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EXHIBIT 10.3
SECOND AMENDMENT TO AMENDED AND RESTATED MASTER LEASE
THIS SECOND AMENDMENT TO AMENDED AND RESTATED MASTER LEASE (this
"Second Amendment") is dated as of March 31, 2000 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 Amended and Restated Master Lease, dated as of the 29th day of January,
1999, as amended by First Amendment to Amended and Restated Lease dated as of
November 19, 1999 (as so amended, 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. Amendment to Section 1.1. Amendments to Section 1.1. Section
1.1 of the Lease hereby is amended by deleting the definitions of "Adjusted Cash
Flow", "Adjusted Fixed Charges", "Collateral", "Collateral Documents",
"Consolidated Cash Flow", "Consolidated Net Income", "Equity Return Rate and
"Permitted Encumbrances", and adding the following new definitions in
appropriate alphabetical sequence:
"Adjusted Cash Flow" means, for any period, Consolidated
Operating Income for such period, plus, to the extent deducted in
determining the amount thereof, (i) Rental Obligations (less any
principal portion of any Off-Balance Sheet Lease), (ii) depreciation
and amortization, and (iii) any aggregate net income during such period
arising from the sale, exchange or other distribution of capital
assets, provided that the total amount so included pursuant to this
clause (iii) shall not exceed 5% of Consolidated Operating Income for
such period, provided further, however, that, in calculating Adjusted
Cash Flow for any such period, any acquisition or disposition of assets
that shall have occurred during such period will be deemed to have
occurred at the beginning of such period; and (iv) with respect to any
Off-Balance Sheet Property which was acquired or ground-leased by any
entity acting in the capacity of landlord (or in any functionally
similar capacity to a landlord) under any Off-Balance Sheet Lease
within the 12-month period ending on the
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date of determination of Consolidated Cash Flow, Adjusted Cash Flow
shall include Theatre-Level EBITDA for such Off-Balance Sheet Property
and shall be determined with respect to such Off-Balance Sheet Property
on the basis of actual Theatre-Level EBITDA within such period and
projected Theatre-Level EBITDA for the remainder of such period (with
such projections being based on the average Theatre-Level EBITDA of
comparable theater properties of the Tenant which were operated during
the entire 12-month period); provided, that in determining Adjusted
Cash Flow, the expense incurred by the Tenant in complying with the
provisions of Section 2.1(mm) in granting and recording the Carmike
Mortgages and obtaining the Real Estate Collateral Documentation shall
be added back to Consolidated Operating Income.
"Adjusted Consolidated Funded Debt" means at any time the sum
(without duplication) of: (i) Consolidated Funded Debt; plus (ii) the
product of (x) Rental Obligations (excluding Rental Obligations under
the Lease) for the 4 Fiscal Quarter period just ended (and Rental
Obligations under leases arising from sale/leaseback transactions of
theatres shall be annualized on a proforma basis, as to any Operating
Lease which has been in effect for less than 4 Fiscal Quarters), times
(y)8.
"Capital Expenditures" means for any period the sum of all
capital expenditures incurred during such period by the Tenant and its
Consolidated Subsidiaries, as determined in accordance with GAAP, but
excluding any Capital Expenditures consisting of tenant improvement
expenses which are reimbursed or reimbursable to the Tenant or a
Consolidated Subsidiary by the landlord.
"Carmike Mortgage Properties Cash Flow" means, with respect to
each Fee Property subject to a Carmike Mortgage and each Leasehold
Mortgage Property, the portion of Fee and Leasehold Properties Cash
Flow derived therefrom.
"Carmike Mortgage Properties Cash Flow Coverage" means Carmike
Mortgage Properties Cash Flow, as of the date of measurement, as
determined by reference to the Carmike Mortgage Properties Cash Flow
Coverage Report.
Carmike Mortgage Properties Cash Flow Coverage Report means a
report or an updated report, in form and substance reasonably
satisfactory to the Collateral Agent, to be provided to the Landlord,
the Agent, the Collateral Agent and the Secured Parties pursuant to
Section 2.1(mm), reflecting the Carmike Mortgage Properties Cash Flow
Coverage as of the date of such report or updated report.
"Carmike Mortgage Properties Test Date" means November 1,
2000.
"Carmike Mortgages" means, individually or collectively, as
the context shall require, any mortgage, deed to secure debt, deed of
trust or similar instrument appropriate for the relevant jurisdiction,
in form and substance satisfactory to the Agent and the Collateral
Agent pursuant to which the Tenant and EastWynn, respectively, grant a
first priority, perfected Lien on all Fee Properties and all Leasehold
Properties which become Leasehold Mortgages pursuant to Section 5.27,
to the Collateral Agent, for the ratable benefit of the Secured
Parties, to secure the Secured Obligations (or a designated portion
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thereof), as contemplated in Section 5.27, as it may hereafter be
amended or supplemented from time to time.
"Collateral" means the property of the Tenant and EastWynn,
respectively, in which the Collateral Agent, for the ratable benefit of
the Secured Parties, is granted a security interest pursuant to the
Security Agreement, the Pledge Agreement and the Carmike Mortgages, to
secure the Secured Obligations, for the ratable benefit of the Secured
Parties.
"Collateral Documents" means the Intercreditor Agreement, the
Pledge Agreement, the Security Agreement, the Carmike Mortgages, and
such financing statements as the Collateral Agent may require to
perfect its security interest in the Collateral.
"Consolidated Cash Flow" means, for any period, the sum of
Consolidated Operating Income of the Tenant, and its Subsidiaries, plus
to the extent deducted in determining such Consolidated Operating
Income (i) depreciation and amortization, and (ii) any aggregate net
income during such period arising from the sale, exchange or other
distribution of capital assets, provided, however, that the total
amount so included pursuant to this clause (ii) shall not exceed 5% of
Consolidated Operating Income for such period, provided further,
however, that, in calculating Consolidated Cash Flow for any such
period, any acquisition or disposition of assets that shall have
occurred during such period will be deemed to have occurred at the
beginning of such period; provided further, however, that (x) for
purposes of determining the ratio of Consolidated Funded Debt to
Consolidated Cash Flow and the ratio of Consolidated Senior Funded Debt
to Consolidated Cash Flow, all Off-Balance Sheet Lease Payments made
during the relevant period which has been deducted in computing
Consolidated Net Income shall be added back in computing Consolidated
Cash Flow, (y) with respect to any Off-Balance Sheet Property which was
acquired or ground-leased by any entity acting in the capacity of
landlord (or in any functionally similar capacity to a landlord) under
any Off-Balance Sheet Lease within the 12-month period ending on the
date of determination of Consolidated Cash Flow, Consolidated Cash Flow
shall include Theatre-Level EBITDA for such Off-Balance Sheet Property
and shall be determined with respect to such Off-Balance Sheet Property
on the basis of actual Theatre-Level EBITDA within such period and
projected Theatre-Level EBITDA for the remainder of such period (with
such projections being based on the average Theatre-Level EBITDA of
comparable theater properties of the Tenant which were operated during
the entire 12-month period), and (z) the expense incurred by the Tenant
in complying with the provisions of Section 2.1(mm) in granting and
recording the Carmike Mortgages and obtaining the Real Estate
Collateral Documentation shall be deducted from Consolidated Operating
Income.
