EXECUTION VERSION
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
dated as of June 21, 2002 and entered into by and among CARMIKE CINEMAS, INC.,
a Delaware corporation ("Carmike") and EASTWYNN THEATRES, INC., an Alabama
corporation ("Eastwynn"), (Eastwynn and Carmike are sometimes collectively
referred to herein as the "Borrowers" and individually as a "Borrower"); the
other Credit Parties signatory hereto; GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation (in its individual capacity, "GE Capital"), for itself, as
Lender, and as Agent for Lenders (in such capacity, the "Agent"), and the other
Lenders signatory hereto from time to time.
RECITALS
WHEREAS, Borrowers, Lenders, other Credit Parties, and Agent
are parties to that certain Credit Agreement dated as of January 31, 2002 (as
amended, the "Credit Agreement"); and
WHEREAS, Borrowers, have requested and Lenders and Agent have
agreed to, the amendments to the Credit Agreement set forth herein subject to
the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
that all capitalized terms used herein shall have the meanings ascribed thereto
in the Credit Agreement, expect as otherwise defined or limited herein, and
further agree, subject to the conditions precedent to this Amendment
hereinafter set forth, as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: AMOUNT AND TERMS OF CREDIT.
A. Subsection 1.1(a) (ii) of the Credit Agreement is hereby
amended by deleting the second sentence in its entirety and substituting the
following in lieu thereof:
"Each note shall be in the principal amount of the Revolving Loan
Commitment of the applicable Revolving Lender and substantially in the form of
Exhibit 1.1(a)(ii) (each a `Revolving Note' and, collectively, the `Revolving
Notes')."
B. Subsection 1.1(c) (iii) of the Credit Agreement is hereby
amended by deleting the first sentence in its entirety and substituting the
following in lieu thereof:
"The Swing Line Lender, at any time and from time to time in its sole
and absolute discretion, but not less frequently than weekly, shall on
behalf of any Borrower (and each Borrower hereby irrevocable
authorizes the Swing Line Lender to so act on its behalf)
request each Revolving Lender (including the Swing Line Lender) to
make a Revolving Credit Advance to each Borrower (which shall be an
Index Rate Loan) in an amount equal to that Revolving Lender's Pro
Rata Share of the principal amount of the applicable Borrower's Swing
Line Loan (the `Refunded Swing Line Loan') outstanding on the date
such notice is given."
C. Subsection 1.3(b) (ii) of the Credit Agreement is hereby
amended by deleting the subsection in its entirety and substituting the
following in lieu thereof:
"Borrowers shall prepay the Loans in an amount equal to all proceeds
of any asset disposition of any Credit Party (excluding proceeds of asset
dispositions permitted by Section 6.8(a)) or any issuance of Stock, net of
(1) commissions and other reasonable and customary
transaction costs, fees (including brokers' fees) and expenses
properly attributable to such transaction and payable by Credit
Parties in connection therewith (in each case, paid to
non-Affiliates),
(2) transfer taxes,
(3) amounts payable to holders of senior Liens (to the extent
such Liens constitute Permitted Encumbrances hereunder), if any,
(4) an appropriate reserve for income taxes in accordance
with GAAP in connection therewith, and
(5) with respect to proceeds received in connection with the
issuance by any Credit Party of Stock, twenty million dollars
($20,000,000);
provided, that, Borrowers shall not be required to make such
prepayments to the extent
(A) all such proceeds of any asset disposition are reinvested
by one or more Credit Parties in a manner acceptable to
(x) to the extent the amount of all such proceeds
shall not have exceeded $2,000,000 in the aggregate in any
Fiscal Year, Agent in its sole discretion, or
(y) from and after the date the amount of all such
proceeds shall have exceeded $2,000,000 in the aggregate in
any Fiscal Year, Agent and each Lender, if any, whose
Commitment at such time is not less than 50% of all Revolving
Loan Commitments, if such Lender's voting rights hereunder
have not been restricted pursuant to Section 9.9(d), in
Agent's and such Lender's sole discretion, in each case
within 180 days of receipt by any Credit Party of such
proceeds (Borrowers acknowledge that no prepayment of
obligations under the Post-Confirmation Credit Agreement
shall be deemed a reinvestment of such proceeds), and
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(B) no Default or Event of Default exists from and including
the date of such disposition through and including the date of such
reinvestment;
provided, further, that so long as no Default or Event of Default
exists at the time of any asset disposition relating to Real Estate
identified as surplus property on Disclosure Schedule 1.3(b),
Borrowers shall not be required to apply the proceeds of such
disposition, except for those proceeds which exceed, in the aggregate
with respect to all such dispositions, the lesser of (I) $18,000,000
or (II) five percent (5%) of the net book value of all plant, property
and equipment of the Credit Parties as shown on the audited financial
information most recently delivered to Agent pursuant to Annex E
(after giving effect to any write-downs subsequent to the reporting
period for which such audited financial information was delivered), to
any prepayment hereunder. Any prepayment required hereunder shall be
applied in accordance with Section 1.3(c)."
