<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934.
For the quarterly period ended MARCH 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to _________
Commission file number 0-11604
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CARMIKE CINEMAS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-1469127
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1301 FIRST AVENUE, COLUMBUS, GEORGIA 31901-2109
(Address of Principal Executive Offices) (Zip Code)
(706) 576-3400
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class A Common Stock, $.03 par value --
9,968,287 shares outstanding as of May 1, 2000
Class B Common Stock, $.03 par value --
l,420,700 shares outstanding as of May 1, 2000
<PAGE> 2
PART I
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED BALANCE SHEETS
CARMIKE CINEMAS, INC. AND SUBSIDIARIES
(IN THOUSANDS, EXCEPT FOR SHARE DATA)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
2000 1999
-------------- --------------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 6,576 $ 6,509
Short-term investments 9,948 1,175
Accounts and notes receivable 2,296 2,638
Inventories 4,771 4,240
Recoverable construction allowances -- Note 4 19,988 15,259
Recoverable income taxes 6,747 5,775
Prepaid expenses 15,535 10,257
---------- ----------
TOTAL CURRENT ASSETS 65,861 45,853
OTHER ASSETS
Investments in and advances to partnerships 13,599 14,270
Deferred income taxes 23,728 21,038
Other 10,494 10,542
---------- ----------
47,821 45,850
PROPERTY AND EQUIPMENT -- Note 3
Land 66,828 71,239
Buildings and improvements 223,554 247,283
Leasehold improvements 271,001 262,310
Leasehold interests 18,017 18,185
Equipment 244,495 250,323
---------- ----------
823,895 849,340
Accumulated depreciation and amortization (170,871) (183,100)
---------- ----------
653,024 666,240
EXCESS OF PURCHASE PRICE OVER NET ASSETS OF BUSINESSES ACQUIRED 49,117 49,551
---------- ----------
$ 815,823 $ 807,494
========== ==========
</TABLE>
See accompanying notes
2
<PAGE> 3
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
2000 1999
-------------- --------------
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 56,000 $ 55,967
Accrued expenses 41,398 45,971
Current maturities of long-term indebtedness and
capital lease obligations 5,332 4,008
---------- ----------
TOTAL CURRENT LIABILITIES 102,730 105,946
LONG-TERM LIABILITIES
Long-term debt, less current maturities -- Note 2 234,740 213,688
Senior Subordinated Notes 200,000 200,000
Capital lease obligations, less current maturities 52,372 52,639
Restructuring reserve, less current portion 23,780 24,615
Other 5,519 6,409
---------- ----------
516,411 497,351
---------- ----------
SHAREHOLDERS' EQUITY
5.5% Series A Senior Cumulative Convertible
Exchangeable Preferred Stock, $1.00 par value,
authorized 1,000,000 shares, issued and
outstanding 550,000 shares; involuntary
liquidation value of $55,000,000 550 550
Class A Common Stock, $.03 par value, one vote
per share, authorized 22,500,000 shares, issued
and outstanding 9,968,287 shares 299 299
Class B Common Stock, $.03 par value, ten votes
per share, authorized 5,000,000 shares, issued
and outstanding 1,420,700 shares 43 43
Treasury Stock, at cost, 44,800 shares (441) (441)
Paid-in capital 158,772 158,772
Retained earnings 37,459 44,974
---------- ----------
196,682 204,197
---------- ----------
$ 815,823 $ 807,494
========== ==========
</TABLE>
See accompanying notes
3
<PAGE> 4
CONSOLIDATED STATEMENTS OF OPERATIONS
CARMIKE CINEMAS, INC. AND SUBSIDIARIES
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
2000 1999
---------- ----------
<S> <C> <C>
Revenues:
Admissions $ 68,556 $ 67,022
Concessions and other 32,979 30,694
---------- ----------
101,535 97,716
Costs and expenses:
Film exhibition costs 36,280 35,218
Concession costs 3,980 3,719
Other theatre operating costs 49,626 43,883
General and administrative expenses 1,685 1,865
Depreciation and amortization expenses 11,054 9,506
---------- ----------
102,625 94,191
---------- ----------
OPERATING INCOME (LOSS) (1,090) 3,525
Interest expense (10,788) (7,306)
---------- ----------
LOSS BEFORE INCOME TAXES (11,878) (3,781)
Income tax benefit (4,514) (1,437)
---------- ----------
Net loss before extraordinary
item (7,364) (2,344)
Extraordinary item (net of income taxes) -- Note 5 -0- (6,291)
---------- ----------
NET LOSS (7,364) (8,635)
Preferred stock dividends (756) (756)
---------- ----------
NET LOSS AVAILABLE FOR
COMMON STOCK $ (8,120) $ (9,391)
========== ==========
Weighted average shares outstanding:
Basic and diluted 11,344 11,363
========== ==========
Loss per common share before extraordinary item:
Basic and diluted $ (.72) $ (.27)
========== ==========
Loss per common share:
Basic and diluted $ (.72) $ (.83)
========== ==========
</TABLE>
See accompanying notes
4
<PAGE> 5
CONSOLIDATED STATEMENTS OF CASH FLOWS
CARMIKE CINEMAS, INC. AND SUBSIDIARIES
(IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
2000 1999
---------- ----------
<S> <C> <C>
OPERATING ACTIVITIES
Net loss $ (7,364) $ (8,635)
Items which did not provide (use) cash:
Depreciation and amortization 11,054 9,506
Deferred income taxes (2,690) (5,293)
Recoverable income taxes (972) -0-
Gain on sales of property and equipment (546) -0-
Changes in other assets and liabilities (1,006) (838)
Changes in operating assets and liabilities:
Accounts and notes receivable and inventories (189) (3,798)
Prepaid expenses (5,278) (2,684)
Accounts payable 33 5,825
Accrued expenses (4,573) (4,981)
---------- ----------
NET CASH USED IN OPERATING ACTIVITIES (11,531) (10,898)
INVESTING ACTIVITIES
Purchases of property and equipment (19,709) (52,100)
Proceeds from sales of property and equipment 546 -0-
Proceeds from sale/leaseback transaction 23,283 -0-
Decrease (increase) in:
Short-term investments (8,773) (21)
Other (373) 1,045
---------- ----------
NET CASH USED IN INVESTING ACTIVITIES (5,026) (51,076)
FINANCING ACTIVITIES
Debt:
Additional borrowings, net of debt issuance costs 149,500 361,540
Repayments (including prepayment penalties) (127,391) (314,460)
Preferred Stock dividends (756) -0-
Recoverable construction allowances (4,729) -0-
---------- ----------
NET CASH PROVIDED BY FINANCING ACTIVITIES 16,624 47,080
---------- ----------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 67 (14,894)
Cash and cash equivalents at beginning of period 6,509 17,771
---------- ----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 6,576 $ 2,877
========== ==========
</TABLE>
See accompanying notes
5
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
CARMIKE CINEMAS, INC. AND SUBSIDIARIES
MARCH 31, 2000
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements of
Carmike Cinemas, Inc. ("Carmike" or the "Company") have been prepared in
accordance with generally accepted accounting principles for interim financial
information. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three month period ended March 31,
2000 are not necessarily indicative of the results that may be expected for the
year ending December 31, 2000. For further information, refer to the
consolidated financial statements and footnotes thereto included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1999.
RECLASSIFICATIONS: Certain 1999 amounts in the accompanying consolidated
financial statements have been reclassified to conform to the current year's
presentation.
NOTE 2 - INDEBTEDNESS
Long-term debt and senior notes consists of the following (in thousands):
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
-------------- --------------
<S> <C> <C>
Revolving credit facility $ 162,800 $ 140,000
Senior Subordinated Notes 200,000 200,000
Term Loan B 74,250 74,625
Industrial Revenue Bonds; payable in equal
installments through May 2006, with
interest rates ranging from 3.90% to 5.98% 1,963 2,034
---------- ----------
439,013 416,659
Less current maturities (4,273) (2,971)
Less Subordinated Notes (200,000) (200,000)
---------- ----------
$ 234,740 $ 213,688
========== ==========
</TABLE>
Effective March 31, 2000, the Company amended its 1999 Credit Agreement, Term
Loan B and a lease facility to, among other things, adjust certain financial
ratios relative to past and future operating performance. The amendment also
increases the variable interest rate for the 1999 Credit Agreement and the Term
Loan B by 0.5% (effective rate at March 31, 2000 of 9.13%, LIBOR plus 3.25% for
the 1999 Credit Agreement and 9.45%, LIBOR plus 3.5% for the Term
6
<PAGE> 7
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
CARMIKE CINEMAS, INC. AND SUBSIDIARIES
NOTE 2 - INDEBTEDNESS (CONTINUED)
Loan B). Additionally, the Company agreed to secure these facilities with
mortgages on its owned theatres and leasehold mortgages on certain of its
leased theatres by November 1, 2000. If the Company cannot secure mortgages for
theatres with minimum levels of theatre cash flows, as defined, interest rates
will increase by an amount ranging from 25 basis points to 100 basis points.
Such an increase in interest rates would be retroactive to March 31, 2000.
The 1999 Credit Agreement provides for revolving credit availability of $200
million and matures November 10, 2002. At March 31, 2000, the Company had $37.2
million available for borrowings under this facility. The Company pays a
commitment fee of 0.5% on the unused portion of the facility. All amounts
outstanding at March 31, 2000 under the 1999 Credit Agreement have been
classified as long-term in the accompanying Consolidated Balance Sheets because
the Company intends that at least that amount would remain outstanding at all
times during the next twelve months.
The 1999 Credit Agreement and the Term Loan B both contain certain restrictive
provisions which, among other things, limit additional indebtedness of the
Company, limit dividend and other restricted payments, require that certain
debt to capitalization ratios be maintained and require minimum levels of cash
flows.
The Subordinated Notes are general unsecured obligations of the Company and are
subordinate to existing indebtedness and substantially all future borrowings.
Certain of the Company's subsidiaries have unconditionally guaranteed this
debt. The Subordinated Notes mature on February 1, 2009 and bear interest at
the rate of 9 3/8% which is payable semi-annually in arrears on February 1 and
August 1 of each year. Prior to February 1, 2007, the Company may redeem
certain of the outstanding notes subject to certain defined limitations and
subject to prepayment penalties. The Subordinated Notes contain certain
restrictive provisions which, among other things, limit dividends and other
restricted payments.
NOTE 3 - SALE/LEASEBACK TRANSACTIONS
During the period ended March 31, 2000, the Company sold three theatres, with a
net book value of $22.6 million, for $23.3 million. The theatres were leased
back from the purchaser under a 20 year operating lease agreement. The Company
has a letter of intent to sell for $22.6 million, an additional three theatres,
with a net book value of $19.6 million, under a separate sale/leaseback
arrangement with similar terms. This transaction is expected to close during
the second quarter of 2000. Gains realized from sale/leaseback transactions are
recognized over the life of the leases. The leases contain renewal options and
generally provide that the Company will pay property taxes, common area
maintenance, insurance and repairs. The net proceeds from these transactions
will be used to reduce outstanding bank indebtedness and for operations.
7
<PAGE> 8
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
CARMIKE CINEMAS, INC. AND SUBSIDIARIES
NOTE 4 - RECOVERABLE CONSTRUCTION ALLOWANCES
The Company, under contractual agreements with certain lessors, is entitled to
reimbursement of certain theatre construction related costs. Collection of
these amounts, $20 million at March 31, 2000, are based on the occurrence of
certain defined events. The Company anticipates that all amounts outstanding
will be collected by the end of the third quarter of 2000.
