EXHIBIT 4.3
EXECUTION COPY
AMC Entertainment Inc.
9 1/2% Senior Subordinated Notes due 2011
INDENTURE
Dated as of January 27, 1999
The Bank of New York
Trustee
INDENTURE dated as of January 27, 1999, between AMC Entertainment
Inc., a Delaware corporation (the "Company") and The Bank of New York,
a New York banking corporation, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the Company's
9 1/2% Senior Subordinated Notes due 2011, to be issued, from time to
time, in one or more series as in this Indenture provided (the
"Initial Securities") and, if and when issued pursuant to a registered
or private exchange for the Initial Securities, the Company's 9 1/2%
Senior Subordinated Notes due 2011 (the "Exchange Securities") and if
and when issued pursuant to a private exchange for Initial Securities,
the Company's 9 1/2% Senior Subordinated Notes due 2011 (the "Private
Exchange Securities" and, together with the Initial Securities and the
Exchange Securities, the "Securities"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"9 1/2% Notes due 2009" means the Company's 9 1/2% Senior
Subordinated Notes due 2009.
"Acquired Indebtedness" of any particular Person means
Indebtedness of any other Person existing at the time such other
Person merged with or into or became a Subsidiary of such particular
Person or assumed by such particular Person in connection with the
acquisition of assets from any other Person, and not incurred by such
other Person in connection with, or in contemplation of, such other
Person merging with or into such particular Person or becoming a
Subsidiary of such particular Person or such acquisition.
"Affiliate" means, with respect to any specified Person, (1)
any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person
or (ii) any other Person that owns, directly or indirectly, ten
percent or more of such Person's Capital Stock or any officer or
director of any such Person or other Person or with respect to any
natural Person, any person having a relationship with such Person by
blood, marriage or adoption not more remote than first cousin. For
the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and controlled" have meanings correlative to the
foregoing.
"Bankruptcy Laws" means the bankruptcy laws of the United
States and the law of any other jurisdiction relating to bankruptcy,
insolvency, winding up, liquidation, reorganization or relief of
debtors.
"Board of Directors" means the Board of Directors of the
Company or any committee of such Board of Directors duly authorized to
act under the Indenture.
"Board Resolution" means a copy of a resolution, certified
by the Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday
or other day on which banks in New York, New York, Kansas City,
Missouri, or the city in which the Trustee's Office is located are
authorized or required to be closed or, if no Security is outstanding,
the city in which the principal corporate trust office of the Trustee
is located.
"Capital Lease Obligation" of any Person means any
obligations of such Person and its Subsidiaries on a consolidated
basis under any capital lease of a real or personal property which, in
accordance with GAAP, has been recorded as a capitalized lease
obligation (together with Indebtedness in the form of operating leases
entered into by the Company or its Subsidiaries after May 21, 1998 and
required to be reflected on a consolidated balance sheet pursuant to
EITF 97-10).
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of
such Person's capital stock, any rights (other than debt securities
convertible into capital stock), warrants or options to acquire such
capital stock, whether now outstanding or issued after the date of the
Indenture.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality,
(iii) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any United States domestic
commercial bank having capital and surplus in excess of $500 million
and a Xxxxx Bank Watch Rating of "B" or better, (iv) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered
into with any financial institution meeting the qualifications
specified in clause (iii) above, (v) commercial paper having one of
the two highest rating categories obtainable from Xxxxx'x or S&P in
each case maturing within six months after the date of acquisition and
(vi) readily marketable direct obligations issued by any State of the
United States of America or any political subdivision thereof having
one of the two highest rating categories obtainable from Xxxxx'x or
S&P.
"Change of Control" means the occurrence of, after the date
of the Indenture, either of the following events (a) any Person (other
than a Permitted Holder) or any Persons (other than any Permitted
Holders) acting together that would constitute a group (for purposes
of Section 13(d) of the Exchange Act, or any successor provision
thereto) (a "Group"), together with any Affiliates thereof (other than
any Permitted Holders) shall beneficially own (as defined in Rule
13d-3 under the Exchange Act, or any successor provision thereto) at
least 50% of the aggregate voting power of all classes of Capital
Stock of the Company entitled to vote generally in the election of
directors (the determination of aggregate voting power to recognize
that the Company's Class B Stock, par value 66 2/3 cents per share,
currently has ten votes per share and the Company's Common Stock,
par value 66 2/3 cents
per share, currently has one vote per share) or (b) any Person (other
than a Permitted Holder) or Group (other than any Permitted Holders)
together with any Affiliates thereof (other than any Permitted
Holders) shall succeed in having a sufficient number of its nominees
who are not management nominees elected to the Board of Directors of
the Company such that such nominees when added to any existing
director remaining on the Board of Directors of the Company after such
election who is an Affiliate (other than any Permitted Holder) of such
Group, will constitute a majority of the Board of Directors of the
Company.
"Closing Date" means the date on which the Original
Securities are originally issued under the Indenture.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person. To the
extent necessary to comply with the requirements of the provisions of
Trust Indenture Act Sections 310 through 317 as they are applicable to
the Company, the term "Company" shall include any other obligor with
respect to the Securities for the purposes of complying with such
provisions.
"Consolidated EBITDA" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period
increased (to the extent deducted in determining Consolidated Net
Income) by the sum of: (i) all income taxes of such Person and its
Subsidiaries paid or accrued in accordance with GAAP for such period
(other than income taxes attributable to extraordinary, unusual or
nonrecurring gains or losses); (ii) Consolidated Interest Expense of
such Person and its Subsidiaries for such period; (iii) depreciation
expense of such Person and its Subsidiaries for such period; (iv)
amortization expense of such Person and its Subsidiaries for such
period including amortization of capitalized debt issuance costs; and
(v) any other non-cash charges of such Person and its Subsidiaries for
such period (including non-cash expenses recognized in accordance with
Financial Accounting Standard Number 106), all determined on a
consolidated basis in accordance with GAAP; provided, however, that,
for purposes of this definition, all transactions involving the
acquisition of any Person or motion picture theatre by another Person
shall be accounted for on a "pooling of interests" basis and not as a
purchase; provided, further, that, solely with respect to calculations
of the Consolidated EBITDA Ratio: (i) Consolidated EBITDA shall
include the effects of incremental contributions the Company
reasonably believes in good faith could have been achieved during the
relevant period as a result of a Theatre Completion had such Theatre
Completion occurred as of the beginning of the relevant period;
provided, however, that such incremental contributions were identified
and quantified in good faith in an Officers' Certificate delivered to
the Trustee at the time of any calculation of the Consolidated EBITDA
Ratio, (ii) Consolidated EBITDA shall be calculated on a pro forma
basis after giving effect to any motion picture theatre or screen that
was permanently or indefinitely closed for business at any time on or
subsequent to the first day of such period as if such theatre or
screen was closed for the entire period, and (iii) all preopening
expense and theatre closure expense which reduced Consolidated Net
Income during any applicable period shall be added to Consolidated
EBITDA.
"Consolidated EBITDA Ratio" of any Person means, for any
period, the ratio of Consolidated EBITDA to Consolidated Interest
Expense for such period (other than any non-cash Consolidated Interest
Expense attributable to any amortization or write-off of deferred
financial costs); provided that, in making such computation, (A) the
Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a pro forma basis and bearing a floating
interest rate shall be computed as if the rate in effect on the date
of computation had been the applicable rate for the entire period and
(B) with respect to any Indebtedness which bears, at the option of
such Person, a fixed or floating rate of interest, such Person shall
apply, at its option, either the fixed or floating rate.
"Consolidated Interest Expense" of any Person means, without
duplication, for any period, as applied to any Person, (A) the sum of
(a) the aggregate of the interest expense on Indebtedness of such
Person and its consolidated Subsidiaries for such period, on a
consolidated basis, including, without limitation, (i) amortization of
debt discount, (ii) the net cost under Interest Rate Protection
Agreements (including amortization of discounts), (iii) the interest
portion of any deferred payment obligation and (iv) accrued interest,
plus (b) the interest component of the Capital Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by such Person and its
consolidated Subsidiaries during such period, minus (B) the cash
interest income (exclusive of deferred financing fees) of such Person
and its consolidated subsidiaries during such period, in each case as
determined in accordance with GAAP consistently applied.
"Consolidated Net Income (Loss)" of any Person means, for
any period, the consolidated net income (or loss) of such Person and
its consolidated Subsidiaries for such period as determined in
accordance with GAAP, adjusted, to the extent included in calculating
such net income (loss), by excluding all extraordinary gains or losses
(net of reasonable fees and expenses relating to the transaction
giving rise thereto) of such Person and its Subsidiaries.
"Construction Indebtedness" means Indebtedness incurred by
the Company or its Subsidiaries in connection with the construction of
motion picture theatres or screens.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of
this Indenture is located at 000 Xxxxxxx Xxxxxx, 00 X, Xxx Xxxx, Xxx
Xxxx 00000.
"Credit Facility" means that certain Xxxxxxx and Restated
Credit Agreement, dated as of April 10, 1997, among the Company, The
Bank of Nova Scotia, as administrative agent, Bank of America National
Trust and Savings Association, as document agent, and the various
other financial institutions thereto, as the same may be amended from
time to time, together with any extension, revisions, refinancing or
replacement thereof by a lender or syndicate of lenders.
"Currency Hedging Obligations" means the obligations of any
Person pursuant to an arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Debt Rating" means the rating assigned to the Securities by
Xxxxx'x or S&P, as the case may be.
"Default" means any event which is, or after notice or the
passage of time or both, would be, an Event of Default.
"Designated Senior Indebtedness" means (i) all Senior
Indebtedness under the Credit Facility and (ii) any other Senior
Indebtedness (a) which at the time of determination exceeds $30
million in aggregate principal amount, (b) which is specifically
designated in the instrument evidencing such Senior Indebtedness as
"Designated Senior Indebtedness" by the Company and (c) as to which
the Trustee has been given written notice of such designation. The
"authorized representative" of Designated Senior Indebtedness shall be
the agent under the Credit Facility (initially, The Bank of Nova
Scotia) or other representative, designated in writing by the Company
to the Trustee, of the holders of any class or issue of Designated
Senior Indebtedness.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's length
transaction between an informed and willing seller under no compulsion
to sell and an informed and willing buyer under no compulsion to buy.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States,
consistently applied.
"Guarantee" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person directly or
indirectly guaranteeing any Indebtedness or other obligation of any
other Person and, without limiting the generality of the foregoing,
any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such
other Person (whether arising by virtue of partnership arrangements,
or by agreements to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided that the term
"Guarantee" shall not include endorsements for collection or deposit
in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guaranteed Indebtedness" of any Person means, without
duplication, all Indebtedness of any other Person referred to in the
definition of Indebtedness and all dividends of other Persons for the
payment of which, in either case, such Person is directly or
indirectly responsible or liable as obligor, guarantor or otherwise.
"Holder" or "Securityholder" means the Person in whose name
a Security is registered on the Security register described in
Section 2.04. as the registered holder of any Security.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services, excluding any
trade payables and other accrued current liabilities incurred in the
ordinary course of business, but including, without limitation, all
obligations of such Person in connection with any letters of credit
and acceptances issued under letter of credit facilities, acceptance
facilities or other similar facilities, now or hereafter outstanding,
(ii) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments, (iii) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
property), but excluding trade accounts payable arising in the
ordinary course of business, (iv) every obligation of such Person
issued or contracted for as payment in consideration of the purchase
by such Person or a Subsidiary of such Person of the Capital Stock or
substantially all of the assets of another Person or in consideration
for the merger or consolidation with respect to which such Person or a
Subsidiary of such Person was a party, (v) all Indebtedness referred
to in clauses (i) through (iv) above of other Persons and all
dividends of other Persons, the payment of which is secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in
property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness, (vi) all
Guaranteed Indebtedness of such Person, (vii) all obligations under
Interest Rate Protection Agreements of such Person, (viii) all
Currency Hedging Obligations of such Person (ix) all Capital Lease
Obligations of such Person, and (x) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (i) through (ix) above.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules hereto) and as it may from time
to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Interest Rate Protection Agreement" means any interest rate
protection agreement, interest rate future agreement, interest rate
option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge
agreement, option or future contract or other similar agreement or
arrangement designed to protect the Company or any of its Subsidiaries
against fluctuations in interest rates.
