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EXHIBIT 1
CARMIKE CINEMAS, INC.
9 3/8% SENIOR SUBORDINATED NOTES DUE 2009
UNCONDITIONALLY GUARANTEED AS TO THE PAYMENT OF
PRINCIPAL, PREMIUM, IF ANY AND INTEREST BY
EASTWYNN THEATRES, INC.
WOODEN NICKEL PUB, INC.
PURCHASE AGREEMENT
JANUARY 27, 1999
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
As representatives of the several Purchasers
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Carmike Cinemas, Inc., a Delaware corporation (the "COMPANY"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Purchasers named in Schedule I hereto (each, a "PURCHASER" and,
collectively, the "PURCHASERS") an aggregate of $200,000,000 principal amount of
the 9 3/8% Senior Subordinated Notes due 2009 (the "SECURITIES") of the Company.
The Securities will be unconditionally guaranteed as to the payment of
principal, premium, if any and interest (the "GUARANTEES") by each of the
entities named in Schedule II hereto (each, a "GUARANTOR" and, collectively, the
"GUARANTORS").
Prior to or upon consummation of the Offering, the Company will issue
irrevocable redemption notices to the holders of the Existing Notes referred to
below (the "REDEMPTION NOTICES") to redeem all of its outstanding (i) 7.90%
Senior Notes due 2002, (ii) 7.52% Senior Notes due 2003, and (iii) 10.53% Senior
Notes due 2005 (collectively, the "EXISTING NOTES") at a redemption price of
100% of the principal amount thereof plus accrued and unpaid interest and any
applicable premium on a date that is not more than 45 days after the Time of
Delivery (as defined in Section 4(a)). Such redemption is herein called the
"EXISTING NOTE REDEMPTION".
1. Each of the Company and the Guarantors, jointly and severally,
represents and warrants to, and agrees with, each of the Purchasers that:
(a) A preliminary offering circular, dated January 12, 1999 (the
"PRELIMINARY OFFERING CIRCULAR"), and an offering circular, dated January 27,
1999 (the "OFFERING CIRCULAR"), in each case including the international
supplement thereto, have been prepared in connection with the offering of the
Securities and the Guarantees. Any reference to the
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Preliminary Offering Circular or the Offering Circular shall be deemed to refer
to and include any Additional Issuer Information (as defined in Section 5(f))
furnished by the Company prior to the completion of the distribution of the
Securities. The Preliminary Offering Circular or the Offering Circular and any
amendments or supplements thereto did not and will not, as of their respective
dates, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by a Purchaser through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for
use therein;
(b) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the Offering
Circular any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Circular; and, since the
respective dates as of which information is given in the Offering Circular,
there has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries (a "Material Adverse Effect"),
otherwise than as set forth or contemplated in the Offering Circular;
(c) The Company and each of its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Offering Circular
or such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(d) The Company and each of its subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Offering
Circular, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
(e) The Company has an authorized capitalization as set forth in the
Offering Circular, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and
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issued, are fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or claims
except that the Company owns only 80% of the outstanding issued shares of
capital stock of Military Services, Inc.;
(f) This Agreement has been duly authorized, executed and delivered by
the Company and each of the Guarantors;
(g) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
indenture, to be dated as of February 3, 1999 (the "INDENTURE"), between the
Company and The Bank of New York, as Trustee (the "TRUSTEE") under which they
are to be issued; the Indenture has been duly authorized and, when executed and
delivered by the Company and the Trustee, the Indenture will constitute a valid
and legally binding instrument of the Company, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities and the Indenture
will conform in all material respects to the descriptions thereof in the
Offering Circular and will be in substantially the form previously delivered to
you;
(h) The Guarantees have been duly authorized and, upon the due
authorization, issuance and delivery of the related Securities and the due
endorsement of the Guarantees thereon, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of such Guarantor entitled to the benefits provided by the
Indenture under which they are to be issued, and the Guarantees will conform in
all material respects to the description thereof in the Offering Circular and
will be in substantially the form previously delivered to you;
(i) The exchange and registration rights agreement, to be dated as of
February 3, 1999 (the "REGISTRATION RIGHTS AGREEMENT"), between the Company, the
Guarantors and the Purchasers has been duly authorized by the Company and each
of the Guarantors and, when executed and delivered by the Company and each
Guarantor, the Registration Rights Agreement will constitute a valid and legally
binding instrument of the Company and each Guarantor, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; Pursuant to the Registration
Rights Agreement, the Company and the Guarantors will agree to file with the
Commission, under the circumstances set forth therein, (i) a registration
statement under the United States Securities Act of 1933, as amended (the
"ACT"), relating to another series of debt securities of the Company with terms
substantially identical to the Securities (the "EXCHANGE SECURITIES") to be
offered in exchange for the Securities (the "EXCHANGE OFFER"), (ii) to the
extent required by the Registration Rights Agreement, a shelf registration
statement pursuant to Rule 415 of the Act relating to the resale by certain
holders of the Securities and (iii) to the extent required by the Registration
Rights Agreement, a market making registration statement, and in each case, to
