EXHIBIT 10.37
FIFTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO
GUARANTEE AND COLLATERAL AGREEMENT
FIFTH AMENDMENT, dated as of July 27, 2006, to the Credit Agreement,
dated as of May 19, 2005 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among CARMIKE CINEMAS, INC., a Delaware
corporation (the "Borrower"), the several banks and other financial institutions
from time to time parties thereto (the "Lenders"), XXXXX FARGO FOOTHILL, INC.,
as Documentation Agent (in such capacity, the "Documentation Agent"), and BEAR
XXXXXXX CORPORATE LENDING INC., as administrative agent (in such capacity, the
"Administrative Agent") and FIRST AMENDMENT, dated as of July 27, 2006
(collectively with the Fifth Amendment referred to above, this "Amendment"), to
the Guarantee and Collateral Agreement, dated as of May 19, 2005, made by the
Borrower and certain of its Subsidiaries in favor of the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make certain extensions of credit to the Borrower; and
WHEREAS, the Borrower, the Lenders and the Administrative Agent desire
to amend the Credit Agreement and the Guarantee and Collateral Agreement on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Borrower, the Lenders and the Administrative Agent hereby
agree as follows:
SECTION 1.1. Defined Terms. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
SECTION 1.2. Amendments to Section 1.1 of the Credit Agreement. Section
1.1 of the Credit Agreement is hereby amended by (a) deleting clause (ii) of the
proviso in the definition of "Applicable Margin" in its entirety and inserting,
in lieu thereof the following:
"(ii) during any time from and after the Fifth Amendment Effective Date
when any of the financial statements and other items specified in
Sections 7.1 and 7.2 for the fiscal year ended December 31, 2005 and
the fiscal quarters ended March 31, 2006, June 30, 2006 and September
30, 2006 (the "Required Information") shall not have been delivered to
the Lenders in the manner and at the times prescribed by such sections
prior to giving effect to the Fourth Amendment and the Fifth Amendment,
the Applicable Margin with respect to the Loans shall be increased by
0.50% per annum from the Applicable Margin otherwise applicable thereto
without giving effect to this clause (ii)";
(b) inserting the following new defined terms and related definitions:
"Fifth Amendment": shall mean the Fifth Amendment to this
Agreement dated as of July 27, 2006.
"Fifth Amendment Effective Date": as defined in the Fifth
Amendment.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified
Hedge Agreement was entered into, was a Lender, an Affiliate of a
Lender, an Agent or an Affiliate of an Agent; provided that, in the
event a counterparty to a Specified Hedge Agreement at the time such
Specified Hedge Agreement was entered into was a Qualified
Counterparty, such counterparty shall constitute a Qualified
Counterparty hereunder and under the other Loan Documents.
"Secured Parties": the collective reference to the Lenders,
the Agents, the Qualified Counterparties, the Issuing Lender and the
Swingline Lender.
(c) deleting the terms "Obligations" and "Specified Hedge Agreement"
and substituting in lieu thereof the following new defined terms:
"Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or
not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities of
the Borrower to any Agent or to any Lender (or, in the case of
Specified Hedge Agreements, any Qualified Counterparty), whether direct
or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document, the Letters
of Credit, any Specified Hedge Agreement or any other document made,
delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to any Agent or to any other Secured Party
that are required to be paid by the Borrower pursuant hereto) or
otherwise.
"Specified Hedge Agreement": any Hedge Agreement (a) entered
into by (i) the Borrower or any of its Subsidiaries and (ii) any
Qualified Counterparty, as counterparty and (b) that has been
designated by such Qualified Counterparty and the Borrower, by notice
to the Administrative Agent, as a Specified Hedge Agreement provided,
that any release of Collateral or Guarantors effected in the manner
permitted by this Agreement shall not require the consent of holders of
obligations under Specified Hedge Agreements. The designation of any
Hedge Agreement as a Specified Hedge Agreement shall not create in
favor of any Qualified Counterparty that is a party thereto any rights
in connection with the management or release of any Collateral or of
the obligations of any Guarantor under the Guarantee and Collateral
Agreement except as provided in Section 11.14.