"Investment Grade Status" exists as of a date and thereafter
if at such date either (i) the Debt Rating of Xxxxx'x is at least Baa3
(or the equivalent) or higher or (ii) the Debt Rating of S&P is at
least BBB- (or the equivalent) or higher.
"Lien" means any mortgage, lien (statutory or other),
pledge, security interest, encumbrance, claim, hypothecation,
assignment for security, deposit arrangement or preference or other
security agreement of any kind or nature whatsoever. A Person shall
be deemed to own subject to a Lien any property which it has acquired
or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention
agreement relating to Indebtedness of such Person. The right of a
distributor to the return of its film held by a Person under a film
licensing agreement is not a Lien as used herein. Reservation of
title under an operating lease by the lessor and the interest of the
lessee therein are not Liens as used herein.
"Maturity" means, with respect to any Security, the date on
which the principal of such Security becomes due and payable as
provided in such Security or the Indenture, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor to the rating agency business thereof.
"Non-Payment Default" means any event of default with
respect to any Designated Senior Indebtedness (other than a Payment
Default) pursuant to which the Maturity thereof may be accelerated.
"Non-Recourse Indebtedness" means Indebtedness as to which
(i) none of the Company or any of its Subsidiaries (a) provides credit
support (including any undertaking, agreement or instrument which
would constitute Indebtedness) or (b) is directly or indirectly liable
and (ii) no default with respect to such Indebtedness (including any
rights which the holders thereof may have to take enforcement action
against the relevant Unrestricted Subsidiary or its assets) would
permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Company or its Subsidiaries (other than Non-
Recourse Indebtedness) to declare a default on such other Indebtedness
or cause the payment thereof to be accelerated or payable prior to its
stated maturity.
"Obligations" means any principal (including reimbursement
obligations and guarantees), premium, if any, interest (including
interest accruing on or after the filing of, or which would have
accrued but for the filing of, any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for
post-filing interest is allowed in such proceedings), penalties, fees,
expenses, indemnifications, reimbursements, claims for rescission,
damages, gross-up payments and other liabilities payable under the
documentation governing any Indebtedness or otherwise.
"Officer" means the Chairman of the Board, any Co-Chairman
of the Board, President, the Chief Executive Officer, any Executive
Vice President, any Senior Vice President and the Chief Financial
Officer of the Company.
"Officers' Certificate" means a certificate signed by two
Officers. Each such certificate shall include the statements provided
for in Trust Indenture Act Section 314(e) to the extent applicable.
"Opinion of Counsel" means a written opinion of counsel to
the Company or any other Person reasonably satisfactory to the
Trustee.
"Payment Default" means any default in payment (whether at
stated maturity, upon scheduled installment, by acceleration or
otherwise) of principal of, premium, if any, or interest in respect of
any Senior Indebtedness beyond any applicable grace periods.
"Permitted Holder" means (i) Xx. Xxxxxxx X. Xxxxxxx, his
spouse and any of his lineal descendants and their respective spouses
(collectively, the "Xxxxxxx Family") and any Affiliate of any member
of the Xxxxxxx Family, (ii) Xx. Xxxxxxx X. Xxxxxxx'x estate, or any
trust established by Xx. Xxxxxxx X. Xxxxxxx, during any period of
administration prior to the distribution of assets to beneficiaries
who are Persons described in clause (iii) below, (iii) any trust which
is established solely for the benefit of one or more members of the
Xxxxxxx Family (whether or not any member of the Xxxxxxx Family is a
trustee of such trust) or solely for the benefit of one or more
charitable organizations or solely for the benefit of a combination of
members of the Xxxxxxx Family and one or more charitable organizations
and (iv) any Subsidiary, any employee stock purchase plan, stock
option plan or other stock incentive plan or program, retirement plan
or automatic reinvestment plan or any substantially similar plan of
the Company or any Subsidiary or any Person holding securities of the
Company for or pursuant to the terms of any such employee benefit
plan; provided that if any lender or other Person shall foreclose on
or otherwise realize upon or exercise any remedy with respect to any
security interest in or Lien on any securities of the Company held by
any Person listed in this clause (iv), then such securities shall no
longer be deemed to be held by a Permitted Holder.
"Permitted Indebtedness" means the following:
(i) Indebtedness of the Company under the Original
Securities or upon an exchange of such Original Securities
for Exchange Securities or Private Exchange Securities, such
Exchange Securities or Private Exchange Securities;
(ii) Indebtedness of the Company under the Credit
Facility in an aggregate principal amount at any one time
outstanding not to exceed $425 million;
(iii) Indebtedness of the Company or any of its
Subsidiaries outstanding on the Closing Date;
(iv) Indebtedness of the Company or any of its
Subsidiaries consisting of Permitted Interest Rate
Protection Agreements;
(v) Indebtedness of the Company or any of its
Subsidiaries to any one or the other of them;
(vi) Indebtedness incurred to renew, extend, refinance
or refund (each, a "refinancing") any Indebtedness
outstanding on the Closing Date in an aggregate principal
amount not to exceed the principal amount of the
Indebtedness so refinanced plus the amount of any premium
required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness so refinanced or
the amount of any premium reasonably determined by the
Company as necessary to accomplish such refinancing by means
of a tender offer or privately negotiated repurchase, plus
the expenses of the Company incurred in connection with such
refinancing;
(vii) Indebtedness of any Subsidiary incurred in
connection with the Guarantee of any Indebtedness of the
Company;
(viii) Indebtedness relating to Currency Hedging
Obligations entered into solely to protect the Company or
any of its Subsidiaries from fluctuations in currency
exchange rates and not to speculate on such fluctuations;
(ix) Capital Lease Obligations of the Company or any of
its Subsidiaries;
(x) Indebtedness of the Company or any of its
Subsidiaries in connection with one or more standby letters
of credit or performance bonds issued in the ordinary course
of business or pursuant to self-insurance obligations;
(xi) Indebtedness represented by property, liability and
workers' compensation insurance (which may be in the form of
letters of credit);
(xii) Acquired Indebtedness, provided that such
Indebtedness, if incurred by the Company, would be in
compliance with Section 4.05;
(xiii) Indebtedness of the Company or any of its
Subsidiaries to an Unrestricted Subsidiary for money
borrowed; provided that (a) such Indebtedness is
subordinated in right of payment to the Securities by
incorporation by reference of and in accordance with the
provisions set forth in Schedule I hereto and (b) the
Weighted Average Life of such Indebtedness is greater than
the Weighted Average Life of the Securities;
(xiv) Construction Indebtedness in an aggregate principal
amount that does not exceed $100 million; and
(xv) Indebtedness not otherwise permitted to be incurred
pursuant to clauses (i) through (xiv) above which, together
with any other Indebtedness pursuant to this clause (xv),
has an aggregate principal amount that does not exceed
$100 million at any time outstanding.
"Permitted Interest Rate Protection Agreements" means, with
respect to any Person, Interest Rate Protection Agreements entered
into in the ordinary course of business by such Person that are
designed to protect such Person against fluctuations in interest rates
with respect to Permitted Indebtedness and that have a notional amount
no greater than the payment due with respect to Permitted Indebtedness
hedged thereby.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock
company, trust, estate, unincorporated organization or government or
any agency or political subdivision thereof.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms, by the terms of any security into which it is
convertible or exchangeable or otherwise, is or upon the happening of
an event or passage of time would be required to be redeemed prior to
the final Stated Maturity of the Securities or is redeemable at the
option of the holder thereof at any time prior to such final Stated
Maturity, or is convertible into or exchangeable for debt securities
at any time prior to such final Stated Maturity at the option of the
holder thereof.
"Representative" means the trustee, agent or representative
expressly authorized to act in such capacity, if any, for an issue of
Senior Indebtedness.
"Restricted Payments Computation Period" means the period
(taken as one accounting period) from the beginning of the first
fiscal quarter commencing after the Closing Date to the last day of
the Company's fiscal quarter preceding the date of the applicable
proposed Restricted Payment.
"S&P" means Standard & Poor's Ratings Service or any
successor to the rating agency business thereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Indebtedness" means (1) all obligations of the
Company, now or hereafter existing, under or in respect of the Credit
Facility, whether for principal, premium, if any, interest (including
interest accruing after the filing of, or which would have accrued but
for the filing of, a petition by or against the Company under the
Bankruptcy Laws, whether or not such interest is allowed as a claim
after such filing in any proceeding under such law), fees, expenses,
indemnities, gross-ups or other payments thereunder and (ii) the
principal of, premium, if any, and interest on all other Indebtedness
of the Company (other than the Securities and the 9 1/2% Notes due 2009),
whether outstanding on the date of the Indenture or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the
Securities. Notwithstanding the foregoing, "Senior Indebtedness"
shall not include (i) Indebtedness evidenced by the Securities and the
9 1/2% Notes due 2009, (ii) Indebtedness of the Company that is expressly
subordinated in right of payment to any Senior Indebtedness of the
Company, the Securities or the Indebtedness evidenced by the 9 1/2% Notes
due 2009, (iii) Indebtedness of the Company that by operation of law
is subordinate to any general unsecured obligations of the Company,
(iv) Indebtedness of the Company to the extent incurred in violation
of any covenant of the Indenture, (v) any liability for federal, state
or local taxes or other taxes, owed or owing by the Company, (vi)
trade account payables owed or owing by the Company, (vii) amounts
owed by the Company for compensation to employees or for services
rendered to the Company, (viii) Indebtedness of the Company to any
Subsidiary or any other Affiliate of the Company and (ix) Indebtedness
which when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code is without
recourse to the Company or any Subsidiary.
"Stated Maturity," when used with respect to any Security or
any installment of interest thereof, means the date specified in such
Security as the fixed date on which the principal of such Security or
such installment of interest is due and payable.
"Subsidiary" of any person means (i) any corporation of
which more than 50% of the outstanding shares of Capital Stock having
ordinary voting power for the election of directors is owned directly
or indirectly by such Person and (ii) any partnership, limited
liability company, association, joint venture or other entity in which
such Person, directly or indirectly, has more than a 50% equity
interest, and, except as otherwise indicated herein, references to
Subsidiaries shall refer to Subsidiaries of the Company.
Notwithstanding the foregoing, for purposes hereof, an Unrestricted
Subsidiary shall not be deemed a Subsidiary of the Company other than
for purposes of the definition of "Unrestricted Subsidiary" unless the
Company shall have designated in writing to the Trustee an
Unrestricted Subsidiary as a Subsidiary. A designation of an
Unrestricted Subsidiary as a Subsidiary may not thereafter be
rescinded.
"Theatre Completion" means any motion picture theatre or
screen which was first opened for business during any applicable
period.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that, in the event the TIA is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendments,
the Trust Indenture Act of 1939 as so amended.
"Trust Officer" means any officer within the Corporate Trust
Administration department of the Trustee (or any successor group of
the trustee) with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument, until a successor Trustee shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor Trustee.
"U.S. Dollars", "United States Dollars"; "US$" and the
symbol "$" each mean currency of the United States of America.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means a Subsidiary of the Company
designated in writing to the Trustee (i) whose properties and assets,
to the extent they secure Indebtedness, secure only Non-Recourse
Indebtedness, (ii) that has no Indebtedness other than Non-Recourse
Indebtedness and (iii) that has no Subsidiaries.