use its reasonable best efforts to cause such registration statements to be
declared effective. The Exchange Securities have been duly authorized for
issuance by the Company, and when issued and authenticated in
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accordance with the terms of the Indenture will be the valid and legally binding
obligations of the Company, entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms. The Guarantees with respect to the
Exchange Securities have been duly authorized for issuance by each Guarantor,
and when issued in accordance with the terms of the Indenture will be the valid
and legally binding obligations of such Guarantor, entitled to the benefits
provided by the Indenture, enforceable in accordance with their terms. The
Registration Rights Agreement, the Exchange Securities and the Guarantees with
respect to the Exchange Securities will conform, in all material respects, to
the descriptions thereof in the Offering Circular and will be in substantially
the form previously delivered to you;
(j) None of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Securities)
will violate or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation, Regulations G,
T, U, and X of the Board of Governors of the Federal Reserve System;
(k) Prior to the date hereof, none of the Company, the Guarantors or
any of their respective affiliates has taken any action which is designed to or
which has constituted or which might reasonably have been expected to cause or
result in stabilization or manipulation of the price of any security of the
Company or any Guarantor in connection with the offering of the Securities and
the Guarantees;
(l) The issue and sale of the Securities and the Guarantees and the
compliance by the Company and the Guarantors with all of the provisions of the
Securities, the Guarantees, the Indenture, the Registration Rights Agreement and
this Agreement and the consummation of the transactions herein and therein
contemplated (i) will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) will not result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
the Company or any Guarantor or (iii) will not result in any violation of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties, except in the cases of clauses (i) and (iii) as would not,
singly or in the aggregate, have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Securities and the Guarantees or the consummation by the Company and the
Guarantors of the transactions contemplated by this Agreement, the Registration
Rights Agreement or the Indenture, except for the filing of a registration
statement by the Company with the United States Securities and Exchange
Commission (the "COMMISSION") pursuant to the Act pursuant to Section 5(k) of
this Agreement and the related qualification of the Indenture under the United
States Trust Indenture Act of 1939, as amended (the "TIA") and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities and the Guarantees by the Purchasers;
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(m) Neither the Company nor any of its subsidiaries is (i) in violation
of its Certificate of Incorporation or By-laws or (ii) in default in the
performance or observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except in the case of clause (ii) as would not,
singly or in the aggregate, have a Material Adverse Effect;
(n) The statements set forth in the Offering Circular under the caption
"Description of Notes" insofar as they purport to constitute a summary of
certain of the terms of the Securities, and under the captions "Description of
Other Indebtedness", "The Preferred Stock Placement", "Certain Relationships and
Related Transactions", "Certain United States Federal Income Tax Considerations"
and "Underwriting" insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair in all
material respects;
(o) Other than as set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries; and, to the best
of the Company's and the Guarantor's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(p) When the Securities and the Guarantees are issued and delivered
pursuant to this Agreement, neither the Securities nor the Guarantees will be of
the same class (within the meaning of Rule 144A under the Act) as any security
of the Company or the Guarantors that is listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system;
(q) The Company is subject to Section 13 or 15(d) of the Exchange Act;
(r) Each of the Company and the Guarantors is not, and after giving
effect to the offering and sale of the Securities, will not be an "investment
company", as such term is defined in the United States Investment Company Act of
1940, as amended (the "INVESTMENT COMPANY ACT");
(s) None of the Company, the Guarantors or any person acting on its or
their behalf (other than the Initial Purchasers or affiliates of the Initial
Purchasers, as to whom the Company and the Guarantors make no representation)
has offered or sold the Securities and Guarantees by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under the
Act or, with respect to Securities and Guarantees sold outside the United States
to non-U.S. persons (as defined in Rule 902 under the Act), by means of any
directed selling efforts within the meaning of Rule 902 under the Act, and the
Company, the Guarantors, any affiliate of the Company or the Guarantors and any
person acting on its or their behalf (other than the Initial Purchasers or
affiliates of the Initial Purchasers, as to whom the Company and the Guarantors
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make no representation) has complied with and will implement the "offering
restriction" within the meaning of such Rule 902;
(t) Within the preceding six months, none of the Company, the
Guarantors or any other person acting on behalf of the Company or any Guarantor
(other than the Initial Purchasers or affiliates of the Initial Purchasers, as
to whom the Company and the Guarantors make no representation) has offered or
sold to any person any Securities or Guarantees, or any securities of the same
or a similar class as the Securities or the Guarantees, other than the
Securities and Guarantees offered or sold to the Purchasers hereunder. The
Company and the Guarantors will take reasonable precautions designed to insure
that any offer or sale, direct or indirect, in the United States or to any U.S.