NOTE 5 - EXTRAORDINARY CHARGE
During the period ended March 31, 1999, the Company retired its then
outstanding senior notes totaling $79.9 million. The Company recognized an
extraordinary charge of $6.3 million ($10.1 million less applicable income
taxes) for (a) a prepayment premium ($9.2 million) paid in connection with the
redemption of the senior notes, and (b) the elimination of deferred debt costs
($.9 million) on retired indebtedness.
NOTE 6 - EARNINGS PER SHARE
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
---------- ----------
<S> <C> <C>
Weighted average shares outstanding:
Basic 11,344 11,363
Effect of dilutive securities - employee stock options -0- -0-
---------- ----------
Diluted 11,344 11,363
========== ==========
Earnings (loss) per common share before extraordinary item:
Basic and diluted $ (.72) $ (.27)
========== ==========
Earnings (loss) per common share:
Basic and diluted $ (.72) $ (.83)
========== ==========
</TABLE>
8
<PAGE> 9
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
CARMIKE CINEMAS, INC. AND SUBSIDIARIES
NOTE 7 - CONDENSED COMBINED FINANCIAL DATA FOR GUARANTOR SUBSIDIARIES
The Company's principal operating subsidiaries fully, unconditionally, jointly
and severally guarantee the Company's $200 million 9 3/8% Senior Subordinated
Notes (see Note 2 - Indebtedness).
The guarantor subsidiaries are direct, wholly owned U.S. subsidiaries of the
Company. The Company and the guarantor subsidiaries conduct substantially all
of the operations of the Company and its subsidiaries on a consolidated basis.
Separate financial statements of the guarantor subsidiaries are not presented
because, in the opinion of management, such financial statements are not
material to investors. The Company also has a partially owned subsidiary and
several unconsolidated affiliates which are not guarantors and are
inconsequential to the Company on a consolidated basis.
Following is summarized condensed combined financial information (in accordance
with Rule 1-02(bb) of Regulation S-X) for the guarantor subsidiaries of the
Company (in thousands):
<TABLE>
<CAPTION>
March 31,
2000
----------
<S> <C>
Current assets $ 19,126
Current liabilities 18,858
Noncurrent assets 556,707
Noncurrent liabilities 374,316
</TABLE>
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
---------- ----------
<S> <C> <C>
Revenues $ 81,926 $ 76,550
Operating loss (6,086) (2,004)
Net loss (8,188) (4,575)
</TABLE>
9
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
This Report includes "forward-looking statements" within the meaning of Section
27A of the Securities Act of 1933, as amended (the "Securities Act"), and
Section 21E of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including, in particular, forward-looking statements under the headings
"Item 1. Financial Statements" and "Item 2. Management's Discussion and
Analysis of Financial Condition and Results of Operations." The words "expect,"
"anticipate," "intend," "plan," "believe," "seek," "estimate," and similar
expressions are intended to identify such forward-looking statements; however,
this Report also contains other forward-looking statements in addition to
historical information. Carmike cautions that there are various important
factors that could cause actual results to differ materially from those
indicated in the forward-looking statements; accordingly, there can be no
assurance that such indicated results will be realized. Factors which could
cause Carmike's actual results in future periods to differ materially include
availability of suitable motion pictures for exhibition in Carmike's markets,
competitive pressures, business conditions in the movie industry and other
competitive markets, and the other factors detailed from time to time in
Carmike's filings with the Securities and Exchange Commission, including
Carmike's Annual Report on Form 10-K for the year ended December 31, 1999. By
making these forward-looking statements, Carmike does not undertake to update
them in any manner except as may be required by its disclosure obligations in
filings it makes with the Securities and Exchange Commission (the "Commission")
under the Federal securities laws.
In this Report, the words "Company," "Carmike," "we," "our," "ours," and "us"
refer to Carmike Cinemas, Inc. and its subsidiaries.
COMPARISON OF THREE MONTHS ENDED
MARCH 31, 2000 AND MARCH 31, 1999
RESULTS OF OPERATIONS
Total revenues for the quarter ended March 31, 2000 increased 3.9% to $101.5
million from $97.7 million for the quarter ended March 31, 1999. This increase
consists of a $1.5 million increase in admissions and a $2.3 million increase
in concessions and other. For the quarter ended March 31, 2000, the Company's
average admission price was $4.43, its average concession sale per patron was
$1.92 and the attendance per average screen was 5,465 compared to 5,907 for the
quarter ended March 31, 1999. The decrease in attendance, partially offset by
per patron increases in admissions and concessions, resulted in a decrease of
revenue per average screen of 0.9% to $35,815. For the quarter ended March 31,
1999, the Company's average admission price was $4.20, its average concession
sale per patron was $1.70 and the revenue per average screen was $36,151.
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Costs of operations (film exhibition costs, concession costs and other theatre
operating costs) increased 8.6% from $82.8 million for the quarter ended March
31, 1999 to $89.9 million for the quarter ended March 31, 2000. Film exhibition
costs stayed relatively flat as a percentage of expense to total admissions
revenue. Concessions costs were $4.0 million for the quarter ended March 31,
2000, compared to $3.7 million for the quarter ended March 31, 1999. Other
theatre costs for the quarter ended March 31, 2000 increased 13.0% to $49.6
million from $43.9 million for the same period in 1999. This increase was the
result of a 14.5% increase in occupancy costs and individually immaterial
increases in salaries, supplies and utilities. As a percentage of total
revenues, cost of operations increased to 88.5% of total revenues in the
quarter ended March 31, 2000 from 84.8% for the quarter ended March 31, 1999,
largely due to the amount of fixed costs which do not fluctuate with changes in
revenues or attendance.
Depreciation and amortization increased 16.8% from $9.5 million for the quarter
ended March 31, 1999 to $11.1 million for the quarter ended March 31, 2000.
This increase is the result of the Company's 1999 theatre expansion, partially
offset by the reduced depreciation expense from the reduction in asset values
as a result of the impairment charge recognized during the fourth quarter of
1999.
Interest expense for the quarter ended March 31, 2000 increased 47.9% to $10.8
million from $7.3 million for the quarter ended March 31, 1999. This increase
is due to higher levels of average indebtedness outstanding and to a higher
aggregate interest cost due to increases in the Company's effective borrowing
rates.
During the period ended March 31, 1999, the Company recognized an extraordinary
charge of $10.1 million ($6.3 million net of income tax benefit, or $.55 per
diluted share) for the prepayment premiums paid in connection with the
redemption of senior notes and the elimination of certain deferred debt costs
related to indebtedness which was retired in February 1999.
LIQUIDITY AND CAPITAL RESOURCES
The Company's revenues are collected in cash and credit cards, principally
through admissions and theatre concessions. Because its revenues are received
in cash prior to the payment of related expenses, the Company has an operating
"float" which partially finances its operations. The Company had working
capital deficits of $36.9 million and $60.1 million at March 31, 2000 and
December 31, 1999, respectively. These deficits are financed through the
operating "float" and through borrowing availability under the Company's $200
million revolving credit facility (the "Revolving Credit Facility"). At March
31, 2000, the Company had approximately $16.5 million in cash and short-term
investments on hand and approximately $37.2 million was available for
borrowings under the Company's Revolving Credit Facility.
The Company's credit and leasing facilities contain certain restrictive
provisions which, among other things, limit additional indebtedness of the
Company, limit the payment of dividends and other defined restricted payments,
require that certain debt to capitalization ratios be maintained and require
minimum levels of defined cash flows. Effective March 31, 2000, Carmike amended
each of the Revolving Credit Facility, its $75 million term loan ("Term Loan
B") and a master lease facility with Movieplex Reality Leasing, L.L.C. (the
"Master Lease") to, among other
11
<PAGE> 12
things, adjust certain financial ratios relative to past and future operating
performance and to add a new covenant as to the ratio of Carmike's funded debt
plus rental expense to Carmike's cash flow plus rental expense. In connection
with these amendments, the interest rates under the Revolving Credit Facility
and Term Loan B were increased, the base rent payable under the Master Lease
was increased and Carmike is required to permanently prepay the loans under the
Revolving Credit Facility and the Term Loan B in an amount equal to 75% of
annual excess cash flow, as defined. In addition, the amendments reduced the
amount of investments Carmike can make to $10 million in the aggregate and
limited Carmike's net capital expenditures to $25 million in 2000 and $35
million in 2001 and 2002.
In order to obtain these amendments, Carmike agreed to secure the Revolving
Credit Facility, Term Loan B and the Master Lease with mortgages on its owned
theatres and leasehold mortgages on certain of its leased theatres, to the
extent it can obtain the landlord's consent to such a leasehold mortgage. If,
prior to November 1, 2000, Carmike is unable to provide the lenders with
mortgages from theatres representing at least $60 million of Carmike's 1999
theatre-level cash flow ("1999 Theatre Level Cash Flow"), the interest rate
payable on the Revolving Credit Facility and Term Loan B will increase and the
base rent under the Master Lease will increase, by an amount ranging from 25
basis points to 100 basis points, depending upon the amount of 1999 Theatre
Level Cash Flow from the theatres on which mortgages have been granted. Such
increase in interest rate and in the base rent under the Master Lease would be
retroactive to March 31, 2000.
The Company's capital expenditures arise principally in connection with the
development of new theatres, renovation and expansion of existing theatres and
theatre acquisitions. During the first three months of 2000, such capital
expenditures totaled $19.7 million. The Company estimates that total capital
expenditures for 2000 will be approximately $25 million. Carmike estimates that
the average cost of a new 16-screen multiplex will be approximately $9 million
($4 million if the land and improvements are leased rather than owned). Carmike
intends to enter into leasing arrangements whenever possible in order to
minimize capital requirements. Carmike believes that its currently anticipated
capital needs for theatre construction, expansion and renovation and possible
acquisitions for at least the next year will be satisfied by the cash and cash
equivalents and short-term investments on hand, borrowings under the Revolving
Credit Facility, additional sale of debt and/or equity securities, additional
bank financings and other forms of long-term debt and internally generated cash
flow. Additionally, Carmike plans to supplement its current sources of capital
through sales and leasebacks of theatre properties where market conditions for
such transactions are favorable, including one transaction consummated during
the first quarter of 2000 for an aggregate of three theatres with net proceeds
of approximately $23.3 million and another transaction expected to close during
the second quarter of 2000 for an aggregate of three theatres with net proceeds
of approximately $22.6 million. The proceeds will be used to reduce amounts
outstanding under the Revolving Credit Facility and Term Loan B and for
operations.
Cash used in operating activities was $11.5 million for the three months ended
March 31, 2000, compared to cash used in operating activities of $10.9 million
for the three months ended March 31, 1999. The decrease in cash flow from
operating activities was primarily due to an increase in prepaid expenses and a
reduction in accrued expenses. Net cash used in investing activities was
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<PAGE> 13
$5.0 million for the three months ended March 31, 2000 as compared to $51.1
million in the prior year period. This decrease in cash used in investing
activities was primarily due to the decreased level of capital expenditures and
receipt of proceeds from a sale and leaseback transaction. For the three month
periods ended March 31, 2000 and 1999, cash provided by financing activities
was $16.6 million and $47.1 million, respectively. The decrease was primarily
due to reduced borrowings under its Revolving Credit Facility.
