EXHIBIT 10.2
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED MASTER LEASE
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED MASTER LEASE (this
"First Amendment") is dated as of July 12, 2004 between MOVIEPLEX REALTY
LEASING, L.L.C. (the "Landlord") and Carmike Cinemas, Inc. (the "Tenant");
WITNESSETH:
WHEREAS, the Landlord and the Tenant executed and delivered that
certain Second Amended and Restated Master Lease, dated as of the 1st day of
September, 2001 (the "Lease");
WHEREAS, the Tenant has requested and the Landlord has agreed to
certain amendments to the Lease, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises and
other good and valuable consideration, the receipt and sufficiency of which
hereby is acknowledged by the parties hereto, the Landlord and the Tenant hereby
covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each term
used herein which is defined in the Lease shall have the meaning assigned to
such term in the Lease. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to "this Agreement"
and each other similar reference contained in the Lease shall from and after the
date hereof refer to the Lease as amended hereby.
2. Amendments to Article 2. Article 2 of the Lease hereby is amended by
deleting the definitions of "Change of Control" and "Qualified Buyer", and
adding the following new definitions in appropriate alphabetical sequence:
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common
control with, that Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of
the power (i) to vote 5% or more of the Securities having ordinary
voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by
contract or otherwise.
"Change of Control" means the occurrence of any of the
following:
(i) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or
substantially all of the properties or assets of the Tenant
and its Subsidiaries taken as a whole to any "person" (as that
term is used in Section 13(d)(3) of the Exchange Act) other
than to the Principal, any Related Parties of Principal, PIA,
any of PIA's officers or directors or any Affiliates of PIA
(collectively, the "Permitted Holders"); or
(ii) the adoption of a plan relating to the liquidation or
dissolution of the Tenant; or
(iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which
is that any "person" (as defined above), other than a
Permitted Holder or any direct or indirect Subsidiary of any
Permitted Holder or any Permitted Group, becomes the
beneficial owner, directly or indirectly, of more than 50% of
the Capital Stock of the Tenant, measured by voting power
rather than number of shares; or
(iv) any "change of control" or similar event under the Senior
Subordinated Note Indenture.
"Exchange Act" means the Securities and Exchange Act of 1934,
as amended from time to time, and any successor statute.
"Permitted Group" means any group of investors that is deemed
to be a "person" (as that term is used in Section 13(d)(3) of the
Exchange Act) by virtue of the Stockholders Agreement, as the same may
be amended, modified or supplemented from time to time, provided that
no single Person (other than the Principal and the Principal's Related
Parties) beneficially owns (together with its Affiliates) more of the
voting interest in the Capital Stock of the Tenant that is beneficially
owned by such group of investors than is then collectively beneficially
owned by the Principal and the Principal's Related Parties in the
aggregate.
"PIA" means Xxxxxxx Xxxxx Group, Inc. and its Affiliates.
"Principal" means Xxxxxxx X. Xxxxxxx.
"Related Parties" means (i) any controlling stockholder, 80%
(or more) owned Subsidiary, or immediate family member (in the case of
an individual) of the Principal; or (ii) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners,
owners or Persons beneficially holding an 80% or more controlling
interest of which consist of the Principal and/or such other Persons
referred to in the immediately preceding clause (i).
"Securities" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in
any profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other instruments or evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, commonly
known as "securities" or any certificates of interest shares or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any
of the foregoing.
"Senior Subordinated Notes Indenture" means the indenture
dated February 4, 2004, as amended, pursuant to which the $150,000,000
Senior Subordinated Notes of the Tenant described therein and issued
pursuant thereto, and any indenture pursuant to which such Senior
Subordinated Notes are refinanced or replaced.
"Stockholders Agreement" means that certain Stockholders
Agreement by and among the Tenant and the Principal, GS Capital
Partners III, L.P., GS Capital Partners III Offshore, L.P., Xxxxxxx,
Sachs & Co. Xxxxxxxxxxx XxxX, Xxxxxx Xxxxxx Xxxx 0000, L.P., Stone
Street fund 1998, L.P., The Jordan Trust, TJT(B), TJT(B) (Bermuda)
Investment Company LTD, Xxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, as
joint tenants, Leucadia Investors, Inc. and Leucadia National
Corporation, date as of January 31, 2002, as amended.
3. Effect of Amendment. Except as set forth expressly hereinabove, all
terms of the Lease shall be and remain in full force and effect, and shall
constitute the legal, valid, binding and enforceable obligations of the Tenant.
The amendments contained herein shall be deemed to have both retrospective and
prospective application, unless otherwise specifically stated herein.
4. Ratification. The Tenant hereby restates, ratifies and reaffirms
each and every term, covenant and condition set forth in the Lease effective as
of the date hereof.
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5. Counterparts. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, and
transmitted by facsimile to the other parties, each of which when so executed
and delivered by facsimile shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
6. Section References. Section titles and references used in this First
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced hereby.