1.2 AMENDMENT TO SECTION 3.8: VENTURES, SUBSIDIARIES AND AFFILIATES;
OUTSTANDING STOCK AND INDEBTEDNESS.
A. Subsection 3.8 of the Credit Agreement is hereby amended by
deleting the second sentence in its entirety and substituting the following in
lieu thereof:
"All of the issued and outstanding Stock of each Credit Party is owned
by each of the Stockholders and in the amounts set forth in Disclosure
Schedule (3.8) (except that with respect to the ownership of Carmike,
only those Stockholders holding in excess of five percent (5%) of the
issued and outstanding Stock of Carmike on the Closing Date shall be
set forth thereon)."
1.3 AMENDMENT TO SECTION 6.5: CAPITAL STRUCTURE AND BUSINESS.
A. Subsection 6.5 of the Credit Agreement is hereby amended by
deleting the subsection in its entirety and substituting the following in lieu
thereof:
"No Credit Party shall (a) make any changes in any of its business
objectives, purposes or operations that could in any way adversely
affect the repayment of the Loans or any of the other Obligations or
could reasonably be expected to have or result in a Material Adverse
Effect, (b) make any change in its capital structure as described in
Disclosure Schedule (3.8) other than changes in the stock ownership of
Carmike by the Carmike Stockholders which do not constitute a Change
of Control, or (c) amend its charter or bylaws in a manner that would
adversely affect Agent or Lenders or such Credit Party's duty or
ability to repay the Obligations. No Credit Party shall engage in any
business other than the businesses currently engaged in by it."
1.4 AMENDMENTS TO SECTION 8: EVENTS OF DEFAULT; RIGHTS AND REMEDIES.
A. Subsection 8.2(a) of the Credit Agreement is hereby amended by
deleting the subsection in its entirety and substituting the following in lieu
thereof:
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"If any Default or Event of Default has occurred and is continuing,
Agent may (and at the written request of the Requisite Lenders shall),
without notice, suspend the Revolving Loan facility with respect to
additional Advances and/or the incurrence of additional Letter of
Credit Obligations, whereupon any additional Advances and additional
Letter of Credit Obligations shall be made or incurred in Agent's sole
discretion (or in the sole discretion of the Requisite Lenders, if
such suspension occurred at their direction) so long as such Default
or Event of Default is continuing; provided that consent from Agent
and each Lender, if any, whose Commitment at such time is not less
than 50% of all Revolving Loan Commitments (if such Lender's voting
rights hereunder have not been restricted pursuant to Section 9.9(d)),
shall be required for Agent to take any foregoing action pursuant to
this Section 8.2(a). If any Event of Default has occurred and is
continuing, Agent may (and at the written request of Requisite Lenders
shall), without notice except as otherwise expressly provided herein,
increase the rate of interest applicable to the Loans and the Letter
of Credit Fees to the Default Rate."
B. Subsection 8.2(b) of the Credit Agreement is hereby amended by
deleting the subsection in its entirety and substituting the following in lieu
thereof:
"If any Event of Default has occurred and is continuing, Agent may
(and at the written request of the Requisite Lenders shall), without
notice: (i) terminate the Revolving Loan facility with respect to
further Advances or the incurrence of further Letter of Credit
Obligations; (ii) declare all or any portion of the Obligations,
including all or any portion of any Loan to be forthwith due and
payable, and require that the Letter of Credit Obligations be cash
collateralized as provided in Annex B, all without presentment,
demand, protest or further notice of any kind, all of which are
expressly waived by Borrowers and each other Credit Party; or (iii)
exercise any rights and remedies provided to Agent under the Loan
Documents or at law or equity, including all remedies provided under
the Code; provided, that upon the occurrence of an Event of Default
specified in Sections 8.1(h) or (i), the Revolving Loan facility shall
be immediately terminated and all of the Obligations, including the
aggregate Revolving Loan, shall become immediately due and payable
without declaration, notice or demand by any Person; provided further
that consent from Agent and each Lender, if any, whose Commitment at
such time is not less than 50% of all Revolving Loan Commitments (if
such Lender's voting rights hereunder have not been restricted
pursuant to Section 9.9(d)), shall be required for Agent to take any
foregoing action pursuant to this Section 8.2(b)."