Our ability to make scheduled payments of principal, to pay the interest on, or
to refinance our indebtedness, or to fund planned capital expenditures for
theatre construction, expansion, renovation or acquisition will depend on our
future performance. Our future performance is, to a certain extent, subject to
general economic, financial, competitive, legislative, regulatory and other
factors that are beyond our control. Based upon our current level of operations
and anticipated increases in revenues and cash flow as a result of our theatre
construction, expansion and renovation program, and the scheduled closing of
certain underperforming theatres, we believe that cash flow from operations and
available cash, together with available borrowings under the Revolving Credit
Facility, lease financing arrangements and/or sales of additional debt or
equity securities, will be adequate to meet our future liquidity needs for at
least the next year.
We cannot assure you, however, that our business will generate sufficient cash
flow from operations, that currently anticipated revenue growth and operating
improvements will be realized or that future capital will be available to us
from the sale of debt or equity securities, additional bank financings, other
long-term debt or lease financings in an amount sufficient to enable us to pay
our indebtedness, or to fund our other liquidity needs. We may need to
refinance all or a portion of our indebtedness on or before maturity. We cannot
assure you that we will be able to refinance any of our indebtedness or raise
additional capital through other means, on commercially reasonable terms or at
all.
IMPACT OF YEAR 2000
In prior years, we discussed the nature and progress of our plans to become
Year 2000 compliant. In late 1999, Carmike completed its remediation and
testing of systems. As a result of those planning and implementation efforts,
we have experienced no significant disruptions in mission critical information
technology and non-information technology systems and we believe those systems
successfully responded to the Year 2000 date change. Expenses incurred to
remediate our systems were not material. Carmike is not aware of any material
problems resulting from Year 2000 issues, either with its products, its
internal systems, or the products and services of third parties. Carmike will
continue to monitor its mission critical computer applications and those of its
suppliers and vendors throughout the year 2000 to ensure matters that may arise
are addressed promptly.
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<PAGE> 14
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's fixed interest rate risk for long-term debt is limited to the
Company's $200 million 9 3/8% senior subordinated notes. As of April 1, 2000
the market value of these notes has decreased approximately 36% since their
issuance in February 1999.
Interest rates for the Company's floating rate debt increased when the Company
amended its 1999 Credit Agreement and its Term Loan B during the quarter ended
March 31, 2000 (See Note 2 of the Notes to Consolidated Financial Statements
(Unaudited)).
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Listing of Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
10.1 First Amendment to Amended and Restated Credit
Agreement dated as of March 31, 2000 among Carmike
Cinemas, Inc., Wachovia Bank, N.A., as agent, and
the Banks (as defined therein).
10.2 Second Amendment to Term Loan Credit Agreement dated
as of March 31, 2000 among Carmike Cinemas, Inc.,
Wachovia Bank, N.A. and the Lenders ( as defined
therein).
10.3 Second Amendment to Amended and Restated Master
Lease dated as of March 31, 2000 between Movieplex
Realty Leasing, L.L.C. and Carmike Cinemas, Inc.
27 Financial Data Schedule (for SEC use only)
</TABLE>
(b) Reports on Form 8-K
None
14
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CARMIKE CINEMAS, INC.
(Registrant)
Date: May 11, 2000 By: /s/ Michael W. Patrick
----------------------------------------
Michael W. Patrick -
President, Chief Executive Officer
Date: May 11, 2000 By: /s/ Martin A. Durant
----------------------------------------
Martin A. Durant -
Senior Vice President - Finance
Treasurer and Chief Financial Officer
15
<PAGE> 1
EXHIBIT 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"First Amendment") is dated as of March 31, 2000 among CARMIKE CINEMAS, INC.
(the "Borrower"), WACHOVIA BANK, N.A., as Agent (the "Agent"), and the Banks
parties hereto (collectively, the "Banks");
W I T N E S S E T H :
WHEREAS, the Borrower, the Agent and the Banks executed and delivered
that certain Amended and Restated Credit Agreement, dated as of January 29, 1999
(the "Credit Agreement");
WHEREAS, the Borrower has requested that the Agent and the Banks amend
the Credit Agreement as set forth herein and the Agent and the Banks have agreed
to such consent, 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 Borrower, the Agent and the
Banks hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein,
each term used herein which is defined in the Credit Agreement shall have the
meaning assigned to such term in the Credit Agreement. 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 Credit Agreement shall from and after the date hereof refer to
the Credit Agreement as amended hereby.
2. Amendments to Section 1.01 of the Credit Agreement. Section
1.01 of the Credit Agreement hereby is amended by deleting the definitions of
"Adjusted Cash Flow", "Adjusted Fixed Charges", "Collateral", "Collateral
Documents", "Consolidated Cash Flow" and "Consolidated Net Income", 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
<PAGE> 2
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, 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 Borrower which were operated
during the entire 12-month period); provided, that in determining
Adjusted Cash Flow, the expense incurred by the Borrower in complying
with the provisions of Section 5.27 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 Borrower 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 Borrower 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 Agent, the
Collateral Agent and the Secured Parties pursuant to Section 5.27,
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 Borrower and EastWynn, respectively, grant
a first priority, perfected Lien on all Fee Properties and all
Leasehold Properties which
2
<PAGE> 3
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 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 Borrower 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 Borrower, 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 Borrower which were operated
during the entire 12-month period), and (z) the expense incurred by the
Borrower in complying with the provisions of Section 5.27 in granting
and recording the Carmike Mortgages and obtaining the Real Estate
Collateral Documentation shall be added back to Consolidated Operating
Income.
"Consolidated Net Income" means for any period, the net income
(or deficit) of the Borrower 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
3
<PAGE> 4
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 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 Borrower 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 Borrower
or any Subsidiary has any ownership interest, except to the extent that
any such income has been actually received by the Borrower 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 Borrower 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, (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 Borrower 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 Borrower by permitted consolidation or
merger or transfer of assets pursuant to Section 5.11, any earnings, of
such successor or transferee prior to the consolidation, merger or
transfer of assets, (1) any earnings on any Investments of the Borrower
or any Subsidiary except to the extent that such earnings are received
by the Borrower 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 Borrower 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).
"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
4
<PAGE> 5
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 and the Banks pursuant to
Section 5.27 and which lists each of the Fee Properties and the
Leasehold Properties and shows, for each such Property, the portion of
Carmike Mortgage Properties Cash Flow which was produced by such
Property.
"Fee Properties" means all Properties consisting of real
estate and improvements in which the Borrower or EastWynn owns fee
simple title.
"First Amendment Effective Date" means March 31, 2000.
"Impairment Charges for 1999" means asset impairment charges
taken by the Borrower 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 5.27.
"Leasehold Properties" means all Properties consisting of real
estate and improvements in which the Borrower or EastWynn has a
leasehold interest, excluding real estate and improvements which are
subject to and leased pursuant to the Lease.
"Permitted Encumbrance" means, 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 the interests of the Borrower
or a Guarantor thereon consisting of a mortgage, deed to secure debt,
deed of trust or security agreement) as specified in such Carmike
Mortgage.
"Real Estate Collateral Documentation" means the instruments,
documents and agreements executed and/or delivered by Borrower or
EastWynn to the Collateral Agent (if applicable) pursuant to Section
5.27 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 Borrower 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 Borrower 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;
5
<PAGE> 6
(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.
"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 Borrower during
any Fiscal Year following its 1999 Fiscal Year.
3. Amendment to Section 2.05(a) of the Credit Agreement. Section
2.05(a) of the Credit Agreement hereby is amended by deleting it in its entirety
and substituting the following therefor:
(a) "Applicable Margin" shall be determined quarterly
based upon the ratio of Consolidated Funded Debt to Consolidated Cash Flow
(calculated as of the last day of each Fiscal Quarter for the period of 4
consecutive Fiscal Quarters then ended), as follows, subject to adjustment
pursuant to the last sentence of this Section 2.05(a):
<TABLE>
<CAPTION>
Ratio of Consolidated Funded Base Rate Loans Euro-Dollar
Debt to Consolidated Cash Flow --------------- Loans
------------------------------ ------------
<S> <C> <C>
Greater than or equal to 5.5 2.00% 3.00%
</TABLE>
6
<PAGE> 7
<TABLE>
<S> <C> <C>
Greater than or equal to 5.0 1.75% 2.75%
but less than 5.5
Greater than or equal to 4.5 1.50% 2.50%
but less than 5.0
Greater than or equal to 4.0 1.25% 2.25%
but less than 4.5
Less than 4.0 1.00% 2.00%
</TABLE>
1. The Applicable Margin shall be determined effective as of each
date (herein, the "Rate Determination Date") which is 50 days after the last day
of the final Fiscal Quarter in the period for which the foregoing ratio is being
determined, and the Applicable Margin so determined shall remain effective from
such Rate Determination Date until the date which is 50 days after the last day
of the Fiscal Quarter in which such Rate Determination Date falls (which latter
date shall be a new Rate Determination Date); provided that (i) for the period
from and including the First Amendment Effective Date to the first Rate
Determination Date occurring in the first Fiscal Quarter of Fiscal Year 2001,
the Applicable Margin shall be (A) 2.25% for Base Rate Loans and (B) 3.25% for
Euro-Dollar Loans, in each case subject to adjustment pursuant to the last
sentence of this Section 2.05(a), (ii) in the case of Applicable Margins
determined for the fourth and final Fiscal Quarter of a Fiscal Year, commencing
in Fiscal Year 2000, the Rate Determination Date shall be the date which is 95
days after the last day of such final Fiscal Quarter and such Applicable Margins
shall be determined based upon the annual audited financial statements for the
Fiscal Year ended on the last day of such final Fiscal Quarter, and (iii) if on
any Rate Determination Date the Borrower shall have failed to deliver to the
Banks the financial statements required to be delivered pursuant to Section 5.01
with respect to the Fiscal Quarter most recently ended prior to such Rate
Determination Date (or, in the case of annual audited financial statements, with
respect to the Fiscal Year which includes such final Fiscal Quarter), then for
the period beginning on such Rate Determination Date and ending on the earlier
of (x) the next Rate Determination Date (on which the Applicable Margin shall
again be determined pursuant to this paragraph) and (y) the date on which the
Borrower shall deliver to the Banks the financial statements to be delivered
pursuant to Section 5.01(b) with respect to such Fiscal Quarter (in the case of
a failure to deliver quarterly unaudited financial statements) or the date on
which the Borrower shall deliver to the Banks the annual audited financial
statements to be delivered pursuant to Section 5.01(a) with respect to the
Fiscal Year which includes such final Fiscal Quarter (in the case of a failure
to deliver annual audited financial statements), the Applicable Margin shall be
determined as if the ratio of Consolidated Funded Debt to Consolidated Cash Flow
was more than 5.50 at all times during such period. Any change in the Applicable
Margin on any Rate Determination Date shall result in a corresponding change,
effective on and as of such Rate Determination Date, in
7
<PAGE> 8
the interest rate applicable to each Loan outstanding on such Rate Determination
Date, provided that (i) for Euro-Dollar Loans, changes in the Applicable Margin
shall only be effective for Interest Periods commencing on or after the Rate
Determination Date, and (ii) no Applicable Margin shall be decreased pursuant to
this Section 2.05 if an Event of Default is in existence on the Rate
Determination Date.
