Exhibit 4.1(d)
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AMC ENTERTAINMENT INC.
and
the Guarantors Named Herein
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
FIFTH SUPPLEMENTAL INDENTURE,
Dated as of December 28, 1995,
to
INDENTURE
Dated as of August 1, 1992,
As Supplemented by
THE FIRST SUPPLEMENTAL INDENTURE,
Dated as of March 31, 1993,
and by
THE SECOND SUPPLEMENTAL INDENTURE,
Dated as of May 28, 1993
and by
THE THIRD SUPPLEMENTAL INDENTURE,
Dated as of May 28, 1993,
and by
THE FOURTH SUPPLEMENTAL INDENTURE,
Dated as of March 31, 1994
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$100,000,000
11 7/8% Senior Notes Due 2000
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FIFTH SUPPLEMENTAL INDENTURE, dated as of December 28, 1995 (the "Fifth
Supplemental Indenture"), among AMC ENTERTAINMENT INC., a Delaware corporation
(the "Company"), AMERICAN MULTI-CINEMA, INC., a Missouri corporation, AMC
REALTY, INC., a Delaware corporation, CONSERVCO, INC., a Missouri corporation,
AMC CANTON REALTY, INC., a Delaware corporation, AMC PHILADELPHIA, INC., a
Delaware corporation, BUDCO THEATRES, INC., a Pennsylvania corporation, CONCORD
CINEMA, INC., a Delaware corporation, and AMC FILM MARKETING, INC., a Missouri
corporation (collectively, the "Guarantors" and each a "Guarantor"), and UNITED
STATES TRUST COMPANY OF NEW YORK, a New York banking corporation, as Trustee
(the "Trustee"), to the Indenture, dated as of August 1, 1992, as supplemented
by the First Supplemental Indenture, dated as of March 31, 1993, the Second
Supplemental Indenture, dated as of May 28, 1993, the Third Supplemental
Indenture dated as of May 28, 1993, and the Fourth Supplemental Indenture dated
as of March 31, 1994 (collectively, the "Indenture"), among the Company, as
issuer, the Guarantors and the Trustee.
WHEREAS, the Company and the Guarantors are parties to the Indenture,
pursuant to which $100,000,000 aggregate principal amount of 11 7/8% Senior
Notes due 2000 (the "Securities") of the Company were issued; and
WHEREAS, there are now outstanding under the Indenture Securities in
the aggregate principal amount of $100,000,000; and
WHEREAS, pursuant to Section 9.2 of the Indenture, a majority in
aggregate principal amount of the outstanding Securities have consented to the
amendments and modifications contained in this Fifth Supplemental Indenture; and
WHEREAS, the execution and delivery of this Fifth Supplemental
Indenture has been authorized by resolutions of the Board of Directors of each
of the Company and the Guarantors; and
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WHEREAS, the Company, the Guarantors and the Trustee each desire to
execute this Fifth Supplemental Indenture to revise the Indenture to modify
Sections 1.1, 1.3, 4.8, 5.1 and 6.1 thereof, and to delete in their entirety
Sections 4.9 through 4.14, inclusive, 4.16 and 4.17 thereof; and
WHEREAS, the Company, the Guarantors and the Trustee each desire that
such modifications and deletions become operative upon the acceptance by the
Company for purchase of all Securities (and related consents) validly tendered
or delivered (and not withdrawn) pursuant to its offer to purchase upon the
terms and subject to the conditions set forth in the Offer to Purchase and
Consent Solicitation dated November 29, 1995, as amended (the "Tender Offer and
Consent Solicitation");
NOW, THEREFORE, in consideration of the above premises, each party
agrees, for the benefit of the other and for the equal and ratable benefit of
the Holders of the Securities, as follows:
Section 1. Definitions in Indenture. All capitalized terms not defined
in this Fifth Supplemental Indenture shall have their respective meanings set
forth in the Indenture.