person (as defined in Rule 902 under the Act) of any Securities, the Guarantees
or any substantially similar security issued by the Company or any Guarantor,
within six months subsequent to the date on which the distribution of the
Securities and Guarantees has been completed (as notified to the Company by
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.), is made under restrictions and other circumstances
reasonably designed not to affect the status of the offer and sale of the
Securities and the Guarantees in the United States and to U.S. persons
contemplated by this Agreement as transactions exempt from the registration
provisions of the Securities Act;
(u) Ernst & Young LLP who has certified certain financial statements of
the Company and its subsidiaries, are independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder;
(v) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to which the
business or operations of the Company or any of its subsidiaries will be
affected by the Year 2000 Problem. As a result of such review, the Company has
no reason to believe, and does not believe, that the Year 2000 Problem will have
a material adverse effect on the general affairs, management, the current or
future consolidated financial position, business prospects, stockholders' equity
or results of operations of the Company and its subsidiaries or result in any
material loss or interference with the Company's business or operations. The
"Year 2000 Problem" as used herein means any significant risk that computer
hardware or software used in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission or other utilization of data or
in the operation of mechanical or electrical systems of any kind will not, in
the case of dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring prior to
January 1, 2000;
(w) The Company and its subsidiaries have complied in all material
respects with all laws, regulations and orders applicable to it or its
businesses the violation of which would have a material adverse effect on the
general affairs, management, the current or future consolidated financial
position, business prospects, stockholders' equity or results of operations of
the Company and its subsidiaries; and
(x) The Company and its subsidiaries own or possess or have the right
to use the patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names (collectively, the "INTELLECTUAL
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PROPERTY") presently employed by them in connection with, and material to,
collectively or in the aggregate, the operation of the businesses now operated
by them, and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to the foregoing which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a material
adverse effect on the general affairs, management, the current or future
consolidated financial position, business prospects, stockholders' equity or
results of operations of the Company and its subsidiaries.
2. Subject to the terms and conditions herein set forth, the Company
and the Guarantors agree to issue and sell to each of the Purchasers, and each
of the Purchasers agrees, severally and not jointly, to purchase from the
Company and the Guarantors, at a purchase price of 97.25% of the principal
amount thereof, plus accrued interest, if any, from February 3, 1999 to the Time
of Delivery hereunder, the principal amount of Securities (including the
Guarantees thereof) set forth opposite the name of such Purchaser in Schedule I
hereto.
3. Upon the authorization by you of the release of the Securities and
Guarantees, the several Purchasers propose to offer the Securities for sale upon
the terms and conditions set forth in this Agreement and the Offering Circular
and each Purchaser hereby represents and warrants to, and agrees with the
Company and the Guarantors that:
(a) It will offer and sell the Securities only to (i) persons whom it
reasonably believes are "qualified institutional buyers" ("QIBS") within the
meaning of Rule 144A under the Act in transactions meeting the requirements of
Rule 144A or (ii) upon the terms and conditions set forth in Annex I to this
Agreement;
(b) It is an Institutional Accredited Investor; and
(c) Neither it nor any person acting on its behalf will offer or sell
the Securities and Guarantees by any form of general solicitation or general
advertising, including but not limited to the methods described in Rule 502(c)
under the Act.
4. (a) The Securities to be purchased by each Purchaser hereunder will
be represented by one or more definitive global Securities in book-entry form
which will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company and the Guarantors will
deliver the Securities and the Guarantees to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., for the
account of each Purchaser, against payment by or on behalf of such Purchaser of
the purchase price therefor by wire transfer of Federal (same day) funds to an
account designated by the Company, by causing DTC to credit the Securities to
the account of ▇▇▇▇▇▇▇, Sachs & Co. at DTC. The Company and the Guarantors will
cause the certificates representing the Securities to be made available to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. for checking at least twenty-four hours prior to the Time
of Delivery (as defined below) at the office of DTC or its designated custodian
(the "DESIGNATED OFFICE"). The time and date of such delivery and payment shall
be 9:30 a.m., New York City time, on February 3, 1999 or such other time and
date as ▇▇▇▇▇▇▇, Sachs & Co. and the Company may agree upon in writing. Such
time and date are herein called the "Time of Delivery".