2. The Applicable Margin determined pursuant to the foregoing
shall be adjusted by (i) an increase on the Carmike Mortgage Properties Test
Date, in the percentage shown below for the applicable level of the Carmike
Mortgage Properties Cash Flow Coverage achieved as of such date as reflected in
the Carmike Mortgage Properties Cash Flow Coverage Report furnished on or within
5 Domestic Business Days prior to such date pursuant to Section 5.27, which
increase shall be retroactive to the First Amendment Effective Date, and (ii) a
decrease from time to time thereafter, if the Carmike Mortgage Properties Cash
Flow Coverage achieved on any date thereafter as reflected in any updated
Carmike Mortgage Properties Cash Flow Coverage Report furnished thereafter
pursuant to Section 5.27, has increased to a higher level, by a percentage equal
to the percentage shown below for the level in effect prior to the delivery of
such updated Carmike Mortgage Properties Cash Flow Coverage Report less the
percentage shown below for the higher level of Carmike Mortgage Properties Cash
Flow Coverage reflected in such updated report, which subsequent decrease shall
be effective from and after the date such increase to a higher level is
achieved.
<TABLE>
<CAPTION>
Carmike Mortgage Properties Cash Flow Coverage Percentage
Level Increase
--------------------------------------------------------------
<S> <C>
Less than $40,000,000 1.00%
--------------------------------------------------------------
Greater than or equal to $40,000,000 but less 0.50%
than $50,000,000
--------------------------------------------------------------
Greater than or equal to $50,000,000 but less 0.25%
than $60,000,000
--------------------------------------------------------------
Equal to or greater than $60,000,000 0.00%
--------------------------------------------------------------
</TABLE>
4. Amendment to Section 2.10(b). Section 2.10(b) of the Credit
Agreement hereby is amended by deleting it in its entirety and substituting the
following therefore:
1. (b) The Borrower shall repay or prepay Loans and the
Term Loan in an amount equal to (i) 50% of Net Cash Proceeds, up to the
first $50,000,000 of Net Cash Proceeds and 100% of Net Cash Proceeds in
excess of thereof and (ii) 75% of any Excess Cash Flow. Payments
pursuant to the foregoing clause (i) shall be made within 15 Business
Days after the receipt of Net Cash Proceeds (except that prepayments
from proceeds of Subordinated Debt shall be made on the date of receipt
of such proceeds); provided, that amounts not included in Net Cash
Proceeds pursuant to clause
8
<PAGE> 9
(iv)(C) of the definition thereof which have not been used or committed
to be used within 180 days from the casualty or condemnation of such
Property to restore or replace the relevant Property shall be paid on
such 180th day. Payments pursuant to the foregoing clause (ii) shall be
made on the date the Borrower furnishes its annual financial statements
to the Banks pursuant to Section 5.01(a) (or on the date such
statements are required to be so furnished pursuant to such section, if
they have not been furnished by such date). Prepayments pursuant hereto
shall be made to the Agent and the Term Agent, for the ratable account
of the Banks and the Term Lenders, based on the aggregate amount of the
Commitments and the aggregate principal balance of the Term Loan as of
the time of the payment; provided, that from and after the date that
the Commitments have been reduced to $150,000,000 by payments made
pursuant hereto in accordance with Section 2.08, such repayments or
prepayments shall be made solely to the Term Lenders, until the Term
Loan is paid in full, except that after the Commitments have so been
reduced to $150,000,000, with respect to any sale of Collateral, if the
Term Loan has been paid in full (or prepayments pursuant hereto have
been waived by the Term Lenders pursuant to Section 2.10 of the Term
Loan Credit Agreement), any Net Cash Proceeds from such sale which are
not used to purchase replacement Collateral having equal or greater
value shall be used to prepay the Loans, and the Commitments shall be
reduced by the amount of such prepayments.
At least 10 Business Days prior to any sale giving rise to Net Cash
Proceeds subject to clause (i) hereof, the Borrower shall send a notice
to the Agent (a "Sale Notice") which describes, with respect to such
sale, (1) the property to be sold, (2) the anticipated sale date, (3)
the anticipated gross sale proceeds and (4) the anticipated Net Sale
Proceeds. Promptly upon receipt of the Sale Notice, the Agent shall
send a copy thereof to each Bank and each Term Lender. Within 5
Business Days after the completion of such sale, the Borrower shall
notify the Agent of the actual gross sale proceeds and Net Cash
Proceeds received in connection therewith. At least 20 Business Days
prior to furnishing its annual statements to the Banks pursuant to
Section 5.01(a) (or on the date such statements are required to be so
furnished pursuant to such section, if they have not been furnished by
such date), the Borrower shall send a notice to the Agent (an "Excess
Cash Flow Notice"), setting forth the amount of Excess Cash Flow
payable pursuant hereto with respect to the Fiscal Year just ended.
Promptly upon receipt of the Excess Cash Flow Notice, the Agent shall
send a copy thereof to each Bank and each Term Lender.
5. Amendment to Section 5.01(c). Section 5.01(c) of the Credit
Agreement hereby is amended by deleting it in its entirety and substituting the
following therefor:
1. (c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a
certificate, substantially in the form of Exhibit F or in such other
form as shall be mutually satisfactory to the Borrower and the Agent (a
"Compliance Certificate"), of the chief financial officer or the chief
executive officer of the Borrower (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower was
in compliance with the requirements of Sections 5.03 through 5.08,
inclusive, 5.11, 5.21 and 5.26, on the date of such financial
statements and (ii) stating whether any Default exists on the date of
such certificate and, if any Default then
9
<PAGE> 10
exists, setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto.
6. Amendment to Sections 5.01(j) and (k) and new Sections 5.02(k)
and (l). The word "and" at the end of Section 5.01(j) is deleted, Section
5.01(k) is relettered as Section 5.01(m), and new Sections 5.01(k) and (l) are
added, as follows:
1. (k) within 30 days after the end of each Fiscal Year,
a quarterly budget for the next Fiscal Year, including a detailed
statement of cash flow, balance sheet and income statement, on a
consolidated basis for the Borrower and its Subsidiaries; and; 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
7. Amendment to Section 5.03. Section 5.03 of the Credit
Agreement hereby is amended by deleting it in its entirety and by substituting
therefor the following:
1. Section 5.03. 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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
<S> <C>
On or before September 30, 2000 4.25 to 1.0
December 31, 2000 through
September 30, 2001 3.75 to 1.0
December 31, 2001 through
September 30, 2002 3.50 to 1.0
December 31, 2002 and
thereafter 3.00 to 1.0.
</TABLE>
8. Amendment to Section 5.04. Section 5.04 of the Credit
Agreement hereby is amended by deleting it in its entirety and by substituting
therefor the following:
1. Section 5.04 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:
10
<PAGE> 11
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
<S> <C>
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.
</TABLE>
9. Amendment to Section 5.06. Section 5.06 of the Credit
Agreement hereby is amended by deleting it in its entirety and by substituting
therefor the following:
1. Section 5.06 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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
<S> <C>
On or before September 30, 2001 1.25 to 1.0
December 31, 2001 and
thereafter 1.40 to 1.0.
</TABLE>
10. Amendment to Section 5.07. Section 5.07 of the Credit
Agreement hereby is amended by deleting it in its entirety and by substituting
therefor the following:
1. Section 5.07 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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
<S> <C>
March 31, 2000 through
September 30, 2000 7.5 to 1.0
</TABLE>
11
<PAGE> 12
<TABLE>
<S> <C>
December 31, 2000 through
December 31, 2001 7.0 to 1.0.
March 31, 2002 and
thereafter 6.5 to 1.0
</TABLE>
11. Amendment to Section 5.21. Section 5.21 of the Credit
Agreement hereby is amended by deleting it in its entirety and by substituting
therefor the following
1. Section 5.21 Investments. Neither the Borrower 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 Moody's 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 Moody's, (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 First 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.
12. New Section 5.26. A new Section 5.26 hereby is added to the
Credit Agreement, as follows:
Section 5.26 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.
13. New Section 5.27. A new Section 5.27 hereby is added to the
Credit Agreement, as follows:
Section 5.27 Carmike Mortgages; Pricing Adjustments.
On or within 10 days after the First Amendment Effective Date,
the Borrower shall deliver to 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 Borrower 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
12
<PAGE> 13
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 Borrower shall continue to
use its best efforts to obtain such Third Party consents 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 Borrower 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
Borrower 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 First 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.
The Applicable Margin shall be adjusted from time to time as
required by the last sentence of Section 2.05(a), 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.
14. Amendment to Section 6.01(b). Section 6.01(b) of the Credit
Agreement hereby is amended by deleting it in its entirety and by substituting
therefor the following:
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.01(e), 5.01(j),
5.02(ii), 5.03 to 5.07, inclusive, 5.09 (as to the
Borrower) and 5.10 (as to the Borrower) and 5.12, or
Section 5.15, 5.21(b), or 5.23 to 5.26, inclusive;
15. Exhibit F. Exhibit F (Compliance Certificate) hereby is
deleted in its entirety and Exhibit F hereto is substituted therefor.
16. Restatement of Representations and Warranties. The Borrower
hereby restates and renews each and every representation and warranty heretofore
made by it in the Credit Agreement and the other Loan Documents as fully as if
made on the date hereof (except as to representations and warranties made as of
a specific date) and with specific reference to this Consent and all other Loan
Documents executed and/or delivered in connection herewith.
13
<PAGE> 14
17. Ratification. The Borrower hereby restates, ratifies and
reaffirms each and every term, covenant and condition set forth in the Credit
Agreement and the other Loan Documents effective as of the date hereof.
18. 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.
19. 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.
20. No Default. To induce the Agent and the Banks to enter into
this First Amendment and to continue to make advances pursuant to the Credit
Agreement, the Borrower 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 Borrower arising out of or with respect to any of the
Loans or other obligations of the Borrower owed to the Agent or the Banks under
the Credit Agreement.
21. Further Assurances. The Borrower agrees to take such further
actions as the Agent shall reasonably request in connection herewith to evidence
the Amendments herein contained.
22. Governing Law. This First Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of Georgia.
23. Conditions Precedent. This First Amendment shall become
effective only upon: (i) execution and delivery (including by facsimile) of this
First Amendment by the Borrower, the Agent and the Required Banks; (ii)
execution and delivery (including by facsimile) of the Consent and Reaffirmation
of Guarantors at the end hereof by the Guarantors; (iii) execution and delivery
(including by facsimile) of amendments to the Term Loan Credit Agreement, the
Reimbursement Agreement and the Lease comparable to those contained herein (as
applicable), including equivalent changes to pricing, reporting requirements,
financial covenants and regarding execution of Carmike Mortgages), as summarized
in communications from the Agent to the Banks (and each of the Banks consents to
such amendments); and (iv) payment to the Agent, for the ratable account of the
Banks which execute this First Amendment of an amendment fee in the amount of
0.05% of the aggregate Commitments on the date of closing.
14
<PAGE> 15
IN WITNESS WHEREOF, the Borrower, the Agent and each of the Banks 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.