Section 2. Amendment to SECTION 1.1. The text of Section 1.1 of the
Indenture, captioned "Definitions," is hereby amended as follows:
a. The following definitions are hereby deleted in their entirety from
the Indenture: "Acquired Indebtedness," "Asset Acquisition," "Asset Sale,"
"Capital Expenditures," "CENI," "Change of Control," "Consolidated Cash Flow,"
"Consolidated EBITDA," "Consolidated EBITDA Coverage Ratio," "Consolidated
Interest Expense," "Consolidated Net Income," "Consolidated Net Worth,"
"Disqualified Stock," "EEP," "EEP Junior Subordinated Notes," "EEP Partnership
Agreement," "11 7/8% Debentures," "Investment," "Management Agreement," "Net
Cash Proceeds," "Non-Recourse Indebtedness," "Permitted Holder," "Permitted
Indebtedness," "Permitted Investments," "Permitted Liens," "Preferred Share
Redemption," "Required Capital Contribution," "Restricted
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Payment," "Securityholders' Portion," "Special Dividend," "13.60% Debenture,"
"Tri-City Purchase Agreement" and "Unrestricted Subsidiary."
b. The definition of "Guarantor Senior Indebtedness" is amended to be
and read in its entirety as follows:
"Guarantor Senior Indebtedness" means, with respect
to any Guarantor, the principal of, premium, if any, and
interest on (including interest accruing subsequent to the
occurrence of any event specified in Sections 6.1(a)(vii) or
(viii) relating to such Guarantor whether or not the claim
for such interest is allowed under any applicable Bankruptcy
Code) all obligations of every nature of such Guarantor under
or in respect of up to $40 million in aggregate principal
amount under the Revolving Credit Facility, whether
outstanding on the Issue Date or thereafter incurred without
giving effect to any reduction in the amount of such
Indebtedness necessary to render the obligation of any
Guarantor with respect thereto (as obligor, guarantor or
otherwise) not voidable under applicable law relating to
"fraudulent conveyance" or "fraudulent transfer."
Notwithstanding the foregoing, "Guarantor Senior
Indebtedness" shall not include, (a) Indebtedness that is
expressly subordinate or junior in right of payment to any
Indebtedness of such Guarantor, (b) Indebtedness which, when
incurred and without respect to any election under Section
1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse
to such Guarantor, and (c) that portion of any Indebtedness
which at the time of its issuance is issued in violation of
this Indenture.
c. The definition of "Revolving Credit Facility" is amended to be and
read in its entirety as follows:
"Revolving Credit Facility" means the Revolving
Credit Agreement dated as of December 27, 1995, among AMCE,
as borrower, certain of its subsidiaries, as guarantors, and
The Bank of Nova Scotia, Chemical Bank, Bank of America
National Trust and Savings Association and certain other
lenders together with the exhibits and schedules thereto, as
the same may be amended, supplemented or otherwise modified
from time to time, and any refinancings, replacements or
renewals thereof.
d. The definition of "Subsidiary" is amended to be and read in its
entirety as follows:
"Subsidiary" means, with respect to any Person, (i)
any corporation of which the outstanding Capital Stock having
at least a majority of the votes entitled to be cast in the
election of directors shall at the time be owned, directly or
indirectly, by such Person, or (ii) any other Person of which
at least a majority of voting interest is at the time,
directly or indirectly, owned by such Person.
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Section 3. Amendment to SECTION 1.3. The text of Section 1.3 of the
Indenture, captioned "Rules of Construction," is hereby amended by amending
paragraph (e) of such Section to read in its entirety as follows:
(e) unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall
be prepared in accordance with GAAP as in effect from time to
time and applied on a consistent basis with the Company's
most recent financial statements; and, unless otherwise
specified herein, all accounting determinations of any Person
hereunder shall be made on a consolidated basis in accordance
with the GAAP.
Section 4. Amendment to SECTION 4.8. The text of Section 4.8 of the
Indenture, captioned "Reports," is hereby amended to read in its entirety as
follows:
In accordance with the provisions of TIA ss.
314(a), at any time that the Company or a Guarantor has a
class of securities registered under the Exchange Act, the
Company or such Guarantor, as the case may be, shall file
with the Trustee, within 15 days after it files them with the
SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company or such Guarantor is required to
file with the SEC pursuant to Section 13 or 15 of the
Exchange Act. The Company also shall comply with the other
provisions of TIA ss. 314(a).
Section 5. Amendment to SECTION 4.9. Section 4.9 of the Indenture,
entitled "Limitation on Indebtedness," is hereby amended by deleting such
Section 4.9 in its entirety.
Section 6. Amendment to SECTION 4.10. Section 4.10 of the Indenture,
entitled "Limitation on Issuance of Preferred Stock by Subsidiaries," is hereby
amended by deleting such Section 4.10 in its entirety.