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(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Purchasers pursuant to Section 7 hereof, will be delivered at such time and date
at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "CLOSING LOCATION"), and the Securities and Guarantees will be delivered at
the Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 1:30 p.m., New York City time, on the New York Business
Day next preceding the Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. Each of the Company and the Guarantors, jointly and severally,
agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make
no amendment or any supplement to the Offering Circular which shall be
disapproved by you promptly after reasonable notice thereof; and to furnish you
with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith neither the Company nor
any Guarantor shall be required to qualify as a foreign corporation or to file a
general consent to service of process;
(c) To furnish the Purchasers with copies of the Offering Circular and
two copies of each amendment or supplement thereto signed by an authorized
officer of the Company with the independent accountants' report(s) in the
Offering Circular, and any amendment or supplement containing amendments to the
financial statements covered by such report(s), signed by the accountants, and
additional conformed copies thereof in such quantities as you may from time to
time reasonably request, and if, at any time prior to the expiration of nine
months after the date of the Offering Circular, any event shall have occurred as
a result of which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Circular is
delivered, not misleading, or, if for any other reason it shall be necessary or
desirable during such same period to amend or supplement the Offering Circular,
to notify you and upon your request to prepare and furnish without charge to
each Purchaser and to any dealer in securities as many copies as you may from
time to time reasonably request of an amended Offering Circular or a supplement
to the Offering Circular which will correct such statement or omission or effect
such compliance;
(d) During the period beginning from the date hereof and continuing
until the date six months after the Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of,
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except as provided hereunder any securities of the Company or any Guarantor that
are substantially similar to the Securities or the Guarantees;
(e) Not to be or become, at any time prior to the expiration of two
years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act;
(f) At any time when the Company is not subject to Section 13 or 15(d)
of the Exchange Act, for the benefit of holders from time to time of Securities,
to furnish at its expense, upon request, to holders of Securities and
prospective purchasers of Securities information (the "ADDITIONAL ISSUER
INFORMATION") satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the Act;
(g) If requested by you, to use its reasonable best efforts to cause
such Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.;
(h) To furnish to the holders of the Securities within the time periods
specified in the Commission's rules and regulations after the end of each fiscal
year an annual report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, within the time
periods specified in the Commission's rules and regulations after the end of
each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the date of the Offering Circular), to make available to
its stockholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail;
(i) During a period of five years from the date of the Offering
Circular, to furnish to you copies of all reports or other communications
(financial or other) furnished to stockholders of the Company or any of the
Guarantors, and to deliver to you (i) as soon as they are available, copies of
any reports and financial statements furnished to or filed with the Commission
or any securities exchange on which the Securities or any class of securities of
the Company or the Guarantors is listed; and (ii) such additional information
concerning the business and financial condition of the Company or the Guarantors
as you may from time to time reasonably request (such financial statements to be
on a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission);
(j) During the period of two years after the Time of Delivery, the
Company will not, and will not permit any of its "affiliates" (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired by
any of them;
(k) The Company and the Guarantors shall file and use its reasonable
best efforts to cause to be declared or become effective under the Act, on or
prior to 180 days after the Time of Delivery, a registration statement on Form
S-4 providing for the registration of the Exchange Securities and the Guarantees
thereon, and the exchange of the Securities for the Exchange
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Securities, all in a manner which will permit persons who acquire the Exchange
Securities to resell the Exchange Securities pursuant to Section 4(1) of the
Act; and
(l) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Offering
Circular under the caption "Use of Proceeds".