CARMIKE CINEMAS, INC., WACHOVIA BANK, N.A.,
as Borrower (SEAL) as Agent and as a Bank (SEAL)
By: By:
------------------------- --------------------------
Title: Title:
FIRST UNION NATIONAL BANK, SUNTRUST BANK,
as a Bank (SEAL) as a Bank (SEAL)
By: By:
------------------------- --------------------------
Title: Title:
THE BANK OF NEW YORK,
as a Bank (SEAL)
By:
--------------------------
Title:
FIRST AMERICAN NATIONAL BANK, THE INDUSTRIAL BANK OF JAPAN,
as a Bank (SEAL) LIMITED (SEAL)
as a Bank
By: By:
------------------------- --------------------------
Title: Title:
THE SANWA BANK, LIMITED, THE BANK OF TOKYO-MITSUBISHI, LTD.,
as a Bank (SEAL) as a Bank (SEAL)
By: By:
------------------------- --------------------------
Title: Title:
15
<PAGE> 16
COLUMBUS BANK AND TRUST HIBERNIA NATIONAL BANK,
COMPANY, as a Bank (SEAL) as a Bank (SEAL)
By: By:
-------------------------- --------------------------
Title: Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Bank (SEAL)
By:
--------------------------
Title:
16
<PAGE> 17
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing First
Amendment, (ii) consents to the execution and delivery of the First Amendment by
the parties thereto and (iii) reaffirms all of its obligations and covenants
under the Guaranty Agreement dated as of January 29, 1999 executed by it, and
agrees that none of such obligations and covenants shall be affected by the
execution and delivery of the First Amendment. This Consent and Reaffirmation
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered 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. (SEAL), MILITARY SERVICES, INC. (SEAL)
By: By:
-------------------------- --------------------------
Title: Title:
EASTWYNN THEATRES, INC. (SEAL)
By:
--------------------------
Title:
17
<PAGE> 18
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement dated as
of January 29, 1999 (as modified and supplemented and in effect from time to
time, the "Credit Agreement") among Carmike Cinemas, Inc., the Banks from time
to time parties thereto, and Wachovia Bank, N.A., as Agent. Capitalized terms
used herein shall have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement, ______________,
the duly authorized ____________________, of Carmike Cinemas, Inc., hereby
certifies to the Agent and the Banks 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:
18
<PAGE> 19
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
--------------,-------
1. Ratio of Consolidated Senior Funded Debt to Consolidated Total Cash
Flow (Section 5.03)
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
<S> <C>
On or before September 30, 2000 4.25 to 1.0
December 31, 2000 through
September 30, 2001 3.75 to 1.0
December 31, 2001 through
September 30, 2002 3.50 to 1.0
December 31, 2002 and
thereafter 3.00 to 1.0
(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]
</TABLE>
2. Ratio of Consolidated Funded Debt to Consolidated Cash Flow (Section
5.04)
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
<S> <C>
On or before September 30, 2000 6.50 to 1.0
</TABLE>
19
<PAGE> 20
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________, ______
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
(a) Consolidated Funded Debt
Schedule - 4 $____________
(b) Consolidated Cash Flow
Schedule - 5 $____________
Actual Ratio of (a) to (b) ___ to 1.00
Maximum Ratio [6.5 to 1.00]
[5.75 to 1.0]
[5.50 to 1.00]
[5.00 to 1.00]
3. Restricted Payments (Section 5.05)
The Borrower 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 5.06)
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
20
<PAGE> 21
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________, ______
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
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 [1.25 to 1.00]
[1.40 to 1.00]
5. Ratio of Adjusted Consolidated Funded Debt to Adjusted Cash Flow
(Section 5.07)
1. 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 $____________
21
<PAGE> 22
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________, ______
Actual Ratio of (d) to (e) ___ to 1.0
Maximum Ratio [7.5 to 1.0]
[7.0 to 1.0]
[6.5 to 1.0]
6. Negative Pledge (Section 5.08)
None of the Borrower'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):
<TABLE>
<CAPTION>
Description of Lien and Property Amount of subject
Debt Secured: to same:
<S> <C>
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 Amount of Debt Secured:
subject to same:
1. _______________________ $____________________
2. _______________________ $____________________
3. _______________________ $____________________
</TABLE>
22
<PAGE> 23
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 5.11)
The Borrower 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 Borrower, or (ii) subject to
the mandatory prepayment provisions of Section 2.10(b), 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) 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 Borrower
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 Borrower, the Collateral Agent
shall release any Collateral sold by the Borrower or Eastwynn in
conformity with the foregoing provisions, so long as any prepayments
required by Section 2.10(b) have been made.
23
<PAGE> 24
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 5.21)
Neither the Borrower 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 Moody's 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 Moody's, (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 First 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 First Amendment Effective Date and
prior to most recent Fiscal Quarter $____________
(c) Investments made pursuant to clause (b) during
most recent Fiscal Quarter $____________
- ---------------------------
(1)Excluding transfers permitted by clause (i)
24
<PAGE> 25
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________, ______
(d) Sum of (b) and (c) $____________
Limitation: (d) may not exceed $10,000,000
1. Capital Expenditures (5.26)
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
25
<PAGE> 26
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________, ______
2. Report as to Net Cash Proceeds paid pursuant to Section 2.10(b).
Following is the information pertaining to the sale of each property during the
Fiscal Quarter just ended which sale gave rise to the receipt of Net Cash
Proceeds.
(a) Property: [insert description of property sold]
(1) date of sale ________________
(2) gross proceeds received $______________
(3) Net Cash Proceeds received $______________
(4) aggregate amount of prepayment
on Loans and Term Loans $______________
(b) Property: [insert description of property sold]
(1) date of sale ________________
(2) gross proceeds received $______________
(3) Net Cash Proceeds received $______________
(4) aggregate amount of prepayment
on Loans and Term Loans $______________
TOTALS:
total gross proceeds received $_______________
total Net Cash Proceeds received $_______________
total aggregate prepayments made $_______________
26
<PAGE> 27
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)) $___________________
27
<PAGE> 28
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 ____ _-__ $_____________
28
<PAGE> 29
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________, ______
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
Total Tax Expense $_____________
(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
29
<PAGE> 30
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 $____________
- ----------------------------------
(3) In determining Adjusted Cash Flow, the expense incurred by the Borrower
in complying with the provisions of Section 5.27 in granting and
recording the Carmike Mortgages and obtaining the Real Estate
Collateral Documentation shall be added back to Consolidated Operating
Income.
30
<PAGE> 31
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________, ______
(d) ____ 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 $____________
Total Adjusted Cash Flow $============
(sum of (a) plus (b) plus (c) plus (d)
31
<PAGE> 32
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) $____________
32
<PAGE> 33
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
-------------, -----
(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) $____________
CONSOLIDATED SENIOR FUNDED DEBT
(f) Subordinated Debt $____________
(g) Consolidated Senior Funded Debt (e) less (f) $____________
33
<PAGE> 34
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 Cash Flow, the expense incurred by the Borrower in complying
with the provisions of Section 5.27 in granting and recording the Carmike
Mortgages and obtaining the Real Estate Collateral Documentation shall be added
back to Consolidated Operating Income.
34
<PAGE> 35
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) $
============
35
<PAGE> 36
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.
36
<PAGE> 1
EXHIBIT 10.2
SECOND AMENDMENT TO TERM LOAN CREDIT AGREEMENT
THIS SECOND AMENDMENT TO TERM LOAN CREDIT AGREEMENT (this "Second
Amendment") is dated as of March 31, 2000 among CARMIKE CINEMAS, INC. (the
"Borrower"), WACHOVIA BANK, N.A., as Administrative Agent (the "Administrative
Agent"), and the Lenders parties hereto (collectively, the "Lenders");
W I T N E S S E T H :
WHEREAS, the Borrower, the Administrative Agent and the Lenders
executed and delivered that certain Term Loan Credit Agreement, dated as of
February 25, 1999, as amended by First Amendment to Term Loan Credit Agreement
dated as of July 13, 1999 (as so amended, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders amend the Credit Agreement as set forth herein and the
Administrative Agent and the Lenders have agreed to such consent, 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 Borrower, the Administrative
Agent and the Lenders hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each term
used herein which is defined in the Credit Agreement shall have the meaning
assigned to such term in the Credit Agreement. 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
Credit Agreement shall from and after the date hereof refer to the Credit
Agreement as amended hereby.
2. Amendments to Section 1.01 of the Credit Agreement. Section 1.01 of
the Credit Agreement hereby is amended by deleting the definitions of "Adjusted
Fixed Charges", "Collateral", "Collateral Documents", "Consolidated Cash Flow"
and "Consolidated Net Income", 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
<PAGE> 2
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, 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 Borrower which were operated
during the entire 12-month period); provided, that in determining
Adjusted Cash Flow, the expense incurred by the Borrower in complying
with the provisions of Section 5.26 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 Borrower 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 Borrower 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 Agent, the
Collateral Agent and the Secured Parties pursuant to Section 5.26,
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 Borrower and EastWynn, respectively, grant
a first priority, perfected Lien on all Fee Properties and all
Leasehold Properties which
2
<PAGE> 3
become Leasehold Mortgages pursuant to Section 5.26, to the Collateral
Agent, for the ratable benefit of the Secured Parties, to secure the
Secured Obligations (or a designated portion thereof), as contemplated
in Section 5.26, as it may hereafter be amended or supplemented from
time to time.
"Collateral" means the property of the Borrower 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 Borrower, 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 Borrower which were operated
during the entire 12-month period), and (z) the expense incurred by the
Borrower in complying with the provisions of Section 5.26 in granting
and recording the Carmike Mortgages and obtaining the Real Estate
Collateral Documentation shall be added back to Consolidated Operating
Income.
"Consolidated Net Income" means for any period, the net income
(or deficit) of the Borrower 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
3
<PAGE> 4
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 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 Borrower 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 Borrower
or any Subsidiary has any ownership interest, except to the extent that
any such income has been actually received by the Borrower 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 Borrower 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, (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 Borrower 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 Borrower by permitted consolidation or
merger or transfer of assets pursuant to Section 5.11, any earnings, of
such successor or transferee prior to the consolidation, merger or
transfer of assets, (1) any earnings on any Investments of the Borrower
or any Subsidiary except to the extent that such earnings are received
by the Borrower 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 Borrower 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).
"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
4
<PAGE> 5
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 Second Amendment Effective Date which is
furnished to the Agent, the Collateral Agent and the Lenders pursuant
to Section 5.26 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 Borrower or EastWynn owns fee
simple title.
"Impairment Charges for 1999" means asset impairment charges
taken by the Borrower 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 5.26.
"Leasehold Properties" means all Properties consisting of real
estate and improvements in which the Borrower or EastWynn has a
leasehold interest, excluding real estate and improvements which are
subject to and leased pursuant to the Lease.
"Permitted Encumbrance" means, 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 the interests of the Borrower
or a Guarantor thereon consisting of a mortgage, deed to secure debt,
deed of trust or security agreement) as specified in such Carmike
Mortgage.
"Real Estate Collateral Documentation" means the instruments,
documents and agreements executed and/or delivered by Borrower or
EastWynn to the Collateral Agent (if applicable) pursuant to Section
5.26 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 Borrower 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 Borrower 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;
5
<PAGE> 6
(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 Borrower during
any Fiscal Year following its 1999 Fiscal Year.