1.5 AMENDMENTS TO ANNEX J: COMMITMENTS.
A. Annex J to the Credit Agreement, Commitments, is hereby
modified and amended by deleting the existing schedule in its entirety
and substituting Annex J attached hereto in lieu thereof.
1.6 WAIVER OF COMMITMENT REDUCTION.
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A. The Agent and the Lenders hereby waive any requirement
contained in Section 1.3(c) for any reduction in the Commitments as a result of
the issuance by Carmike of shares of its common stock in an offering registered
under the Securities Act of 1933, as amended, provided that the closing of such
offering (other than with respect to the exercise of any over-allotment option)
occurs not later than September 30, 2002.
SECTION 2. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, each the Credit Parties
executing this Amendment represents and warrants to Agent and each Lender with
respect to all Credit Parties, that the following statements are true, correct
and complete:
A. POWER AND AUTHORITY. Each Credit Party is a corporation,
partnership or trust, as the case may be, duly organized, validly existing and
in good standing under the laws of its state of organization. Each Credit Party
has all requisite power and authority to enter into this Amendment and to carry
out the transactions contemplated by, and perform its obligations under, the
Credit Agreement as amended by this Amendment (as so amended, the "Amended
Agreement").
B. AUTHORIZATION OF AGREEMENT. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary action on the part of each Credit Party.
C. NO CONFLICT. The execution and delivery by each Credit Party
of this Amendment and the performance by Borrowers of the Amended Agreement do
not and will not (i) violate any provision of any law or any governmental rule
or regulation applicable to any Credit Party, the organizational documents of
any Credit Party or any order, judgment or decree of any court or other agency
of government binding on any Credit Party, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any agreement, document or instrument to which any Credit Party is a
party, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of any Credit Party (other than any Liens
created under any of the Loan Documents in favor of Lender), or (iv) require
any approval of stockholders or any approval or consent of any Person under any
agreement, document or instrument of which any Credit Party is a Party.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each
Credit Party of this Amendment and the performance by Borrowers of the Amended
Agreement do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body, except for filings required
in connection with the perfection of the security interests or the exercise of
the rights granted pursuant to the Security Agreement and Trademark Security
Agreement.
E. BINDING OBLIGATION. This Amendment and the Amended Agreement
have been duly executed and delivered by each Credit Party which is a party
thereto and are the legally valid and binding obligations of each such Credit
Party, enforceable against each such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy,
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insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 3 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the effective date hereof to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute a Default or an Event of Default.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective upon the prior or
concurrent satisfaction of all of the following conditions precedent (the date
of satisfaction of such conditions being referred to herein as the "First
Amendment Date"):
A. CONSENTS. Agent shall have received evidence satisfactory to
it that the Amendment does not (x) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any Loan
Documents or (y) require any approval or consent of any Person under any such
Loan Document except for such approvals or consents which shall have been
obtained on or before the First Amendment Date.
SECTION 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(i) On and after the First Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring
to the Credit Agreement shall mean and be a reference to the Amended
Agreement.
(ii) Except as specifically amended by this Amendment or
as set forth herein, the terms, provisions and conditions of the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and in all other respects are hereby ratified and
confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of Agent or Lender under, the Credit Agreement or any of the
other Loan Documents.
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B. FEES AND EXPENSES. Borrowers acknowledge that all costs, fees
and expenses as described in Section 11.3 of the Credit Agreement incurred by
Agent's counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Borrowers.
C. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purpose or be given any substantive
effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES. EACH CREDIT PARTY HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN CITY OF ATLANTA, COUNTY OF XXXXXX SHALL HAVE
NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
THE CREDIT PARTIES, AGENT AND LENDERS PERTAINING TO THIS AMENDMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND
THE CREDIT PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO
BE HEARD BY A COURT LOCATED OUTSIDE OF XXXXXX COUNTY; PROVIDED FURTHER, THAT
NOTHING IN THIS AMENDMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT. EACH CREDIT PARTY EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY WAIVES ANY OBJECTION
THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS SET FORTH IN ANNEX I OF THE
CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF SUCH CREDIT PARTY'S ACTUAL RECEIPT THEREOF OR 3 DAYS AFTER DEPOSIT
IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall
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constitute but one and the same instrument; signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same document. This
Amendment (other than Section 1 hereof) shall become effective upon the
execution of a counterpart hereof by Borrowers, each Credit Party and Agent and
receipt by Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS: CARMIKE CINEMAS, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
---------------------------------------
EASTWYNN THEATRES, INC., an Alabama
corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
---------------------------------------
AGENT/LENDER: GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Duly Authorized Signatory
--------------------------------------
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CREDIT PARTIES: WOODEN NICKEL PUB, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
---------------------------------------
MILITARY SERVICES, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
---------------------------------------
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