"Weighted Average Life" means, as of any date, with respect
to any debt security, the quotient obtained by dividing (i) the sum of
the products of the number of years from such date to the dates of
each successive scheduled principal payment (including any sinking
fund payment requirements) of such debt security multiplied by the
amount of such principal payment, by (ii) the sum of all such
principal payments.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary
of such Person, all of the Capital Stock (other than Directors'
qualifying shares) or other ownership interests of which shall at the
time be owned by such Person or by one or more Wholly-Owned
Subsidiaries of such Person or by such Person and one or more Wholly-
Owned Subsidiaries of such Person.
SECTION 1.02. Other Definitions.
Term
Defined in
Section
"Bankruptcy Order"
6.01
"Change of Control Offer"
4.09
"Change of Control Payment Date"
4.09
"Change of Control Purchase Price"
4.10
"covenant defeasance option"
8.01
"Custodian"
6.01
"Event of Default"
6.01
"Exchange Security"
Appendix A
"Global Security"
Appendix A
"Initial Blockage Period"
10.02
"legal defeasance option"
8.01
"Legal Holiday"
11.08
"OID"
2.01
"Original Securities
2.01
"Paying Agent"
2.04
"Payment Blockage Period"
10.03
"Permitted Junior Securities"
10.02
"Private Exchange Security"
Appendix A
"Registered Exchange Offer
Appendix A
"Registrar"
2.04
"Restricted Payments"
4.06
"Shelf Registration statement
Appendix A
"Subordinated Obligations"
10.01
"Surviving Entity"
5.01
"U.S. Government Obligations"
8.02
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Prior to the effectiveness of the registration statement
relating to the Registered Exchange Offer or the Shelf Registration
Statement, this Indenture shall incorporate and be governed by the
provisions of the TIA. After the effectiveness of either the
registration statement relating to the Registered Exchange Offer or
the Shelf Registration statement, this Indenture shall be subject to
the provisions of the TIA that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such
provisions. The following TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by
SEC rule have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in
the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to secured Indebtedness merely by virtue of
its nature as unsecured Indebtedness; and
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP.
ARTICLE II
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series.
As provided for in Appendix A hereto, the aggregate principal amount
of the Initial Securities which may be authenticated and delivered
under this Indenture is $325,000,000. All Securities shall be
substantially identical in all respects other than issue prices,
issuance dates and denominations. The Securities may be issued in one
or more series; provided, however, that any Securities issued with
original issue discount ("OID") for Federal income tax purposes shall
not be issued as part of the same series as any Securities that are
issued with a different amount of OID or are not issued with OID.
Subject to Section 2.03, the Trustee shall authenticate
Securities for original issue on the Closing Date in the aggregate
principal amount of $225,000,000 (the "Original Securities"). With
respect to any Securities issued after the Closing Date (except for
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, Original Securities pursuant to
Section 2.07, 2.09 or 3.06 or Appendix A), there shall be established
in or pursuant to a resolution of the Board of Directors, and subject
to Section 2.03, set forth, or determined in the manner provided in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of such Securities:
(1) whether such Securities shall be issued as part of a new
or existing series of Securities and the title of such Securities
(which shall distinguish the Securities of the series from
Securities of any other series);
(2) the aggregate principal amount of such Securities that
may be authenticated and delivered under this Indenture, which
shall be in an aggregate principal amount not to exceed
$100,000,000 (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the same series pursuant to Section 2.07,
2.09 or 3.06 or Appendix A and except for Securities which,
pursuant to Section 2.03, are deemed never to have been
authenticated and delivered hereunder);
(3) the issue price and issuance date of such Securities,
including the date from which interest on such Securities shall
accrue;
(4) if applicable, that such Securities shall be issuable in
whole or in part in the form of one or more Global Securities
and, in such case, the respective depositories for such Global
Securities, the form of any legend or legends that shall be borne
by any such Global Security in addition to or in lieu of that set
forth in Exhibit 1 to Appendix A and any circumstances in
addition to or in lieu of those set forth in Section 2.3 of
Appendix A in which any such Global Security may be exchanged in
whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in
the name or names of Persons other than the depository for such
Global Security or a nominee thereof; and
(5) if applicable, that such Securities shall not be issued
in the form of Initial Securities subject to Appendix A, but
shall be issued in the form of Private Exchange Securities or
Exchange Securities as set forth in Exhibit A.
If any of the terms of any series are established by action
taken pursuant to a resolution of the Board of Directors, a copy of an
appropriate record of such action shall be certified by the Secretary
or any Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate or the trust
indenture supplemental hereto setting forth the terms of the series.
SECTION 2.02. Form and Dating. Provisions relating to the
Initial Securities of each series, the Private Exchange Series and the
Exchange Securities are set forth in Appendix A, which is hereby
incorporated in and expressly made part of this Indenture. The
Initial Securities of each series and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to
Appendix A which is hereby incorporated in and expressly made a part
of this Indenture. The Exchange Securities, the Private Exchange
Series and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, which is hereby incorporated
in and expressly made a part of this Indenture. The Securities of
each series may have notations, legends or endorsements required by
law, stock exchange rule, agreements to which the Company is subject,
if any, or usage, provided that any such notation, legend or
endorsement is in a form reasonably acceptable to the Company. Each
Security shall be dated the date of its authentication. The terms of
the Securities of each series set forth in Exhibit 1 to Appendix A and
Exhibit A are part of the terms of this Indenture.
SECTION 2.03. Execution and Authentication. Two Officers
(or one Officer and the Vice President and Secretary of the Company)
shall sign the Securities for the Company by manual or facsimile
signature. The Company's seal shall be impressed, affixed, imprinted
or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the Security,
the Security shall be valid nevertheless.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication,
together with a written order of the Company in the form of an
Officers' Certificate for the authentication and delivery of such
Securities, and the Trustee in accordance with such written order of
the Company shall authenticate and deliver such Securities.
A Security shall not be valid until an authorized signatory
of the Trustee manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices
and demands.
SECTION 2.04. Registrar and Paying Agent. The Company
shall maintain an office or agency where Securities may be presented
for registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the
"Paying Agent"). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents.
The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this
Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate
to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Regis-
trar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to
Section 7.07. The Company or any of its domestically incorporated
Wholly-Owned Subsidiaries may act as Paying Agent, Registrar,
co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.05. Paying Agent To Hold Money in Trust. Prior
to each due date of the principal and interest on any Security, the
Company shall deposit with the Paying Agent a sum sufficient to pay
such principal and interest so becoming due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent shall hold in trust for the benefit of Security-
holders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities and shall notify
the Trustee of any default by the Company in making any such payment.
If the Company or a Wholly-Owned Subsidiary acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
SECTION 2.06. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee, in writing at least five Business Days
before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses
of Securityholders.
SECTION 2.07. Replacement Securities. If a mutilated
Security is surrendered to the Registrar or if the Holder of a
Security claims that such Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder
satisfies any other reasonable requirements of the Trustee. If
required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee, the Paying Agent, the
Registrar and any co-registrar from any loss which any of them may
suffer if a Security is replaced. The Company and the Trustee may
charge the Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of
the Company.
SECTION 2.08. Outstanding Securities. Securities
outstanding at any time are all Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancelation and those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee and the Company receive
proof satisfactory to them that the replaced Security is held by a
bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date
money sufficient to pay all principal and interest payable on that
date with respect to the Securities (or portions thereof) to be
redeemed or maturing, as the case may be, and the Paying Agent is not
prohibited from paying such money to the Securityholders on that date
pursuant to the terms of this Indenture, then on and after that date
such Securities (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities and deliver them
in exchange for temporary Securities.
SECTION 2.10. Cancelation. The Company at any time may
deliver Securities to the Trustee for cancelation. The Registrar and
the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel (subject to the record reten-
tion requirements of the Exchange Act) all Securities surrendered for
registration of transfer, exchange, payment or cancelation and deliver
canceled Securities to the Company upon a written direction of the
Company. Except as expressly permitted herein, the Company may not
issue new Securities to replace Securities it has redeemed, paid or
delivered to the Trustee for cancelation.
SECTION 2.11. Defaulted Interest. If the Company defaults
in a payment of interest on the Securities, the Company shall pay the
defaulted interest (plus interest on such defaulted interest at the
rate borne by the Securities to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the persons who
are Securityholders on a subsequent special record date. The Company
shall fix or cause to be fixed any such special record date and
payment date to the reasonable satisfaction of the Trustee and shall
promptly mail to each Securityholder a notice that states the special
record date, the payment date and the amount of defaulted interest to
be paid.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP" numbers in notices of redemption as
a convenience to Holders; provided, however, that neither the Company
nor the Trustee shall have any responsibility for any defect in the
"CUSIP" number that appears on any Security, check, advice of payment
or redemption notice, and any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such
numbers.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects
to redeem Securities pursuant to paragraph 5 of the Securities, it
shall notify the Trustee in writing of the redemption date, the
principal amount of Securities to be redeemed and that such redemption
is being made pursuant to paragraph 5 of the Securities.
The Company shall give each notice to the Trustee provided
for in this Section at least 45 days before the redemption date unless
the Trustee consents to a shorter period. Such notice shall be
accompanied by an Officers' Certificate and an Opinion of Counsel from
the Company to the effect that such redemption will comply with the
conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed. If
fewer than all the Securities are to be redeemed, not more than 60
days prior to the Redemption Date, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that
complies with applicable legal and securities exchange requirements,
if any, and that the Trustee considers fair and appropriate and in
accordance with methods generally used at the time of selection by
fiduciaries in similar circumstances. The Trustee shall make the
selection from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000.
Securities and portions of them the Trustee selects shall be in
amounts of $1,000 or a whole multiple of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall
notify the Company promptly of the Securities or portions of
Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but
not more than 60 days before a date for redemption of Securities, the
Company shall mail a notice of redemption by first-class mail to each
Holder of Securities to be redeemed.
The notice shall identify the Securities (or portion
thereof) to be redeemed and shall state (including CUSIP numbers if
any):
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, or if a Security is to be redeemed in part only, the
identification and principal amounts of the particular Securities
(or portion thereof) to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making
such payment pursuant to the terms of this Indenture, interest on
Securities (or portion thereof) called for redemption ceases to
accrue on and after the redemption date; and
(7) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or
printed on the Securities.
At the Company's written request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's
expense. In such event, the Company shall provide the Trustee with
the information required by this Section at least 45 days before the
redemption date.
SECTION 3.04. Effect of Notice of Redemption. Once notice
of redemption is mailed, Securities called for redemption become due
and payable on the redemption date and at the redemption price stated
in the notice. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price stated in the notice, plus
accrued interest to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due
on the related interest payment date that is on or prior to the date
of redemption). Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other
Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or,
if the Company or a Wholly-Owned Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption
price of and accrued interest (subject to the right of Holders of
record on the relevant record date to receive interest due on the
related interest payment date that is on or prior to the date of
redemption) on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption that have
been delivered by the Company to the Trustee for cancelation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender
of a Security that is redeemed in part, the Company shall execute and
the Trustee shall authenticate for the Holder (at the Company's
expense) a new Security equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities, in
immediately available funds, on the dates and in the manner provided
in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money sufficient
to pay all principal and interest then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such
money to the Securityholders on that date pursuant to the terms of
this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest
on overdue installments of interest at the rate borne by the
Securities to the extent lawful.
SECTION 4.02. Corporate Existence. Subject to Article
Five, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate existence and
corporate power and authority of the Company and each Subsidiary;
provided, however, that the Company shall not be required to preserve
any such corporate existence and corporate power and authority if the
Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole.
SECTION 4.03. Payment of Taxes and Other Claims. The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary and (b) all material lawful claims for
labor, materials and supplies, which, if unpaid, might by law become a
Lien upon the property of the Company or any Subsidiary that could
produce a material adverse effect on the Consolidated financial
condition of the Company; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate
proceedings.