"Consolidated Net Income" means for any period, the net income
(or deficit) of the Tenant and its Subsidiaries for such period in
question (taken as a cumulative whole) after deducting, without
duplication, all operating expenses, provisions for all taxes and
reserves (including reserves for deferred income taxes) and all other
proper deductions, all determined in accordance with GAAP on a
consolidated basis, after eliminating material inter-company items in
accordance with GAAP and after deducting portions of
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income properly attributable to outside minority interests, if any, in
Subsidiaries; provided, however, that there shall be excluded (a) any
income or deficit of any other Person accrued prior to the date it
becomes a Subsidiary or merges into or consolidates with the Tenant or
another Subsidiary, (b) the net income in excess of an amount equal to
5% of Consolidated Net Income for such period before giving effect to
this clause (b) (or deficit) of any Person (other than a Subsidiary) in
which the Tenant or any Subsidiary has any ownership interest, except
to the extent that any such income has been actually received by the
Tenant or such Subsidiary in the form of cash dividends or similar
distributions, and provided that the resulting income is generated by
lines of businesses substantially similar to those of the Tenant and
its Subsidiaries taken as a whole during the fiscal year ended December
31, 1998, (c) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
income accrued during such period, (d) any deferred credit or
amortization thereof from the acquisition of any properties or assets
of any Person, (e) any aggregate net income (but not any aggregate net
loss) during such period arising from the sale, exchange or other
distribution of capital assets (such term to include all fixed assets,
whether tangible or intangible, all inventory sold in conjunction with
the disposition of fixed assets and all securities) to the extent the
aggregate gains from such transactions exceed losses from such
transactions, (f) any impact on the income statement resulting from any
write-up of any assets after the Effective Date (as defined in the
Credit Agreement), (g) any items properly classified as extraordinary
in accordance with GAAP, (h) proceeds of life insurance policies to the
extent such proceeds exceed premiums paid to maintain such life
insurance policies, (i) any portion of the net income of a Subsidiary
which is unavailable for the payment of dividends to the Tenant or a
Subsidiary, (j) any gain arising from the acquisition of any debt
securities for a cost less than principal and accrued interest, (k) in
the case of a successor to the Tenant by permitted consolidation or
merger or transfer of assets pursuant to Section 2.1(cc), any earnings,
of such successor or transferee prior to the consolidation, merger or
transfer of assets, (1) any earnings on any Investments of the Tenant
or any Subsidiary except to the extent that such earnings are received
by the Tenant or such Subsidiary as cash, provided that earnings which
would otherwise be excluded from Consolidated Net Income pursuant to
the preceding provisions of this clause (1) shall be included in
Consolidated Net Income but only to the extent that such earnings are
attributable to the net income of any Person (other than a Subsidiary)
in which the Tenant or any Subsidiary has any ownership interest and
such net income is not otherwise excluded from Consolidated Net Income
by virtue of clause (b) of this definition and (m) the Restructuring
and Impairment Charges for 1998, the Impairment Charges for 1999, and
any Subsequent Restructuring and Impairment Charges up to but not
exceeding an aggregate of $10,000,000 in any Fiscal Year (but with any
portion of such $10,000,000 which is unused in any Fiscal Year being
carried over to subsequent Fiscal Years).
"Equity Return Rate" means a percentage rate of return per
annum on the Landlord's Equity Amount, to be determined for each
calendar quarter, equal to the greater of:
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(A) The sum of (i) 3-month LIBOR; plus, (ii) the
Letter of Credit Fee with respect to the Series B Bonds determined
pursuant to Section 2.01(h)(iii) of the Reimbursement Agreement; plus,
(iii) 5.50%; or
(B) 12.00%,
provided, however, that in the event that any Preferred Member of the
Landlord shall have exercised the special rights provided in Section
11(d) of the Operating Agreement, but such rights shall not, for any
reason, have been honored, the Equity Return Rate shall be increased
thereafter to 200% of the rate determined herein.
"Fee and Leasehold Properties Cash Flow" means, with respect
to each Fee Property and each Leasehold Property, the operating income
derived therefrom, without provision for any interest, taxes related to
income, depreciation, amortization and corporate general and
administrative expenses, for the Fiscal Year ending December 31, 1999,
as determined by reference to the Fee and Leasehold Properties Cash
Flow Report.
"Fee and Leasehold Properties Cash Flow Report" means the
report dated on or about the First Amendment Effective Date which is
furnished to the Agent, the Collateral Agent, the LC Lenders and the
Landlord pursuant to Section 2.1(mm) and which lists each of the Fee
Properties and the Leasehold Properties and shows, for each such
Property, the portion of Consolidated Cash Flow for the Fiscal Year
ending December 31, 1999 which was produced by such Property.
"Fee Properties" means all Properties consisting of real
estate and improvements in which the Tenant or EastWynn owns fee simple
title.
"Impairment Charges for 1999" means asset impairment charges
taken by the Tenant for the last Fiscal Quarter of its 1999 Fiscal Year
in the amount of $33,037,122.
"Leasehold Mortgage Properties" means all Leasehold Properties
which have become subject to a Carmike Mortgage and as to which all
Real Estate Collateral Documentation required by the Collateral Agent
has been obtained pursuant to Section 2.1(mm).
"Leasehold Properties" means all Properties consisting of real
estate and improvements in which the Tenant or EastWynn has a leasehold
interest, excluding real estate and improvements which are subject to
and leased pursuant to the Lease.
"Permitted Encumbrance" means, (i) with respect to each
Supplemental Property, only those liens, easements building lines,
restrictions, security interests and other matters accepted or approved
by the Landlord and the Agent in writing and (ii) with respect to any
Fee Property or Leasehold Property which is subject to a Carmike
Mortgage, the encumbrances permitted by the Collateral Agent in its
reasonable judgment (but not including any Lien on interests of the
Tenant or a Guarantor thereon consisting of a mortgage, deed to secure
debt, deed of trust or security agreement) as specified in such Carmike
Mortgage.
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"Real Estate Collateral Documentation" means the instruments,
documents and agreements executed and/or delivered by the Tenant or
EastWynn to the Collateral Agent (if applicable) pursuant to Section
2.1(mm) in connection with each Carmike Mortgage in order to convey to
the Collateral Agent (or a trustee for the benefit of the Collateral
Agent, as applicable in the relevant jurisdiction) for the ratable
benefit of the Secured Parties a first priority Lien (subject to
Permitted Encumbrances) on the right, title and interest of the Tenant
or EastWynn in the Fee Property or Leasehold Property described
therein, and other rights ancillary thereto, all in form and substance
reasonably satisfactory to the Collateral Agent, after consultation
with the Tenant or EastWynn, as applicable. The Real Estate Collateral
Documentation may include, without limitation, the following as to each
Fee Property or Leasehold Property:
(i) an owner's/lessee's affidavit for each
parcel or tract of such Fee Property or
Leasehold Property;
(ii) mortgagee title insurance binders and
policies for each tract or parcel of such
Fee Property or Leasehold Property;
(iii) such landlord consents with respect to the
Leasehold Properties as the Collateral Agent
may reasonably require from any Third
Parties with respect to any portion of such
Leasehold Property;
(iv) for each Fee Property and Leasehold
Property, a copy of any existing survey of
each parcel or tract of such Fee Property or
Leasehold Property; provided, that if no
existing survey exists, the Collateral Agent
shall be furnished a current survey showing
metes-and-bounds only, and upon request of
the Collateral Agent during the existence of
an Event of Default, the Collateral Agent
shall be furnished a current "as-built"
survey;
(v) a certificate as to the insurance required
by the related Carmike Mortgage;
(vi) upon request of the Collateral Agent during
the existence of an Event of Default, the
Collateral Agent shall be furnished a report
of a licensed engineer detailing an
environmental inspection of such Fee
Property or Leasehold Property; and
(vii) an indemnification agreement regarding
hazardous materials for such Fee Property or
Leasehold Property.
"Second Amendment Effective Date" means March 31, 2000.
"Subsequent Restructuring and Impairment Charges" means any
non-cash restructuring charges taken with respect to any impaired
assets and any asset impairment charges taken by the Tenant during any
Fiscal Year following its 1999 Fiscal Year.
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3. Amendment to Section 2.1(s)(iii). Section 2.1(s)(iii) of the
Lease hereby is amended by deleting it in its entirety and by substituting
therefor the following:
(iii) simultaneously with the delivery of each set of
financial statements referred to in clauses (i) and (ii) above, a
certificate, substantially in the form of Exhibit M or in such other
form as shall be mutually satisfactory to the Tenant, the Landlord and
the Agent (a "Compliance Certificate"), of the chief financial officer
or the chief executive officer of the Tenant (A) setting forth in
reasonable detail the calculations required to establish whether the
Tenant was in compliance with the requirements of Sections 2.1(u)
through 2.1(z), inclusive, 2.1(cc), 2.1(gg) and 2.1(ll) on the date of
such financial statements and (B) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Tenant is taking or
proposes to take with respect thereto.
4. Amendment to Sections 2.1(x) and (xi) and new Sections 2.1(xi)
and (xii). The word "and" at the end of Section 2.1(x) is deleted, Section
2.1(xi) is relettered as Section 2.1(xiii), and new Sections 2.1(xi) and (xii)
are added, as follows:
1. (xi) within 30 days after the end of each Fiscal
Year, a budget for the next Fiscal Year, including a detailed statement
of cash flow, balance sheet and income statement, on a consolidated
basis for the Tenant and its Subsidiaries; and
2. (l) within 30 days after the end of each Fiscal
Quarter, a report concerning theatre operations showing (a) gross
attendance, (b) gross concession revenue and (c) gross ticket revenue
for the Fiscal Quarter just ended; and
5. Amendment to Section 2.1(u). Section 2.1(u) of the Lease
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
(u) Ratio of Consolidated Senior Funded Debt to
Consolidated Cash Flow. At the end of each Fiscal Quarter, commencing
with the Fiscal Quarter ending March 31, 2000, the ratio of
Consolidated Senior Funded Debt to Consolidated Cash Flow for the
period of 4 consecutive Fiscal Quarters ending on such date shall not
be greater than the applicable ratio provided in the following table:
Fiscal Quarter Ending Applicable Ratio
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On or before September 30, 2000 4.25 to 1.0
December 31, 2000 through 3.75 to 1.0
September 30, 2001
December 31, 2001 through 3.50 to 1.0
September 30, 2002
December 31, 2002 and 3.00 to 1.0.