SECTION 1.3. Amendments to Section 7.1 of the Credit Agreement. Section
7.1 of the Credit Agreement is hereby amended by (i) deleting the parenthetical
immediately
after the word "Borrower" in the second line of paragraph (a) thereof, that was
inserted pursuant to the Fourth Amendment, and inserting the following: "(or, in
the case of the fiscal year ended December 31, 2005, no later than September 30,
2006)" and (ii) deleting the parenthetical immediately after the word "Borrower"
in the second line of paragraph (b) thereof that was inserted pursuant to the
Fourth Amendment, and inserting the following: "(or, in the case of the fiscal
quarter ended March 31, 2006, no later than September 30, 2006, and in the case
of the fiscal quarters ended June 30, 2006 and September 30, 2006, no later than
December 31, 2006)".
SECTION 1.4. Amendments to Section 7.2(b) of the Credit Agreement.
Section 7.2(b) of the Credit Agreement is hereby amended by inserting
immediately after the reference to Section 7.1 in the second line thereof the
following: "(or, in the case of the fiscal quarter ended June 30, 2006, on or
prior to August 14, 2006, and in the case of the fiscal quarter ended September
30, 2006, on or prior to November 14, 2006, and, in the case of each such fiscal
quarter, based on compiled monthly financial statements for the months
comprising such fiscal quarter in the form previously delivered to the
Administrative Agent during 2006 prior to the Fifth Amendment Effective Date)".
SECTION 1.5. Amendments to Section 7.2(d) of the Credit Agreement.
Section 7.2(d) of the Credit Agreement is hereby amended by deleting the phrase
"or on or prior to July 27, 2006 in the case of the fiscal quarter ended March
31, 2006", that was inserted pursuant to the Fourth Amendment, and inserting the
following: "or on or prior to September 30, 2006 in the case of the fiscal
quarter ended March 31, 2006, and on or prior to December 31, 2006 in the case
of the fiscal quarters ended June 30, 2006 and September 30, 2006".
SECTION 1.6. Amendments to Section 7.9 of the Credit Agreement. Section
7.9 of the Credit Agreement is hereby amended by deleting such section in its
entirety and substituting in lieu thereof the following new Section 7.9:
"7.9 Interest Rate Protection. In the case of the Borrower,
within 90 days after the Fifth Amendment Effective Date, enter into,
and thereafter maintain, Hedge Agreements to the extent necessary to
provide that at least 45% of the aggregate principal amount of
outstanding Initial Term Loans and Delayed-Draw Term Loans is subject
to either a fixed interest rate or interest rate protection from the
effective date of such Hedge Agreements through a date not earlier
than May 19, 2008, which Hedge Agreements shall have terms and
conditions reasonably satisfactory to the Administrative Agent."
SECTION 1.8. Amendments to Section 9 of the Credit Agreement. Section 9
of the Credit Agreement is hereby amended by adding after the words "Loan
Documents" the last two times they appear therein the following: "and any
Specified Hedge Agreements".
SECTION 1.9. Amendments to Section 11.1 of the Credit Agreement.
Section 11.1 of the Credit Agreement is hereby amended by deleting the word "or"
immediately prior to clause (xi) therein and adding the following immediately
after clause (xi) and prior to the period: "(xii) amend, modify or waive any
Loan Document so as to alter the ratable treatment of the Borrower Hedge
Agreement Obligations and the Borrower Credit Agreement Obligations (each as
defined in the Guarantee and Collateral Agreement) in a manner adverse to any
Qualified
Counterparty with Obligations then outstanding without the written consent of
any such Qualified Counterparty".
SECTION 1.10. Amendments to Section 11.14 of the Credit Agreement.
