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Exhibit 4.11
REGAL CINEMAS, INC.
XXXX FINANCE CORP.
X.X. XXXX, INC.
XXXX THEATRES II, INC.
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10 5/8% SENIOR SECURED NOTES DUE 2003
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FOURTH SUPPLEMENTAL INDENTURE
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DATED AS OF AUGUST 28, 1997
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SUPPLEMENTING INDENTURE DATED AS OF MARCH 6, 1996
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IBJ XXXXXXXX BANK & TRUST COMPANY
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TRUSTEE
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FOURTH SUPPLEMENTAL INDENTURE, dated as of August 28, 1997 (the "Fourth
Supplemental Indenture"), among REGAL CINEMAS, INC., a Tennessee corporation
(the "Company"), XXXX FINANCE CORP., an Alabama corporation ("Finance Corp.,"
and together with the Company, the "Issuers"), X.X. XXXX, INC. an Alabama
corporation ("X.X. Xxxx"), XXXX THEATRES II, INC. ("Xxxx Theatres II," and
together with X.X. Xxxx, the "Guarantors"), and IBJ XXXXXXXX BANK & TRUST
COMPANY, a New York banking corporation, as trustee (the "Trustee").
WHEREAS, the Issuers and the Guarantors have executed and delivered to
the Trustee that certain Indenture dated as of March 6, 1996 among the Issuers,
the Guarantors and the Trustee (the "Original Indenture"), as amended by that
certain First Supplemental Indenture dated August 30, 1996 (the "First
Supplemental Indenture"), by that certain Second Supplemental Indenture dated
July 30, 1997 (the "Second Supplemental Indenture") and by that certain Third
Supplemental Indenture dated July 31, 1997 (the "Third Supplemental Indenture")
(the Original Indenture as amended by the First Supplemental Indenture, the
Second Supplemental Indenture, the Third Supplemental Indenture and this Fourth
Supplemental Indenture being herein referred to as the "Indenture"); and
WHEREAS, there have been issued and are now outstanding under the
Indenture $85,000,000 principal amount of 10 5/8% New Senior Secured Notes due
2003 (the "Notes"); and
WHEREAS, pursuant to an Agreement and Plan of Merger dated June 11,
1997 among the Company, Regal Acquisition Corporation, RAC Corporation, RAC
Finance Corp., Xxxx Theatres, L.L.C., X. X. Xxxx, Xxxx Theatres II, Finance
Corp. and Tricob Partnership, the Company acquired all of the issued and
outstanding shares of stock of Finance Corp., X. X. Xxxx and Xxxx Theatres II
(collectively, the "Subsidiaries"); and
WHEREAS, in connection with the mergers, the Company assumed all the
obligations of Xxxx Theatres, L.L.C. under the Indenture; and
WHEREAS, Section 4.15 of the Indenture provides that upon a Change of
Control, the Company shall, within ten (10) days following a Change of Control,
make an offer for the purchase of the Notes at a price payable in cash equal to
101% of the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon until the date of purchase; and
WHEREAS, the Company has offered to purchase the Notes for cash, upon
the terms and conditions set forth in an Offer to Purchase and Consent
Solicitation Statement dated as of August 14, 1997 (the "Statement") from all of
the Holders thereof, at a purchase price determined as set forth in the
Statement with reference to a fixed spread of 50 basis points over the yield to
maturity of the United States Treasury 7 1/8% Notes due February 24, 2000 (of
which an amount equal to 1% of the principal amount of each Note purchased shall
constitute a consent payment that will
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only be paid for Notes tendered on or prior to the Consent Date (as defined in
the Statement)) plus accrued and unpaid interest up to, but not including the
date of payment (the "Tender Offer"); and
WHEREAS, in connection with the Tender Offer, the Company also
solicited consents for certain proposed amendments to the Indenture to eliminate
or amend certain of the covenants and other provisions contained in the
Indenture; and
WHEREAS, Holders who validly tender their Notes are deemed to
acknowledge and agree that the Tender Offer constitutes a waiver of the Holders'
right to receive, and satisfies the obligation of the Company to provide, a
Change of Control Offer, pursuant to Section 4.15 of the Indenture; and
WHEREAS, Section 9.03 of the Indenture provides, in relevant part, that
the Issuers, the Guarantors and the Trustee may enter into indentures
supplemental to the Indenture with the consent of at least 66 2/3% in principal
amount of Notes outstanding to, among other things, delete and/or amend certain
provisions of the Indenture, such consent having been obtained in connection
with the above-described consent solicitation; and
WHEREAS, all things necessary to make this Fourth Supplemental
Indenture a valid and binding supplemental indenture and agreement according to
its terms have been done.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, Finance Corp., the Guarantors and the Trustee
covenant and agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 101. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Original Indenture has the same meaning when
used in this Fourth Supplemental Indenture unless otherwise defined herein (in
which case the definition set forth herein shall govern);
(b) a term defined anywhere in this Fourth Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa; and
(d) headings are for convenience of reference only and do not affect
interpretation.
