EXECUTION COPY
THIRD AMENDMENT
THIRD AMENDMENT, dated as of May 9, 2006 (this "Amendment"), to the
Credit Agreement, dated as of May 19, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among CARMIKE
CINEMAS, INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
XXXXX FARGO FOOTHILL, INC., as Documentation Agent (in such capacity, the
"Documentation Agent"), and BEAR XXXXXXX CORPORATE LENDING INC., as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed
to make certain extensions of credit to the Borrower; and
WHEREAS, the Borrower, the Lenders and the Administrative Agent
desire to amend the Credit Agreement on the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the Borrower, the Lenders and the Administrative
Agent hereby agree as follows:
SECTION 1.1. Defined Terms. Terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
SECTION 1.2. Amendments to Section 7.1 to the Credit Agreement.
Section 7.1 of the Credit Agreement is hereby amended by (i) deleting the number
"65" in the first line of paragraph (a) thereof and substituting in lieu thereof
the number "90", (ii) deleting the parenthetical immediately after the word
"Borrower" in the second line of paragraph (a) thereof, that was inserted
pursuant to the Second Amendment to the Credit Agreement, and inserting the
following: "(or, in the case of the fiscal year ended December 31, 2005, no
later than June 30, 2006)", (iii) deleting the number "40" in the first line of
paragraph (b) thereof and substituting in lieu thereof the number "45" and (iv)
deleting the parenthetical immediately after the word "Borrower" in the second
line of paragraph (b) thereof, and inserting the following parenthetical: "(or,
in the case of the fiscal quarter ended March 31, 2006, no later than June 30,
2006)".
SECTION 1.3. Amendments to Section 7.2 to the Credit Agreement.
Section 7.2 of the Credit Agreement is hereby amended by deleting paragraph (d)
thereof in its entirety and substituting in lieu thereof the following paragraph
(d):
(d) if the Borrower is not then a reporting company or otherwise
complying with reporting company requirements under the Securities
Exchange Act of 1934, as amended, within 45 days after the end of each
fiscal quarter of the Borrower (or in the case of the fiscal quarter ended
March 31, 2006, on or before June 30, 2006), or 90 days, in the case of
the last fiscal quarter of any fiscal year (or, in the case of the fiscal
quarter ended December 31, 2005, on or before June 30, 2006), a narrative
discussion and
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analysis of the financial condition and results of operations of the
Borrower and its Subsidiaries for such fiscal quarter and for the period
from the beginning of the then current fiscal year to the end of such
fiscal quarter, as compared to the portion of the Projections covering
such periods and to the comparable periods of the previous year;
SECTION 1.4. Limitation on Borrowing of Revolving Credit Loans.
During the period from the Amendment Effective Date (as defined below) to the
date (the "Trigger Date") that is the earlier of (i) the delivery of the
financial statements required by Section 7.1(a) for the fiscal year ended
December 31, 2005, and (ii) June 30, 2006, and subject to compliance with the
conditions to borrowing thereof contained in the Credit Agreement, the maximum
principal amount of Revolving Extensions of Credit that may be outstanding on or
prior to the Trigger Date shall not exceed $10,000,000.
SECTION 1.5. Waiver. The Lenders hereby waive until the earlier of
(i) the Trigger Date and (ii) the Bond Default Date, any Default that may be
deemed to have occurred as a result of the failure to deliver its Form 10-K in
respect of the fiscal year ended December 31, 2005, or its Form 10-Q in respect
of the fiscal quarter ended March 31, 2006, at the respective times required to
be delivered under the Senior Subordinated Note Indenture. "Bond Default Date"
means the date on which any of the holders or beneficiaries of the Senior
Subordinated Notes shall have the right (or a trustee or agent on behalf of such
holder or beneficiary) to cause, with the giving of notice if required, any of
the Senior Subordinated Notes to become due prior to its stated maturity or to
become subject to a mandatory offer to purchase by the Borrower (or any
Guarantee Obligation in respect thereof to become payable).
SECTION 1.6. Interim Financial Statements and Calculations. The
Borrower agrees to deliver to the Administrative Agent and the Lenders (i) on or
prior to May 15, 2006, monthly financial statements for April 2006, and with
respect to the fiscal quarter ended March 31, 2006, the information and
calculations required by Section 7.2(b)(i), and (ii) on or prior to June 15,
2006, monthly financial statements for May 2006, in each case, in the form
previously delivered to the Administrative Agent with respect to the months
January, February and March 2006. The amendment set forth in Section 1.2 above
shall cease to be effective in the event the Borrower does not so deliver such
financial statements by such dates.
SECTION 1.7. Conditions to Effectiveness. This Amendment shall
become effective as of the date hereof on the date (the "Amendment Effective
Date") on which the Borrower, the Administrative Agent and the Required Lenders
shall have executed and delivered to the Administrative Agent this Amendment.
SECTION 1.8. Representation and Warranties. To induce the
Administrative Agent to enter into this Amendment, the Borrower hereby
represents and warrants to the Administrative Agent and all of the Lenders as of
the Amendment Effective Date that:
(a) Corporate Power; Authorization; Enforceable Obligations.
(i) The Borrower has the corporate power and authority, and
the legal right, to make and deliver this Amendment and to perform
its obligations under the Loan Documents, as amended by this
Amendment, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Amendment and the
performance of the Loan Documents, as so amended.
(ii) No consent or authorization of, approval by, notice to,
filing with or other act by or in respect of, any Governmental
Authority or any other Person is required
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in connection with the execution and delivery of this Amendment or
with the performance, validity or enforceability of the Loan
Documents, as amended by this Amendment, except as otherwise
provided in Section 5.4 of the Credit Agreement.
(iii) This Amendment has been duly executed and delivered on
behalf of the Borrower.
(iv) This Amendment and each Loan Document, as amended by this
Amendment, constitutes a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(b) Representations and Warranties. The representations and
warranties made by the Borrower in and pursuant to the Loan Documents are true
and correct in all material respects on and as of the Amendment Effective Date,
after giving effect to the effectiveness of this Amendment, as if made on and as
of the Amendment Effective Date.
SECTION 1.9. Payment of Expenses. The Borrower agrees to pay or
reimburse the Administrative Agent for all of its reasonable out-of-pocket costs
and expenses incurred in connection with this Amendment, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to each Agent.
SECTION 1.10. No Other Amendments; Confirmation. Except as expressly
amended, modified and supplemented hereby, the provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect.
SECTION 1.11. Governing Law; Counterparts. (a) This Amendment and
the rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
CARMIKE CINEMAS, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Sr. Vice President-
Finance, Treasurer and
Chief Financial Officer
Third Amendment to Credit Agreement
BEAR XXXXXXX CORPORATE LENDING INC.,
as Administrative Agent and as a Lender
By: /s/ Xxxxxxx Xxxx Xxxxx
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Name: Xxxxxxx Xxxx Xxxxx
Title: Vice President
Third Amendment to Credit Agreement
XXXXX FARGO FOOTHILL, N.A.,
as Issuing Lender, Documentation Agent
and a Lender
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
Third Amendment to Credit Agreement