SECTION 4.04. Maintenance of Properties. The Company
will cause all properties owned by the Company or any Subsidiary or
used or held for use in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause
to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all times, except, in
every case, as and to the extent that the Company may be prevented by
fire, strikes, lockouts, acts of God, inability to obtain labor or
materials, governmental restrictions, enemy action, civil commotion or
unavoidable casualty or similar causes beyond the control of the
Company; provided, however, that nothing in this Section shall prevent
the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION 4.05. Limitation on Consolidated Indebtedness.
The Company will not, and will not permit any of its Subsidiaries to,
create, incur, assume or guarantee, or in any other manner become
directly or indirectly liable for the payment of, any Indebtedness
(excluding Permitted Indebtedness) unless at the time of such event
and after giving effect thereto on a pro forma basis the Company's
Consolidated EBITDA Ratio for the four (4) full fiscal quarters
immediately preceding such event, taken as one period calculated on
the assumption that such Indebtedness had been incurred on the first
day of such four-quarter period, is greater than or equal to 1.75:1.
SECTION 4.06. Limitation on Restricted Payments. The
Company shall not directly or indirectly:
(A)declare or pay any dividend on, or make any
distribution in respect of, any shares of the Company's or any
Subsidiary's Capital Stock (excluding dividends or distributions
payable in shares of its Capital Stock or in options, warrants or
other rights to purchase such Capital Stock, but including
dividends or distributions payable in Redeemable Capital Stock or
in options, warrants or other rights to purchase Redeemable
Capital Stock (other than dividends on such Redeemable Capital
Stock payable in shares of such Redeemable Capital Stock)) held
by any Person other than the Company or any of its Wholly-Owned
Subsidiaries; or
(B)purchase, redeem or acquire or retire for value any
Capital Stock of the Company or any Affiliate thereof (other than
any Wholly-Owned Subsidiary of the Company) or any options,
warrants or other rights to acquire such Capital Stock;
(such payments or any other actions described in (A) and (B) above are
collectively referred to as "Restricted Payments") unless at the time
of and after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, as
determined by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution), (1) no Default or
Event of Default shall have occurred and be continuing, (2) the
Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the provisions of Section 4.05 and
(3) the aggregate amount of all Restricted Payments declared or made
after the Closing Date (including the proposed Restricted Payment)
does not exceed the sum of:
(I)(x) Consolidated EBITDA for the Restricted Payments
Computation Period minus (y) 1.75 times Consolidated Interest
Expense for the Restricted Payments Computation Period;
(II) the aggregate net proceeds, including the Fair Market
Value of property other than cash (as determined by the Board of
Directors, whose determination shall be conclusive, except that
for any property whose Fair Market Value exceeds $10 million such
Fair Market Value shall be confirmed by an independent appraisal
obtained by the Company), received after the Closing Date by the
Company from the issuance or sale (other than to any of its
Subsidiaries) of shares of Capital Stock of the Company (other
than Redeemable Capital Stock) or warrants, options or rights to
purchase such shares of Capital Stock;
(III) the aggregate net proceeds, including the Fair Market
Value of property other than cash (as determined by the Board of
Directors, whose determination shall be conclusive, except that
for any property whose Fair Market Value exceeds $10 million such
Fair Market Value shall be confirmed by an independent appraisal
obtained by the Company), received after the Closing Date by the
Company from debt securities that have been converted into or
exchanged for Capital Stock of the Company (other than Redeemable
Capital Stock) to the extent such debt securities were originally
sold for such net proceeds plus the aggregate cash received by
the Company at the time of such conversion; and
(IV) $100 million.
Notwithstanding the foregoing limitation, the Company may
(a) pay dividends on its Capital Stock within sixty days of the
declaration thereof if, on the declaration date, such dividends could
have been paid in compliance with the foregoing limitation or
(b) acquire, redeem or retire Capital Stock in exchange for, or in
connection with a substantially concurrent issuance of, Capital Stock
of the Company (other than Redeemable Capital Stock).
SECTION 4.07. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly enter into or suffer to exist any
transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property
or services) with any Affiliate of the Company (other than a Wholly-
Owned Subsidiary of the Company) involving aggregate consideration in
excess of $5 million unless (A) such transaction or series of
transactions is on terms that are no less favorable to the Company or
such Subsidiary, as the case may be, than would be available at the
time of such transaction or series of transactions in a comparable
transaction in an arm's-length dealing with an unaffiliated third
party, (B) such transaction or series of transactions is in the best
interests of the Company and (C) with respect to a transaction or
series of transactions involving aggregate payments equal to or
greater than $50 million, a majority of disinterested members of the
Board of Directors determines that such transaction or series of
transactions complies with clauses (A) and (B) above, as evidenced by
a Board Resolution.
(b)Notwithstanding the foregoing limitation, the Company
and its Subsidiaries may enter into or suffer to exist the following:
(i) any transaction pursuant to any contract in existence on the
Closing Date; (ii) any Restricted Payment permitted to be made
pursuant to the provisions of Section 4.06; (iii) any transaction or
series of transactions between the Company and one or more of its
Subsidiaries or between two or more of its Subsidiaries (provided that
no more than 5% of the equity interest in any such Subsidiary is
owned, directly or indirectly (other than by direct or indirect
ownership of an equity interest in the Company), by any Affiliate of
the Company other than a Subsidiary) and (iv) the payment of
compensation (including amounts paid pursuant to employee benefit
plans) for the personal services of officers, directors and employees
of the Company or any of its Subsidiaries.
SECTION 4.08. Limitation on Senior Subordinated
Indebtedness. The Company will not incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to any Senior Indebtedness
and senior in right of payment to the Securities.
SECTION 4.09. Change of Control. Upon the occurrence of a
Change of Control, the Company will be required to make an offer (a
"Change of Control Offer") to purchase all outstanding Securities at a
purchase price equal to 101% (the "Change of Control Purchase Price")
of their principal amount plus accrued and unpaid interest, if any, to
the date of purchase.
Within 30 days following the date upon which the Change of
Control occurred, the Company must send, by first class mail, a notice
to each Holder, with a copy to the Trustee, which notice shall govern
the terms of the Change of Control Offer. Such notice will state,
among other things, the purchase date, which must be no earlier than
30 days nor later than 60 days from the date such notice is mailed,
other than as may be required by law (the "Change of Control Payment
Date"). The Change of Control Offer is required to remain open for at
least 20 Business Days and until the close of business on the Change
of Control Payment Date.
In the event that the Company makes a Change of Control
Offer to purchase the Securities pursuant to this Section 4.09, the
Company will comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e)
of, and Rule l4e-1 under, the Exchange Act.
SECTION 4.10. Provision of Financial Information.
(a) Whether or not the Company is subject to the reporting
requirements of the Exchange Act, or any successor provision thereto,
the Company will furnish without cost to each Holder of Securities and
file with the Commission and the Trustee (i) within 90 days after the
end of each fiscal year of the Company (x) audited year-end
consolidated financial statements (including a balance sheet, income
statement and statement of cash flows) prepared in accordance with
GAAP and (y) the information described in Item 303 of Regulation S-K
under the Securities Act, with respect to such period, and (ii) within
45 days after the end of each of the first three fiscal quarters of
each fiscal year of the Company, (x) unaudited quarterly consolidated
financial statements (including a balance sheet, income statement and
statement of cash flows) prepared in accordance with GAAP and (y) the
information described in Item 303 of Regulation S-K under the
Securities Act, with respect to such period. The Company may satisfy
this obligation by furnishing copies of reports filed by it under
Section 13(d) or 15 of the Exchange Act.
(b) In addition, unless it is then subject to the reporting
requirements of Section 13(d) or 15 of the Exchange Act, the Company
will furnish to any prospective purchaser of Securities or beneficial
owner of Securities in connection with any sale thereof the
information required by Rule 144A(d)(4) under the Securities Act,
until such time as the Company has either exchanged the Securities for
the Exchange Securities or until such time as the Holders thereof have
disposed of such Securities pursuant to a Shelf Registration
statement.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt
of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.11. Statement as to Compliance. The Company
shall deliver to the Trustee, within 90 days after the end of each
fiscal year ending after the date hereof (the fiscal year as of the
date hereof is the 52/53 week period ending on the Thursday nearest
March 31), a brief certificate of its principal executive officer,
principal financial officer or principal accounting officer stating
whether, to such officer's knowledge, the Company is in compliance
with all covenants and conditions to be complied with by it under this
Indenture; provided that the first such certificate shall be delivered
no later than June 30, 1999. For purposes of this Section 4.11, such
compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
When a Default has occurred and is continuing or if the
Trustee, any Holder or the trustee for or the holder of any other
evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed default,
the Company shall deliver to the Trustee an Officers' Certificate
specifying such Default, notice or other action within 10 Business
Days of its occurrence.
SECTION 4.12. Waiver of Certain Covenants. The Company
may omit in any particular instance to comply with any covenant or
condition set forth in Sections 4.03 to 4.09 and Section 4.10(a), if
before the time for such compliance, the Holders of a majority in
aggregate principal amount of the Securities at the time outstanding
shall, by written direction of such Holders, waive such compliance in
such instance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in
full force and effect.
SECTION 4.13. Fall-away of Certain Covenants. In the
event that the Securities attain Investment Grade Status and no Event
of Default or Default shall have occurred and be continuing at such
time (the occurrence of the foregoing events, being collectively
referred to as the "Fall-away Event"), upon the request of the Company
the covenants described under Sections 5.01(c) and 4.05 to 4.08 will
no longer be applicable to the Company and its Subsidiaries; provided
that the Company delivers to the Trustee (i) an Officers' Certificate
certifying that the Fall-away Event shall have occurred and (ii) a
letter from Xxxxx'x or S&P, as the case may be, dated not more than
three days prior to the date such covenants are to become subject to
this Section 4.13, verifying the Investment Grade Status of the
Securities.
SECTION 4.14. OID Certificate. The Company shall file
with the Trustee promptly after the end of each calendar year (i) a
written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on outstanding
Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time
to time.
SECTION 4.15. Further Instruments and Acts. Upon request
of the Trustee, the Company shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
ARTICLE V
Successor Company
SECTION 5.01. Consolidation . The Company shall not, in a
single transaction or through a series of related transactions,
consolidate with or merge with or into any other Person (other than
any Wholly-Owned Subsidiary) or sell, assign, transfer, lease or
otherwise dispose of all or substantially all of its properties and
assets to any Person (other than any Wholly-Owned Subsidiary) or group
of affiliated Persons unless at the time and after giving effect
thereto:
(a)either (A) the Company shall be the continuing
corporation or (B) the Person (if other than the Company) formed
by such consolidation or into which the Company is merged or the
Person which acquires by conveyance, transfer, lease or
disposition the properties and assets of the Company
substantially as an entirety (the "Surviving Entity") shall be a
corporation duly organized and validly existing under the laws of
the United States of America, any state thereof or the District
of Columbia and shall, in either case, expressly assume all the
obligations of the Company under the Securities and the
Indenture,
(b)immediately before and immediately after giving effect
to such transaction on a pro forma basis, no Default or Event of
Default shall have occurred and be continuing, and
(c)immediately before and immediately after giving effect
to such transaction on a pro forma basis, except in the case of
the consolidation or merger of any Subsidiary with or into the
Company, the Company (or the Surviving Entity if the Company is
not the continuing corporation) could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to
Section 4.05 hereof (determined in either case on a Consolidated
basis).
In connection with any consolidation, merger, transfer or
lease contemplated hereby, the Company shall deliver, or cause to be
delivered, to the Trustee, in the form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, transfer or
lease and the supplemental indenture in respect thereto comply with
the provisions described herein and that all conditions precedent
herein provided for or relating to such transaction have been complied
with.