Section 11.14 of the Credit Agreement is hereby amended by deleting such section
in its entirety and substituting in lieu thereof the following new Section
11.14:
"11.14 Releases of Guarantees and Liens. (a) Notwithstanding
anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by
each Secured Party, for itself and behalf of each of its Affiliates
that may hereafter become a Secured Party (without requirement of
notice to or consent of any Secured Party except as expressly required
by Section 11.1) to take any action requested by the Borrower having
the effect of releasing any Collateral or guarantee obligations (i) to
the extent necessary to permit consummation of any transaction not
prohibited by any Loan Document or that has been consented to in
accordance with Section 11.1 or (ii) under the circumstances described
in paragraph (b) below.
(b) At such time as the Loans, the Reimbursement Obligations
and the other obligations under the Loan Documents (other than
obligations under or in respect of Hedge Agreements) shall have been
paid in full, the Commitments have been terminated, no Letters of
Credit shall be outstanding or any outstanding Letters of Credit shall
have been cash collateralized or otherwise secured by a collateral
arrangement reasonably satisfactory to the Issuing Lender, and the net
termination liability under or in respect of Specified Hedge Agreements
at such time shall have been paid in full or secured by a collateral
arrangement satisfactory to the Qualified Counterparty as determined in
its sole discretion, the Collateral shall be released from the Liens
created by the Security Documents, and the Security Documents and all
obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Loan Party under the
Security Documents shall terminate, all without delivery of any
instrument or performance of any act by any Person."
SECTION 1.11. Limitation on Borrowing of Revolving Credit Loans. During
any time from and after the Fifth Amendment Effective Date (as defined below)
when any of the Required Information (as defined in this Amendment) shall not
have been delivered to the Lenders in the manner and at the times prescribed by
Sections 7.1 and 7.2 of the Credit Agreement prior to giving effect to the
Fourth Amendment and this Amendment, and subject to compliance with the
conditions to borrowing thereof contained in the Credit Agreement, the maximum
principal amount of Revolving Extensions of Credit that may be outstanding shall
not exceed $10,000,000.
SECTION 1.12. Interim Financial Statements and Calculations. The
Borrower agrees to deliver to the Administrative Agent and the Lenders on or
prior to the 15th day of each month during which the Required Information shall
not have been previously delivered to the Lenders monthly financial statements
for the immediately preceding month in the form of the monthly financial
statements previously delivered to the Administrative Agent during 2006.
SECTION 1.13. Amendments to Guarantee and Collateral Agreement. The
Guarantee and Collateral Agreement is hereby amended by:
(i) deleting the words "for the banks, financial institutions and other entities
(the "Lenders") from time to time parties to the Credit Agreement, dated as of
May 19, 2005 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among Carmike Cinemas, Inc., a Delaware corporation
(the "Borrower"), the Lenders, Bear, Xxxxxxx & Co. Inc., as sole lead arranger
and sole bookrunner (in such capacity, the "Arranger"), Xxxxx Fargo Foothill,
Inc., as documentation agent (in such capacity, the "Documentation Agent"), and
the Administrative Agent" in the introductory paragraph and substituting in lieu
thereof the following: "acting pursuant to this Agreement for the benefit of the
Secured Parties",
(ii) deleting the final two recitals and substituting in lieu thereof the
following new recitals:
"WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Borrower
under the Credit Agreement and, to the extent applicable, of Qualified
Counterparties to provide financial accommodations under Specified
Hedge Agreements that the Grantors shall have executed and delivered
this Agreement to the Administrative Agent for the ratable benefit of
the Secured Parties;