6. Each of the Company and the Guarantors, jointly and severally,
covenants and agrees with the several Purchasers that the Company and the
Guarantors will, jointly and severally, pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's and the Guarantors'
counsel and accountants in connection with the issuance of the Securities and
Guarantees and all other expenses in connection with the preparation, printing
and filing of the Preliminary Offering Circular and the Offering Circular and
any amendments and supplements thereto and the mailing and delivering of copies
thereof to the Purchasers and dealers; (ii) the cost of printing or producing
any Agreement among Purchasers, this Agreement, the Indenture, the Registration
Rights Agreement, the Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities and Guarantees;
(iii) all expenses in connection with the qualification of the Securities and
the Exchange Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of counsel
for the Purchasers in connection with such qualification and in connection with
the Blue Sky and legal investment surveys which will be $7,500; (iv) any fees
charged by securities rating services for rating the Securities and the Exchange
Securities; (v) the cost of preparing the Securities, the Exchange Securities
and the Guarantees with respect thereto; (vi) the fees and expenses of the
TRUSTEE and any agent of the Trustee and the reasonable fees and disbursements
of counsel for the Trustee in connection with the Indenture, the Securities and
the Exchange Securities; (viii) any cost incurred in connection with the
designation of the Securities for trading in PORTAL and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 6. It is understood,
however, that, except as provided in this Section 6, and Sections 8 and 11
hereof, the Purchasers will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in
their discretion, to the condition that all representations and warranties of
the Company and the Guarantors herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company and the Guarantors shall have
performed all of its obligations hereunder theretofore to be performed unless
otherwise waived by the Initial Purchasers, and the following additional
conditions:
(a) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Purchasers, shall have furnished
to you such opinion or opinions, dated the Time of Delivery, with respect to the
matters covered in paragraphs (i), (iii), (iv), (v), (vi), (vii), (viii), (ix),
(xiii) and (xiv) of subsection (b) below as well as such other related matters
as you may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon such
matters;
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(b) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company and the
Guarantors, shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you and your counsel, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering
Circular;
(ii) The Company has an authorized capitalization as set forth
in the Offering Circular, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors;
(iv) The Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the Indenture; and the Securities and the Indenture conform in all
material respects to the descriptions thereof in the Offering Circular;
(v) The Guarantees have been duly authorized, executed, issued
and delivered and constitute valid and legally binding obligations of
the Guarantors entitled to the benefits provided by the Indenture; and
the Guarantees conform in all material respects to the descriptions
thereof in the Offering Circular;
(vi) The Exchange Securities have been duly authorized;
(vii) The Guarantees with respect to the Exchange Securities
have been duly authorized;
(viii) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument of the Company and each Guarantor, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(ix) The Registration Rights Agreement has been duly
authorized, executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(x) The issue and sale of the Securities and the Guarantees
and the compliance by the Company and the Guarantors with all of the
provisions of the Securities, the Guarantees, the Indenture, the
Registration Rights Agreement and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with
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or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject and that
has been identified to such counsel as being material to the Company
and its subsidiaries and except for such breaches, violations or
defaults that have been waived or consented to by the parties thereto,
nor will such actions result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any Guarantor
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties;
(xi) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities and the
Guarantees or the consummation by the Company and the Guarantors of the
transactions contemplated by this Agreement, the Registration Rights
Agreement or the Indenture, except for the filing of a registration
statement by the Company with the Commission pursuant to the Act
pursuant to Section 5(k) of this Agreement and the related
qualification of the Indenture under the TIA and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers;
(xii) The statements set forth in the Offering Circular under
the caption "Description of Notes" insofar as they purport to
constitute a summary of certain of the terms of the Securities, and
under the captions "Description of Other Indebtedness", "The Preferred
Stock Placement", "Certain Relationships and Related Transactions",
"Certain United States Federal Income Tax Considerations" and
"Underwriting" insofar as they purport to describe the provisions of
the laws and documents referred to therein are accurate and complete
summaries of such terms and such provisions, respectively, in all
material respects;
(xiii) No registration of the Securities under the Act, and no
qualification of an indenture under the TIA with respect thereto, is
required for the offer, sale and initial resale of the Securities by
the Purchasers in the manner contemplated by this Agreement;
(xiv) Such counsel has no reason to believe that the Offering
Circular and any further amendments or supplements thereto made by the
Company prior to the Time of Delivery (other than the financial
statements therein, as to which such counsel need express no opinion)
contained as of its date or contains as of the Time of Delivery an
untrue statement of a material fact or omitted or omits, as the case
may be, to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(xv) Each of the Company and the Guarantors is not an
"investment company", as such term is defined in the Investment Company
Act;
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(xvi) Neither the issuance or sale of the Securities nor the
application of the proceeds thereof by the Company as set forth in the
Offering Circular will violate Regulations T, U or X of the Board of
Governors of the Federal Reserve System; and
(xvii) The Offering Circular, as of its date, and each
amendment or supplement thereto, as of its date, contains the
information specified in Rule 144A(d)(4) under the Act.