SECTION 5.02. Successor Substituted. Upon any
consolidation or merger or any transfer of all or substantially all of
the assets of the Company in accordance with Section 5.01, the
successor corporation formed by such a consolidation or into which the
Company is merged or to which such transfer is made shall succeed to,
shall be substituted for and may exercise every right and power of the
Company under the Securities and this Indenture, with the same effect
as if such successor corporation had been named as the Company herein.
In the event of any transaction (other than a lease) described and
listed in Section 5.01 in which the Company is not the continuing
corporation, the successor Person formed or remaining shall succeed
to, be substituted for and may exercise every right and power of the
Company, and the Company shall be discharged from all obligations and
covenants under the Securities and this Indenture.
ARTICLE VI
Defaults and Remedies
SECTION 6.01Events of Default. "Event of Default",
wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a)default in the payment of any interest on any Security
when it becomes due and payable, whether or not such payment
shall be prohibited by Article Ten, and continuance of such
default for a period of 30 days;
(b)default in the payment of the principal of or premium,
if any, on any Security at its Maturity (upon acceleration,
optional redemption, required purchase or otherwise), whether or
not such payment, redemption or purchase shall be prohibited by
Article Ten;
(c)default in the performance, or breach, of any covenant
or warranty of the Company contained in this Indenture (other
than a default in the performance, or breach, of a covenant or
warranty which is specifically dealt with in clause (a) or (b)
above) and continuance of such default or breach for a period of
60 days after written notice shall have been given 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 Securities
then outstanding;
(d)(A) one or more defaults in the payment of principal of
or premium, if any, on Indebtedness of the Company or its Wholly-
Owned subsidiary, American Multi-Cinema, Inc., a Missouri
corporation ("AMC") aggregating $5 million or more, when the same
becomes due and payable at the stated maturity thereof, and such
default or defaults shall have continued after any applicable
grace period and shall not have been cured or waived or
(B) Indebtedness of the Company or AMC aggregating $5 million or
more shall have been accelerated or otherwise declared due and
payable, or required to be prepaid or repurchased (other than by
regularly scheduled prepayment) prior to the stated maturity
thereof;
(e)any holder of any Indebtedness in excess of $5 million
in the aggregate of the Company or AMC shall notify the Trustee
of the intended sale or disposition of any assets of the Company
or AMC that have been pledged to or for the benefit of such
Person to secure such Indebtedness or shall commence proceedings,
or take action (including by way of set-off) to retain in
satisfaction of any such Indebtedness, or to collect on, seize,
dispose of or apply, any such asset of the Company or AMC
pursuant to the terms of any agreement or instrument evidencing
any such Indebtedness of the Company or AMC or in accordance with
applicable law;
(f)one or more final judgments or orders shall be rendered
against the Company or AMC for the payment of money, either
individually or in an aggregate amount, in excess of $5 million
and shall not be discharged and either (A) an enforcement
proceeding shall have been commenced by any creditor upon such
judgment or order or (B) there shall have been a period of
60 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
was not in effect; and
(g)the Company or AMC pursuant to or under or within the
meaning of any Bankruptcy Law:
(1)commences a voluntary case or proceeding;
(2)consents to the entry of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any
case against it;
(3)consents to the appointment of a Custodian of it
or for any substantial part of its property;
(4)makes a general assignment for the benefit of its
creditors or files a proposal or other scheme of arrangement
involving the rescheduling or composition of its
indebtedness;
(5)files a petition in bankruptcy or an answer or
consent seeking reorganization or relief; or
(6)consents to the filing of such petition in
bankruptcy or the appointment of or taking possession by a
Custodian; or
(h)a court of competent jurisdiction in any involuntary
case or proceeding enters a Bankruptcy Order against the Company
or AMC, and such Bankruptcy Order remains unstayed and in effect
for 60 consecutive days; or
(i)a Custodian shall be appointed out of court with
respect to the Company or AMC, or with respect to all or any
substantial part of the property of the Company or AMC.
"Custodian" means any receiver, interim receiver, receiver
and manager, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law or any other person with like
powers. "Bankruptcy Order" means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for
liquidation, winding up, dissolution or reorganization, or appointing
a Custodian of a debtor or of all or any substantial part of a
debtor's property, or providing for the staying, arrangement,
adjustment or composition of indebtedness or other relief of a debtor.
SECTION 6.02. Acceleration; Rescission and Annulment. If
an Event of Default (other than an Event of Default specified in
Section 6.01(g), (h) or (i)) occurs and is continuing, then and in
every such case the Trustee, by notice to the Company, or the Holders
of not less than 25% in principal amount of the Securities
outstanding, by notice to the Company and the Trustee, may declare the
principal of all the Securities to be due and payable; provided,
however, that so long as any Indebtedness permitted to be incurred
pursuant to the Credit Facility shall be outstanding (including
letters of credit and bankers' acceptances), no such acceleration
shall be effective until the earlier of (i) acceleration of any such
Indebtedness under the Credit Facility and (ii) five Business Days
after the giving of written notice to the Company and an authorized
representative of the holders of Designated Senior Indebtedness of
such acceleration. If an Event of Default specified in
Section 6.01(g), (h) or (i) occurs and is continuing, then the
principal of all the Securities shall automatically become and be
immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder. The Company will deliver to
the Trustee, within 10 days after the occurrence thereof, notice of
any default or acceleration referred to in Sections 6.01(c) and
6.01(d).
At any time after a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Securities
outstanding, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a)the Company has paid or deposited, or caused to be paid
or deposited, with the Trustee a sum sufficient to pay
(1)all overdue interest on all Securities,
(2)the principal of (and premium, if any, on) any
Securities that has become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Securities,
(3)to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
the Securities, and
(4)all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(b)all Events of Default, other than the non-payment of
principal of the Securities which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 6.04.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because an Event of
Default specified in Section 6.01(d) shall have occurred and be
continuing, such declaration of acceleration shall be automatically
annulled if the Indebtedness that is the subject of such Event of
Default, (1) is Indebtedness in the form of an operating lease entered
into by the Company or its Subsidiaries after May 21, 1998 and
required to be reflected on a consolidated balance sheet pursuant to
EITF 97-10, (2) has been discharged or the holders thereof have
rescinded their declaration of acceleration in respect of such
Indebtedness, and (3) written notice of such discharge or rescission,
as the case may be, shall have been given to the Trustee by the
Company and countersigned by the holders of such Indebtedness or a
trustee, fiduciary or agent for such holders, within 30 days after
such declaration of acceleration in respect of the Securities, and no
other Event of Default has occurred during such 30 day period which
has not been cured or waived during such period.
SECTION 6.03. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of or interest on the Securities
or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder
in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the Securities then
outstanding by notice to the Trustee may waive an existing Default and
its consequences except (i) a Default in the payment of the principal
of or interest on a Security, (ii) a Default arising from a failure to
make or consummate a Change of Control Offer in accordance with the
provisions of Section 4.09, or (iii) a Default in respect of a
provision that under Section 9.02 cannot be amended without the
consent of each Securityholder affected. When a Default is waived, it
is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a
majority in aggregate principal amount of the Securities then
outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising
any trust or power conferred on the Trustee with respect to the
Securities. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal
liability; provided, however, that subject to Section 315 of the TIA,
the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to reasonable indemni-
fication against all losses and expenses caused by taking or not
taking such action.
SECTION 6.06. Limitation on Suits. A Securityholder may
not pursue any remedy with respect to this Indenture or the Securities
unless:
(1) such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding shall have made a
written request, and such Holder of or Holders shall have offered
reasonable indemnity, to the Trustee to pursue such proceeding as
trustee; and
(3) the Trustee has failed to institute such proceeding and
has not received from the Holders of at least a majority in
aggregate principal amount of the Securities outstanding a
direction inconsistent with such request, within 60 days after
such notice, request and offer.
The foregoing limitations on the pursuit of remedies by a
Securityholder shall not apply to a suit instituted by a Holder of
Securities for the enforcement of payment of the principal of or
interest on such Security on or after the applicable due date
specified in such Security. A Securityholder may not use this
Indenture to prejudice the rights of another Securityholder or to
obtain a preference or priority over another Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on the
Securities held by such Holder, on or after the respective due dates
expressed in the Securities, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(a) or (b) occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount then due and
owing (together with interest on any unpaid interest to the extent
lawful) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings
relative to the Company, its creditors or its property and, unless
prohibited by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and its counsel, and any other
amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any
money or property pursuant to this Article Six, it shall pay out the
money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness to the extent
required by Article Ten;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Securities for principal and interest,
respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days
before such record date, the Company shall mail to each Securityholder
and the Trustee a notice that states the record date, the payment date
and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee,
a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including rea-
sonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a
suit by Holders of more than 10% in aggregate principal amount of the
Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The
Company (to the extent it may lawfully do so) shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer
and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such
Xxxxxx's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section.
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with
the Company.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA and the provisions of this Article Seven shall
apply to the Trustee in its role as Registrar, Paying Agent and
Security Custodian.
(i) The Trustee shall not be deemed to have notice of a
Default or an Event of Default unless (a) the Trustee has received
written notice thereof from the Company or any Holder or (b) a Trust
Officer shall have actual knowledge thereof.
SECTION 7.02. Rights of Trustee. Subject to 315(a)-(d)
of the TIA:
(a) the Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the
document. The Trustee may, however, in its discretion make such
further inquiry or investigation into such facts or matters as it may
see fit and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on the Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers; provided, however, that the Trustee's
conduct does not constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection,
and the advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty unless
so specified herein.
SECTION 7.03. Individual Rights of Trustee. The Trustee
in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
Any Paying Agent, Registrar or co-registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not
be responsible for and makes no representation as to the validity,
priority or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the
Securities, and it shall not be responsible for any statement of the
Company in this Indenture or in any document issued in connection with
the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event
of Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to each Securityholder notice of the Default or
Event of Default within 90 days after it is known to a Trust Officer
or written notice of it is received by the Trustee. Except in the
case of a Default or Event of Default in payment of principal of or
interest on any Security, the Trustee may withhold the notice if and
so long as a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly
as practicable after each December 31 beginning with December 31,
1999, and in any event prior to March 31 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of
December 31 each year that complies with TIA 313(a), if and to the
extent required by such subsection. The Trustee shall also comply
with TIA 313(b) and (c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange
(if any) on which the Securities are listed. The Company agrees to
notify promptly the Trustee whenever the Securities become listed on
any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company
shall pay to the Trustee and any predecessor Trustee from time to time
such compensation for its services as shall from time to time be
agreed to in writing by the Company and the Trustee. The Trustee's
compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee
upon request for all reasonable out-of-pocket expenses incurred or
made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of
the Trustee's agents, counsel, accountants and experts. The Company
shall indemnify the Trustee against any and all loss, liability or
expense (including reasonable attorneys' fees) incurred by it in
connection with the acceptance and administration of this trust and
the performance of its duties hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the claim and
the Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred
by the Trustee through the Trustee's own wilful misconduct, negligence
or bad faith. The Company need not pay for any settlement made by the
Trustee without the Company's consent, such consent not to be
unreasonably withheld. All indemnifications and releases from
liability granted hereunder to the Trustee shall extend to its
officers, directors, employees, agents, successors and assigns.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee other than money or property
held in trust to pay principal of and interest on particular
Securities.