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ARTICLE TWO
AMENDMENT
SECTION 201. Deletion of Certain Provisions.
Pursuant to the terms of the Statement, and the consent of 66 2/3% of
the Holders having been obtained by the Company, the Indenture is hereby amended
to delete the following sections in their entirety and any and all references to
such sections shall be deleted throughout the Indenture:
(a) Section 3.09 -- Offer to Purchase by Application of Excess
Proceeds.
(b) Section 4.03 -- Reports.
(c) Section 4.07 -- Restricted Payments.
(d) Section 4.08 -- Dividend and Other Payment Restrictions Affecting
Subsidiaries.
(e) Section 4.09 -- Incurrence of Indebtedness and Issuance of
Disqualified Interests.
(f) Section 4.10 -- Asset Sales.
(g) Section 4.12 -- Transactions with Affiliates.
(h) Section 4.13 -- Liens.
(i) Section 4.14 -- Continued Existence.
(j) Section 4.15 -- Offer to Repurchase Upon Change of Control.
(k) Section 4.16 -- Additional Subsidiary Guarantees.
(l) Section 4.17 -- Limitation on Issuances and Sales of Equity
Interests of Wholly Owned Subsidiaries.
(m) Section 4.18 -- Business Activities.
(n) Section 4.19 -- Advances to Subsidiaries.
(o) Section 4.20 -- Restriction on Nature of Indebtedness and
Activities of Finance Corp.
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(p) Section 4.21 -- Restriction on Indirect Subsidiaries.
(q) Section 5.01 -- Merger, Consolidation, or Sale of Assets.
SECTION 202. Amendment of Article 10.
Article 10 of the Indenture is hereby deleted in its entirety and any
and all references to Article 10 (or any Section therein) is hereby deleted
throughout the Indenture. The Trustee and the Collateral Agent are hereby
authorized to release the Collateral Documents and all Collateral held pursuant
thereto. In connection therewith, the Trustee shall instruct the Collateral
Agent to release the Liens.
SECTION 203. Amendment of Article 11.
Article 11 of the Indenture in hereby deleted in its entirety and any
and all references to Article 11 (or any Section therein) is hereby deleted
throughout the Indenture, and the Trustee is hereby authorized to release the
Subsidiary Guarantee executed by each of the Guarantors.
SECTION 204. Deletion of Certain Definitions.