(c) ▇▇▇▇▇▇▇ ▇▇▇ Champion, III, general counsel for the Company and
the Guarantors, shall have furnished to you his written opinion, dated the Time
of Delivery, in form and substance satisfactory to you and your counsel, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering
Circular;
(ii) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation; and all of the issued shares
of capital stock of each subsidiary have been duly and validly
authorized and issued are fully paid and non-assessable, and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of officers of the
Company or its subsidiaries; provided that such counsel shall state
that they believe that both you and they are justified in relying upon
such opinions and certificates);
(iii) The Company and each of its Subsidiaries has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company; provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates);
(iv) The Company and its subsidiaries have good and marketable
title in fee simple to all real property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Offering Circular or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries (in
giving the opinion in this clause,
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such counsel may state that no examination of record titles for the
purpose of such opinion has been made, and that they are relying upon a
general review of the titles of the Company and its subsidiaries, upon
opinions of local counsel and abstracts, reports and policies of title
companies rendered or issued at or subsequent to the time of
acquisition of such property by the Company or its subsidiaries, upon
opinions of counsel to the lessors of such property and, in respect of
matters of fact, upon certificates of officers of the Company or its
subsidiaries; provided that such counsel shall state that they believe
that both you and they are justified in relying upon such opinions,
abstracts, reports, policies and certificates);
(v) To the best of such counsel's knowledge and other than as
set forth in the Offering Circular, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
(vi) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation, covenant
or condition contained in any material indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(d) On the date of the Offering Circular prior to the execution of
this Agreement and also at the Time of Delivery, Ernst & Young LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you and your counsel. The letter
dated the Time of Delivery will address the financial data included in the
Offering Circular under the caption "Offering Circular Summary -- Recent
Developments" in the manner previously agreed to by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇ &
▇▇▇▇▇ LLP.
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Circular any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Circular, and (ii)
since the respective dates as of which information is given in the Offering
Circular there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Offering Circular, the effect of which, in any such case described in clause (i)
or (ii), is in the judgment of the Purchasers so material and adverse as to make
it impracticable or inadvisable to proceed with the
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public offering or the delivery of the Securities on the terms and in the manner
contemplated in this Agreement and in the Offering Circular;
(f) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's and any Guarantor's debt securities by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
and any Guarantor's debt securities;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event specified
in this clause (iv) in the judgment of the Purchasers makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Offering Circular;
or (v) the occurrence of any material adverse change in the existing, financial,
political or economic conditions in the United States or elsewhere which, in the
judgment of the Purchasers, would materially and adversely affect the financial
markets or the markets for the Securities and other debt securities;
(h) The Securities have been designated for trading on PORTAL;
(i) The Company shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company and the
Guarantors satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Guarantors herein at and as of such Time of
Delivery, as to the performance by the Company and the Guarantors of all of
their obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in the first paragraph of this Section 7
and subsections (e) and (f) of this Section 7 and as to such other matters as
you may reasonably request.
(j) The Company shall have issued the Redemption Notices and evidence
as to such, reasonably satisfactory to you and your counsel, shall have been
delivered to you;
(k) The issuance by the Company of the Securities shall not constitute
a default or an event of default under the Existing Notes;
(l) The Company shall use the remaining proceeds of the sale of
Securities to repay a portion of the borrowings under the Company's Credit
Agreement, dated as of October 17, 1997, by and among the Company and various
banks and Wachovia Bank, N.A., as agent (the "EXISTING CREDIT AGREEMENT") and
evidence as to such, reasonably satisfactory to you and your counsel, shall have
been delivered to you;
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(m) The Company shall have amended the Existing Credit Agreement as
described in the Offering Circular and have obtained a waiver under the Existing
Credit Agreement to allow the issuance of the Securities and evidence as to
such, reasonably satisfactory to you and your counsel, shall have been delivered
to you;
(n) The Company shall have received any consents necessary for the
issuance of the Securities under its master lease facility with Movieplex Realty
Leasing, L.L.C. (the "MASTER LEASE") and evidence as to such, reasonably
satisfactory to you and your counsel, shall have been delivered to you; and
(o) The Company shall have agreed pursuant to the terms of the
Registration Rights Agreement to prepare, file and cause to become effective a
Market Making Shelf Registration Statement (as defined therein) with respect to
the Securities and Exchange Securities, and to take all other action set forth
in the Registration Rights Agreement with respect thereto, and evidence as to
such, reasonably satisfactory to you and your counsel, shall have been delivered
to you.