3. Amendment to Section 2.05(a) of the Credit Agreement. Section
2.05(a) of the Credit Agreement hereby is amended by deleting it in its entirety
and substituting the following therefor:
(a) "Applicable Margin" shall be determined quarterly based
upon the ratio of Consolidated Funded Debt to Consolidated Cash Flow
(calculated as of the last day of each Fiscal Quarter for the period of
4 consecutive Fiscal Quarters then ended), as follows subject to
adjustment pursuant to the last sentence of this Section 2.05(a):
<TABLE>
<CAPTION>
Ratio of Consolidated
Funded Debt to Euro-Dollar
Consolidated Cash Flow Base Rate Loans Loans
---------------------- --------------- -----------
<S> <C> <C>
Greater than or equal
to 4.5 2.50% 3.5%
Less than 4.5 2.25% 3.25%
</TABLE>
6
<PAGE> 7
The Applicable Margin shall be determined effective as of each
date (herein, the "Rate Determination Date") which is 50 days after the
last day of the final Fiscal Quarter in the period for which the
foregoing ratio is being determined, and the Applicable Margin so
determined shall remain effective from such Rate Determination Date
until the date which is 50 days after the last day of the Fiscal
Quarter in which such Rate Determination Date falls (which latter date
shall be a new Rate Determination Date); provided that (i) in the case
of Applicable Margins determined for the fourth and final Fiscal
Quarter of a Fiscal Year, commencing in Fiscal Year 2000, the Rate
Determination Date shall be the date which is 95 days after the last
day of such final Fiscal Quarter and such Applicable Margins shall be
determined based upon the annual audited financial statements for the
Fiscal Year ended on the last day of such final Fiscal Quarter, and
(ii) if on any Rate Determination Date the Borrower shall have failed
to deliver to the Lenders the financial statements required to be
delivered pursuant to Section 5.01 with respect to the Fiscal Quarter
most recently ended prior to such Rate Determination Date (or, in the
case of annual audited financial statements, with respect to the Fiscal
Year which includes such final Fiscal Quarter), then for the period
beginning on such Rate Determination Date and ending on the earlier of
(x) the next Rate Determination Date (on which the Applicable Margin
shall again be determined pursuant to this paragraph) and (y) the date
on which the Borrower shall deliver to the Lenders the financial
statements to be delivered pursuant to Section 5.01(b) with respect to
such Fiscal Quarter (in the case of a failure to deliver quarterly
unaudited financial statements) or the date on which the Borrower shall
deliver to the Lenders the annual audited financial statements to be
delivered pursuant to Section 5.01(a) with respect to the Fiscal Year
which includes such final Fiscal Quarter (in the case of a failure to
deliver annual audited financial statements), the Applicable Margin
shall be determined as if the ratio of Consolidated Funded Debt to
Consolidated Cash Flow was more than 5.0 at all times during such
period. Any change in the Applicable Margin on any Rate Determination
Date shall result in a corresponding change, effective on and as of
such Rate Determination Date, in the interest rate applicable to each
Loan outstanding on such Rate Determination Date, provided that (i) for
Euro-Dollar Loans, changes in the Applicable Margin shall only be
effective for Interest Periods commencing on or after the Rate
Determination Date, and (ii) no Applicable Margin shall be decreased
pursuant to this Section 2.05 if an Event of Default is in existence on
the Rate Determination Date.
The Applicable Margin determined pursuant to the foregoing
shall be adjusted by (i) an increase on the Carmike Mortgage Properties
Test Date, in the percentage shown below for the applicable level of
the Carmike Mortgage Properties Cash Flow Coverage achieved as of such
date as reflected in the Carmike Mortgage Properties Cash Flow Coverage
Report furnished on or within 5 Domestic Business Days prior to such
date pursuant to Section 5.26, which increase shall be retroactive to
the Second Amendment Effective Date, and (ii) a decrease from time to
time thereafter, if the Carmike Mortgage Properties Cash Flow Coverage
achieved on any date thereafter as reflected in any updated Carmike
Mortgage Properties Cash Flow Coverage Report furnished thereafter
pursuant to Section 5.26, has increased to a higher level, by a
percentage equal to the percentage shown below for the level in effect
prior to the delivery of such updated Carmike Mortgage Properties Cash
Flow Coverage Report less the percentage shown below for the higher
level of Carmike Mortgage Properties Cash Flow Coverage reflected
7
<PAGE> 8
in such updated report, which subsequent decrease shall be effective
from and after the date such increase to a higher level is achieved.
<TABLE>
<CAPTION>
Carmike Mortgage Properties Cash Percentage
Flow Coverage Level Increase
-------------------------------- ----------
<S> <C>
Less than $40,000,000 1.00%
Greater than or equal to
$40,000,000 but less than
$50,000,000 0.50%
Greater than or equal to
$50,000,000 but less than
$60,000,000 0.25%
Equal to or greater than $60,000,000 0.00%
</TABLE>
4. Amendment to Section 2.10. Section 2.10 of the Credit Agreement
hereby is amended by deleting it in its entirety and substituting the following
therefor:
The Borrower shall repay or prepay Loans and the Revolving
Loans in an amount equal to (i) 50% of Net Cash Proceeds, up to the
first $50,000,000 of Net Cash Proceeds and 100% of Net Cash Proceeds in
excess of thereof and (ii) 75% of any Excess Cash Flow. Payments
pursuant to the foregoing clause (i) shall be made within 15 Business
Days after the receipt of Net Cash Proceeds (except that prepayments
from proceeds of Subordinated Debt shall be made on the date of receipt
of such proceeds); provided, that amounts not included in Net Cash
Proceeds pursuant to clause (iv)(C) of the definition thereof which
have not been used or committed to be used within 180 days from the
casualty or condemnation of such Property to restore or replace the
relevant Property shall be paid on such 180th day. Payments pursuant to
the foregoing clause (ii) shall be made on the date the Borrower
furnishes its annual financial statements to the Lenders pursuant to
Section 5.01(a) (or on the date such statements are required to be so
furnished pursuant to such section, if they have not been furnished by
such date). Prepayments pursuant hereto shall be made to the
Administrative Agent and to the Revolver Agent, for the ratable account
of the Revolver Banks and the Lenders, based on the aggregate amount of
the Revolver Commitments and the aggregate principal balance of the
Loans as of the time of the payment; provided, that:
(1) any Lender (a "Declining Lender") may, by
notice to the Administrative Agent as provided below, decline to accept
any particular prepayment pursuant to this Section 2.10, in which event
the amount of any prepayment otherwise payable to such Declining Lender
shall be paid to the Revolver Agent for the ratable account of the
Revolver Banks, subject to the provisions of subclause (2) below; and
8
<PAGE> 9
(2) from and after the date that the Revolver
Commitments have been reduced to $150,000,000 by payments made pursuant
hereto and in accordance with Section 2.08 of the Revolver Credit
Agreement, such repayments or prepayments shall be made solely to the
Lenders, other than any Lenders which are Declining Lenders with
respect thereto (and the amount of any prepayment otherwise payable to
a Declining Lenders shall be not be subject to prepayment pursuant to
this Section 2.08, except as provided in subclause (2) below), until
the Loans are paid in full, and
(3) notwithstanding the reduction of the
Revolver Commitments to $150,000,000 by prepayments pursuant hereto in
accordance with Section 2.08 of the Revolving Credit Agreement, but
only with respect to any sale of Collateral, to the extent of any Net
Cash Proceeds from such sale which are not used to purchase replacement
Collateral having equal or greater value and are not paid to the
Declining Lenders pursuant to subclause (2) above shall be used to
prepay the Revolving Loans, and the Revolver Commitments shall be
reduced by the amount of such prepayments in accordance with the terms
of the Revolver Credit Agreement.
At least 10 Business Days prior to any sale giving rise to Net
Cash Proceeds subject to clause (i) hereof, the Borrower shall send a
notice to the Administrative Agent (a "Sale Notice") which describes,
with respect to such sale, (1) the property to be sold, (2) the
anticipated sale date, (3) the anticipated gross sale proceeds and (4)
the anticipated Net Sale Proceeds. Promptly upon receipt of the Sale
Notice, the Administrative Agent shall send a copy thereof to each
Lender and each Revolver Bank. Within 5 Business Days after the
completion of such sale, the Borrower shall notify the Administrative
Agent of the actual gross sale proceeds and Net Cash Proceeds received
in connection therewith. At least 20 Business Days prior to furnishing
its annual statements to the Lenders pursuant to Section 5.01(a) (or on
the date such statements are required to be so furnished pursuant to
such section, if they have not been furnished by such date), the
Borrower shall send a notice to the Administrative Agent (an "Excess
Cash Flow Notice", setting forth the amount of Excess Cash Flow payable
pursuant hereto with respect to the Fiscal Year just ended. Promptly
upon receipt of the Excess Cash Flow Notice, the Administrative Agent
shall send a copy thereof to each Lender and each Revolver Bank. Within
15 Business Days after receipt of a copy of a Sale Notice or any Excess
Cash Flow Notice, each Term Lender desiring to waive a prepayment
hereunder shall so notify the Administrative Agent in writing (and any
Term Lender which fails to give such notice within such period shall be
deemed not to have waived such payment).
All prepayments made for the account of the Lenders pursuant
to this Section 2.10 shall be accompanied by any amount required to be
paid pursuant to Sections 2.07 and 8.05(a), and shall be applied in
installments of principal in the inverse order of maturity.
5. Amendment to Section 5.01(c). Section 5.01(c) of the Credit
Agreement hereby is amended by deleting it in its entirety and substituting the
following therefor:
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate,
substantially in the form of Exhibit F or in such other form as shall
be mutually satisfactory to the Borrower and the Administrative Agent
9
<PAGE> 10
(a "Compliance Certificate"), of the chief financial officer or the
chief executive officer of the Borrower (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower was
in compliance with the requirements of Sections 5.03 through 5.08,
inclusive, 5.11, 5.21 and 5.25, on the date of such financial
statements and (ii) 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 Borrower is taking or proposes
to take with respect thereto.
6. Amendment to Sections 5.01(j) and (k) and new Sections 5.02(k) and
(l). The word "and" at the end of Section 5.01(j) is deleted, Section 5.01(k) is
relettered as Section 5.01(m), and new Sections 5.01(k) and (l) are added, as
follows:
(k) within 30 days after the end of each Fiscal Year, a
quarterly budget for the next Fiscal Year, including a detailed
statement of cash flow, balance sheet and income statement, on a
consolidated basis for the Borrower and its Subsidiaries; and
(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
7. Amendment to Section 5.03. Section 5.03 of the Credit Agreement
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
Section 5.03. 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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
On or before September 30, 2000 4.25 to 1.0
December 31, 2000 through
September 30, 2001 3.75 to 1.0
December 31, 2001 through
September 30, 2002 3.50 to 1.0
December 31, 2002 and
thereafter 3.00 to 1.0.
</TABLE>
8. Amendment to Section 5.04. Section 5.04 of the Credit Agreement
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
10
<PAGE> 11
Section 5.04 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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
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.
</TABLE>
9. Amendment to Section 5.06. Section 5.06 of the Credit Agreement
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
Section 5.06 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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
On or before September 30, 2001 1.25 to 1.0
December 31, 2001 and
thereafter 1.40 to 1.0.
</TABLE>
10. Amendment to Section 5.07. Section 5.07 of the Credit Agreement
hereby is amended by deleting it in its entirety and by substituting therefor
the following:
Section 5.07 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:
11
<PAGE> 12
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
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
</TABLE>
11. Amendment to Section 5.21. Section 5.21 of the Credit Agreement
hereby is amended by deleting it in its entirety and by substituting therefor
the following
Section 5.21 Investments. Neither the Borrower 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 Moody's 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 Moody's, (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.