The Company's payment obligations pursuant to this Section
shall survive the resignation or removal of the Trustee and the
discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(g), (h) or (i)
with respect to the Company, the expenses are intended to constitute
expenses of administration under the Bankruptcy Law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 7.08. Replacement of Trustee. The Trustee may
resign at any time by so notifying the Company. The Holders of a
majority in aggregate principal amount of the Securities then
outstanding may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in aggregate principal amount of the Securities
then outstanding and such Holders do not reasonably promptly appoint a
successor Trustee, or if a vacancy exists in the office of Trustee for
any reason (the Trustee in such event being referred to herein as the
retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon
the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee
or the Holders of 10% in aggregate principal amount of the Securities
then outstanding may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder who has been a bona fide Holder of a Security for at
least six months may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Xxxxxx. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or
transferee corporation or banking association without any further act
shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts
created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee,
and deliver such Securities so authenticated; and in case at that time
any of the Securities shall not have been authenticated, any such
successor to the Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor
to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA 310(a). The
Trustee shall have (or, in the case of a corporation included in a
bank holding company system, the related bank holding company shall
have) a combined capital and surplus of at least $50,000,000 as set
forth in its (or its related bank holding company's) most recent
published annual report of condition. The Trustee shall comply with
TIA 310(b), subject to the penultimate paragraph thereof; provided,
however, that there shall be excluded from the operation of
TIA 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA 310(b)(1) are met. For purposes of this
Section 7.10 and clause (i) of the first proviso contained in TIA
Section 310(b), the Indenture dated as of March 19, 1997 as amended,
among the Company and The Bank of New York, providing for the issuance
of the 9 1/2% Notes due 2009, is hereby deemed to be specifically
described.
SECTION 7.11. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA 311(a),
excluding any creditor relationship listed in TIA 311(b). A Trustee
who has resigned or been removed shall be subject to TIA 311(a) to
the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on
Securities; Defeasance. (a) When (i) the Company delivers to the
Trustee all outstanding Securities (other than Securities replaced
pursuant to Section 2.07) for cancelation or (ii) all outstanding
Securities have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to
Article Three and the Company irrevocably deposits with the Trustee
funds sufficient to pay at maturity or upon redemption all outstanding
Securities, including interest thereon to maturity or such redemption
date (other than Securities replaced pursuant to Section 2.07), and if
in either case the Company pays all other sums payable hereunder by
the Company, then this Indenture shall, subject to Section 8.01(c),
cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and
at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at
any time may terminate (i) all of its obligations under the Securities
and this Indenture ("legal defeasance option") or (ii) its obligations
under Section 5.01(c), Article Ten and Sections 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09 and 4.10(a), and the operation of
Sections 6.01 (c) through (f) ("covenant defeasance option"). The
Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option,
payment of the Securities may not be accelerated because of an Event
of Default. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event
of Default specified in Sections 6.01(c) (with respect to the
covenants of Article Four identified in the immediately preceding
paragraph and the provisions of 5.01(c)), 6.01(d), (e) or (f).
Upon satisfaction of the conditions set forth herein and
upon request of the Company, the Trustee shall acknowledge in writing
the discharge of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the
Company's obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.09, 4.11,
7.07, 7.08, 8.05 and 8.06 shall survive until the Securities have been
paid in full. Thereafter, the Company's obligations in Sections 7.07
and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option
only if:
(1)The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 7.10 who shall agree to comply with
the provisions of this Article Eight applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities, (A) cash in U.S.
Dollars in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash in
U.S. Dollars in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and
premium, if any) and interest on the outstanding Securities on
the Stated Maturity (or redemption date, if applicable) of such
principal (and premium, if any) or installment of interest;
provided that the Trustee shall have been irrevocably instructed
to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities.
Before such a deposit, the Company may give the Trustee, in
accordance with Section 3.01 hereof, a notice of its election to
redeem all of the outstanding Securities at a future date in
accordance with Article Three which notice shall be irrevocable.
For this purpose, "U.S. Government Obligations" means securities
that are (x) direct obligations of the United States of America
for the timely payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United
States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act), as custodian with respect
to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such
depository receipt.
(2)No Default or Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as
Section 6.01(g), (h) or (i) is concerned, at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3)the deposit does not constitute a default hereunder or
under any other material agreement binding on the Company and is
not prohibited by Article Ten;
(4) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated investment
company under the Investment Company Act of 1940;
(5) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or
(ii) since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall
confirm that, the Securityholders will not recognize income, gain
or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
(6) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Securityholders will not recognize income,
gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred; and
(7) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the
Securities as contemplated by this Article Eight have been
complied with.
SECTION 8.03. Application of Trust Money. The Trustee
shall hold in trust money or U.S. Government Obligations deposited
with it pursuant to this Article Eight. It shall apply the deposited
money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of
principal of and interest on the Securities. Money and securities so
held in trust are not subject to Article Ten.
SECTION 8.04. Repayment to Company. The Trustee and the
Paying Agent shall promptly turn over to the Company upon request any
excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that
remains unclaimed for two years, and, thereafter, Securityholders
entitled to the money must look to the Company for payment as general
creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on
such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations in
accordance with this Article Eight by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Eight until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article Eight;
provided, however, that, if the Company has made any payment of
interest on or principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Securities to receive such payment
from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company and
the Trustee may amend this Indenture or the Securities without notice
to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that
the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code or in a manner such that
the uncertificated Securities are described in
Section 163(f)(2)(B) of the Code;
(4) to make any change in Article Ten that would limit or
terminate the benefits available to any holder of Senior
Indebtedness (or Representatives therefor) under Article Ten;
(5) to add Guarantees with respect to the Securities or to
secure the Securities;
(6) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein
conferred upon the Company;
(7) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this
Indenture under the TIA; or
(8) to make any change that does not adversely affect the
rights of any Securityholder.
An amendment under this Section may not make any change that
adversely affects the rights under Article Ten of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or their Representative) consent to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or
any defect therein, shall not impair or affect the validity of an
amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company and
the Trustee may amend this Indenture or the Securities without notice
to any Securityholder but with the written consent of the Holders of
at least a majority in aggregate principal amount of the Securities
then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Securities). However, without
the consent of each Securityholder affected thereby, an amendment may
not:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change the coin or
currency in which the principal of any Security or any premium or
the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the
redemption date); or
(b) reduce the amount of, or change the coin or currency
of, or impair the right to institute suit for the enforcement of,
the Change of Control Purchase Price; or
(c) reduce the percentage in principal amount of the
outstanding Securities, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture; or
(d) modify any of the provisions of this Section or
Sections 6.04, 6.07 and 4.12, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Security affected thereby; or
(e)modify any of the provisions of this Indenture relating
to the subordination of the Securities in a manner adverse to any
Holder.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the
substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article Ten of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or their Representative) consent to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or
any defect therein, shall not impair or affect the validity of an
amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the
TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and
Waivers. A consent to an amendment or a waiver by a Holder of a
Security shall bind the Holder and every subsequent Holder of that
Security or portion of the Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent or
waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes
effective. After an amendment or waiver becomes effective, it shall
bind every Securityholder. An amendment or waiver becomes effective
upon the execution of such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to
give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. Such
record date shall be a date not more than 30 days prior to the first
solicitation of holders generally in connection therewith and no later
than the date such solicitation is completed. If a record date is
fixed, then notwithstanding the immediately preceding paragraph or
Section 316(c) of the TIA, those Persons who were Securityholders at
such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or not
such Persons continue to be Holders after such record date. No such
consent shall be valid or effective for more than 180 days after such
record date.
For all purposes of the Indenture, all Initial Securities,
Exchange Securities and Private Exchange Securities shall vote
together as one series of Securities under the Indenture.
SECTION 9.05. Notation on or Exchange of Securities. If
an amendment changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver such Security to the Trustee.
The Trustee may place an appropriate notation on the Security
regarding the changed terms and return such Security to the Holder.
Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure
to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee
shall sign any amendment authorized pursuant to this Article Nine if
the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may
but need not sign it. In signing such amendment the Trustee shall be
entitled to receive indemnity reasonably satisfactory to it and to
receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this
Indenture.
SECTION 9.07. Payment for Consent. Neither the Company
nor any Affiliate of the Company shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this
Indenture or the Securities unless such consideration is offered to be
paid to all Holders that so consent, waive or agree to amend in the
time frame set forth in solicitation documents relating to such
consent, waiver or agreement.
ARTICLE X
Subordination
SECTION 10.01. Agreement To Subordinate. The Company
covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth in this Article, the Obligations in
respect of the Securities (the "Subordinated Obligations") are hereby
expressly made subordinate and postponed to and subject in right of
payment as provided in this Article to the prior payment in full in
cash or Cash Equivalents of all Senior Indebtedness. The Securities
shall in all respects rank pari passu with the 9 1/2% Notes due 2009 and
any future senior subordinated Indebtedness and senior to all existing
and future junior subordinated Debt of the company, and only Senior
Indebtedness shall rank senior to the Securities in accordance with
the provisions set forth herein. All provisions of this Article Ten
shall be subject to Section 10.11.
This Article Ten shall constitute a continuing offer to all
Persons who, in reliance upon such Article, become holders of, or
continue to hold, Senior Indebtedness, and such provisions are made
for the benefit of the holders of Senior Indebtedness, and such
holders are made obligee hereunder and they or each of them may
enforce such provisions.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. In
the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
assets, whether voluntary or involuntary from any source, or (b) any
liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any
other marshaling of assets or liabilities of the Company, then and in
any such event:
(1) the holders of Senior Indebtedness shall receive
payment in full in cash or Cash Equivalents of all amounts due on
or in respect of all Senior Indebtedness, or provision shall be
made for such payment in full in cash or Cash Equivalents to the
satisfaction of the holders of Senior Indebtedness, before the
Holders of the Securities are entitled to receive any payment or
distribution of any kind or character from any source (other than
a payment or distribution in the form of equity securities or
subordinated securities of the Company or any successor obligor
with respect to the Senior Indebtedness provided for by a plan of
reorganization or readjustment that, in the case of any such
subordinated securities, are subordinate in right of payment to
all Senior Indebtedness that may at the time be outstanding to at
least the same extent as the Securities are so subordinated as
provided in this Article (such equity securities or subordinated
securities hereinafter being "Permitted Junior Securities")) on
account of the Subordinated Obligations or on account of the
purchase or redemption or other acquisition of Securities; and
(2) any payment or distribution of assets of the Company of
any kind or character from any source, whether in cash, property
or securities (other than a payment or distribution in the form
of Permitted Junior Securities), including by way of set-off or
enforcement of any guarantee or otherwise, which the Trustee or
the Holders would be entitled to receive but for the provisions
of this Article shall be paid by the liquidating trustee or agent
or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Senior Indebtedness or
their authorized representative or representatives or to the
trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented
by each, to the extent necessary to make payment in full in cash
or Cash Equivalents of all Senior Indebtedness of the Company
remaining unpaid, after giving effect to any concurrent payment
or distribution, or provision therefor to the satisfaction of the
holders of the Senior Indebtedness, to or for the holders of such
Senior Indebtedness; and
(3) any Taxes that have been withheld or deducted from any
payment or distribution in respect of the Securities, or any
Taxes that ought to have been withheld or deducted from any such
payment or distribution that have been remitted to the relevant
taxing authority, shall not be considered to be an amount that a
Holder or the Trustee is entitled to receive for the purposes of
Section 10.02(2).
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer, lease or other disposal of
its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article Five shall
not be deemed a dissolution, winding-up, liquidation, reorganization,
assignment for the benefit of creditors or marshaling of assets and
liabilities of the Company for the purposes of this Section if the
Person formed by such consolidation or into which the Company is
merged or the Person which acquires such assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation,
merger, conveyance, transfer, lease or disposal, comply with the
conditions set forth in Article Five.