thereafter
6. Amendment to Section 2.1(v). Section 2.1(v) of the Lease
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
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(v) Ratio of Consolidated Funded Debt to Consolidated
Cash Flow. At the end of each Fiscal Quarter ending as provided in the
following table, the ratio of Consolidated Funded Debt at the end of
such Fiscal Quarter to Consolidated Cash Flow for the period of 4
consecutive Fiscal Quarters ending on such date shall not be greater
than the applicable ratio provided in the following table:
Fiscal Quarter Ending Applicable Ratio
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On or before September 30, 2000 6.50 to 1.0
December 31, 2000 through 5.75 to 1.0
September 30, 2001
December 31, 2001 through 5.50 to 1.0
September 30, 2002
December 31, 2002 and 5.00 to 1.0.
thereafter
7. Amendment to Section 2.1(x). Section 2.1(x) of the Lease
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
(x) Fixed Charge Coverage. At the end of each Fiscal
Quarter, commencing with the Fiscal Quarter ending March 31, 2000, the
ratio of (a) Adjusted Cash Flow to (b) Fixed Charges, in each case for
the current Fiscal Quarter and the immediately preceding 3 Fiscal
Quarters, shall not be less than the applicable ratio provided in the
following table:
Fiscal Quarter Ending Applicable Ratio
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On or before September 30, 2001 1.25 to 1.0
December 31, 2001 and 1.40 to 1.0.
thereafter
8. Amendment to Section 2.1(y). Section 2.1(y) of the Lease
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
(y) Ratio of Adjusted Consolidated Funded Debt to
Adjusted Cash Flow. At the end of each Fiscal Quarter, commencing with
the Fiscal Quarter ending March 31, 2000, the ratio of (a) Adjusted
Consolidated Funded Debt to (b) Adjusted Cash Flow, in each case for
the current Fiscal Quarter and the immediately preceding 3 Fiscal
Quarters, shall not be less than the applicable ratio provided in the
following table:
Fiscal Quarter Ending Applicable Ratio
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March 31, 2000 through 7.5 to 1.0
September 30, 2000
December 31, 2000 through 7.0 to 1.0.
December 31, 2001
March 31, 2002 and 6.5 to 1.0
thereafter
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9. Amendment to Section 2.1(gg). Section 2.1(gg) of the Credit
Agreement hereby is amended by deleting it in its entirety and by substituting
therefor the following
(gg) Investments. Neither the Tenant nor any of its
Subsidiaries shall make Investments in any Person except: (a)
Investments in (i) direct obligations of the United States Government
maturing within one year, (ii) certificates of deposit issued by a
commercial bank whose credit is satisfactory to the Agent, (iii)
commercial paper rated A1 or the equivalent thereof by S&P or P1 or the
equivalent thereof by Xxxxx'x and in either case maturing within 6
months after the date of acquisition, (iv) tender bonds the payment of
the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates
of deposit are rated at least AA or the equivalent thereof by S&P and
Aa or the equivalent thereof by Xxxxx'x, (v) loans or advances to
employees not exceeding $1,000,000 in the aggregate principal amount
outstanding at any time, in each case made in the ordinary course of
business and consistent with practices existing on December 31, 1998,
(vi) deposits required by government agencies or public utilities, and
(vii) loans, advances or other Investments to or in Guarantors; and (b)
other Investments which, in the aggregate since the Second Amendment
Effective Date, do not exceed $10,000,000; provided, however,
immediately after giving effect to the making of any Investment, no
Default shall have occurred and be continuing.
10. New Section 2.1(ll). A new Section 2.1(ll) hereby is added to
the Lease, as follows:
(ll) Capital Expenditures. At the end of each Fiscal Year,
commencing with the Fiscal Quarter ending December 31, 2000, Capital
Expenditures for such Fiscal Year (excluding non-maintenance Capital
Expenditures on theatres opened on or before December 31, 1999 which
were contracted for on or before such date) shall not exceed (a) for
the Fiscal Year ending December 31, 2000, $25,000,000 and (b) for each
Fiscal Year thereafter, $35,000,000.
11. New Section 2.1(mm). A new Section 2.1(mm) hereby is added to
the Credit Agreement, as follows:
1. Section 2.1(mm) Carmike Mortgages; Pricing
Adjustments. On or within 10 days after the Second Amendment Effective
Date, the Tenant shall deliver to the Landlord, the Agent, the
Collateral Agent and the Secured Parties the Fee and Leasehold
Properties Cash Flow Report. Prior to the Carmike Mortgage Properties
Test Date, the Tenant shall (i) for each Fee Property and each
Leasehold Property as to which no Third Party consent is required,
execute and deliver to the Collateral Agent a Carmike Mortgage and the
related Real Estate Collateral Documentation reasonably requested by
the Collateral Agent with respect thereto, and (ii) for each Leasehold
Property as to which a Third Party consent is required, use its best
efforts to obtain such Third Party consent, and upon obtaining such
consent, execute and deliver to the Collateral Agent a Carmike Mortgage
and the related Real Estate Collateral Documentation reasonably
requested by the Collateral Agent with respect thereto. After the
Carmike Mortgage Properties Test Date, the Tenant shall continue to use
its best efforts to obtain such Third Party consents
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not previously obtained, and upon obtaining such consent, execute and
deliver to the Collateral Agent a Carmike Mortgage and the related Real
Estate Collateral Documentation reasonably requested by the Collateral
Agent with respect thereto. On the Carmike Mortgage Properties Test
Date, the Tenant shall provide to the Agent, the Collateral Agent and
the Secured Parties the initial Carmike Mortgage Properties Cash Flow
Coverage Report, reflecting the Carmike Mortgage Properties Cash Flow
Coverage as of the Carmike Mortgage Properties Test Date (or a date
within 5 Domestic Business Days prior thereto). After the Carmike
Mortgage Properties Test Date, the Tenant may provide to the Agent, the
Collateral Agent and the Secured Parties at any time, and shall provide
to the Agent, the Collateral Agent and the Secured Parties upon the
Agent's request, an update of the Carmike Mortgage Properties Cash Flow
Coverage Report, reflecting the Carmike Mortgage Properties Cash Flow
Coverage as of such updated report. On or before 60 days after the
Second Amendment Effective Date, the Intercreditor Agreement shall be
amended as appropriate to include within its scope the Carmike
Mortgages and the Fee Properties and Leasehold Mortgage Properties
subject thereto. Supplemental Rent shall be adjusted from time to time
as necessary to enable the Landlord to pay any increase in Letter of
Credit Fees or interest payable by the Landlord as required by the last
sentence of Section 2.03(a) of the Reimbursement Agreement, based on
the Carmike Mortgage Properties Cash Flow Coverage as reflected in the
Carmike Mortgage Properties Cash Flow Coverage Report, as updated from
time to time pursuant to the foregoing.
12. Amendment to Section 15.2(b). Section 15.2(b) of the Lease
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
1. (b) The term "Fair Market Value" shall mean, with
respect to the Leased Property, the greater of (i) one hundred (110%)
percent of the amount estimated by an MAI appraiser reasonably
acceptable to the Landlord and the Tenant, such estimation to be made
prior to but confirmed by the New Appraisals, to be the fair market
value of the Leased Property on and as of the Expiration Date and (ii)
the Unamortized Total Project Cost.
13. Amendment to Section 15.4(b). Section 15.4(b) of the Lease
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
(b) The purchase price payable by the Tenant for any
Subperforming Theater Property shall be the greater of (i) the
unamortized Allocable Costs attributed to such Subperforming Theater
Property and (ii) 110% of the fair market value of such Subperforming
Theater Property as of the date of such purchase, as such fair market
value shall be determined by an appraisal (dated not earlier than 120
days prior to such purchase date) prepared and certified by an
independent MAI appraiser acceptable to the Landlord and the Agent and
submitted to the Landlord and the Agent together with the notice
referred to in Section 15.4(a) above.
14. Amendment to Section 15.7. Section 15.7 of the Lease hereby is
amended by deleting it in its entirety and by substituting therefor the
following:
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Section 15.7 Special Right of Termination and Purchase. In the
event that during the term of this Lease:
(a) GAAP should require (i) the reclassification of this
Lease as a Capital Lease, or (ii) a consolidation of accounts of the
Landlord with those of the Tenant; or
(b) the Code or other applicable U.S. income tax laws and
regulations should require that the Tenant be regarded as the owner of
the Individual Properties for purposes thereof,
the Tenant shall have the option, exercisable upon 180 days
prior written notice to the Landlord and the Agent, to
terminate this Lease. Such option may be exercised only in
conjunction with a simultaneous offer in writing to purchase
for cash all, but not less than all, of the Individual
Properties at the greater of (i) a Purchase Price equal to
110% of their aggregate fair market value, as determined by a
qualified MAI appraiser selected jointly by the Landlord and
Tenant and approved by the Agent; or (ii) the sum of the (a)
aggregate principal amount of Bonds outstanding (other than
Pledged Bonds), plus (b) an amount equal to the aggregate
principal amount outstanding on the Reimbursement Notes and
all accrued and unpaid interest thereon, plus (c) the balance
of the Preferred Member's Unrecovered Capital Account, plus
(d) any capital contributions of the Common Members to the
Landlord, with a cumulative return thereon at a rate of
return, adjusted quarterly, equal to the sum of (i) 3-month
LIBOR; plus (ii) the letter of credit fee payable pursuant to
Section 201(h)(iii) of the Reimbursement Agreement; plus (iii)
.50% per annum, plus (e) without duplication of the foregoing,
all accrued and unpaid Supplemental Rent and Basic Rent, and
all other amounts then owed by the Tenant under this Lease.
