EXHIBIT 10.1
FIRST AMENDMENT
FIRST AMENDMENT, dated as of June 7, 2005 (this "Amendment"),
to the Credit Agreement, dated as of May 19, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among CARMIKE
CINEMAS, INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
XXXXX FARGO FOOTHILL, INC., as Documentation Agent (in such capacity, the
"Documentation Agent"), and BEAR XXXXXXX CORPORATE LENDING INC., as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make certain extensions of credit to the Borrower; and
WHEREAS, the Borrower, the Lenders and the Administrative
Agent desire to amend the Credit Agreement on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the Borrower, the Lenders and the Administrative
Agent hereby agree as follows:
SECTION 1.1. Defined Terms. Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
SECTION 1.2. Amendments to Section 1.1 to the Credit
Agreement. (a) The definition of the term "Application" in Section 1.1 of the
Credit Agreement is hereby amended by inserting at the end of such definition
the phrase ", in each case executed by a duly authorized employee or officer of
the Borrower".
(b) The definition of the term "Consolidated EBITDA" in
Section 1.1 of the Credit Agreement is hereby amended by inserting a closing
parenthesis after the phrase "state law" in the fourth line of such definition.
(c) The definition of the term "Delayed-Draw Activation
Notice" in Section 1.1 of the Credit Agreement is hereby amended by deleting the
word "Commitment" therein and inserting, in lieu thereof, the word "Loan".
(d) The definition of the term "L/C Issuance Side Letter" is
hereby in Section 1.1 of the Credit Agreement is hereby amended by deleting such
definition in its entirety.
(e) The definition of the phrase "Permitted Acquisition" in
Section 1.1 of the Credit Agreement is hereby amended by deleting the word
"Draw-Down" therein and inserting, in lieu thereof, the word "Delayed-Draw".
SECTION 1.3. Amendment to Sections 3.7, 3.8 and 3.9.
Sections 3.7, 3.8 and 3.9 of the Credit Agreement are hereby amended by deleting
such Sections in their entirety and inserting, in lieu thereof, the following
new Sections 3.7, 3.8 and 3.9:
"3.7 L/C Commitment. (a) Subject to the terms and
conditions hereof, the Issuing Lender, in reliance on the agreements of
the other Revolving Lenders set forth in Section 3.10(a), agrees to
issue letters of credit ("Letters of Credit") for the
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account of the Borrower on any Business Day during the Revolving
Commitment Period in such form as may be approved from time to time by
the Issuing Lender; provided that the Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to
such issuance, (i) the L/C Obligations would exceed the L/C Commitment
or (ii) the aggregate amount of the Available Revolving Commitments
would be less than zero. Each Letter of Credit shall (i) be denominated
in Dollars, (ii) have a face amount of at least $100,000 (unless
otherwise agreed by the Issuing Lender) and (iii) expire no later than
the earlier of (x) the first anniversary of its date of issuance and
(y) the date that is five Business Days prior to the Revolving
Termination Date, provided that any Letter of Credit with a term not
greater than one-year may provide for the renewal thereof for
additional periods in accordance with Section 3.7(b).
(b) The Issuing Lender shall send a request for
approval of renewal of any renewable Letter of Credit to the
Administrative Agent no later than the earlier of (a) thirty days prior
to the anniversary date of the date of the issuance of such Letter of
Credit and (b) thirty days prior to any non-renewal notice date set
forth in such Letter of Credit. If the Administrative Agent confirms
that such renewal would not, after giving effect to such renewal, cause
the Available Revolving Commitments to be less than zero (such
confirmation to be delivered by the Administrative Agent to the Issuing
Lender not less than twenty (20) days prior to (x) the anniversary date
of the date of issuance of such Letter of Credit (in the event that
Issuing Lender sent to the Administrative Agent the applicable request
for confirmation pursuant to clause (a) of the immediately preceding
sentence) or (y) the non-renewal notice date set forth in such Letter
of Credit (in the event that the Issuing Lender sent to the
Administrative Agent the applicable request for approval pursuant to
clause (b) of the immediately preceding sentence). Notwithstanding the
foregoing, in no event shall the term of any such renewed Letter of
Credit extend beyond the date that is five Business Days prior to the
Revolving Termination Date.
(c) The Issuing Lender shall not at any time be
obligated to issue any Letter of Credit hereunder if such issuance
would conflict with, or cause the Issuing Lender or any L/C Participant
to exceed any limits imposed by, any applicable Requirement of Law.