12. New Section 5.25. A new Section 5.25 hereby is added to the Credit
Agreement, as follows:
Section 5.25 Capital Expenditures. At the end of each Fiscal
Year, commencing with the Fiscal Quarter ending December 31, 2000,
Capital Expenditures (excluding non-maintenance Capital Expenditures on
theatres opened on or before December 31, 1999 which were contracted
for on or before such date) for such Fiscal Year 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.
13. New Section 5.26. A new Section 5.26 hereby is added to the Credit
Agreement, as follows:
12
<PAGE> 13
Section 5.26 Carmike Mortgages; Pricing Adjustments. On or
within 10 days after the Second Amendment Effective Date, the Borrower
shall deliver to 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 Borrower 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 Borrower
shall continue to use its best efforts to obtain such Third Party
consents 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 Borrower 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 Borrower 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. The Applicable Margin
shall be adjusted from time to time as required by the last sentence of
Section 2.05(a), 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.
14. Amendment to Section 6.01(b). Section 6.01(b) of the Credit
Agreement hereby is amended by deleting it in its entirety and by substituting
therefor the following:
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.01(e), 5.01(j), 5.02(ii), 5.03 to 5.07,
inclusive, 5.09 (as to the Borrower) and 5.10 (as to the Borrower) and
5.12, or Section 5.15, 5.21(b), or 5.23 to 5.25, inclusive;
15. Exhibit F. Exhibit F (Compliance Certificate) hereby is deleted in
its entirety and Exhibit F hereto is substituted therefor.
16. Restatement of Representations and Warranties. The Borrower hereby
restates and renews each and every representation and warranty heretofore made
by it in the Credit Agreement and the other Loan Documents as fully as if made
on the date hereof (except as to
13
<PAGE> 14
representations and warranties made as of a specific date) and with specific
reference to this Consent and all other Loan Documents executed and/or delivered
in connection herewith.
17. Ratification. The Borrower hereby restates, ratifies and reaffirms
each and every term, covenant and condition set forth in the Credit Agreement
and the other Loan Documents effective as of the date hereof.
18. 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.
19. 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.
20. No Default. To induce the Administrative Agent and the Lenders to
enter into this Second Amendment, the Borrower 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 Borrower arising out of or with
respect to any of the Loans or other obligations of the Borrower owed to the
Administrative Agent or the Lenders under the Credit Agreement.
21. Further Assurances. The Borrower agrees to take such further
actions as the Administrative Agent shall reasonably request in connection
herewith to evidence the Amendments herein contained.
22. Governing Law. This Second Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
23. Conditions Precedent. This Second Amendment shall become effective
only upon: (i) execution and delivery (including by facsimile) of this Second
Amendment by the Borrower, the Administrative Agent and the Required Lenders;
(ii) execution and delivery (including by facsimile) of the Consent and
Reaffirmation of Guarantors at the end hereof by the Guarantors; (iii) execution
and delivery (including by facsimile) of amendments to the Revolver Credit
Agreement, the Reimbursement Agreement and the Lease comparable to those
contained herein (as applicable), including equivalent changes to pricing,
reporting requirements, financial covenants and regarding execution of Carmike
Mortgages), as summarized in communications from the Administrative Agent to the
Lenders (and each of the Lenders consents to such amendments); and (iv) payment
to the Administrative Agent, for the ratable account of the Lenders which
execute this Second Amendment of an amendment fee in the amount of 0.05% of the
aggregate principal amount of the Loans outstanding on the date of closing.
14
<PAGE> 15
[SIGNATURES COMMENCE ON NEXT PAGE]
15
<PAGE> 16
IN WITNESS WHEREOF, the Borrower, the Administrative Agent and each of
the Lenders 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.
CARMIKE CINEMAS, INC.,
as Borrower (SEAL)
By: Title:
----------------------- ------------------------------
16
<PAGE> 17
WACHOVIA BANK, N.A.,
as Administrative Agent and
as a Lender (SEAL)
By:
------------------------
Title:
17
<PAGE> 18
SKM-LIBERTYVIEW CBO I LIMITED, (SEAL)
By:
-------------------------
Title:
18
<PAGE> 19
SENIOR DEBT PORTFOLIO,
as a Lender (SEAL)
By: Boston Management and Research,
as Investment Advisor
By:
-------------------------
Title:
19
<PAGE> 20
SEQUILS - PILGRIM 1, LTD,
LTD., as a Lender as (SEAL)
By: Pilgrim Investments, Inc.,
as its investment manager
By:
-------------------------
Title:
20
<PAGE> 21
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD
as a Lender (SEAL)
By: Pilgrim Investments, LLC.,
as its investment manager
By:
-------------------------
Title:
21
<PAGE> 22
OSPREY INVESTMENTS PORTFOLIO,
as a Lender (SEAL)
By: Citibank, N.A., as Manager
By:
-------------------------
Title:
22
<PAGE> 23
THE TORONTO DOMINION BANK,
as a Lender (SEAL)
By:
-------------------------
Title:
23
<PAGE> 24
SENECA CBO II, L.P.,
as a Lender (SEAL)
By:
-------------------------
Title:
24
<PAGE> 25
FIVE FINANCE CORPORATION,
As a Lender (SEAL)
By: Citibank, N.A., as Additional Investment
Manager for and on Behalf of
Five Finance Corporation
By:
-------------------------
Title:
25
<PAGE> 26
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender (SEAL)
By:
-------------------------
Title:
26
<PAGE> 27
BLACK DIAMOND CAPITAL MANAGEMENT, L.L.C.,
as collateral agent for Black Diamond International
Funding, Ltd., as a Lender (SEAL)
By:
-------------------------
Title:
27
<PAGE> 28
Sankaty Advisors, Inc. as Collateal Manager for
GREAT POINT CLO 1999-1 LTD, as Term
Lender
By:
-------------------------
Title:
28
<PAGE> 29
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as a Lender (SEAL)
By:
-------------------------
Title:
29
<PAGE> 30
THE FIRST UNION NATIONAL BANK,
as a Lender (SEAL)
By:
-------------------------
Title:
30
<PAGE> 31
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Second Amendment, (ii) consents to the execution and delivery of the Second
Amendment by the parties thereto and (iii) reaffirms all of its obligations and
covenants under the Guaranty Agreement dated as of February 25, 1999 executed by
it, and agrees that none of such obligations and covenants shall be affected by
the execution and delivery of the Second Amendment. This Consent and
Reaffirmation may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered 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. (SEAL), MILITARY SERVICES, INC. (SEAL)
By: By:
---------------------------- --------------------------------
Title: Title:
EASTWYNN THEATRES, INC. (SEAL)
By:
----------------------------
Title:
31
<PAGE> 32
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
Reference is made to the Term Loan Credit Agreement dated as of
February 25, 1999 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") among Carmike Cinemas, Inc., the Lenders from time to
time parties thereto, and Wachovia Bank, N.A., as Administrative Agent.
Capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,
______________________, the duly authorized ____________________, of Carmike
Cinemas, Inc., hereby certifies to the Administrative Agent and the Lenders 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:
32
<PAGE> 33
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
1. Ratio of Consolidated Senior Funded Debt to Consolidated Total Cash
Flow (Section 5.03)
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C> <C>
On or before September 30, 2000 4.25 to 1.0
December 31, 2000 through
September 30, 2001 3.75 to 1.0
December 31, 2001 through
September 30, 2002 3.50 to 1.0
December 31, 2002 and
thereafter 3.00 to 1.0
(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]
</TABLE>
2. Ratio of Consolidated Funded Debt to Consolidated Cash Flow (Section
5.04)
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:
33
<PAGE> 34
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C> <C>
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
(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]
</TABLE>
3. Restricted Payments (Section 5.05)
The Borrower 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
34
<PAGE> 35
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
4. Fixed Charge Coverage (Section 5.06)
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C> <C>
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 [1.25 to 1.00]
[1.40 to 1.00]
</TABLE>
5. Ratio of Adjusted Consolidated Funded Debt to Adjusted Cash Flow
(Section 5.07)
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C> <C>
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 $____________
35
<PAGE> 36
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
<S> <C>
(d) sum of (a) plus (c) $____________
(e) Adjusted Cash Flow - Schedule - 3 $____________
Actual Ratio of (d) to (e) ___ to 1.0
Maximum Ratio [7.5 to 1.0]
[7.0 to 1.0]
[6.5 to 1.0]
</TABLE>
6. Negative Pledge (Section 5.08)
None of the Borrower'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):
36
<PAGE> 37
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
Description of Lien and Property subject to same: Amount of
Debt Secured:
1. ___________________________ $____________________
2. ___________________________ $____________________
3. ___________________________ $____________________
4. ___________________________ $____________________
5. ___________________________ $____________________
6. ___________________________ $____________________
7. ___________________________ $____________________
Total of items 1-7 $____________________
(d) Limitation (5% of Consolidated
Total Capitalization) $____________________
7. Sales of Assets (Section 5.11)
The Borrower 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 Borrower, or (ii) subject to
the mandatory prepayment provisions of Section 2.10(b), 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) and to presentation to the Administrative
Agent and the Lenders of a certificate showing compliance with the
limitations contained in this clause (e) after giving effect thereto,
the Borrower 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
Borrower, the Collateral Agent shall release any Collateral sold by the
Borrower or Eastwynn in conformity with the
37
<PAGE> 38
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
foregoing provisions, so long as any prepayments required by Section
2.10(b) have been made.
(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 5.21)
Neither the Borrower 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 Moody's 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 Moody's, (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
_____________
(1) Excluding transfers permitted by clause (i)
38
<PAGE> 39
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
(b) Aggregate Investments made pursuant
to clause (b) from Second Amendment
Effective Date and prior to most recent
Fiscal Quarter $___________
(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 (5.25)
At the end of each Fiscal Year, commencing with the Fiscal Quarter
ending December 31, 2000, Capital Expenditures for such Fiscal Year
(excluding on-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
10. Report as to Net Cash Proceeds paid pursuant to Section 2.10.
Following is the information pertaining to the sale of each property
during the Fiscal Quarter just ended which sale gave rise to the
receipt of Net Cash Proceeds.
(a) Property: [insert description of property sold]
(1) date of sale ________________
39
<PAGE> 40
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
(2) gross proceeds received $___________
(3) Net Cash Proceeds received $___________
(4) aggregate amount of prepayment
on Loans and Term Loans $___________
(b) Property: [insert description of property sold]
(1) date of sale ________________
(2) gross proceeds received $___________
(3) Net Cash Proceeds received $___________
(4) aggregate amount of prepayment
on Loans and Term Loans $___________
TOTALS:
total gross proceeds received $___________
total Net Cash Proceeds received $___________
total aggregate prepayments made $___________
40
<PAGE> 41
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)) $
=======================
41
<PAGE> 42
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 ____ _-__ $_____________
42
<PAGE> 43
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
_______________,____
____ quarter ____ _-__ $_____________
Total Dividends $_____________
(d) Tax expense for:
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
Total Tax Expense $_____________
(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
43
<PAGE> 44
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 Borrower in
complying with the provisions of Section 5.26 in granting and recording the
Carmike Mortgages and obtaining the Real Estate Collateral Documentation shall
be added back to Consolidated Operating Income.