8. (a) The Company and each Guarantor will, jointly and severally,
indemnify and hold harmless each Purchaser against any losses, claims, damages
or liabilities, joint or several, to which such Purchaser may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Circular or the Offering Circular, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading, and will reimburse each Purchaser for any legal or other expenses
reasonably incurred by such Purchaser in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that neither the Company nor any Guarantor shall be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Offering Circular or the Offering
Circular or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Purchaser through
▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company and the
Guarantors against any losses, claims, damages or liabilities to which the
Company and any Guarantor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Offering Circular or
the Offering Circular, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact or necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary Offering
Circular or the Offering Circular or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Purchaser through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use
therein; and will reimburse the
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Company and the Guarantors for any legal or other expenses reasonably incurred
by the Company and the Guarantors in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party. The indemnifying party shall not be required to indemnify
the indemnified party for any amount paid or payable by the indemnified party in
the settlement of any proceeding effected without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors on the one hand and
the Purchasers on the other from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantors on the one hand and the Purchasers on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantors on the one
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hand and the Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Guarantors bear to the total
underwriting discounts and commissions received by the Purchasers, in each case
as set forth in the Offering Circular. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Guarantors on the one
hand or the Purchasers on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Guarantors and the Purchasers agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to investors were offered to
investors exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Purchasers' obligations in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Guarantors under this
Section 8 shall be in addition to any liability which the Company and the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within the
meaning of the Act; and the obligations of the Purchasers under this Section 8
shall be in addition to any liability which the respective Purchasers may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or any Guarantor and to each person, if any,
who controls the Company or any Guarantor within the meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Purchaser you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other documents or arrangements, and the Company agrees to prepare
promptly any amendments to the Offering Circular which in your reasonable
opinion may thereby be made necessary. The
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term "Purchaser" as used in this Agreement shall include any person substituted
under this Section 9 with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Purchasers to purchase
Securities of a defaulting Purchaser or Purchasers, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Company and the Guarantors, except for the expenses to be borne
by the Company, the Guarantors and the Purchasers as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Purchaser from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Guarantors and the several Purchasers,
as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Purchaser or any controlling person of any Purchaser, or the
Company, the Guarantors or any officer or director or controlling person of the
Company or a Guarantor, and shall survive delivery of and payment for the
Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and the Guarantors shall not then be under any liability to any
Purchaser except as provided in Sections 6 and 8 hereof; but, if for any other
reason, the Securities (including the Guarantees with respect thereto) are not
delivered by or on behalf of the Company and the Guarantors as provided herein,
the Company and the Guarantors will reimburse the Purchasers through you for all
out-of-pocket expenses approved in writing by you, including reasonable fees and
disbursements of one counsel and any local counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Securities, but the Company shall then be under no further liability to any
Purchaser except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or
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agreement on behalf of any Purchaser made or given by you jointly or by ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. on behalf of you as the representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; and if to the Company and the Guarantors shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set forth
in the Offering Circular, Attention: Secretary; provided, however, that any
notice to a Purchaser pursuant to Section 8(c) hereof shall be delivered or sent
by mail, telex or facsimile transmission to such Purchaser at its address set
forth in its Purchasers' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchasers, the Company, the Guarantors and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and the Guarantors and each person who controls the Company, a Guarantor or any
Purchaser, and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Securities from any Purchaser
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
20
21
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and the Guarantors and each of the
Purchasers plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Purchasers, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Purchasers, the Company and the Guarantors. It is understood that your
acceptance of this letter on behalf of each of the Purchasers is pursuant to the
authority set forth in a form of Agreement among Purchasers, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
CARMIKE CINEMAS, INC.
By: /s/ ▇. ▇▇▇ Champion, III
--------------------------------------
EASTWYNN THEATRES, INC.
By: /s/ ▇. ▇▇▇ Champion, III
--------------------------------------
Name: ▇. ▇▇▇ Champion, III
Title: Senior Vice President/Secretary
WOODEN NICKEL PUB, INC.
By: /s/ ▇. ▇▇▇ Champion, III
--------------------------------------
Name: ▇. ▇▇▇ Champion, III
Title: Secretary
Purchase Agreement Signature Page
22
Accepted as of the date hereof:
▇▇▇▇▇▇▇, Sachs & Co.
First Union Capital Markets,
a division of Wheat First Securities, Inc.
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
Purchase Agreement Signature Page
23
SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
PURCHASER PURCHASED
--------- ----------
▇▇▇▇▇▇▇, Sachs & Co. ................................................................ $140,000,000
First Union Capital Markets, a division of Wheat First Securities, Inc............... 30,000,000
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC .......................................................... 30,000,000
------------
Total ...................................................................... $200,000,000
============
Schedule I Page 1
24
SCHEDULE II
GUARANTORS
1. Eastwynn Theatres, Inc.
2. Wooden Nickel Pub, Inc.
Schedule II Page 1
25
ANNEX I
(1) The Securities have not been and will not be registered under the
Act and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. Each Purchaser represents that it has offered and sold the Securities, and
will offer and sell the Securities (i) as part of their distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Time of Delivery, only in accordance with Rule 903 of
Regulation S, Rule 144A under the Act. Accordingly, each Purchaser agrees that
neither it, its affiliates nor any persons acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to the
Securities, and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser agrees that, at or
prior to confirmation of sale of Securities (other than a sale pursuant to Rule
144A), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "SECURITIES ACT") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Purchaser further agrees that it has not entered and will not
enter into any contractual arrangement with respect to the distribution or
delivery of the Securities, except with its affiliates or with the prior written
consent of the Company.