15. Amendment to Section 17.1(b). Section 17.1(b) of the Lease
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
(b) Breach by the Tenant of any of the covenants
contained in Sections 2.1(s)(v), 2.1(s)(x), 2.1(t)(iii), 2.1(u) to
2.1(y), inclusive, 2.1(aa) (as to the Tenant), 2.1(bb) (as to the
Tenant), 2.1(cc), 2.1(ee), 2.1(gg), or 2.1(ii) to 2.1(kk), inclusive,
2.1(ll), 4.3 or the first sentence of Section 22.1(a); or
16. Exhibit M. Exhibit M (Compliance Certificate) hereby is
deleted in its entirety and Exhibit M hereto is substituted therefor.
17. Release of Supplemental Properties. The Tenant has requested
the conveyance to it or its designee and the release from the Lease, of the
Supplemental Properties located in Xxxxxxxxx County, Georgia and Xxxxxxxxxx
County, Tennessee, and the Landlord hereby agrees to such conveyance, at no cost
to the Tenant, except that (i) there shall be no reduction in the amount of
Basic Rent payable under the Lease on each Basic Rent Payment Date as a result
of such conveyance and release and (ii) the Tenant shall pay Supplemental Rent
in such amount as is necessary to reimburse all costs and expenses incurred by
the Landlord or the Agent in connection therewith. Such conveyance shall
represent an in-kind reimbursement of excess
11
12
development costs incurred by the Tenant under the Agency and Development
Agreement In furtherance of the foregoing, the Landlord and the Agent, as
applicable, shall execute and deliver to the Tenant: (1) as to the Xxxxxxxxx
County, Georgia Supplemental Property, (a) the Termination of Lease Supplement
No. 4 in substantially the form attached hereto as Annex 1, (b) the Quit-Claim
Deed for Release of Security Deed and Assignment of Rents in substantially the
form attached hereto as Annex 2, (c) the Limited Warranty Deed in substantially
the form attached hereto as Annex 3, (d) a UCC-3 termination statement with
respect to UCC-1 financing statement filed in Xxxxxxxxx County, Georgia on
September 9, 1998, file number 47933566; and (e) the Termination of UCC-2 Notice
Filing in substantially the form of Annex 4 hereto and (2) as to the Xxxxxxxxxx
County, Tennessee, Supplemental Property, (a) the Termination of Lease
Supplement No. 6 in substantially the form attached hereto as Annex 5, (b) the
Release of Deed of Trust and Termination of Assignment in substantially the form
attached hereto as Annex 6, (c) the Limited Warranty Deed in substantially the
form attached hereto as Annex 7 and (d) UCC-3 termination statements with
respect to UCC-1 financing statements filed in Xxxxxxxxxx County, Tennessee on
January 15, 1999, Book B-447, Page 312 and in the Office of the Secretary of
State of Tennessee on February 11, 1999, file number 993006230. Thereafter, such
properties shall no longer be Supplemental Properties or Individual Properties
under the Lease and shall no longer be subject to the Lease or the other
Transaction Documents.
18. Effect of Amendment. Except as set forth expressly
hereinabove, all terms of the Lease and the other Transaction Documents to which
the Tenant is a party 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.
19. Ratification. The Tenant hereby restates, ratifies and
reaffirms each and every term, covenant and condition set forth in the Lease and
the other Transaction Documents to which the Tenant is a party effective as of
the date hereof.
20. Counterparts. This Second 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.
21. Section References. Section titles and references used in this
Second 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.
22. No Default. To induce the Landlord to enter into this Second
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
or Event of 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.
12
13
23. 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.
24. Governing Law. This Second Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
25. Conditions Precedent. This Second Amendment shall become
effective only upon execution and delivery (including by facsimile) of (i) this
Second Amendment by the Landlord and the Tenant, (ii) the Second Amendment to
and Consent under Reimbursement Agreement of even date herewith by the Landlord,
the Agent and the Banks, (iii) the consent of the Trustee at the end hereof, and
(iv) the Consent and Reaffirmation of Guarantors at the end of such Consent
under Reimbursement Agreement by each of the Guarantors.
13
14
IN WITNESS WHEREOF, each of the Landlord and the Tenant has caused this
Second 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: XXXXXXXX, XXXXXX & CO.,
INC., Manager
By:
-------------------------- ----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
TENANT:
ATTEST: CARMIKE CINEMAS, INC.
By:
-------------------------- ----------------------------------
Name:
Title:
14
15
PURSUANT TO SECTION 9.06 OF THE INDENTURE, AS DEFINED IN THE LEASE
DESCRIBED IN THE FOREGOING SECOND AMENDMENT TO AMENDED AND RESTATED MASTER
LEASE, FIRST UNION NATIONAL BANK, NOT IN ITS INDIVIDUAL CAPACITY, BUT IN ITS
CAPACITY AS TRUSTEE THEREUNDER HEREBY CONSENTS TO THE EXECUTION AND DELIVERY OF
THE FOREGOING SECOND AMENDMENT TO AMENDED AND RESTATED MASTER LEASE AND THE
EXECUTION AND DELIVERY OF THE DOCUMENTS DESCRIBED IN SECTION 17 THEREOF.
FIRST UNION NATIONAL BANK,
Not In Its Individual Capacity, But In Its
Capacity As Trustee Under the Indenture
referred to above.
By:
------------------------
Title:
15
16
EXHIBIT M
FORM OF COMPLIANCE CERTIFICATE
Reference is made to the Amended and Restated Master Lease Agreement
dated as of January 29, 1999, as modified and supplemented and in effect from
time to time, the "Lease") between MoviePlex Realty Leasing, L.L.C., as the
Landlord, and Carmike Cinemas, Inc., as the Tenant. Capitalized terms used
herein shall have the meanings ascribed thereto in the Lease.
Pursuant to Section 2.1(s)(iii) of the Lease, ______________________,
the duly authorized ____________________, of Carmike Cinemas, Inc., hereby
certifies to the Landlord and the Agent that the information contained in the
Compliance Check List attached hereto is true, accurate and complete as of
______________, ___, and that no Default is in existence on and as of the date
hereof.
CARMIKE CINEMAS, INC.
By:
-----------------------------------
Title:
16
17
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
1. Ratio of Consolidated Senior Funded Debt to Consolidated Total Cash Flow
(Section 2.1(u))
At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending March 31, 2000, the ratio of Consolidated Senior Funded Debt to
Consolidated Cash Flow for the period of 4 consecutive Fiscal Quarters
ending on such date shall not be greater than the applicable ratio
provided in the following table:
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
On or before September 30, 2000 4.25 to 1.0
December 31, 2000 through 3.75 to 1.0
September 30, 2001
December 31, 2001 through 3.50 to 1.0
September 30, 2002
December 31, 2002 and 3.00 to 1.0
thereafter
(a) Consolidated Senior Funded Debt
Schedule - 4 $____________
(b) Consolidated Cash Flow
Schedule - 5 $____________
Actual Ratio of (a) to (b) _____________
Maximum Ratio [4.25 to 1.0]
[3.75 to 1.0]
[3.50 to 1.0]
[3.00 to 1.0]
2. Ratio of Consolidated Funded Debt to Consolidated Cash Flow (Section 2.1(v))
At the end of each Fiscal Quarter ending as provided in the following
table, the ratio of Consolidated Funded Debt at the end of such Fiscal
Quarter to Consolidated Cash Flow for the period of 4 consecutive
Fiscal Quarters ending on such date shall not be greater than the
applicable ratio provided in the following table:
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
On or before September 30, 2000 6.50 to 1.0
December 31, 2000 through
September 30, 2001 5.75 to 1.0
December 31, 2001 through
September 30, 2002 5.50 to 1.0
December 31, 2002 and
thereafter 5.00 to 1.0
17
18
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
(a) Consolidated Funded Debt
Schedule - 4 $____________
(b) Consolidated Cash Flow
Schedule - 5 $____________
Actual Ratio of (a) to (b) ____ to 1.00
Maximum Ratio [6.50 to 1.00]
[5.75 to 1.0]
[5.50 to 1.00]
[5.00 to 1.00]
3. Restricted Payments (Section 2.1(w))
The Tenant will not declare or make any, or permit any Subsidiary which
is not a Wholly-Owned Subsidiary to make any, Restricted Payment after
the Effective Date, if the aggregate amount of such Restricted Payments
made in any consecutive 4 Fiscal Quarter period would exceed
$4,000,000; provided that after giving effect to the payment of any
such Restricted Payments, no Default shall be in existence or be
created thereby.
