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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
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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
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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
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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
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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;
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(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):
Ratio of Consolidated
Funded Debt to Euro-Dollar
Consolidated Cash Flow Base Rate Loans Loans
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Greater than or equal
to 4.5 2.50% 3.5%
Less than 4.5 2.25% 3.25%
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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
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in such updated report, which subsequent decrease shall be effective
from and after the date such increase to a higher level is achieved.
Carmike Mortgage Properties Cash Percentage
Flow Coverage Level Increase
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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%
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
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(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
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(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:
Fiscal Quarter Ending Applicable Ratio
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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.
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:
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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:
Fiscal Quarter Ending Applicable Ratio
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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.
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:
Fiscal Quarter Ending Applicable Ratio
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On or before September 30, 2001 1.25 to 1.0
December 31, 2001 and
thereafter 1.40 to 1.0.
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:
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12
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
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 Xxxxx'x and in either case maturing within 6
months after the date of acquisition, (iv) tender bonds the payment of
the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates
of deposit are rated at least AA or the equivalent thereof by S&P and
Aa or the equivalent thereof by Xxxxx'x, (v) loans or advances to
employees not exceeding $1,000,000 in the aggregate principal amount
outstanding at any time, in each case made in the ordinary course of
business and consistent with practices existing on December 31, 1998,
(vi) deposits required by government agencies or public utilities, and
(vii) loans, advances or other Investments to or in Guarantors; and (b)
other Investments which, in the aggregate since the Second Amendment
Effective Date, do not exceed $10,000,000; provided, however,
immediately after giving effect to the making of any Investment, no
Default shall have occurred and be continuing.
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:
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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
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.
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15
[SIGNATURES COMMENCE ON NEXT PAGE]
15
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
17
WACHOVIA BANK, N.A.,
as Administrative Agent and
as a Lender (SEAL)
By:
------------------------
Title:
17
18
SKM-LIBERTYVIEW CBO I LIMITED, (SEAL)
By:
-------------------------
Title:
18
19
SENIOR DEBT PORTFOLIO,
as a Lender (SEAL)
By: Boston Management and Research,
as Investment Advisor
By:
-------------------------
Title:
19
20
SEQUILS - PILGRIM 1, LTD,
LTD., as a Lender as (SEAL)
By: Pilgrim Investments, Inc.,
as its investment manager
By:
-------------------------
Title:
20
21
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD
as a Lender (SEAL)
By: Pilgrim Investments, LLC.,
as its investment manager
By:
-------------------------
Title:
21
22
OSPREY INVESTMENTS PORTFOLIO,
as a Lender (SEAL)
By: Citibank, N.A., as Manager
By:
-------------------------
Title:
22
23
THE TORONTO DOMINION BANK,
as a Lender (SEAL)
By:
-------------------------
Title:
23
24
SENECA CBO II, L.P.,
as a Lender (SEAL)
By:
-------------------------
Title:
24
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
26
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender (SEAL)
By:
-------------------------
Title:
26
27
BLACK DIAMOND CAPITAL MANAGEMENT, L.L.C.,
as collateral agent for Black Diamond International
Funding, Ltd., as a Lender (SEAL)
By:
-------------------------
Title:
27
28
Sankaty Advisors, Inc. as Collateal Manager for
GREAT POINT CLO 1999-1 LTD, as Term
Lender
By:
-------------------------
Title:
28
29
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as a Lender (SEAL)
By:
-------------------------
Title:
29
30
THE FIRST UNION NATIONAL BANK,
as a Lender (SEAL)
By:
-------------------------
Title:
30
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:
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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
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:
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
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]
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:
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COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
Fiscal Quarter Ending Applicable Ratio
--------------------- ----------------
On or before September 30, 2000 6.50 to 1.0
December 31, 2000 through
September 30, 2001 5.75 to 1.0
December 31, 2001 through
September 30, 2002 5.50 to 1.0
December 31, 2002 and
thereafter 5.00 to 1.0
(a) Consolidated Funded Debt
Schedule - 4 $____________
(b) Consolidated Cash Flow
Schedule - 5 $____________
Actual Ratio of (a) to (b) ___ to 1.00
Maximum Ratio [6.50 to 1.00]
[5.75 to 1.0]
[5.50 to 1.00]
[5.00 to 1.00]
3. Restricted Payments (Section 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
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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:
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)
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 $____________
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COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
(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]
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
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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
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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 Xxxxx'x and in either case maturing
within 6 months after the date of acquisition, (iv) tender bonds the
payment of the principal of and interest on which is fully supported by
a letter of credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof
by S&P and Aa or the equivalent thereof by Xxxxx'x, (v) loans or
advances to employees not exceeding $1,000,000 in the aggregate
principal amount outstanding at any time, in each case made in the
ordinary course of business and consistent with practices existing on
December 31, 1998, (vi) deposits required by government agencies or
public utilities, and (vii) loans, advances or other Investments to or
in Guarantors; and (b) other Investments which, in the aggregate since
the Second Amendment Effective Date, do not exceed $10,000,000;
provided, however, immediately after giving effect to the making of any
Investment, no Default shall have occurred and be continuing.
(a) loans and advances to employees $________________
Limitation $1,000,000
_____________
(1) Excluding transfers permitted by clause (i)
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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 ________________
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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
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)) $
=======================
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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 ____ _-__ $_____________
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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
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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.
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COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
Consolidated Operating Income $____________
Rental Obligations $____________
Depreciation and amortization $____________
Net income arising from sale, exchange or
distribution of capital assets
(not to exceed 5% of Consolidated
Operating Income for such period) $____________
Theatre-Level EBITDA $____________
Total for Quarter $____________
Total Adjusted Cash Flow $
(sum of (a) plus (b) plus (c) plus (d) ============
---- ---- ----
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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) $___________
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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) $___________
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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 $____________
(d) ____ quarter ____ $____________
---------------------------------
(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.
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49
COMPLIANCE CHECKLIST
CARMIKE CINEMAS, INC.
______________,____
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) ============
---- ---- ----
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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.
50
