EXHIBIT 4.9
[Face of Note]
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CUSIP/CINS
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7.500% Senior Subordinated Notes due 2014
No. $
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Carmike Cinemas, Inc.
promises to pay to [______] or registered assigns,
the principal sum of __________________________________________________________
DOLLARS on _____________, 2014.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Dated: February 4, 2004
CARMIKE CINEMAS, INC.
By:
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President - Finance,
Treasurer and Chief Financial Officer
This is one of the Notes referred to
in the within-mentioned Indenture:
Xxxxx Fargo Bank Minnesota, National Association
as Trustee
By:
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Authorized Signatory
[Back of Note]
7.500% Senior Subordinated Notes due 2014
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. Carmike Cinemas, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of
this Note at 7.500% per annum from February 4, 2004 until maturity and
shall pay the Special Interest, if any, payable pursuant to Section 2
of the Registration Rights Agreement referred to below. The Company
will pay interest and Special Interest, if any, semi-annually in
arrears on February 15 and August 15 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each, an
"Interest Payment Date"). Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date; provided further that the
first Interest Payment Date shall be August 15, 2004. The Company will
pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and premium, if any, from time
to time on demand at a rate that is 1% per annum in excess of
the rate then in effect to the extent lawful; it will pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special
Interest, if any, (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day
months.
(2) METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) and Special Interest, if any, to the
Persons who are registered Holders of Notes at the close of business on
the February 1 or August 1 next preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.12 of this
Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium and Special Interest, if any, and interest at
the office or agency of the Company maintained for such purpose within
or without the City and State of New York, or, at the option of the
Company, payment of interest and Special Interest, if any, may be made
by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that payment by wire transfer of
immediately available funds will be required with respect to principal
of and interest, premium and Special Interest, if any, on, all Global
Notes and all other Notes the Holders of which will have provided wire
transfer instructions to the Company or the Paying Agent. Such payment
will be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private
debts.
(3) PAYING AGENT AND REGISTRAR. Initially, Xxxxx Fargo Bank
Minnesota, National Association, the Trustee under the Indenture, will
act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture
dated as of February 4, 2004 (the "Indenture") among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to
the TIA. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of such terms. To
the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. The Notes are unsecured obligations of the
Company limited to $150 million in aggregate principal amount, plus
amounts, if any, issued to pay Special Interest on outstanding Notes as
set forth in Paragraph 2 hereof. The Indenture does not limit the
aggregate principal amount of Notes that may be issued thereunder.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company will not have the option to redeem the Notes prior to February 15, 2009.
On or after February 15, 2009, the Company will have the option to redeem all or
a part of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Special Interest, if any, on the Notes
redeemed to the applicable redemption date, if redeemed during the twelve-month
period beginning on February 15 of the years indicated below, subject to the
rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:
Year Percentage
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2009.................................................. 103.750%
2010.................................................. 102.500%
2011.................................................. 101.250%
2012 and thereafter................................... 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to February 15, 2007, the Company may at its
option on any one or more occasions redeem up to 35% of the aggregate principal
amount of Notes issued under the Indenture with the net cash proceeds of one or
more Equity Offerings at a redemption price equal to 107.500% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Special Interest,
if any to the redemption date; provided that at least 65% in aggregate principal
amount of the Notes originally issued under the Indenture (excluding Notes held
by the Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption and that such redemption occurs within 90 days of
the date of the closing of such Equity Offering.
(c) At any time prior to February 15, 2009, the Company may also, on
one or more occasions, redeem all or a part of the Notes, upon not less than 30
nor more than 60 days prior notice mailed by first-class mail to each Holder's
registered address, at a redemption price equal to 100% of the principal amount
of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest and Special Interest, if any, to the applicable date of redemption,
subject to the rights of Holders on the relevant record date to receive interest
due on the relevant interest payment date. The Applicable Premium will be
determined by the Company.
(6) MANDATORY REDEMPTION.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, the Company will be
required to make an offer (a "Change of Control Offer") to each Holder
to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Special Interest, if any, thereon to the date of purchase,
subject to the rights of Holders on the relevant record date to receive
interest due on the relevant interest payment date (the "Change of
Control Payment"). Within 30 days following any Change of Control, the
Company will mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary of the
Company consummates any Asset Sales, within 30 business days of each
date on which the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company will make an offer to all Holders of Notes and all
holders of other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of sales of
assets (an "Asset Sale Offer")
pursuant to Section 3.09 of the Indenture to purchase the maximum
principal amount of Notes and such other pari passu Indebtedness that
may be purchased out of the Excess Proceeds at an offer price in cash
in an amount equal to 100% of the principal amount of the Notes being
purchased plus accrued and unpaid interest and Special Interest, if
any, thereon to the date of purchase in accordance with the procedures
set forth in the Indenture. To the extent that the aggregate amount of
Notes and other pari passu Indebtedness tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Company (or such
Restricted Subsidiary) may use such deficiency for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal
amount of Notes and other pari passu Indebtedness tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and such other pari passu Indebtedness to be
purchased on a pro rata basis. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds will be set at zero. Holders of
Notes that are the subject of an offer to purchase will receive an
Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days
prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction or discharge of the
Indenture. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted
by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part.