(a) Total Restricted Payments
made after the Effective Date
and during the 3 Fiscal Quarters
prior to most recent Fiscal Quarter $____________
(b) Restricted Payment during most
recent Fiscal Quarter $____________
(c) sum of (a) and (b) $____________
Limitation (c) may not exceed $4,000,000
4. Fixed Charge Coverage (Section 2.1(x))
At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending March 31, 2000, the ratio of (a) Adjusted Cash Flow to (b) Fixed
Charges, in each case for the current Fiscal Quarter and the
immediately preceding 3 Fiscal Quarters, shall not be less than the
applicable ratio provided in the following table:
18
19
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
On or before September 30, 2001 1.25 to 1.0
December 31, 2001 and
thereafter 1.40 to 1.0
(a) Adjusted Cash Flow - Schedule - 3 $____________
(b) Fixed Charges - Schedule - 2 $____________
Actual Ratio of (a) to (b) _____________
Maximum Ratio [1.35 to 1.00]
[1.40 to 1.00]
5. Ratio of Adjusted Consolidated Funded Debt to Adjusted Cash Flow (Section
2.1(y)
At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending March 31, 2000, the ratio of (a) Adjusted Consolidated Funded
Debt to (b) Adjusted Cash Flow, in each case for the current Fiscal
Quarter and the immediately preceding 3 Fiscal Quarters, shall not be
less than the applicable ratio provided in the following table:
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
March 31, 2000 through
September 30, 2000 7.5 to 1.0
December 31, 2000 through
December 31, 2001 7.0 to 1.0.
March 31, 2002 and
thereafter 6.5 to 1.0
(a) Consolidated Funded Debt - Schedule 4 $____________
(b) Rental Obligations - Schedule - 6 $____________
(c) (b) times 8 $____________
(d) sum of (a) plus (c) $____________
(e) Adjusted Cash Flow - Schedule - 3 $____________
Actual Ratio of (d) to (e) ___ to 1.0
19
20
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
Maximum Ratio [7.5 to 1.0]
[7.0 to 1.0]
[6.5 to 1.0]
6. Negative Pledge (Section 2.1(z))
None of the Tenant's or any Subsidiary's property is subject to any
Lien securing Debt except for (i) Liens permitted by paragraph (a)
through (e), and paragraph (l), of Section 5.08 of the Credit
Agreement, (b) Liens not permitted by the aforementioned paragraphs of
Section 5.08 (1) on fixed assets permitted under paragraph (l) securing
Debt in an aggregate principal amount at any time outstanding not to
exceed 5% of Consolidated Total Capitalization and (c) Liens not
permitted by paragraphs (a) through (e) and paragraph (l) securing Debt
in an aggregate principal amount at any time outstanding not to exceed
5% of Consolidated Total Capitalization:
(a) Liens on fixed assets subject to paragraph (l):
Description of Lien and Property subject to same: Amount of Debt
Secured:
1. _____________________________________ $____________________
2. _____________________________________ $____________________
3. _____________________________________ $____________________
4. _____________________________________ $____________________
5. _____________________________________ $____________________
6. _____________________________________ $____________________
7. _____________________________________ $____________________
Total of items 1-7 $____________________
(b) Limitation (5% of Consolidated
Total Capitalization) $____________________
(c) Liens on other assets subject to paragraph (m):
Description of Lien and Property subject to same: Amount of Debt
Secured:
1. _____________________________________ $____________________
2. _____________________________________ $____________________
3. _____________________________________ $____________________
20
21
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
4. _____________________________________ $____________________
5. _____________________________________ $____________________
6. _____________________________________ $____________________
7. _____________________________________ $____________________
Total of items 1-7 $____________________
(d) Limitation (5% of Consolidated
Total Capitalization) $____________________
7. Sales of Assets (Section 2.1(cc))
The Tenant will not, nor will it permit any Subsidiary to, ... sell,
lease or otherwise transfer all or any substantial part of its assets
to, any other Person, or discontinue or eliminate any business line or
segment, ... provided that the foregoing limitation on the sale, lease
or other transfer of assets and on the discontinuation or elimination
of a business line or segment shall not prohibit (i) the sale, lease or
other transfer of assets by a Subsidiary to any other Subsidiary (other
than of Collateral by Eastwynn) or to the Tenant, or (ii) subject to
the mandatory prepayment provisions of Section 2.10(b) of the Credit
Agreement and any comparable provision of the Term Loan Credit
Agreement, during any Fiscal Quarter, a transfer of assets in an arm's
length transaction for fair market value or the discontinuance or
elimination of a business line or segment (in a single transaction or
in a series of related transactions) unless the aggregate assets to be
so transferred or utilized in a business line or segment to be so
discontinued, when combined with all other assets transferred, and all
other assets utilized in all other business lines or segments
discontinued, during such Fiscal Quarter and the immediately preceding
three Fiscal Quarters (excluding, however, transfers of assets
permitted by clause (i) of this Section) contributed more than 10% of
Consolidated Operating Income during the 4 consecutive Fiscal Quarters
immediately preceding such Fiscal Quarter, and (e) subject to the
mandatory prepayment provisions of Section 2.10(b) of the Credit
Agreement and any comparable provision of the Term Loan Credit
Agreement and to presentation to the Agent and the Banks of a
certificate showing compliance with the limitations contained in this
clause (e) after giving effect thereto, the Tenant may enter into
sale/leaseback transactions after the Effective Date in an amount not
to exceed in the aggregate $150,000,000, provided in each of the
foregoing such cases no Default shall be in existence or be created
thereby. At the request of the Tenant, the Collateral Agent shall
release any Collateral sold by the Tenant or Eastwynn in conformity
with the foregoing provisions, so long as any prepayments required by
Section 2.10(b) of the Credit Agreement and any comparable provision of
the Term Loan Credit Agreement have been made.
21
22
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
(a) Aggregate Operating Income contributed by
assets sold during Fiscal Quarter just ended(1) $________________
(b) Aggregate Operating Income contributed by
assets sold during 3 prior Fiscal Quarters(1) $________________
(c) sum of (a) and (b) $________________
(d) Consolidated Operating Income during
4 Fiscal Quarters ending with
Fiscal Quarter just ended $________________
(e) 10% of (d) $________________
Limitations: (c) may not exceed (e)
8. Investments (Section 2.1(gg))
Neither the Tenant nor any of its Subsidiaries shall make Investments
in any Person except: (a) Investments in (i) direct obligations of the
United States Government maturing within one year, (ii) certificates of
deposit issued by a commercial bank whose credit is satisfactory to the
Agent, (iii) commercial paper rated A1 or the equivalent thereof by S&P
or P1 or the equivalent thereof by Xxxxx'x and in either case maturing
within 6 months after the date of acquisition, (iv) tender bonds the
payment of the principal of and interest on which is fully supported by
a letter of credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof
by S&P and Aa or the equivalent thereof by Xxxxx'x, (v) loans or
advances to employees not exceeding $1,000,000 in the aggregate
principal amount outstanding at any time, in each case made in the
ordinary course of business and consistent with practices existing on
December 31, 1998, (vi) deposits required by government agencies or
public utilities, and (vii) loans, advances or other Investments to or
in Guarantors; and (b) other Investments which, in the aggregate since
the Second Amendment Effective Date, do not exceed $10,000,000;
provided, however, immediately after giving effect to the making of any
Investment, no Default shall have occurred and be continuing.
(a) loans and advances to employees $________________
Limitation $1,000,000
(b) Aggregate Investments made pursuant to clause
(b) from Second Amendment Effective Date
and prior to most recent
Fiscal Quarter $________________
---------------------------
(1) Excluding transfers permitted by clause (i)
22
23
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
(c) Investments made pursuant to clause (b) during
most recent Fiscal Quarter $________________
(d) Sum of (b) and (c) $________________
Limitation: (d) may not exceed $10,000,000
9. Capital Expenditures (Section 2.1(ll)
At the end of each Fiscal Year, commencing with the Fiscal Quarter
ending December 31, 2000, Capital Expenditures for such Fiscal Year
(excluding non-maintenance Capital Expenditures on theatres opened on
or before December 31, 1999 which were contracted for on or before such
date) shall not exceed (a) for the Fiscal Year ending December 31,
2000, $25,000,000 and (b) for each Fiscal Year thereafter, $35,000,000.
