SECOND AMENDMENT
SECOND AMENDMENT, dated as of March 28, 2006 (this "Amendment"), to
the Credit Agreement, dated as of May 19, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among CARMIKE
CINEMAS, INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
XXXXX FARGO FOOTHILL, INC., as Documentation Agent (in such capacity, the
"Documentation Agent"), and BEAR XXXXXXX CORPORATE LENDING INC., as
administrative agent (in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make certain extensions of credit to the Borrower; and
WHEREAS, the Borrower, the Lenders and the Administrative Agent desire
to amend the Credit Agreement on the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Borrower, the Lenders and the Administrative Agent hereby
agree as follows:
SECTION 1.1. Defined Terms. Terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
SECTION 1.2. Amendments to Section 7.1(a) to the Credit Agreement.
Section 7.1(a) of the Credit Agreement is hereby amended by inserting
immediately after the word "Borrower" in the second line thereof the following:
"(or, in the case of the fiscal year ended December 31, 2005, no later than May
15, 2006)".
SECTION 1.3. Limitation on Borrowing of Revolving Credit Loans. During
the period from the Amendment Effective Date (as defined below) to the date (the
"Trigger Date") that is the earlier of (i) the delivery of the financial
statements required by Section 7.1(a) for the fiscal year ended December 31,
2005 and (ii) May 15, 2006, and subject to compliance with the conditions to
borrowing thereof contained in the Credit Agreement, the maximum principal
amount of Revolving Extensions of Credit that may be outstanding on or prior to
the Trigger Date shall not exceed $10,000,000.
SECTION 1.4. Monthly Financial Statements. The Borrower agrees to
deliver to the Administrative Agent and the Lenders on or prior to April 15,
2006, monthly financial statements for March 2006 in the form previously
delivered to the Administrative Agent with respect to the months January and
February 2006. The amendment set forth in Section 1.2 above shall cease to be
effective in the event the Borrower does not so deliver such financial
statements by such date.
SECTION 1.5. Conditions to Effectiveness. This Amendment shall become
effective as of the date hereof on the date (the "Amendment Effective Date") on
which the Borrower, the Administrative Agent and the Required Lenders shall have
executed and delivered to the Administrative Agent this Amendment.
SECTION 1.6. Representation and Warranties. To induce the
Administrative Agent to enter into this Amendment, the Borrower hereby
represents and warrants to the Administrative Agent and all of the Lenders as of
the Amendment Effective Date that:
2
(a) Corporate Power; Authorization; Enforceable Obligations.
(i) The Borrower has the corporate power and authority, and the
legal right, to make and deliver this Amendment and to perform its
obligations under the Loan Documents, as amended by this Amendment,
and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Amendment and the
performance of the Loan Documents, as so amended.
(ii) No consent or authorization of, approval by, notice to,
filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the
execution and delivery of this Amendment or with the performance,
validity or enforceability of the Loan Documents, as amended by this
Amendment, except as otherwise provided in Section 5.4 of the Credit
Agreement.
(iii) This Amendment has been duly executed and delivered on
behalf of the Borrower.
(iv) This Amendment and each Loan Document, as amended by this
Amendment, constitutes a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting the enforcement of creditors' rights generally,
general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing.
(b) Representations and Warranties. The representations and warranties
made by the Borrower in and pursuant to the Loan Documents are true and correct
in all material respects on and as of the Amendment Effective Date, after giving
effect to the effectiveness of this Amendment, as if made on and as of the
Amendment Effective Date.
SECTION 1.7. Payment of Expenses. The Borrower agrees to pay or
reimburse the Administrative Agent for all of its reasonable out-of-pocket costs
and expenses incurred in connection with this Amendment, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to each Agent.
SECTION 1.8. No Other Amendments; Confirmation. Except as expressly
amended, modified and supplemented hereby, the provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect.
SECTION 1.9. Governing Law; Counterparts. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
CARMIKE CINEMAS, INC.
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
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Title: Sr. Vice President
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Second Amendment to Credit Agreement
BEAR XXXXXXX CORPORATE LENDING INC.,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx Xxxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxxx
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Title: Vice President
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Second Amendment to Credit Agreement
XXXXX FARGO FOOTHILL, N.A.,
as Issuing Lender, Documentation Agent
and a Lender
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: Vice President
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Second Amendment to Credit Agreement
