Exhibit 4.1
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 28, 2004
TO
INDENTURE
Dated as of January 31, 2002
Among
CARMIKE CINEMAS, INC.,
as Issuer,
and
WILMINGTON TRUST COMPANY,
as Trustee.
FIRST SUPPLEMENTAL INDENTURE, dated as of January 28, 2004, between
CARMIKE CINEMAS, INC., a Delaware corporation (the "Company"), and WILMINGTON
TRUST COMPANY, as trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a certain Indenture, dated as of January 31, 2002 (the "Indenture"),
pursuant to which the Company issued approximately $154,300,000 aggregate
principal amount of its 10 3/8% Senior Subordinated Notes due 2009 (the
"Notes"). All terms used in this First Supplemental Indenture that are defined
in the Indenture shall have the respective meanings assigned to them in the
Indenture;
WHEREAS, the Company desires to make certain modifications to the
provisions of the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that, subject to
certain exceptions, the Indenture may be amended or supplemented with the
written consent of at least a majority in aggregate principal amount of the
outstanding Notes;
WHEREAS, the Board of Directors of the Company, by Written Consent
effective as of January 13, 2004, authorized (i) the solicitation, in connection
with a tender offer to purchase all the outstanding Notes for cash, of consents
to certain proposed amendments (the "Proposed Amendments") to the Indenture and
(ii) the execution and delivery of this First Supplemental Indenture upon
receipt of the necessary consents;
WHEREAS, the Company has received the necessary consents for the
Proposed Amendments and desires and has requested that the Trustee join with it
in the execution and delivery of this First Supplemental Indenture;
WHEREAS, in accordance with Sections 9.02, 9.06 and 12.04 of the
Indenture, the Company has furnished the Trustee with (i) copies of the Written
Consent of the Board of Directors of the Company authorizing the execution of
this First Supplemental Indenture and (ii) an Officers' Certificate and an
Opinion of Counsel, each stating that the execution of this First Supplemental
Indenture is authorized or permitted by the Indenture;
WHEREAS, all things have been done that are necessary to make this
First Supplemental Indenture a valid agreement of the Company and the Trustee
and a valid amendment of and supplement to the Indenture;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Company and the Trustee agree for
the benefit of the other parties and for the equal and ratable benefit of the
Holders of the outstanding Notes:
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ARTICLE ONE
SECTION 1.01. The following definitions are eliminated in their
entirety from Sections 1.01 and 1.02 of the Indenture, "Acquired Debt,"
"Affiliate Transaction," "Change of Control," "Change of Control Payment Date,"
"Consolidated EBITDA," "Consolidated Interest Expense," "Fall-Away Event,"
"incur," "Independent Financial Advisor," "Investment Grade Status," "Leverage
Ratio," "Permitted Debt," "PIA," "Permitted Refinancing Indebtedness,"
"Registration Rights Agreement," "Restricted Payments" and "Total Tangible
Assets."
SECTION 1.02. The following are eliminated in their entirety from the
Indenture: Section 4.03, Section 4.04, Section 4.05, Section 4.06, Section 4.07,
Section 4.09, Section 4.10, Section 4.11, Section 4.12, Section 4.13, Section
4.14, Section 4.15, Section 4.16, Section 4.17, Section 4.18, Section 5.01,
Section 6.01(c), Section 6.01(d), Section 6.01(e), Section 6.01(f), Section
6.01(g), Section 6.01(h) and Section 6.01(i).
SECTION 1.03. The parenthetical statement in Section 6.01(b) of the
Indenture is eliminated in its entirety.
SECTION 1.04. References to any of the defined terms, Sections and
Articles eliminated above are eliminated in their entirety.
SECTION 1.05.
(a) This First Supplemental Indenture shall only become
operative upon the delivery by the Company to the Trustee of an Officers'
Certificate certifying that the Company has purchased all Notes validly tendered
and not withdrawn in the Tender Offer prior to the Consent Payment Deadline (as
such terms are defined in the Company's Offer to Purchase and Consent
Solicitation Statement dated January 14, 2004 (the "Offer to Purchase")).
(b) In the event that the Company shall not have
delivered such an Officers' Certificate on or before March 1, 2004, or in the
event that on or before such date the Company shall have delivered an Officers'
Certificate stating that the Company will not purchase the Notes validly
tendered and not withdrawn in the Tender Offer prior to the Consent Payment
Deadline, this First Supplemental Indenture shall be null and void, nunc pro
tunc.
(c) In its determination as to whether this First
Supplemental Indenture has become operative, the Trustee shall be entitled to
rely on an Officers' Certificate delivered pursuant to (a) or (b) above, or the
failure to deliver such an Officers' Certificate described in (b) above.
ARTICLE TWO
SECTION 2.01. Upon the execution and delivery of this Supplemental
Indenture by the Company and the Trustee, the Indenture shall be supplemented in
accordance herewith, and this Supplemental Indenture shall be effective and form
a part of the Indenture for all purposes, and
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every Holder of Securities heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby; provided, however, that Article 1
hereof will become operative upon the delivery by the Company to the Trustee of
an Officers' Certificate certifying that the Company has purchased all Notes
validly tendered and not withdrawn in the Tender Offer prior to the Consent
Payment Deadline (as such terms are defined in the Offer to Purchase).
SECTION 2.02. Except as expressly amended by this First Supplemental
Indenture, the Indenture is in all respects ratified and confirmed and all of
its terms, conditions and provisions shall remain in full force and effect.
SECTION 2.03. This First Supplemental Indenture shall form a part of
the Indenture for all purposes and shall, after it becomes effective, bind every
Holder.
SECTION 2.04. This First Supplemental Indenture may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same instrument.
SECTION 2.05. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this First
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which are made solely by the Company.
SECTION 2.06. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed as of the date first above written.
CARMIKE CINEMAS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President--Finance,
Treasurer and Chief Financial
Officer
EASTWYNN THEATRES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President--Finance,
Treasurer and Chief Financial
Officer
WOODEN NICKEL PUB, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President--Finance,
Treasurer and Chief Financial
Officer
MILITARY SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President--Finance,
Treasurer and Chief Financial
Officer
WILMINGTON TRUST COMPANY,
AS TRUSTEE
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
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