(a) Capital Expenditures incurred during Fiscal Year
to date $_______________
(b) Tenant improvements included in (a) and actually
reimbursed to date $_______________
(c) Estimated amount of reimbursable tenant
improvements included in (a) but not yet
reimbursed $_______________
(d) Non-maintenance Capital Expenditures on theatres opened on or
before December 31, 1999 which
were contracted for on or before such date $_______________
(e) Sum of (a), less (b), less (c), less (d) $_______________
Limitation: (e) may not exceed sum of $25,000,000 in Fiscal
Year 2000 and $35,000,000 in any Fiscal Year thereafter
23
24
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 1
CONSOLIDATED TOTAL CAPITALIZATION
(a) Consolidated Net Worth $
-------------------
(b) Consolidated Funded Debt $
-------------------
(c) Consolidated Total Capitalization
(sum of (a) plus (b)) $
==================
24
25
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 2
Fixed Charges
(a) Rental Obligations for:
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
Total Rental Obligations $_____________
(b) Interest Expense for:
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
Total Interest Expense $_____________
TOTAL FIXED CHARGES (sum of (a) plus (b)) $_____________
Adjusted Fixed Charges
(c) Dividends for:
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
Total Dividends $_____________
(d) Tax expense for:
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
Total Tax Expense $_____________
25
26
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
(e) Principal payments(2) for:
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
Total principal payments $_____________
TOTAL ADJUSTED FIXED CHARGES
(sum of (a) plus (b) plus (c) plus (d) plus (d)) $_____________
---- ---- ---- ----
------------------
(2) Exclude principal payments on the Senior Notes
26
27
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 3
Adjusted Cash Flow(3)
(a) ____ quarter ____ $____________
Consolidated Operating Income $____________
Rental Obligations $____________
Depreciation and amortization $____________
Net income arising from sale, exchange or distribution of capital
assets (not to exceed 5% of Consolidated
Operating Income for such period) $____________
Theatre-Level EBITDA $____________
Total for Quarter $____________
(b) ____ quarter ____ $____________
Consolidated Operating Income $____________
Rental Obligations $____________
Depreciation and amortization $____________
Net income arising from sale, exchange or distribution of capital
assets (not to exceed 5% of Consolidated
Operating Income for such period) $____________
Theatre-Level EBITDA $____________
Total for Quarter $____________
(c) ____ quarter ____ $____________
Consolidated Operating Income $____________
Rental Obligations $____________
Depreciation and amortization $____________
Net income arising from sale, exchange or distribution of capital
assets (not to exceed 5% of Consolidated
Operating Income for such period) $____________
Theatre-Level EBITDA $____________
Total for Quarter $____________
(d) ____ quarter ____ $____________
--------------
(3) In determining Adjusted Cash Flow, the expense incurred by the Tenant
in complying with the provisions of Section 2.1(mm) in granting and
recording the Carmike Mortgages and obtaining the Real Estate
Collateral Documentation shall be added back to Consolidated Operating
Income.
27
28
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
Consolidated Operating Income $____________
Rental Obligations $____________
Depreciation and amortization $____________
Net income arising from sale, exchange or distribution of capital
assets (not to exceed 5% of Consolidated
Operating Income for such period) $____________
Theatre-Level EBITDA $____________
Total for Quarter $____________
Total Adjusted Cash Flow $
(sum of (a) plus (b) plus (c) plus (d) ============
28
29
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 4
Consolidated Funded Debt
Interest
(a) Funded Debt Rate Maturity Total
----------- -------- -------- -----
Secured
-------
______________________ ________ ________ $___________
______________________ ________ ________ $___________
______________________ ________ ________ $___________
______________________ ________ ________ $___________
Total Secured $___________
Unsecured
---------
______________________ ________ ________ $___________
______________________ ________ ________ $___________
______________________ ________ ________ $___________
______________________ ________ ________ $___________
Total Unsecured $___________
Guarantees
----------
______________________ ________ ________ $___________
______________________ ________ ________ $___________
Total $___________
Redeemable Preferred Stock $___________
--------------------------
Total $___________
Other Debt
----------
______________________ ________ ________ $___________
______________________ ________ ________ $___________
______________________ ________ ________ $___________
Total Funded Debt $
==========
(b) Current Debt $___________
(c) Unescrowed Off-Balance Sheet Lease Indebtedness (to the
extent not included in (a) or (b) $___________
(d) Off-Balance Sheet Lease Equity Amounts (to the extent
not included in (a) or (b) $___________
(e) Consolidated Funded Debt (a) plus (b) plus (c) plus (d) $
---- ---- ---- ==========
29
30
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
Consolidated Senior Funded Debt
(f) Subordinated Debt $___________
(g) Consolidated Senior Funded Debt (e) less (f) $___________
30
31
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 5
Consolidated Cash Flow(4)
(a) ____ quarter ____ $____________
Consolidated Operating Income $____________
Depreciation and amortization $____________
Off-Balance Sheet Lease Payments $____________
Net income arising from sale, exchange or
distribution of capital
assets (not to exceed 5% of Consolidated
Operating Income for such period) $____________
Total for Quarter $____________
(b) ____ quarter ____ $____________
Consolidated Operating Income $____________
Depreciation and amortization $____________
Off-Balance Sheet Lease Payments $____________
Net income arising from sale, exchange or
distribution of capital assets
(not to exceed 5% of Consolidated
Operating Income for such period) $____________
Total for Quarter $____________
(c) ____ quarter ____ $____________
Consolidated Operating Income $____________
Depreciation and amortization $____________
Off-Balance Sheet Lease Payments $____________
Net income arising from sale, exchange or
distribution of capital assets
(not to exceed 5% of Consolidated
Operating Income for such period) $____________
Total for Quarter $____________
----------------
(4) In determining Adjusted Cash Flow, the expense incurred by the Tenant
in complying with the provisions of Section 2.1(mm) in granting and
recording the Carmike Mortgages and obtaining the Real Estate
Collateral Documentation shall be added back to Consolidated Operating
Income.
31
32
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
(d) ____ quarter ____ $____________
Consolidated Operating Income $____________
Depreciation and amortization $____________
Off-Balance Sheet Lease Payments $____________
Net income arising from sale, exchange or
distribution of capital
assets (not to exceed 5% of Consolidated
Operating Income for such period) $____________
Total for Quarter $____________
Consolidated Cash Flow $
(sum of (a) plus (b) plus (c) plus (d) ============
---- ---- ----
32
33
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 6
Rental Obligations(5)
____ quarter ____ $____________
____ quarter ____ $____________
____ quarter ____ $____________
____ quarter ____ $____________
Total $____________
--------------------
(5) Rental Obligations shall not include Rental Obligations under the Lease
and Rental Obligations under leases arising from sale/leaseback
transactions of theatres shall be annualized on a proforma basis, as to
any Operating Lease which has been in effect for less than 4 Fiscal
Quarters.
33
34
ANNEX 1
TERMINATION OF LEASE SUPPLEMENT NO. 4
THIS TERMINATION OF LEASE SUPPLEMENT NO. 4 dated _______________, 2000
(the "Lease Supplement") terminates Lease Supplement No. 6 dated September 9,
1998, to that certain Master Lease dated as of November 20, 1997 (the "Lease")
by and between MOVIEPLEX REALTY LEASING, L.L.C. (the "Landlord") and CARMIKE
CINEMAS, INC. (the "Tenant").
1. Incorporation of Lease. Reference is hereby made to the Lease, all of
the terms of which are incorporated herein and made a part hereof. Without
limiting the generality of the foregoing, capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the Lease.
2. Termination of Lease of Supplemental Property. Landlord and Tenant
hereby terminate the lease, evidenced by Lease Supplement No. 4, from Landlord
to Tenant of the real property, together with all improvements thereon, located
in the County of Xxxxxxxxx, State of Georgia, all as more particularly described
on Exhibit A attached hereto and made a part hereof (the "Supplemental
Property").
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Termination of
Lease Supplement No. 4 as of the date set forth on the first page hereof.
LANDLORD:
MOVIEPLEX REALTY LEASING, L.L.C., a New
Jersey limited liability company
By: Xxxxxxxx Xxxxxx & Co., Ltd., a Delaware
corporation, sole managing member
By:
Printed Name:
Printed Title:
TENANT:
CARMIKE CINEMAS, INC., a Delaware corporation
By:
Printed Name:
Printed Title:
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EXHIBIT A TO ANNEX 1
Legal Description
All that certain tract or parcel of land lying in and being a part of Land Xxx
000, 0xx Xxxx Xxxxxxxx, Xxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxx and being more
particularly described as follows:
COMMENCE at the intersection of the South R/W line of Ledo Road (80' R/W) with
the West R/W line of Nottingham Way (R/W varies) said intersection being the
POINT OF COMMENCEMENT. Go thence South 87 18' 19" West along the South R/W of
Ledo Road for a distance of 279.59' to the POINT OF BEGINNING.