3.8. Procedure for Issuance of Letter of Credit. (a)
The Borrower may from time to time request that the Issuing Lender
issue a Letter of Credit by delivering to the Administrative Agent at
its address for notices specified herein an Application therefor. Upon
receipt of any Application, the Administrative Agent will notify the
Issuing Lender of the amount, the beneficiary and the requested
expiration of the requested Letter of Credit, and upon receipt of
confirmation from the Administrative Agent that after giving effect to
the requested issuance, the Available Revolving Commitments would not
be less than zero, the Issuing Lender will process such Application (in
each case to be completed to the satisfaction of the Issuing Lender,
and accompanied by such other certificates, documents and other papers
and information as the Issuing Lender may reasonably request) and any
certificate, document or other papers and information delivered to it
in connection therewith in accordance with its customary procedures.
(b) Following the receipt of an Application as to
which confirmation has been received by the Issuing Lender in
accordance with Section 3.8(a), the Issuing Lender shall cause the
Letter of Credit to be issued: (i) if such Application is received by
the Issuing Lender at or prior to 3:00 P.M., New York City time, on a
Business Day, on
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the next succeeding Business Day, or (ii) if such Application is
received by the Issuing Lender after 3:00 P.M., New York City time, on
a Business Day, no later than the second Business Day following such
Business Day, such date of issuance, in either case, the "Issuing
Date". The original of such Letter of Credit may be issued to the
beneficiary thereof or as otherwise may be agreed to by the Issuing
Lender and the Borrower. The Issuing Lender shall within one Business
Day of the issuance of a Letter of Credit furnish to the Administrative
Agent, which shall in turn promptly furnish to the Lenders, notice of
the issuance of each Letter of Credit (including the amount thereof).
(c) The Issuing Lender will send weekly and monthly
reports prepared by the Issuing Lender to the Administrative Agent
promptly after such reports become available.
3.9 Fees and Other Charges. (a) The Borrower will pay
a fee on all outstanding Letters of Credit at a per annum rate equal to
the Applicable Margin then in effect with respect to Eurodollar Loans
under the Revolving Facility, shared ratably among the Revolving
Lenders and payable quarterly in arrears on each L/C Fee Payment Date
after the Issuance Date. In addition, the Borrower shall pay to the
Issuing Lender for its own account a fronting fee on the undrawn and
unexpired amount of each Letter of Credit equal to 0.30% per annum,
payable quarterly in arrears on each L/C Fee Payment Date after the
Issuance Date.
(b) In addition to the foregoing fees, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary
costs and expenses as are incurred or charged by the Issuing Lender in
issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit. The Issuing Lender will provide the
Administrative Agent a copy of the Letter of Credit fees, charges and
expenses charged by the Issuing Lender by facsimile on or about the
10th Business Day of each month."
SECTION 1.4. Amendment to Section 3.12. Section 3.12 of the
Credit Agreement is hereby amended by inserting the phrase "without
responsibility for further investigation and regardless of any notice or
information to the contrary" after the phrase "the validity or genuineness of
documents or of any endorsements thereon" therein.
SECTION 1.5. Amendment to Sections 3.13 and 3,14. Sections 3.13
and 3.14 of the Credit Agreement are hereby amended by deleting such Sections in
their entirety and inserting, in lieu thereof, the following new Sections 3.13
and 3.14:
"3.13 Letter of Credit Payments. (a) If any draft
shall be presented for payment under any Letter of Credit, the Issuing
Lender shall promptly notify the Borrower and the Administrative Agent
of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment are
substantially in conformity with such Letter of Credit.
(b) Promptly following presentment to the Issuing
Lender by the beneficiary of any Letter of Credit (a) with respect to
which the face amount of the Letter of Credit would be exceeded after
giving effect to any draw thereunder or (b) that has expired (each, a
"Credit Risk Discrepancy"), the Issuing Lender shall send notice of
such
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Credit Risk Discrepancy to the Administrative Agent. No Letter of
Credit with respect to which a Credit Risk Discrepancy exists (or would
exist upon the Issuing Lender honoring such Letter of Credit) shall be
honored unless such Credit Risk Discrepancy has been waived in writing
by each of the Borrower and the Administrative Agent. If waived, the
Administrative Agent shall provide notice of such written waiver to the
Issuing Lender not later than two Business Days after the Issuing
Lender provides notice to the Administrative Agent of such Credit Risk
Discrepancy.
3.14 Applications. To the extent that any provision
of any Application related to any Letter of Credit is inconsistent with
the provisions of this Section 3, the provisions of this Section 3
shall apply."
