo

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Antonio Muñoz Gómez

  	
   

  
	
   

  	
  Name: Ing. Antonio Muñoz Gómez

  
	
   

  	
  Title: Director

  



 

















 


	
   

  	
  J.P. MORGAN SECURITIES INC.,

  
	
   

  	
  as Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Dorr

  	
   

  
	
   

  	
  Name: Robert Dorr

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CHASE LINCOLN FIRST COMMERCIAL

  CORPORATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marian N. Schulman

  	
   

  
	
   

  	
  Name: Marian N. Schulman

  
	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  CREDIT SUISSE SECURITIES (USA) LLC,

  
	
   

  	
  as Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lauri Sivaflian

  	
   

  
	
   

  	
  Name: Lauri Sivaflian

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dana F. Klein

  	
   

  
	
   

  	
  Name: Dana F. Klein

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS

  BRANCH,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul L. Colón

  	
   

  
	
   

  	
  Name: Paul L. Colón

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shaheen Malik

  	
   

  
	
   

  	
  Name: Shaheen Malik

  
	
   

  	
  Title: Associate

  



 

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Co-Documentation Agent and Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David H. Strickert

  	
   

  
	
   

  	
  Name: David H. Strickert

  
	
   

  	
  Title: Senior Vice President

  



 

















 


	
   

  	
  THE BANK OF NOVA SCOTIA,

  
	
   

  	
  as Lender and Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jose B. Carlos

  	
   

  
	
   

  	
  Name: Jose B. Carlos

  
	
   

  	
  Title: Authorized Signatory