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreement and to induce
the Lenders to make their respective extensions of credit to the
Borrower thereunder and to induce Qualified Counterparties to enter
into Specified Hedge Agreements, each Grantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Secured Parties,
as follows:",
(iii) deleting the words "Lender or any affiliate of any Lender" and the words
"Lender or affiliate thereof" where they appear in the definition of "Borrower
Hedge Agreement Obligations" and substituting in lieu thereof the words
"Qualified Counterparty",
(iv) deleting the words "but only to the extent that, and only so long as, the
Borrower Credit Agreement Obligations are secured and guaranteed pursuant
hereto," where they appear in the definition of "Borrower Obligations,
(v) deleting the words "Agents and the Lenders" in the third line of Section
2.1(a) and substituting in lieu thereof the words "Secured Parties",
(vi) deleting the words "Agents and the Lenders (and any affiliates of any
Lender to which Borrower Hedge Agreement Obligations are owing)" beginning in
the second line of Section 3 and substituting in lieu thereof the words "Secured
Parties",
(vii) deleting the words "To induce the Administrative Agent and the Lenders to
enter into the Credit Agreement and to induce the Lenders to make their
respective extensions of credit to the Borrower thereunder, each Grantor hereby
represents and warrants to the Administrative Agent and each Lender that:" at
the beginning of Section 4 and substituting in lieu thereof the words "To induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder and
to induce the Qualified Counterparties to enter into the Specified Hedge
Agreements, each Grantor hereby represents and warrants to each Secured Party
that:",
(viii) deleting the words "Agents and the Lenders" in the first line of the
initial paragraph of Section 5 and substituting in lieu thereof the words
"Secured Parties",
(ix) deleting paragraphs "Second", "Third" and "Fourth" of Section 6.5 and
substituting in lieu thereof the following:
"Second, to the Administrative Agent, for application by it
towards payment of amounts then due and owing and remaining unpaid in
respect of the Obligations, pro rata among the Secured Parties
according to the amounts of the Obligations then due and owing and
remaining unpaid to the Secured Parties; and
Third, any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding or any outstanding Letters of Credit shall have been cash
collateralized or otherwise secured by a collateral arrangement
reasonably satisfactory to the Issuing Lender, the Commitments shall
have terminated, and any Specified Hedge Agreement of each Qualified
Counterparty shall have been paid in full or secured by a collateral
arrangement satisfactory to such Qualified Counterparty in its sole
discretion, shall be paid over to the Borrower or to whomsoever may be
lawfully entitled to receive the same. For purposes of this Section, to
the extent that any Obligation is unmatured, unliquidated or contingent
at the time any distribution is to be made pursuant to clause Second
above and has not been cash collateralized or otherwise secured by a
satisfactory collateral arrangement as indicated above, the
Administrative Agent shall allocate a portion of the amount to be
distributed pursuant to such clause for the benefit of the Secured
Parties holding such Obligations and shall hold such amounts for the
benefit of such Secured Parties until such time as such Obligations
become matured, liquidated and/or payable at which time such amounts
shall be distributed to the holders of such Obligations to the extent
necessary to pay such Obligations in full (with any excess to be
distributed in accordance with this Section as if distributed at such
time). In making determinations and allocations required by this
Section, the Administrative Agent may conclusively rely upon
information provided to it by the holder of the relevant Obligations
(which, in the case of the immediately preceding sentence) shall be a
reasonable estimate of the amount of the Obligations) and shall not be
required to, or be responsible for, ascertaining the existence of or
amount of any Obligations."