44
<PAGE> 45
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
<TABLE>
<S> <C>
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) ============
---- ---- ----
</TABLE>
45
<PAGE> 46
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
SCHEDULE - 4
CONSOLIDATED FUNDED DEBT
<TABLE>
<CAPTION>
Interest
(a) Funded Debt Rate Maturity Total
----------- --------- -------- -----
<S> <C> <C> <C> <C>
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) $___________
</TABLE>
46
<PAGE> 47
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
<TABLE>
<S> <C> <C>
(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) $
---- ---- ---- ============
CONSOLIDATED SENIOR FUNDED DEBT
(f) Subordinated Debt $___________
(g) Consolidated Senior Funded Debt (e) less (f) $___________
</TABLE>
47
<PAGE> 48
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
SCHEDULE - 5
CONSOLIDATED CASH FLOW(4)
<TABLE>
<S> <C> <C>
(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 $____________
(d) ____ quarter ____ $____________
</TABLE>
- ---------------------------------
(4) In determining Cash Flow, the expense incurred by the Borrower in complying
with the provisions of Section 5.26 in granting and recording the Carmike
Mortgages and obtaining the Real Estate Collateral Documentation shall be added
back to Consolidated Operating Income.
48
<PAGE> 49
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
<TABLE>
<S> <C>
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) ============
---- ---- ----
</TABLE>
49
<PAGE> 50
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
SCHEDULE - 6
RENTAL OBLIGATIONS(5)
<TABLE>
<S> <C>
____ quarter ____ $____________
____ quarter ____ $____________
____ quarter ____ $____________
____ quarter ____ $____________
Total $____________
</TABLE>
- ---------------------------
(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.
50
<PAGE> 1
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
<PAGE> 2
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
2
<PAGE> 3
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
3
<PAGE> 4
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:
4
<PAGE> 5
(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.
5
<PAGE> 6
"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.
6
<PAGE> 7
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
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
</TABLE>
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:
7
<PAGE> 8
(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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
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
</TABLE>
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
On or before September 30, 2001 1.25 to 1.0
December 31, 2001 and 1.40 to 1.0.
thereafter
</TABLE>
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
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
</TABLE>
8
<PAGE> 9
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 Moody's 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 Moody's, (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
9
<PAGE> 10
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:
10
<PAGE> 11
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 Dougherty County, Georgia and Rutherford
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
<PAGE> 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 Dougherty
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 Dougherty 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 Rutherford
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 Rutherford 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
<PAGE> 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
<PAGE> 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: RANDOLPH, HUDSON & CO.,
INC., Manager
By:
- -------------------------- ----------------------------------
Name: Roger J. Burns
Title: Vice President
TENANT:
ATTEST: CARMIKE CINEMAS, INC.
By:
- -------------------------- ----------------------------------
Name:
Title:
14
<PAGE> 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
<PAGE> 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
<PAGE> 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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
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
</TABLE>
<TABLE>
<S> <C> <C>
(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]
</TABLE>
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C>
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
</TABLE>
17
<PAGE> 18
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
<TABLE>
<S> <C> <C>
(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]
</TABLE>
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.
<TABLE>
<S> <C> <C>
(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
</TABLE>
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
<PAGE> 19
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C> <C>
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]
</TABLE>
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:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
<S> <C> <C>
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
</TABLE>
19
<PAGE> 20
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
<TABLE>
<S> <C>
Maximum Ratio [7.5 to 1.0]
[7.0 to 1.0]
[6.5 to 1.0]
</TABLE>
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:
<TABLE>
<S> <C> <C>
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. _____________________________________ $____________________
</TABLE>
20
<PAGE> 21
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
<TABLE>
<S> <C>
4. _____________________________________ $____________________
5. _____________________________________ $____________________
6. _____________________________________ $____________________
7. _____________________________________ $____________________
Total of items 1-7 $____________________
(d) Limitation (5% of Consolidated
Total Capitalization) $____________________
</TABLE>
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
<PAGE> 22
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
<TABLE>
<S> <C> <C>
(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) $________________
</TABLE>
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 Moody's 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 Moody's, (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.
<TABLE>
<S> <C> <C>
(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 $________________
</TABLE>
- ---------------------------
(1) Excluding transfers permitted by clause (i)
22
<PAGE> 23
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
<TABLE>
<S> <C> <C>
(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
</TABLE>
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.
<TABLE>
<S> <C> <C>
(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
</TABLE>
23
<PAGE> 24
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 1
CONSOLIDATED TOTAL CAPITALIZATION
<TABLE>
<S> <C> <C>
(a) Consolidated Net Worth $
-------------------
(b) Consolidated Funded Debt $
-------------------
(c) Consolidated Total Capitalization
(sum of (a) plus (b)) $
==================
</TABLE>
24
<PAGE> 25
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 2
Fixed Charges
<TABLE>
<S> <C> <C>
(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)) $_____________
</TABLE>
Adjusted Fixed Charges
<TABLE>
<S> <C> <C>
(c) Dividends for:
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
Total Dividends $_____________
(d) Tax expense for:
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
____ quarter ____ _-__ $_____________
Total Tax Expense $_____________
</TABLE>
25
<PAGE> 26
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
<TABLE>
<S> <C> <C>
(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)) $_____________
---- ---- ---- ----
</TABLE>
- ------------------
(2) Exclude principal payments on the Senior Notes
26
<PAGE> 27
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 3
Adjusted Cash Flow(3)
<TABLE>
<S> <C> <C>
(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 ____ $____________
</TABLE>
- --------------
(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
<PAGE> 28
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
<TABLE>
<S> <C>
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) ============
</TABLE>
28
<PAGE> 29
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 4
Consolidated Funded Debt
<TABLE>
<CAPTION>
Interest
(a) Funded Debt Rate Maturity Total
----------- -------- -------- -----
<S> <C> <C> <C> <C>
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) $
---- ---- ---- ==========
</TABLE>
29
<PAGE> 30
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
Consolidated Senior Funded Debt
<TABLE>
<S> <C> <C>
(f) Subordinated Debt $___________
(g) Consolidated Senior Funded Debt (e) less (f) $___________
</TABLE>
30
<PAGE> 31
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 5
Consolidated Cash Flow(4)
<TABLE>
<S> <C> <C>
(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 $____________
</TABLE>
- ----------------
(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
<PAGE> 32
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
<TABLE>
<S> <C> <C>
(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) ============
---- ---- ----
</TABLE>
32
<PAGE> 33
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
---------------, -------
SCHEDULE - 6
Rental Obligations(5)
<TABLE>
<S> <C>
____ quarter ____ $____________
____ quarter ____ $____________
____ quarter ____ $____________
____ quarter ____ $____________
Total $____________
</TABLE>
- --------------------
(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
<PAGE> 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 Dougherty, 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]
34
<PAGE> 35
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: Randolph Hudson & 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:
35
<PAGE> 36
EXHIBIT A TO ANNEX 1
Legal Description
All that certain tract or parcel of land lying in and being a part of Land Lot
409, 1st Land District, Albany, Dougherty County, Georgia 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.
36
<PAGE> 37
ANNEX 2
PREPARED BY AND AFTER PLEASE CROSS REFERENCE FOR
RECORDING, RETURN TO: DOCUMENTS RECORDED AT:
Michelle A. Hickerson, Esq. Deed Book 1863, Page 328, and
Jones, Day, Reavis & Pogue Deed Book 1864, Page 1,
3500 SunTrust Plaza Dougherty County, Georgia Records
303 Peachtree Street
Atlanta, Georgia 30308-3242
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 1863, Page 328, Records of Dougherty County; 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.
37
<PAGE> 38
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]
38
<PAGE> 39
ANNEX 3
Prepared By and After
Recording, Return To:
Michelle A. Hickerson, Esq.
Jones, Day, Reavis & Pogue
3500 Suntrust Plaza
303 Peachtree Street
Atlanta, GA 30308-3242
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 Dougherty 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,
39
<PAGE> 40
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: Randolph Hudson & 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)
40
<PAGE> 41
EXHIBIT A TO ANNEX 3
Legal Description
All that certain tract or parcel of land lying in and being a part of Land Lot
409, 1st Land District, Albany, Dougherty County, Georgia 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.
41
<PAGE> 42
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 546, Page 348, Dougherty County
Land 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.
42
<PAGE> 43
ANNEX 4
UPON RECORDING RETURN TO:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
Attn: Michelle A. Hickerson
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
2 World Trade Center, Suite 2112 191 Peachtree Street, N.E.
New York, New York 10048 Atlanta, Georgia 30303
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 Dougherty 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:
--------------------------------
43
<PAGE> 44
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 Rutherford, 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]
44
<PAGE> 45
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: Randolph Hudson & 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:
------------------------------
45
<PAGE> 46
EXHIBIT A
To be Added
46
<PAGE> 47
ANNEX 6
This Instrument Prepared
By And Upon Recordation,
Return To: CROSS-REFERENCE TO:
Michelle A. Hickerson, Esq. Book B-447, Page 283, and
Jones, Day, Reavis & Pogue Book B-447, Page 319
3500 SunTrust Plaza Rutherford County, Tennessee Records
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
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 John H. Roe, Jr., Trustee, dated January 14, 1999, and recorded
in Book B-447, Page 283, in the Register's Office of Rutherford 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
<PAGE> 48
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.
48
<PAGE> 49
ANNEX 7
This Instrument Prepared By:
Michelle A. Hickerson, Esq.
JONES, DAY, REAVIS & POGUE
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, Georgia 30308-3242
(404) 521-3939
LIMITED WARRANTY DEED
<TABLE>
================================================================================
<S> <C>
Address New Owner as Follows: Send Tax Bills To:
- --------------------------------------------------------------------------------
Carmike Cinemas, Inc. Carmike Cinemas, Inc.
- --------------------------------------------------------------------------------
P.O. Box 391 P.O. Box 391
- --------------------------------------------------------------------------------
Columbus, GA 31902-0391 Columbus, GA 31902-0391
- --------------------------------------------------------------------------------
Part of Map 92, Parcel 110
================================================================================
</TABLE>
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 Rutherford 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.
49
<PAGE> 50
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: Randolph, Hudson & Co., Inc., a Delaware
corporation, sole managing member
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[SEAL]
50
<PAGE> 51
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
<PAGE> 52
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 Randolph, Hudson & 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)
52
<PAGE> 53
EXHIBIT A TO ANNEX 7
To Be Added
53
<PAGE> 54
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 Rutherford 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
Rutherford County, Tennessee, as shown on the Final Plan prepared by
R.L. Montoya 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
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF CARMIKE CINEMAS, INCORPORATED FOR THE QUARTER ENDED
MARCH 31, 2000 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 6,576
<SECURITIES> 9,948
<RECEIVABLES> 2,296
<ALLOWANCES> 0
<INVENTORY> 4,771
<CURRENT-ASSETS> 65,861
<PP&E> 823,895
<DEPRECIATION> 170,871
<TOTAL-ASSETS> 815,823
<CURRENT-LIABILITIES> 102,730
<BONDS> 287,112
0
550
<COMMON> 342
<OTHER-SE> 195,790
<TOTAL-LIABILITY-AND-EQUITY> 815,823
<SALES> 32,979
<TOTAL-REVENUES> 101,535
<CGS> 3,980
<TOTAL-COSTS> 89,886
<OTHER-EXPENSES> 12,739
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 10,788
<INCOME-PRETAX> (11,878)
<INCOME-TAX> (4,514)
<INCOME-CONTINUING> (7,364)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (8,120)
<EPS-BASIC> (.72)
<EPS-DILUTED> (.72)
</TABLE>