SECTION 10.03. Default on Senior Indebtedness. (a) Unless
Section 10.02 shall be applicable, upon (1) the occurrence of a
Payment Default and (2) receipt by the Trustee from the Company or a
holder of Senior Indebtedness of written notice of such occurrence, no
payment (other than any payments made pursuant to the provisions
contained in Section 8.02 from monies or U.S. Government Obligations
previously deposited with the Trustee) or distribution of any assets
of the Company of any kind or character from any source, whether in
cash, property or securities (other than Permitted Junior Securities),
shall be made by the Company including by way of set-off or
enforcement of any guarantee or otherwise, on account of the
Subordinated Obligations or on account of the purchase or redemption,
deposit for defeasance or other acquisition of Securities unless and
until such Payment Default shall have been cured or waived in writing
or shall have ceased to exist or such Senior Indebtedness shall have
been discharged or paid in full in cash or Cash Equivalents, after
which the Company shall resume making any and all required payments in
respect of the Securities, including any missed payments.
(b) Unless Section 10.02 shall be applicable, upon (1) the
occurrence of a Non-payment Default and (2) receipt by the Trustee
from an authorized representative of the holders of Designated Senior
Indebtedness of written notice of such occurrence, then no payment
(other than any payments made pursuant to the provisions contained in
Section 8.02 from monies or U.S. Government Obligations previously
deposited with the Trustee) or distribution of any assets of the
Company of any kind or character from any source, whether in cash,
property or securities (other than Permitted Junior Securities), shall
be made by the Company including by way of set-off or enforcement of
any guarantee or otherwise, on account of the Subordinated Obligations
or on account of the purchase or redemption, deposit for defeasance or
other acquisition of Securities for a period (the "Payment Blockage
Period") commencing on the date of receipt by the Trustee of such
notice from an authorized representative of the holders of Designated
Senior Indebtedness or the Company at the direction of such
representative unless and until (subject to any blockage of payments
that may then be in effect under subsection (a) of this Section)
(w) more than 179 days shall have elapsed since receipt of such
written notice by the Trustee, (x) such Non-payment Default shall have
been cured or waived in writing or shall have ceased to exist,
(y) such Designated Senior Indebtedness has been discharged or paid in
full in cash or Cash Equivalents or (z) such Payment Blockage Period
shall have been terminated by written notice to the Trustee from an
authorized representative of the holders of Designated Senior
Indebtedness initiating such Payment Blockage Period or from the
holders of at least a majority in principal amount of such Designated
Senior Indebtedness), after which, in the case of clause (w), (x), (y)
or (z), the Company shall resume making any and all required payments
in respect of the Securities, including any missed payments.
Notwithstanding any other provision of this Indenture, in no event
shall a Payment Blockage Period extend beyond 179 days from the date
of the receipt by the Trustee of the notice referred to in clause (2)
above (the "Initial Blockage Period"). No more than one Payment
Blockage Period may be commenced during any period of 365 consecutive
days. Notwithstanding any other provision of this Indenture, no event
of default with respect to Designated Senior Indebtedness which
existed or was continuing on the date of the commencement of any
Payment Blockage Period initiated by an authorized representative of
the holders of Designated Senior Indebtedness for such Designated
Senior Indebtedness shall be, or be made, the basis for the
commencement of a second Payment Blockage Period for such Designated
Senior Indebtedness, whether or not within the Initial Blockage
Period, unless such event of default shall have been cured or waived
for a period of not less than 90 consecutive days.
(c)In the event that, notwithstanding the foregoing
provisions of this Section, the Company shall make any payment to the
Trustee (which is not paid over to Holders of Securities) prohibited
by the foregoing provisions of this Section, then and in such event
such payment shall be paid over to the authorized representatives of
such Designated Senior Indebtedness initiating the Payment Blockage
Period, to be held in trust for distribution to the holders of Senior
Indebtedness or, to the extent amounts are not then due in respect of
Senior Indebtedness, prompt return to the Company, or otherwise as a
court of competent jurisdiction shall direct.
SECTION 10.04. Payment Permitted. Nothing contained in
this Article or elsewhere in this Indenture or in any of the
Securities shall prevent the Company, at any time except during the
pendency of any event referred to in clause (a), (b) or (c) of
Section 10.02 or under the conditions described in Section 10.03, from
making payments at any time of principal of (and premium, if any) or
interest on the Securities.
SECTION 10.05. Subrogation. After all Senior Indebtedness
is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company which by its express terms
is subordinated and postponed to Senior Indebtedness to the same
extent as the Securities are subordinated and postponed and which is
entitled to like rights of subrogation) to the rights of holders of
Senior Indebtedness to receive distributions applicable to Senior
Indebtedness. A distribution made under this Article Ten to holders
of Senior Indebtedness that otherwise would have been made to
Securityholders is not, as between the Company and Securityholders, a
payment by the Company on such Senior Indebtedness.
SECTION 10.06. Relative Rights. This Article Ten defines
the relative rights of Securityholders and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional,
to pay principal of and interest on the Securities in accordance
with their terms; or
(2) affect the relative rights against the Company of
Securityholders and creditors of the Company other than the
holders of Senior Indebtedness; or
(3) except as set forth in Section 6.02 prevent the Trustee
or any Securityholder from exercising its available remedies upon
a Default or an Event of Default, subject to the rights of
holders of Senior Indebtedness to receive distributions otherwise
payable to Securityholders.
SECTION 10.07. Subordination May Not Be Impaired by Company.
(a) No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Securities shall be
impaired by any act or failure to act by the Company or by its failure
to comply with this Indenture.
(b) Without in any way limiting the generality of
subsection (a) of this Section, the holders of Senior Indebtedness
may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, the terms of Senior Indebtedness or the
terms of any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding (including any increase in
the aggregate principal amount of any indebtedness thereunder, it
being understood that any such additional indebtedness shall not
constitute Senior Indebtedness to the extent incurred in violation of
Section 4.05 of this Indenture); (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (3) release any Person liable in any
manner for the collection of Senior Indebtedness; and (4) exercise or
refrain from exercising any rights against the Company and/or any
other Person.
(c) If the Trustee on behalf of the Holders or any Holders
should fail to file a proof of claim in any bankruptcy, insolvency,
receivership or similar proceeding relating to the Company at least
30 days before the expiration of the time to file such claim or
claims, each holder of Senior Indebtedness (or its representative) is
hereby authorized to file an appropriate claim for and on behalf of
all or any of the Holders.
SECTION 10.08. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent may
continue to make payments on the Securities and shall not be charged
with knowledge of the existence of facts that would prohibit the
making of any such payments unless, not less than one Business Day
prior to the date of such payment, a Trust Officer receives notice
satisfactory to it that payments may not be made under this
Article Ten. The Company, the Registrar or co-registrar, the Paying
Agent, a Representative or a holder of Senior Indebtedness may give
the notice; provided, however, that, if an issue of Senior
Indebtedness has a Representative, only the Representative may give
the notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not
Trustee. The Registrar and co-registrar and the Paying Agent may do
the same with like rights. The Trustee shall be entitled to all the
rights set forth in this Article Ten with respect to any Senior
Indebtedness that may at any time be held by it, to the same extent as
any other holder of such Senior Indebtedness; and nothing in
Article Seven shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article Ten shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
SECTION 10.09. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given
to their Representative (if any).
SECTION 10.10. Article Ten Not To Prevent Events of Default
or Limit Right To Accelerate. The failure to make a payment pursuant
to the Securities by reason of any provision in this Article Ten shall
not be construed as preventing the occurrence of a Default. Nothing
in this Article Ten shall have any effect on the right of the Secu-
rityholders or the Trustee to accelerate the maturity of the
Securities; provided, however, that, so long as any Indebtedness
permitted by this Indenture to be incurred pursuant to the Credit
Facility shall be outstanding (including letters of credit and
bankers' acceptances), upon the occurrence and during the continuance
of an Event of Default under this Indenture, neither the Trustee nor
any Holder shall be entitled to accelerate all or any of the
Subordinated Obligations until the earlier to occur of the fifth
Business Day following receipt by the Company and by an authorized
representative of the holders of Designated Senior Indebtedness of a
written declaration of acceleration as provided in Section 6.02 and
the date of acceleration of any such Indebtedness under the Credit
Facility.
SECTION 10.11. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from money or the proceeds of U.S. Government Obligations held in
trust under Article Eight by the Trustee and which were deposited in
accordance with the terms of Article Eight and not in violation of
Section 10.03 for the payment of principal of and interest on the
Securities shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restrictions set forth in this
Article Ten, and none of the Securityholders shall be obligated to pay
over any such amount to the Company or any holder of Senior
Indebtedness or any other creditor of the Company.
SECTION 10.12. Trustee Entitled To Rely. Upon any payment
or distribution pursuant to this Article Ten, the Trustee and the
Securityholders shall be entitled to rely (i) upon any order or decree
of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 10.02 are pending, (ii) upon a
certificate of the liquidating trustee or agent or other Person making
such payment or distribution to the Trustee or to the Securityholders
or (iii) upon the Representatives for the holders of Senior
Indebtedness for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior
Indebtedness and other Indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Ten. In the
event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person
under this Article Ten, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial deter-
mination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this
Article Ten.
SECTION 10.13. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the
Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination between the
Securityholders and the holders of Senior Indebtedness as provided in
this Article Ten and appoints the Trustee as attorney-in-fact for any
and all such purposes.
SECTION 10.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and shall not be liable to
any such holders if it shall mistakenly pay over or distribute to
Securityholders or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled by virtue
of this Article Ten or otherwise.
SECTION 10.15. Reliance by Holders of Senior Indebtedness
on Subordination Provisions. Each Securityholder by accepting a
Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness, whether such
Senior Indebtedness was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such
Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or
in continuing to hold, such Senior Indebtedness.
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with
another provision that is required to be included in this Indenture by
the TIA, the required provision shall control.
SECTION 11.02. Notices. Any notice or communication shall
be in writing and delivered in person or mailed by first-class mail or
sent by facsimile (with a hard copy delivered in person or by mail
promptly thereafter) and addressed as follows:
if to the Company:
AMC Entertainment Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention of: Secretary
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
00X
Xxx Xxxx, XX 00000
Attention of: Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such waiver.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency
with respect to other Securityholders. If a notice or communication
is mailed in the manner provided above, it is duly given, whether or
not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA 312(b) with other
Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the
Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with
a covenant or condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need
not, be consolidated and form one instrument.
SECTION 11.06. When Securities Disregarded. In
determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to
be outstanding, except that, for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities that the Trustee knows are so owned
shall be so disregarded. Also, subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 11.07. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Registrar and the Paying Agent or co-
registrar may make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not
required to be open in the States of New York or Missouri. If a
payment date is a Legal Holiday, payment shall be made on the next
succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION 11.09. Governing Law. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a
Security, each Securityholder shall waive and release all such lia-
bility. The waiver and release shall be part of the consideration for
the issue of the Securities.
SECTION 11.11. Successors. All agreements of the Company
in this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Separability Clause. In case any provision
in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 11.13. Reliance on Financial Data. In computing
any amounts under this Indenture,
(i) to the extent relevant in computing any amounts under
this Indenture, the Company shall use audited financial
statements of the Company, its Subsidiaries, any Person that
would become a Subsidiary in connection with the transaction that
requires the computation and any Person from which the Company or
a Subsidiary has acquired an operating business, or is acquiring
an operating business in connection with the transaction that
requires the computation (each such Person whose financial
statements are relevant in computing any particular amount, a
"Relevant Person") for the period or portions of the period to
which the computation relates for which audited financial
statements are available on the date of computation and unaudited
financial statements and other current financial data based on
the books and records of the Relevant Person or Relevant Persons,
as the case may be, to the extent audited financial statements
for the period or any portion of the period to which the
computation relates are not available on the date of computation,
and
(ii) the Company shall be permitted to rely in good faith on
the financial statements and other financial data derived from
the books and records of any Relevant Person that are available
on the date of the computation.
SECTION 11.14. Multiple Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
SECTION 11.15. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and
Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and
shall not modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture
to be duly executed as of the date first written above.