In connection with the amendment or deletion of the Sections referenced
in Sections 201, 202 and 203 hereof, Article 1 of the Indenture is hereby
amended to delete the following definitions in their entirety and delete
reference to them throughout the Indenture:
(a) "Acquired Indebtedness";
(b) "Affiliate Transaction";
(c) "Approved Theatre Swap";
(d) "Asset Sale";
(e) "Asset Sale Offer";
(f) "Capital Lease Obligation";
(g) "Cash Equivalents";
(h) "Change of Control";
(i) "Change of Control Offer";
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(j) "Change of Control Payment";
(k) "Change of Control Payment Date";
(l) "Collateral";
(m) "Collateral Agent";
(n) "Collateral Documents";
(o) "Consolidated Net Income";
(p) "Consolidated Cash Flow";
(q) "Consolidated Net Worth";
(r) "Disqualified Interests";
(s) "Existing Indebtedness";
(t) "Existing Tricob Contracts";
(u) "Fixed Charges";
(v) "Fixed Charge Coverage Ratio";
(w) "Guarantors";
(x) "Guarantee";
(y) "Headquarters Lease";
(z) "Hedging Obligations";
(aa) "Indebtedness";
(bb) "Lien";
(cc) "Obligations";
(dd) "Operating Agreement";
(ee) "Net Income";
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(ff) "Net Proceeds";
(gg) "Permitted Investments";
(hh) "Permitted Liens";
(ii) "Permitted Refinancing Indebtedness";
(jj) "Restricted Investment";
(kk) "Restricted Payments";
(ll) "Sipsey River Contract";
(mm) "Subsidiary Guaranties"; and
(nn) "Subsidiary Intercompany Notes".
SECTION 206. Amendment of Section 6.01.
In connection with the amendment or deletion of certain covenants in
the Indenture pursuant to Sections 201, 202 and 203 hereof, Section 6.01 of the
Indenture, which sets forth certain events constituting a default under the
Indenture, is hereby amended as follows:
(a) Subsection (a) is hereby amended to delete "or the Guarantors"
in the first line.
(b) Subsection (b) is hereby amended to delete "or the Guarantors"
in the first line.
(c) Subsection (c) is hereby deleted in its entirety.
(d) Subsection (d) is hereby deleted in its entirety and replaced
with the following:
"(d) the Issuers fail to observe or perform any other
covenant, representation, warranty or other agreement in this
Indenture or the Notes and the Default continues for the
period and after the notice specified below;"
(e) Subsection (g) is hereby deleted in its entirety;
(f) Subsection (h) is hereby amended to delete "any Guarantor" in
the first line.
(g) Subsection (j) is hereby deleted in its entirety.
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SECTION 207. Change of Control Offer.
Holders who validly tender their Notes pursuant to the terms of the
Tender Offer are deemed to acknowledge and agree that the Tender Offer
constitutes a waiver of the Holders' right to receive, and satisfies the
obligation of the Company to provide, a Change of Control Offer, pursuant to
Section 4.15 of the Indenture.
SECTION 208. Name of Notes.
The Notes shall hereafter be referred to as "10 5/8% Notes due 2003."
SECTION 209. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS FOURTH SUPPLEMENTAL INDENTURE, THE INDENTURE,
THE NOTES AND THE GUARANTEES.
SECTION 210. Effectiveness.
Provided that this Fourth Supplemental Indenture has been executed by
all parties hereto and a fully-executed copy has been delivered to the Trustee,
the provisions of this Fourth Supplemental Indenture will take effect upon the
acceptance by the Company of all Notes validly tendered (and not withdrawn)
pursuant to the Tender Offer.
SECTION 211. Reaffirmation of Indenture.
Except as supplemented by this Fourth Supplemental Indenture, the
Original Indenture as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture and the Third Supplemental Indenture is in all
respects ratified and confirmed, and the Original Indenture as supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and this Fourth Supplemental Indenture shall be read,
taken and construed as one and the same instrument so that all of the rights,
remedies, terms and conditions, covenants and agreements of the Original
Indenture, as amended, shall apply and remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
REGAL CINEMAS, INC.
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
XXXX FINANCE CORP.
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
X.X. XXXX, INC.
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
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XXXX THEATRES II, INC.
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
IBJ XXXXXXXX BANK & TRUST
COMPANY, INC., as Trustee
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
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