Section 7. Amendment to SECTION 4.11. Section 4.11 of the Indenture,
entitled "Limitation on Guarantees by Subsidiaries," is hereby amended by
deleting such Section 4.11 in its entirety.
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Section 8. Amendment to SECTION 4.12. Section 4.12 of the Indenture,
entitled "Limitation on Liens," is hereby amended by deleting such Section 4.12
in its entirety.
Section 9. Amendment to SECTION 4.13. Section 4.13 of the Indenture,
entitled "Limitation on Restricted Payments," is hereby amended by deleting such
Section 4.13 in its entirety.
Section 10. Amendment to SECTION 4.14. Section 4.14 of the Indenture,
entitled "Limitation on Certain Sales of Assets and Subsidiary Stock," is hereby
amended by deleting such Section 4.14 in its entirety.
Section 11. Amendment to SECTION 4.16. Section 4.16 of the Indenture,
entitled "Change of Control," is hereby amended by deleting such Section 4.16 in
its entirety.
Section 12. Amendment to SECTION 4.17. Section 4.17 of the Indenture,
entitled "Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries," is hereby amended by deleting such Section 4.17 in its entirety.
Section 13. Amendment to SECTION 5.1. The text of Section 5.1 of the
Indenture, captioned "When Company May Merge, Etc.," is hereby amended by
amending paragraph (a) of such Section to read in its entirety as follows:
(a) The Company shall not consolidate with or merge
with or into any Person or, directly or indirectly, sell,
assign, convey, lease, transfer or otherwise dispose of all
or substantially all of its properties and assets in a single
transaction or through a series of transactions (including by
way of merger or consolidation of the Company or any of its
Subsidiaries) unless:
(i) either (a) the Company shall be the
continuing Person, or (b) the resulting, surviving
or transferee Person (the "surviving entity") shall
be a corporation organized and existing under the
laws of the United States, any State thereof or the
District of Columbia;
(ii) the surviving entity shall expressly
assume, by a supplemental indenture executed and
delivered to the Trustee, in form and substance
reasonably satisfactory to the Trustee, all of the
obligations of the Company under the Securities and
this Indenture;
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(iii) immediately before and immediately
after giving effect to such transaction or series
of transactions on a pro forma basis (including,
without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in
respect of such transaction or series of
transactions), no Default or Event of Default shall
have occurred and be continuing;
(iv) [DELETED]
(v) [DELETED]
(vi) the Company or the surviving entity
shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition
and, if a supplemental indenture is required in
connection with such transaction or series of
transactions, such supplemental indenture, complies
with this Section 5.1(a), and that all conditions
precedent provided for in this Indenture relating
to such transaction or series of transactions have
been satisfied; and
(vii) each Guarantor shall, by
supplemental indenture, confirm that its Guarantee
shall apply to the Company's or the surviving
entity's obligations under the Securities and this
Indenture, as modified by such supplemental
indenture, and confirm the due and punctual
performance of the Guarantee and every covenant in
this Indenture on the part of the Guarantors to be
performed or observed.
Section 14. Amendment to SECTION 6.1. The text of Section 6.1 of the
Indenture, captioned "Events of Default," is hereby amended to read in its
entirety as follows:
(a) An "Event of Default" shall occur if:
(i) a default in the payment of interest
on the Securities when the same becomes due and
payable shall have occurred and any such Default
shall have continued for a period of 30 days
(whether or not such payment shall be prohibited by
the subordination provisions of Article X hereof);
or
(ii) a default in the payment of the
principal of, or premium, if any, on the Securities
when the same becomes due and payable upon
maturity, acceleration, redemption, pursuant to an
offer to purchase required by this Indenture or
otherwise shall have occurred (whether or not such
payment shall be prohibited by the subordination
provisions of Article X hereof); or
(iii) a default in the performance of, or
breach of, any covenant of this Indenture (other
than defaults specified in clause (i) or (ii)
above) shall have
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occurred, and such Default shall have continued for
a period of 30 days after written notice to the
Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate
principal amount of the outstanding Securities; or
(iv) [DELETED]
(v) [DELETED]
(vi) any provision of Article X shall be
declared or adjudged to be invalid or unenforceable
in a judgment, order or decree which shall either
be subject to no further appeal or shall have
remained in effect for a period of 60 days during
which no appeal shall be in effect; or
(vii) the Company, any Guarantor that is
a Material Subsidiary or any other Material
Subsidiary of the Company pursuant to or within the
meaning of any Bankruptcy Law:
(V) commences a voluntary case
or proceeding,
(W) consents to the entry of an
order for relief against it in an
involuntary case or proceeding,
(X) consents to the appointment
of a Custodian of it or for all or
substantially all of its property,
(Y) makes a general assignment
for the benefit of its creditors or
(Z) admits in writing that it
generally cannot pay its debts when such
debts become due; or
(viii) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law
that:
(X) is for relief against the
Company, any Guarantor that is a Material
Subsidiary or any other Material
Subsidiary of the Company in an
involuntary case or proceeding,
(Y) appoints a Custodian of the
Company, any Guarantor that is a Material
Subsidiary or any other Material
Subsidiary of the Company for all or
substantially all of its properties, or
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(Z) orders the liquidation of
the Company, any Guarantor that is a
Material Subsidiary or any other Material
Subsidiary of the Company
and in each case the order or decree remains unstayed and in
effect for 60 days; provided, however, that if the entry of
such order or decree is appealed and dismissed on appeal then
the Event of Default hereunder by reason of the entry of such
order or decree shall be deemed to have been cured.