7. No Default. To induce the Landlord to enter into this First
Amendment, the Tenant hereby acknowledges and agrees that, as of the date
hereof, and after giving effect to the terms hereof, there exists (i) no Default
and (ii) no right of offset, defense, counterclaim, claim or objection in favor
of the Tenant arising out of or with respect to any of the Rent or other
obligations of the Tenant owed to the Landlord under the Lease.
8. Further Assurances. The Tenant agrees to take such further actions
as the Landlord shall reasonably request in connection herewith to evidence the
amendments herein contained to the Landlord.
9. Governing Law. This First Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
10. Attorneys' Fees and Expenses. Tenant agrees promptly upon receipt
to pay the reasonable attorneys fees and expenses of Xxxxx Day, as counsel for
the Landlord and the Agent under the Reimbursement Agreement, in connection with
preparation and negotiation of this First Amendment and all matters related
hereto.
11. Conditions Precedent. This First Amendment shall become effective
only upon execution and delivery (including by facsimile) of (i) this First
Amendment by the Landlord and the Tenant, (ii) the Consent Under Reimbursement
Agreement and Trust Agreement attached hereto by the Agent and the Required
Lenders under the Reimbursement Agreement and the Required Beneficiaries under
the Trust Agreement referred to therein and (iii) the Consent and Reaffirmation
of Guarantors attached hereto by each of the Guarantors.
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IN WITNESS WHEREOF, each of the Landlord and the Tenant has caused this
First Amendment to be duly executed, under seal, by its duly authorized officer
as of the day and year first above written.
WITNESS: LANDLORD:
MOVIEPLEX REALTY LEASING, L.L.C.
By: MoviePlex Realty Leasing Trust,
its sole member
By: Bank of New York (assignee of
and successor to BNY Asset Solutions,
LLC), its Manager
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. X'Xxxx
----------------------------- ---------------------------------
Xxxxx X. Xxxxxxx Name: Xxxxxxx X. X'Xxxx
Title: Vice President
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TENANT:
ATTEST: CARMIKE CINEMAS, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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CONSENT UNDER REIMBURSEMENT AGREEMENT AND TRUST AGREEMENT
Pursuant to (i) Section 5.05 of the Reimbursement Agreement, the
"Agent" and the "Required Lenders" (as those terms are defined in the
Reimbursement Agreement) and (ii) Section 4.1(b) of The MoviePlex Leasing Realty
Trust Agreement, dated as of January 31,2002, as amended to date (as amended,
the "Trust Agreement"), the "Required Beneficiaries" thereunder (as defined in
the Trust Agreement), in each case, as identified as such below, hereby consent
to the execution and delivery of the foregoing First Amendment to Second Amended
And Restated Master Lease.
This Consent under Reimbursement Agreement and Trust Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, and transmitted by facsimile to the other parties, each
of which when so executed and delivered by facsimile shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same instrument.
THE BANK OF NEW YORK (assignee of and
successor to BNY Asset Solutions, LLC),
as Agent under the Reimbursement Agreement
By: /s/ Xxxxxxx X. X'Xxxx
--------------------------------------
Name: Xxxxxxx X. X'Xxxx
------------------------------------
Title: Vice President
-----------------------------------
BNY MOVIEMARQUEE LLC, as a Lender under
the Reimbursement Agreement and as a
Beneficiary under the Trust Agreement
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxxx
------------------------------------
Title: Vice President
-----------------------------------
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH as a Lender under the
Reimbursement Agreement and as a
Beneficiary under the Trust Agreement
By: /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
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GENERAL ELECTRIC CAPITAL CORPORATION as a
Lender under the Reimbursement Agreement
and as a Beneficiary under the Trust
Agreement
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: Duly Authorized Signatory
-----------------------------------
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COMERICA BANK as a Lender under the
Reimbursement Agreement and as a
Beneficiary under the Trust Agreement
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
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H/Z ACQUISITION PARTNERS LLC, as a Lender
under the Reimbursement Agreement and as a
Beneficiary under the Trust Agreement
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------------
Title: Chief Financial Officer
-----------------------------------
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CITIGROUP FINANCIAL PRODUCTS as a Lender
under the Reimbursement Agreement and as
a Beneficiary under the Trust Agreement
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
------------------------------------
Title: Director - Loan Trading
-----------------------------------
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CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing First
Amendment to Second Amended and Restated Master Lease, (ii) consents to the
execution and delivery of the First Amendment to Second Amended and Restated
Master Lease by the parties thereto and (iii) reaffirms all of its obligations
and covenants under the Guaranty Agreement dated as of September 1, 2001
executed by it, and agrees that none of such obligations and covenants shall be
affected by the execution and delivery of the First Amendment to Second Amended
and Restated Master Lease. This Consent and Reaffirmation of Guarantors may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, and transmitted by facsimile to the other parties, each
of which when so executed and delivered by facsimile shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same instrument.
WOODEN NICKEL PUB, INC. MILITARY SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------- --------------------------------------
Title: Xxxxxx X. Xxxxxx Title: Xxxxxx X. Xxxxxx
Senior Vice President Senior Vice President
EASTWYNN THEATRES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Title: Xxxxxx X. Xxxxxx
Senior Vice President
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