From said POINT OF BEGINNING go South 02 41' 41" East for a distance of 403.82'
to a point. Go thence South 87 18' 19" West for a distance of 770.14' to a
point. Go thence North 01 57' 54" West for a distance of 403.85' to a point on
the South R/W line of Ledo Road (80' R/W). Go thence North 87 18' 19" East along
the South R/W line of Ledo Road (80' R/W) for a distance of 765.00' to the POINT
OF BEGINNING.
Said tract contains 7.116 acres.
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ANNEX 2
PREPARED BY AND AFTER PLEASE CROSS REFERENCE FOR
RECORDING, RETURN TO: DOCUMENTS RECORDED AT:
Xxxxxxxx X. Xxxxxxxxx, Esq. Deed Book 1863, Page 328, and
Xxxxx, Day, Xxxxxx & Xxxxx Deed Book 1864, Page 1,
0000 XxxXxxxx Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxx Records
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
QUIT-CLAIM DEED FOR RELEASE OF
SECURITY DEED AND ASSIGNMENT OF RENTS
THIS INDENTURE is made as of the day of , 2000, between WACHOVIA BANK,
N.A. ("Grantor"), as Agent for the Lenders (as defined in the Security Deed),
and MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey limited liability company
("Grantee") ("Grantor" and "Grantee" to include their respective heirs,
successors, legal representatives and assigns where the context permits or
requires).
WITNESSETH
THAT Grantor, for the sole purpose hereinafter set forth, and in
consideration of the sum of ONE AND NO/100 DOLLAR ($1.00) and other valuable
consideration in hand paid at and before the sealing and delivery of these
presents, the receipt and sufficiency whereof are hereby acknowledged, does by
these presents remise, release and forever quit-claim unto Grantee all of
Grantor's right, title and interest in and to the Property (as defined in the
Security Deed).
TO HAVE AND TO HOLD said property unto Grantee, so that neither Grantor
nor any entity or entities claiming under Grantor shall at any time, by any
means or ways, have, claim, or demand any right, title, or interest in or to the
land or its appurtenances, or any rights thereof.
THIS INDENTURE is given for the purpose of releasing the Property from
any and all rights of Grantor, including rights derived from that certain Deed
to Secure Debt, Assignment of Leases and Security Agreement (the "Security
Deed") from Grantee to Grantor dated September 9, 1998, and recorded on
September 9, 1998, in Deed Book 0000, Xxxx 000, Xxxxxxx xx Xxxxxxxxx Xxxxxx; and
that certain Assignment of Rents from Grantee to Grantor dated September 9,
1998, and recorded on September 9, 1998, in Deed Book 1864, Page 1, aforesaid
records.
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IN WITNESS WHEREOF, Grantor has caused these presents to be executed
under seal by its properly and duly authorized officers as of the day, month and
year first above written.
GRANTOR:
Signed, sealed and delivered in WACHOVIA BANK, N.A., as Agent
the presence of:
By:
---------------------------------- ------------------------------
Unofficial Witness Name:
---------------------------
Title:
----------------------------
----------------------------------
Notary Public Attest:
--------------------------
Name:
---------------------------
Commission Expiration Date: Title:
----------------------------
[NOTARIAL SEAL] [SEAL]
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ANNEX 3
Prepared By and After
Recording, Return To:
Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
STATE OF
------------------
COUNTY OF
-----------------
LIMITED WARRANTY DEED
THIS DEED, made as of the _____ day of ____________, 2000, between
MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey limited liability company
("Grantor"), and EASTWYNN THEATRES, INC., an Alabama corporation ("Grantee")
(the terms "Grantor" and "Grantee" to include their respective heirs, successors
and assigns where the context hereof requires or permits).
WITNESSETH THAT:
Grantor, for and in consideration of the sum of Ten and No/100 ($10.00)
Dollars and other good and valuable consideration, in hand paid at and before
the sealing and delivery of these presents, the receipt, adequacy and
sufficiency of which are being hereby acknowledged by Grantor, has granted,
bargained, sold and conveyed, and by these presents does hereby grant, bargain,
sell and convey unto Grantee the following described real property, to-wit:
ALL THAT TRACT or parcel of land lying and being in Xxxxxxxxx County,
Georgia, as more particularly described on Exhibit "A" attached hereto
and incorporated herein by this reference.
TOGETHER WITH all buildings, structures, fixtures and other
improvements located on the real property described above and all
easements, appurtenances, rights, privileges, and reservations,
belonging or pertaining thereto including, without limitation, any
right, title or interest of Grantor in and to adjacent streets, alleys
or rights-of-way.
TO HAVE AND TO HOLD the above-described property, together with all and
singular the rights, members and appurtenances thereof, to the same being,
belonging or in anywise appertaining to the only proper use, benefit and behoof
of Grantee, forever in FEE SIMPLE, subject only to those matters (the "Permitted
Encumbrances") and more particularly described on Exhibit "B" attached hereto
and incorporated herein by this reference.
AND THE SAID GRANTOR will warrant and forever defend the right and
title to the above-described property unto the Grantee, against the lawful
claims of all persons whomsoever,
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owning, holding or claiming by, through or under Grantor and not otherwise,
except for claims arising under or by virtue of the Permitted Encumbrances.
IN WITNESS WHEREOF, Grantor has signed, sealed and delivered this Deed
the day and year first written above.
GRANTOR:
MOVIEPLEX REALTY LEASING, L.L.C.,
a New Jersey limited liability company
Signed, sealed and delivered By: Xxxxxxxx Xxxxxx & Co., Ltd., a Delaware
in the presence of: corporation, sole managing member
By:
---------------------------- ----------------------------------
Unofficial Witness Name:
--------------------------------
Title:
-------------------------------
----------------------------
Notary Public
Attest:
------------------------------
Name:
--------------------------------
My commission expires: Title:
-------------------------------
(NOTARIAL SEAL) (CORPORATE SEAL)
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EXHIBIT A TO ANNEX 3
Legal Description
All that certain tract or parcel of land lying in and being a part of Land Xxx
000, 0xx Xxxx Xxxxxxxx, Xxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxx and being more
particularly described as follows:
COMMENCE at the intersection of the South R/W line of Ledo Road (80' R/W) with
the West R/W line of Nottingham Way (R/W varies) said intersection being the
POINT OF COMMENCEMENT. Go thence South 87 18' 19" West along the South R/W of
Ledo Road for a distance of 279.59' to the POINT OF BEGINNING.
From said POINT OF BEGINNING go South 02 41' 41" East for a distance of 403.82'
to a point. Go thence South 87 18' 19" West for a distance of 770.14' to a
point. Go thence North 01 57' 54" West for a distance of 403.85' to a point on
the South R/W line of Ledo Road (80' R/W). Go thence North 87 18' 19" East along
the South R/W line of Ledo Road (80' R/W) for a distance of 765.00' to the POINT
OF BEGINNING.
Said tract contains 7.116 acres.
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EXHIBIT B TO ANNEX 3
Permitted Encumbrances
(i) All visible easements and restrictions of record.
(ii) General or special taxes and assessments, not yet due and payable.
(iii) Right-of-way easement to Georgia Power Company dated May 15, 1975, and
recorded July 21, 1975, in Deed Book 000, Xxxx 000, Xxxxxxxxx Xxxxxx
Xxxx Records, as referenced on that certain ALTA/ACSM Land Title Survey
prepared by Marbury Engineering Company dated August 10, 1998 (the
"Survey").
(iv) The Survey discloses a thirty-five (35) foot minimum setback line along
Ledo Road.
But excluding from the foregoing any liens, encumbrances, charges, exceptions
and restrictions which have been created by or resulted from acts of Grantor
during the Term (as defined in that certain Master Lease between Grantor, as
landlord, and Grantee, as tenant, dated November 20, 1997, as supplemented from
time to time) which were not consented to or requested by Grantee.
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ANNEX 4
UPON RECORDING RETURN TO:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxxxxxx
STATE OF GEORGIA
COUNTY OF _______________
TERMINATION OF UCC-2 NOTICE FILING
DEBTOR: SECURED PARTY:
MOVIEPLEX REALTY LEASING, L.L.C. WACHOVIA BANK, N.A., as Agent
0 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 000 Xxxxxxxxx Xxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx, Xxxxxxx 00000
The Secured Party no longer claims a security interest under the UCC-2 Notice
Filing filed September 9, 1998, at Book 1864, Page 9, in the Office of the Clerk
of the Superior Court of Xxxxxxxxx County, Georgia. The undersigned, being the
present record holder and owner under such UCC-2 Notice Filing, hereby
authorizes and directs the Clerk of such Superior Court, as provided in O.C.G.A.
ss. 11-9-403(7), to terminate the UCC-2 Notice Filing of record.