SECTION 1.6. Amendment to Section 4.1(b). Section 4.1(b) of
the Credit Agreement is hereby amended by deleting such Section and inserting,
in lieu thereof, the following new Section 4.1(b):
"(b) Each optional prepayment in respect of the Initial Term
Loans made prior to the second anniversary of the Closing Date shall be
accompanied by a reduction of the Delayed-Draw Term Commitment of each
Lender in effect at such time in an amount equal to the Delayed-Draw
Term Percentage of such Lender multiplied by the aggregate amount of
such optional prepayment."
SECTION 1.7. Amendment to Section 5.1(b)(i). Section 5.1(b)(i)
of the Credit Agreement is hereby amended by deleting the phrase "The audited
consolidated balance sheets of each of the Borrower and the Target as at
December 31, 2002, December 31, 2003 and December 31, 2004" therein and
inserting, in lieu thereof, the phrase "The audited consolidated balance sheets
of the Borrower as at December 31, 2002, December 31, 2003 and December 31,
2004, and of the Target as at December 31, 2003 and December 31, 2004".
SECTION 1.8. Amendment to Section 7.2. Section 7.2 of the
Credit Agreement is hereby amended by
(a) Inserting the following new Section 7.2(g) in proper
alphabetical order therein:
"(g) promptly upon receipt thereof, copies of all management
letters and similar reports and documents submitted to the Borrower by
independent accountants in connection with any annual or interim audit
of the books of the Borrower made by such accountants; and";
(b) Deleting the word "and" from the end of Section 7.2(f);
and
(c) Relettering existing Section 7.2(g) as new Section 7.2(h).
SECTION 1.9. Amendment to Section 8.1(b). Section 8.1(b) of
the Credit Agreement is hereby amended by inserting the phrase ", but not
including," after the phrase "Permitted Acquisitions consummated during the
period from" therein.
SECTION 1.10. Amendment to Section 11.2. Section 11.2 of the
Credit Agreement is hereby amended by inserting the phrase "and the Issuing
Lender" after the phrase "and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders" therein.
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SECTION 1.11. Conditions to Effectiveness. This Amendment
shall become effective as of the date hereof on the date (the "Amendment
Effective Date") on which the Borrower, the Administrative Agent and the
Required Lenders shall have executed and delivered to the Administrative Agent
this Amendment.
SECTION 1.12. Representation and Warranties. To induce the
Administrative Agent to enter into this Amendment, the Borrower hereby
represents and warrants to the Administrative Agent and all of the Lenders as of
the Amendment Effective Date that:
(a) Corporate Power; Authorization; Enforceable Obligations.
(i) The Borrower has the corporate power and
authority, and the legal right, to make and deliver this
Amendment and to perform its obligations under the Loan
Documents, as amended by this Amendment, and has taken all
necessary corporate action to authorize the execution,
delivery and performance of this Amendment and the performance
of the Loan Documents, as so amended.
(ii) No consent or authorization of, approval by,
notice to, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in
connection with the execution and delivery of this Amendment
or with the performance, validity or enforceability of the
Loan Documents, as amended by this Amendment, except as
otherwise provided in Section 5.4 of the Credit Agreement.
(iii) This Amendment has been duly executed and
delivered on behalf of the Borrower.
(iv) This Amendment and each Loan Document, as
amended by this Amendment, constitutes a legal, valid and
binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(b) Representations and Warranties. The representations and
warranties made by the Borrower in and pursuant to the Loan Documents are true
and correct in all material respects on and as of the Amendment Effective Date,
after giving effect to the effectiveness of this Amendment, as if made on and as
of the Amendment Effective Date.
SECTION 1.13. Payment of Expenses. The Borrower agrees to pay
or reimburse each Agent for all of its reasonable out-of-pocket costs and
expenses incurred in connection with this Amendment, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to each Agent.
SECTION 1.14. No Other Amendments; Confirmation. Except as
expressly amended, modified and supplemented hereby, the provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect.
SECTION 1.15. Governing Law; Counterparts. (a) This Amendment
and the rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
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(b) This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
CARMIKE CINEMAS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
First Amendment to Credit Agreement
BEAR XXXXXXX CORPORATE LENDING INC.,
as Administrative Agent and as a Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
First Amendment to Credit Agreement
XXXXX FARGO FOOTHILL, N.A.,
as Issuing Lender, Documentation Agent
and a Lender
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
First Amendment to Credit Agreement