Also, neither the Company nor the Trustee need exchange or register the
transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes or the Note Guarantees may be
amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes
including Additional Notes, if any, voting as a single class, and any
existing Default or Event or Default or compliance with any provision
of the Indenture or the Notes or the Note Guarantees may be waived with
the consent of the Holders of a majority in aggregate principal amount
of the then outstanding Notes including Additional Notes, if any,
voting as a single class. Without the consent of any Holder of a Note,
the Indenture or the Notes or the Note Guarantees may be amended or
supplemented to cure any ambiguity, defect or inconsistency; to provide
for uncertificated Notes in addition to or in place of certificated
Notes; to provide for the
assumption of the Company's or a Guarantor's obligations to Holders of
the Notes and Note Guarantees in case of a merger or consolidation or
sale of all or substantially all of the Company's or such Guarantor's
assets; to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect
the legal rights under the Indenture of any such Holder; to comply with
the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; to conform the text of
the Indenture, or the Notes to any provision of the "Description of
Notes" section of the Company's Offering Circular dated January 29,
2004, relating to the initial offering of the Notes, to the extent that
such provision in that "Description of Notes" was intended to be a
verbatim recitation of a provision of the Indenture, the Note
Guarantees or the Notes; to provide for the issuance of Additional
Notes in accordance with the limitations set forth in the Indenture; to
allow any Guarantor to execute a supplemental indenture to the
Indenture and/or a Note Guarantee with respect to the Notes; or to
evidence and provide for the acceptance of the appointment under the
Indenture of a successor trustee.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest on, or Special
Interest, if any, with respect to the Notes, whether or not prohibited
by the subordination provisions of the Indenture; (ii) default in the
payment when due of the principal of, or premium, if any, on, the
Notes, whether or not prohibited by the subordination provisions of the
Indenture, (iii) failure by the Company or any of its Restricted
Subsidiaries to comply with Sections 4.10, 4.14 or 5.01 of the
Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes,
including Additional Notes, if any, then outstanding to comply with any
of the other agreements in the Indenture; (v) default under certain
other agreements relating to Indebtedness of the Company which default
results in the acceleration of such Indebtedness prior to its express
maturity; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days; (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary; and (ix) except as permitted by the Indenture,
any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force
and effect or any Guarantor or any Person acting on its behalf denies
or disaffirms its obligations under such Guarantor's Note Guarantee. If
any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable immediately without
further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Notes
notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest or
premium or Special Interest, if any,) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate
principal amount of the then outstanding Notes by written notice to the
Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event
of Default in the payment of interest or premium or
Special Interest, if any, on, or the principal of, the Notes. The
Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required,
upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
(13) SUBORDINATION. Payment of principal, interest and premium
and Special Interest, if any, on the Notes is subordinated to the prior
payment of Senior Debt on the terms provided in the Indenture.
(14) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
the Trustee.
(15) NO RECOURSE AGAINST OTHERS. A director, officer,
employee, incorporator or stockholder of the Company or any of the
Guarantors, as such, will not have any liability for any obligations of
the Company or the Guarantors under the Notes, the Note Guarantees or
the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
(16) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(17) ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(18) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes will have all the rights set
forth in the Registration Rights Agreement dated as of February 4,
2004, among the Company, the Guarantors and the other parties named on
the signature pages thereof or, in the case of Additional Notes,
Holders of Restricted Global Notes and Restricted Definitive Notes will
have the rights set forth in one or more registration rights
agreements, if any, among the Company, the Guarantors and the other
parties thereto, relating to rights given by the Company and the
Guarantors to the purchasers of any Additional Notes (collectively, the
"Registration Rights Agreement").
(19) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes, and the
Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification
numbers placed thereon.
(20) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK
WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS
NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Carmike Cinemas, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
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(Insert assignee's legal name)
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face
of this Note)
Signature Guarantee*:
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* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box
below:
--Section 4.10 --Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:
$---------------
Date:
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Your Signature:
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(Sign exactly as your name appears on the face
of this Note)
Tax Identification No.:
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Signature Guarantee*:
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* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount
[at maturity] of
Amount of decrease Amount of increase in this Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
[at maturity] of [at maturity] of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
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* This schedule should be included only if the Note is issued in global form.