SECURED PARTY:
WACHOVIA BANK, N.A., as Agent
By:
-------------------------------------------
Printed Name:
--------------------------------
Printed Title:
--------------------------------
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ANNEX 5
TERMINATION OF LEASE SUPPLEMENT NO. 6
THIS TERMINATION OF LEASE SUPPLEMENT NO. 6 dated ____________________, 2000 (the
"Lease Supplement") terminates Lease Supplement No. 6 dated January 14, 1999, to
that certain Master Lease dated as of November 20, 1997 (the "Lease") by and
between MOVIEPLEX REALTY LEASING, L.L.C. (the "Landlord") and CARMIKE CINEMAS,
INC. (the "Tenant").
1. Incorporation of Lease. Reference is hereby made to the Lease, all of
the terms of which are incorporated herein and made a part hereof. Without
limiting the generality of the foregoing, capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the Lease.
2. Termination of Lease of Supplemental Property. Landlord and Tenant
hereby terminate the lease, evidenced by Lease Supplement No. 6, from Landlord
to Tenant of the real property, together with all improvements thereon, located
in the County of Xxxxxxxxxx, State of Tennessee, all as more particularly
described on Exhibit A attached hereto and made a part hereof (the "Supplemental
Property").
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Termination of Lease
Supplement No. 6 as of the date set forth on the first page hereof.
LANDLORD:
MOVIEPLEX REALTY LEASING, L.L.C.,
a New Jersey limited liability company
By: Xxxxxxxx Xxxxxx & Co., Ltd., a Delaware
corporation, sole managing member
By:
-----------------------------------------
Printed Name:
-------------------------------
Printed Title:
------------------------------
TENANT:
CARMIKE CINEMAS, INC., a Delaware
corporation
By:
-----------------------------------------
Printed Name:
-------------------------------
Printed Title:
------------------------------
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EXHIBIT A
To be Added
46
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ANNEX 6
This Instrument Prepared
By And Upon Recordation,
Return To: CROSS-REFERENCE TO:
Xxxxxxxx X. Xxxxxxxxx, Esq. Book B-447, Page 283, and
Xxxxx, Day, Xxxxxx & Xxxxx Book B-447, Page 319
0000 XxxXxxxx Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx Records
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
RELEASE OF DEED OF TRUST AND TERMINATION OF ASSIGNMENT
WACHOVIA BANK, N.A. ("Beneficiary"), as Agent for the Lenders (as
defined in the Deed of Trust), is the sole owner and holder of that certain Deed
of Trust, Assignment of Leases and Security Agreement (the "Deed of Trust") from
MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey limited liability company
("Grantor"), to Xxxx X. Xxx, Xx., Trustee, dated January 14, 1999, and recorded
in Book B-447, Page 283, in the Register's Office of Xxxxxxxxxx County,
Tennessee (the "Records") and that certain Assignment of Rents (the
"Assignment") from Grantor, dated January 14, 1999, and recorded in Book B-447,
Page 319, in the Records.
Beneficiary hereby releases and forever discharges the Property (as
defined in the Deed of Trust) from the lien of the Deed of Trust and the
Assignment and declares that the lien of the foregoing instruments with respect
to the Property is fully satisfied and discharged.
WITNESS my hand and seal this _____ day of _______________, 2000.
BENEFICIARY:
WACHOVIA BANK, N.A., as Agent
By:
----------------------------------
Printed Name:
-------------------------
Printed Title:
------------------------
Attest:
-------------------------------
Printed Name:
-------------------------
Printed Title:
------------------------
[SEAL]
47
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STATE OF __________________________)
)
COUNTY OF _________________________)
Personally appeared before me, the undersigned, a Notary Public having
authority within the State and County aforesaid,______________________ , with
whom I am personally acquainted (or proved to me on the basis of satisfactory
evidence), and who acknowledged that __he executed the within instrument for the
purposes therein contained on behalf of Agent as hereinafter described, and who
further acknowledged that __he is the __________________________ of Wachovia
Bank, N.A., as Agent, the within named bargainer, ("Agent"), and is authorized
by Agent to execute this instrument on behalf of Agent as ___________________ of
Agent.
WITNESS my hand, at office, this _____ day of _______________, 2000.
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ANNEX 7
This Instrument Prepared By:
Xxxxxxxx X. Xxxxxxxxx, Esq.
XXXXX, DAY, XXXXXX & XXXXX
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000-0000
(000) 000-0000
LIMITED WARRANTY DEED
================================================================================
Address New Owner as Follows: Send Tax Bills To:
--------------------------------------------------------------------------------
Carmike Cinemas, Inc. Carmike Cinemas, Inc.
--------------------------------------------------------------------------------
X.X. Xxx 000 X.X. Xxx 000
--------------------------------------------------------------------------------
Xxxxxxxx, XX 00000-0000 Xxxxxxxx, XX 00000-0000
--------------------------------------------------------------------------------
Part of Map 92, Parcel 110
================================================================================
STATE OF _______________
COUNTY OF _____________
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00),
and other good and valuable consideration, receipt of which is hereby
acknowledged, MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey limited liability
company ("Grantor"), has bargained and sold and does hereby transfer and convey
unto EASTWYNN THEATRES, INC., an Alabama corporation ("Grantee"), its successors
and assigns, a certain tract of land located in Xxxxxxxxxx County, Tennessee and
described on EXHIBIT A attached hereto and incorporated herein by this reference
(the "Property"). This is improved property is located in Murfreesboro,
Tennessee.
TO HAVE AND TO HOLD the Property, together with all the appurtenances
and hereditaments thereunto belonging or in anywise appertaining, to the said
Grantee, its successors and assigns, forever, subject only to those matters
shown on EXHIBIT B attached hereto and incorporated herein by this reference.
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AND Grantor does hereby covenant with Grantee that it is lawfully
seized and possessed of the Property in fee simple; that it has good right to
sell and convey the same; and that the same is unencumbered, except as shown on
EXHIBIT B and except for encumbrances which were not created by Grantor or
suffered or incurred by Grantor.
AND Grantor does further covenant and bind itself, its successors and
assigns, to warrant and forever defend the title to the Property against the
lawful claims of all persons claiming by, through or under Grantor, but no
further or otherwise.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed
on this ____ day of _______________, 2000.
GRANTOR:
MOVIEPLEX CINEMAS, INC., a New Jersey
limited liability company
By: Xxxxxxxx, Xxxxxx & Co., Inc., a Delaware
corporation, sole managing member
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[SEAL]
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STATE OF __________ )
)
COUNTY OF ________ )
The actual consideration or value, whichever is greater, for this
transfer is $__________.
-------------------------
AFFIANT
Subscribed and sworn to before me this ____ day of __________, 2000.
-------------------------
NOTARY PUBLIC
My Commission Expires:
---------------------
51
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STATE OF _________)
)
COUNTY OF ________)
Personally appeared before me, the undersigned, a notary public having
authority within the State and County aforesaid, __________, with whom I am
personally acquainted, and who has acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the __________ of Xxxxxxxx, Xxxxxx & Co., Inc., a Delaware corporation
(the "Corporation"), the sole managing member of MoviePlex Realty Leasing,
L.L.C., a New Jersey limited liability company (the "Company"), and is
authorized by the Corporation to execute this instrument on behalf of the
Corporation as the _____________ of the Corporation, the Corporation being
authorized to execute this instrument on behalf of the Company.
Witness my hand, at office, this ____ day of ____________, 2000.
------------------------------
Notary Public
My Commission Expires:
(NOTARIAL SEAL)
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EXHIBIT A TO ANNEX 7
To Be Added
53
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EXHIBIT B TO ANNEX 7
Permitted Encumbrances
(i) Restrictive covenants, easements and setback lines that are applicable
to the described property and of record, and all zoning and subdivision
regulations of the appropriate governmental body along with any
easements and rights of ways of public roads and utilities.
(ii) General or special taxes and assessments, not yet due and payable.
(iii) Greenbelt Application Approval recorded in Book A467, page 145, in the
Register's Office for Xxxxxxxxxx County, Tennessee.
(iv) Rights of way and easements, for streets, public utility and drainage,
construction, slopes, sanitary sewer and drainage, ingress and egress
and incidental purposes, conveyed to the City of Murfreesboro by
instrument recorded in Book 527, page 490, in the Register's Office for
Xxxxxxxxxx County, Tennessee, as shown on the Final Plan prepared by
X.X. Xxxxxxx Land Surveying, Inc. and dated October 29, 1998, last
revised November 20, 1998.
But excluding from the foregoing any liens, encumbrances, charges, exceptions
and restrictions which have been created by or resulted from acts of Grantor
during the Term (as defined in that certain Master Lease between Grantor, as
landlord, and Grantee, as tenant, dated November 20, 1997, as supplemented from
time to time) which were not consented to or requested by Grantee.
54