(b) For purposes of this Section 6.l, the term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or
similar official charged with maintaining possession or control over
property for one or more creditors.
(c) [DELETED]
(d) Subject to the provisions of Sections 7.1 and 7.2, the
Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Trust Officer
at the corporate trust office of the Trustee by the Company, the Paying
Agent, any Holder or an agent of any Holder or unless a Trust Officer
otherwise has actual knowledge thereof.
Section 15. Revision of Form of Notes. Pursuant to Section 9.5 of the
Indenture, paragraph 4 of the Form of Notes will be revised, and paragraph 7
will be deleted, to give effect to the amendments made hereby.
Section 16. Operative Effect of Amendments. Sections 2 through 15
hereof shall not become operative unless and until the acceptance by the Company
of all Securities (and related consents) validly tendered or delivered (and not
withdrawn) pursuant to the Tender Offer and Consent Solicitation, at which time
such Sections shall become operative and shall be in full force and effect.
Section 17. Confirmation of Indenture. The Company and each of the
Guarantors affirms the continuing effect of the Indenture, as supplemented by
this Fifth Supplemental Indenture; and each of the Guarantors affirms the
continuing effect of its guarantee of the obligations of the Company under the
Indenture and the Securities issued under the Indenture.
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Section 18. Instrument. From and after the date hereof, the Indenture,
as supplemented by this Fifth Supplemental Indenture, shall be read, taken and
construed as one and the same instrument with respect to the Securities.
Section 19. Counterparts. This Fifth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 20. Termination. This Fifth Supplemental Indenture shall be
terminated and shall be of no further force and effect if the Tender Offer and
Consent Solicitation is terminated or expires without the purchase of any
Securities by the Company.
Section 21. GOVERNING LAW. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS FIFTH SUPPLEMENTAL
INDENTURE.
Section 22. Trustee Disclaimer. The Trustee accepts the supplement to
the Indenture effected by this Fifth Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby supplemented, but only upon
the terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Indenture hereby supplemented. Except to the extent that they relate to action
taken by the Trustee, the Trustee shall not be responsible in any manner
whatsoever for or with respect
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to (i) the validity, efficacy or sufficiency of this Fifth Supplemental
Indenture or any of the terms or provisions hereof, (ii) the proper
authorization hereof by the Company and the Guarantors by corporate action or
otherwise, (iii) the due execution hereof by the Company and the Guarantors, or
(iv) the consequences (direct or indirect and whether deliberate or inadvertent)
of any supplement herein provided for, and the Trustee makes no representation
with respect to any such matters.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed, all as of the date first written
above.
ATTEST: AMC ENTERTAINMENT INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President and Chief
Financial Officer
ATTEST: UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
/s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
ATTEST: AMERICAN MULTI-CINEMA, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President and Chief
Financial Officer
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ATTEST: AMC REALTY, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President and Chief
Financial Officer
ATTEST: CONSERVCO, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President and Chief
Financial Officer
ATTEST: AMC CANTON REALTY, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President and Chief
Financial Officer
ATTEST: AMC PHILADELPHIA, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President and Chief
Financial Officer
ATTEST: BUDCO THEATRES, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President and Chief
Financial Officer
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ATTEST: CONCORD CINEMA, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President and Chief
Financial Officer
ATTEST: AMC FILM MARKETING, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President and Chief
Financial Officer
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