In addition,
(A) except to the extent permitted under U.S. Treas. Reg.
ss.1.163-5(c)(2)(i)(D) (the "D RULES"), (i) each Purchaser agrees that
it has not offered or sold, and during the restricted period will not
offer or sell, Securities in bearer form to a person who is within the
United States or its possessions or to a U.S. person, and (ii) it has
not delivered and will not deliver within the United States or its
possessions definitive Securities in bearer form that are sold during
the restricted period;
(B) each Purchaser represents and agrees that it has, and
throughout the restricted period will have, in effect procedures
reasonably designed to ensure that its employees or agents who are
directly engaged in selling Securities in bearer form are aware that
such Securities may not be offered or sold during the restricted period
to a person who is within the United States or its possessions or to a
United States person, except as permitted by the D Rules;
Annex I Page 1
26
(C) if it is a United States person, each such Purchaser
represents that it is acquiring the Securities in bearer form for
purposes of resale in connection with their original issuance and if
it retains Securities in bearer form for its own account, it will
only do so in accordance with the requirements of U.S. Treas. Reg.
ss.1.163-5(c)(2)(i)(D)(6); and
(D) with respect to each affiliate that acquires from it
Securities in bearer form for the purpose of offering or selling such
Securities during the restricted period, such Purchaser either (i)
repeats and confirms the representations and agreements contained in
clauses (A), (B) and (C) on its behalf or (ii) agrees that it will
obtain from such affiliate for the Company's benefit the
representations and agreements contained in clauses (A), (B) and (C).
Terms used in this paragraph have the meanings given to them by the United
States Internal Revenue Code and regulations thereunder, including the D Rules.
(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to Section 3 of this Agreement without delivery of the written
statement required by paragraph (1) above.
(3) Each Purchaser further represents and agrees that (i) it has not
offered or sold and will not offer or sell any Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (c) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance of
the Securities to a person who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person to whom the document may otherwise lawfully be
issued or passed on.
(4) Each Purchaser agrees that it will not offer, sell or deliver any
of the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose. Each Purchaser agrees not to cause any advertisement of the Securities
to be published in any newspaper or periodical or posted in any public place and
not to issue any circular relating to the Securities, except in any such case
with ▇▇▇▇▇▇▇, Sachs & Co.'s express written consent and then only at its own
risk and expense.
Annex I Page 2
27
ANNEX II
Pursuant to Section 7(d) of the Purchase Agreement, the accountants
shall furnish letters to the Purchasers to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries under rule 101 of the
American Institute of Certified Public Accountants' Code of
Professional Conduct, and its interpretations and rulings;
(ii) In our opinion, the consolidated financial statements
audited by us and included in the Offering Circular comply as to form
in all material respects with the applicable requirements of the
Exchange Act and the related published rules and regulations;
(iii) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Offering Circular agrees with the corresponding amounts (after
restatements where applicable) in the audited consolidated financial
statements for such five fiscal years;
(iv) On the basis of limited procedures not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Offering Circular, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Offering Circular are not in
conformity with generally accepted accounting principles
applied on the basis substantially consistent with the basis
for the audited consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Offering Circular;
(B) any other unaudited income statement data and
balance sheet items included in the Offering Circular do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data and
items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited
consolidated financial statements included in the Offering
Circular;
(C) the unaudited financial statements which were not
included in the Offering Circular but from which were
derived any unaudited condensed financial statements
referred to in Clause (A) and any unaudited income statement
data and
Annex II Page 1
28
balance sheet items included in the Offering Circular and
referred to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited
consolidated financial statements included in the Offering
Circular;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Offering Circular do not
comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest financial statements
included in the Offering Circular) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Purchasers, or any increases in any items specified by the
Purchasers, in each case as compared with amounts shown in the
latest balance sheet included in the Offering Circular except
in each case for changes, increases or decreases which the
Offering Circular discloses have occurred or may occur or
which are described in such letter; and
(F) for the period from the date of the latest
financial statements included in the Offering Circular to the
specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or
the total or per share amounts of consolidated net income or
other items specified by the Purchasers, or any increases in
any items specified by the Purchasers, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Purchasers, except in each case for decreases or increases
which the Offering Circular discloses have occurred or may
occur or which are described in such letter; and
(v) In addition to the examination referred to in their
report(s) included in the Offering Circular and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (iv) above, they have carried out certain
specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Purchasers,
which are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Offering Circular, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries that
are subject to the internal control structure policies and procedures
of the Company's accounting system and have found them to be in
agreement.
Annex II Page 2