(x) deleting the words "in such order as the Administrative Agent may elect" in
the twenty-seventh and twenty-eighth lines of Section 6.6 and substituting in
lieu thereof the words "in accordance with Section 6.5",
(xi) deleting Section 8.15(a) in its entirety and substituting in lieu thereof
the following new Section 8.15(a):
"(a) At such time as the Loans, the Reimbursement Obligations
and the other Obligations (other than Borrower Hedge Agreement
Obligations) shall have been paid in
full, the Commitments have been terminated, no Letters of Credit shall
be outstanding or any outstanding Letters of Credit shall have been
cash collateralized or otherwise secured by a collateral arrangement
reasonably satisfactory to the Issuing Lenders, and the Specified Hedge
Agreement of each Qualified Counterparty shall have been either (i)
paid in full or (ii) secured by a collateral arrangement satisfactory
to such Qualified Counterparty as determined in its sole discretion,
the Collateral shall be released from the Liens created hereby, and
this Agreement and all obligations (other than those expressly stated
to survive such termination) of the Administrative Agent and each
Grantor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to
the Collateral shall revert to the Grantors. At the request and sole
expense of any Grantor following any such termination, the
Administrative Agent shall deliver to such Grantor any Collateral held
by the Administrative Agent hereunder, and execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to
evidence such termination.", and
and (xii) providing that the rights and benefits provided therein to the Agents
and the Lenders (including, without limitation, the security interests granted
therein and the rights and benefits of a secured party afforded thereby) shall
also accrue to and be for the benefit of the other Secured Parties (as defined
in this Amendment). For this purpose, the relevant provisions of the Guarantee
and Collateral Agreement not otherwise amended by this Amendment, except for
Sections 5.7, 5.10(e) and 8.6 shall be amended by replacing "Lender" or
"Lenders" with "Secured Party" or "Secured Parties", as the case may be.
SECTION 1.14. Conditions to Effectiveness. This Amendment shall become effective
as of the date hereof on the date (the "Fifth Amendment Effective Date") on
which the Borrower, the Administrative Agent and the Required Lenders shall have
executed and delivered to the Administrative Agent this Amendment.
SECTION 1.15. Representation and Warranties. To induce the Administrative Agent
to enter into this Amendment, the Borrower hereby represents and warrants to the
Administrative Agent and all of the Lenders as of the Fifth Amendment Effective
Date that:
(a) Corporate Power; Authorization; Enforceable Obligations.
(i) The Borrower has the corporate power and authority, and
the legal right, to make and deliver this Amendment and to perform its
obligations under the Loan Documents, as amended by this Amendment, and
has taken all necessary corporate action to authorize the execution,
delivery and performance of this Amendment and the performance of the
Loan Documents, as so amended.
(ii) No consent or authorization of, approval by, notice to,
filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the
execution and delivery of this Amendment or with the performance,
validity or enforceability of the Loan Documents, as amended by this
Amendment, except as otherwise provided in Section 5.4 of the Credit
Agreement.
(iii) This Amendment has been duly executed and delivered on
behalf of the Borrower.
(iv) This Amendment and each Loan Document, as amended by this
Amendment, constitutes a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(b) Representations and Warranties. The representations and warranties
made by the Borrower in and pursuant to the Loan Documents are true and correct
in all material respects on and as of the Fifth Amendment Effective Date, after
giving effect to the effectiveness of this Amendment, as if made on and as of
the Fifth Amendment Effective Date.
SECTION 1.16. Payment of Fees and Expenses.
(a) Amendment Fee. In the event that the Required Lenders and the
Borrower execute and deliver this Amendment, the Borrower shall pay to the
Administrative Agent, for the ratable benefit of the Lenders consenting to this
Amendment, an amendment fee in the amount of 0.10% on the principal amount of
each such Lender's outstanding Initial Term Loans, Delayed-Draw Term Loans and
Revolving Commitment immediately prior to the Fifth Amendment Effective Date,
payable on the Fifth Amendment Effective Date.
(b) Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to each Agent.
SECTION 1.17. No Other Amendments; Confirmation. Except as expressly
amended, modified and supplemented hereby, the provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect.
SECTION 1.18. Governing Law; Counterparts. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written. CARMIKE CINEMAS, INC.
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: SVP
Fifth Amendment to Credit Agreement
BEAR XXXXXXX CORPORATE LENDING INC.,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx Xxxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
Fifth Amendment to Credit Agreement
XXXXX FARGO FOOTHILL, N.A.,
as Issuing Lender, Documentation Agent
and a Lender
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
Fifth Amendment to Credit Agreement