AMC ENTERTAINMENT INC.,
by /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Co-Chairman of the Board and
President
THE BANK OF NEW YORK, as Trustee
by /s/ Xxxx Xx Xxxxxx
Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
SCHEDULE I
PROVISIONS FOR INTER-COMPANY SUBORDINATED DEBT
1.1 Certain Definitions. Unless otherwise defined in this
Schedule I, terms defined in the Indenture in respect of the
9 1/2% Senior Subordinated Notes due 2011 dated as of January 27, 1999
(the "Indenture") between AMC Entertainment Inc. (the "Company") and
The Bank of New York, as trustee (the "Trustee") and used herein have
the meanings attributed to such terms in the Indenture. As used
herein, (a) the term "Relevant Obligor" means the obligor creating,
incurring, assuming or suffering to exist any indebtedness under
clause (xiii) under the definition of Permitted Indebtedness under the
Indenture and (b) the term "Permitted Junior Securities" means equity
securities other than Redeemable Capital Stock or subordinated
securities of the Relevant Obligor or any successor obligor provided
for by a plan of reorganization or readjustment that, in the case of
any such subordinated securities, are subordinate in right of payment
to all Securities and Indenture Obligations to at least the same
extent as the indebtedness evidenced by this agreement or instrument
is so subordinated as provided herein.
2.1 Agreement to Subordinate. The Relevant Obligor and the
relevant creditor who is owed such indebtedness (the "Relevant
Creditor") agree that the indebtedness represented by this agreement
or instrument (including, without limitation, principal, interest,
premium, fees, penalties, indemnities and "post-petition interest" in
bankruptcy) is subordinate and junior in right of payment, to the
extent and in the manner provided in this Section 2, to the prior
payment in full of all Securities and Indenture Obligations of the
Company.
The Relevant Xxxxxxx agrees to hold the benefit of these
provisions as incorporated in this agreement or this instrument as
trustee for and on behalf of the Trustee and the Holders and the
Relevant Obligor shall be a party to the agreement or instrument in
such capacity and shall give the Relevant Creditor (and the Relevant
Obligor on its own behalf) one dollar as valuable consideration in
respect of the agreements given to it in such capacity as trustee.
The provisions of this Section 2 are for the benefit of the
Holders, and such Holders are hereby made obligees hereunder to the
same extent as if their names were written herein as such, and they
(collectively or singly) may proceed to enforce such provisions.
2.2 Liquidation; Dissolution; Bankruptcy. (a) In the event of
any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Relevant Obligor or to its
assets, whether voluntary or involuntary from any source, or (b) any
liquidation, dissolution or other winding-up of the Relevant Obligor,
whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshaling of assets or liabilities of the
Relevant Obligor; then, and in any such event:
(i)the Trustee and the Holders shall be entitled to
receive payment in full of all Securities and Indenture
Obligations before the Relevant Creditor shall be entitled to
receive any payment (other than in Permitted Junior Securities)
of principal of or interest on, or any other amount owing in
respect of, the indebtedness evidenced by this agreement or
instrument;
(ii)until payment in full of all the Securities and
Indenture Obligations, any distribution of assets of any kind or
character (other than in Permitted Junior Securities) to which
the Relevant Creditor would be entitled but for this Section 2
shall be paid by the Relevant Obligor or by any receiver, trustee
in bankruptcy, liquidating trustee, agents or other Persons
making such payment or distribution to, or if received by the
Relevant Creditor shall be held for the benefit of and shall be
forthwith paid or delivered to, the Trustee and Holders in
respect of the Securities and Indenture Obligations; and
(iii)in the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Relevant Obligor of
any kind or character, whether in cash, property or securities
(other than in Permitted Junior Securities), shall be received by
the Relevant Creditor before all the Securities and Indenture
Obligations are paid in full, such payment or distribution shall
be held in trust for the benefit of and shall be paid over to the
Trustee and the Holders in respect of the Securities and
Indenture Obligations, for application to the payment of all
Securities and Indenture Obligations until all Securities and
Indenture Obligations shall have been paid in full after giving
effect to any concurrent payment or distribution to the Trustee
or the Holders in respect of such Securities and Indenture
Obligations.
(b) If the Relevant Creditor does not file proper claims or
proofs of claim in the form required in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the
Relevant Obligor or its property prior to 45 days before the
expiration of the time to file such claims, then (i) upon the request
of the Trustee, the Relevant Creditor shall file such claims and
proofs of claim in respect of the indebtedness evidenced by this
agreement or instrument and execute and deliver such powers of
attorney, assignments and proofs of claim as may be directed by the
Trustee to enable it to enforce any and all claims upon or in respect
of the indebtedness evidenced by this agreement or instrument and to
collect and receive any and all payments or distributions which may be
payable or deliverable at any time upon or in respect of the
indebtedness evidenced by this agreement or instrument, and
(ii) whether or not the Trustee shall take the action described in
clause (i) above, the Trustee shall nevertheless be deemed to have
such powers of attorney as may be necessary to file appropriate claims
and proofs of claim and otherwise exercise the powers described above.
For purpose of this Section 2, "payment in full" means the
receipt on an irrevocable basis of cash or Cash Equivalents in an
amount equal to the unpaid principal amount of the indebtedness and
premium, if any, and interest thereon to the date of such payment,
together with all other amounts owing with respect to such
indebtedness.
2.3 Securities and Indenture Obligations. (a) The Relevant
Obligor shall not pay any principal, interest or premium on the
indebtedness evidenced by this agreement or instrument, acquire the
indebtedness evidenced by this agreement or instrument for cash or
property other than capital stock (other than in Permitted Junior
Securities) of the Relevant Obligor, or make any loans, advances or
extensions of credit to the Relevant Creditor with respect to the
indebtedness evidenced by this agreement or instrument, or pay or
acquire any obligation or liability upon which the Relevant Creditor
is the obligor, and the Relevant Creditor shall not demand, accept or
receive any payment of any principal, interest or premium on the
indebtedness evidenced by this agreement or instrument or any such
cash, property (other than capital stock (other than in Permitted
Junior Securities) of the Relevant Obligor), loans, advances or
extensions of credit at any time when:
(i) a default in the payment of any Securities and Indenture
Obligations has occurred, whether at maturity or at a date fixed
for prepayment or by declaration of an acceleration or otherwise,
and such default either (A) shall be continuing or (B) shall not
have been cured and shall have been waived by the Holders on the
express condition that payments on and acquisitions of the
indebtedness evidenced by this agreement or instrument by the
Relevant Obligor be prohibited pursuant to this clause (i); or
(ii) any default (other than as described in clause (i) of
this Section 2.3(a)) under any agreement or instrument evidencing
Securities and Indenture Obligations shall have occurred and
either (x) shall be continuing or (y) shall not have been cured
and shall have been waived by the Holders on the express
condition that payments on or acquisition of the indebtedness
evidenced by this agreement or instrument be prohibited pursuant
to this clause (ii); or
(iii) any Payment Default or Non-payment Default shall have
occurred and shall not have been cured or waived; or
(iv) such payment of principal, interest or premium on the
indebtedness evidenced by this agreement or instrument, or
acquisition of the indebtedness evidenced by this agreement or
instrument for cash or property other than capital stock of the
Relevant Obligor would cause a Default or Event of Default under
the Indenture.
(b) If at any time when a payment on the indebtedness
evidenced by this agreement or instrument is due, the Relevant Obligor
would (but for this subsection (b)) be prohibited by Section 2.3(a)
from making such payment, the Relevant Obligor shall nonetheless be
obligated to make such payment if all of the Holders with respect to
which any default shall have occurred shall have consented thereto in
writing.
(c) If, notwithstanding the foregoing, any payment of any
kind or character, whether in cash, property or otherwise, shall be
received by the Relevant Creditor before all the Securities and
Indenture Obligations are paid in full, such payment shall be held in
trust for the benefit of and shall be paid over to the Trustee and the
Holders in respect of the Securities and Indenture Obligations for
application to the payment of all such Securities and Indenture
Obligations until all Securities and Indenture Obligations shall have
been paid in full after giving effect to any concurrent payment or
distribution to the Trustee or the Holders in respect of such
Securities and Indenture Obligations.
2.4. Subrogation. After all Securities and Indenture
Obligations are paid in full and until the indebtedness evidenced by
this agreement or instrument is paid in full, the Relevant Creditor
shall be subrogated to the rights of the Holders. For purposes of
this Section 2.4, a distribution made under this Section 2 to Holders
which otherwise would have been made to the Relevant Creditor, or a
payment made by the Relevant Creditor to Holders in respect of a
turnover obligation under this Section 2, is not, as between the
Relevant Obligor and such Holders, a payment by the Relevant Obligor
on account of Securities and Indenture Obligations.
2.5. Relative Rights. This Section 2 defines the relative
rights of the Relevant Creditor on the one hand and the Holders on the
other hand. Nothing in this Section 2 shall:
(a) impair, as between the Relevant Obligor and the Relevant
Creditor, the obligation of the Relevant Obligor, which is
absolute and unconditional, to pay the principal of and interest
on the indebtedness evidenced by this agreement or instrument in
accordance with its terms; or
(b) affect the relative rights of the Relevant Creditor on
the one hand and creditors of the Relevant Obligor other than the
Holders on the other hand; or
(c) affect the relative rights of the Holders among
themselves; or
(d) prevent the Relevant Creditor from exercising its
available remedies upon a default, subject to Section 2.3 hereof
and the rights of the Holders to receive cash, property or other
assets otherwise payable to the Relevant Creditor.
2.6. Subordination May Not Be Impaired. (a) No right of the
Trustee or any Holder to enforce the subordination of indebtedness
evidenced by this agreement or instrument shall in any way be
prejudiced or impaired by any act or failure to act by the Relevant
Obligor or by any act or failure to act in good faith, by the Trustee
or any Holder or by any non-compliance by the Relevant Obligor with
the terms, provisions or covenants herein, regardless of any knowledge
thereof which the Trustee or any such Holder may have or be otherwise
charged with. Neither the subordination of the indebtedness
represented by this agreement or instrument as herein provided nor the
rights of the Trustee and the Holders with respect hereto shall be
affected by any extension, renewal or modification of the terms, or
the granting of any security in respect of, any Securities and
Indenture Obligations or any exercise or non-exercise of any right,
power or remedy with respect thereto.
(b) The Relevant Creditor agrees that all indebtedness
evidenced by this agreement or instrument will be unsecured by any
Lien upon or with respect to any property of the Relevant Obligor, and
that the Relevant Creditor will not permit to subsist any Liens upon
its claim in respect of or upon the proceeds of the indebtedness
represented by this agreement or instrument.
(c) The Relevant Creditor agrees not to exercise any offset
or counterclaim or similar right in respect of the indebtedness
evidenced by this agreement or instrument except to the extent payment
of such indebtedness is permitted and will not assign or otherwise
dispose of this agreement or instrument or the indebtedness which it
evidences unless the assignee or acquiror, as the case may be, agrees
to be bound by the terms of this Section 2.
2.7 Relevant Creditor Entitled to Rely. Upon any payment or
distribution pursuant to this Section 2, the Relevant Creditor shall
be entitled to rely (i) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred
to in Section 2.2 are pending, (ii) upon a certificate of the
liquidating trustee or agent or other person in such proceedings
making such payment or distribution to the Relevant Creditor or its
representative, if any, or (iii) upon a certificate of the Trustee for
the purpose of ascertaining the persons entitled to participate in
such payment or distribution, the Holders, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Section 2.
3. Miscellaneous. (a) The provisions contained herein may not
be amended or modified in any respect, nor may any of the terms or
provisions hereof be waived, except by an instrument signed by the
Relevant Obligor, the Relevant Creditor and the Trustee.
(b) The provisions contained herein shall be binding upon each
of the parties to this agreement or instrument and their respective
successors and assigns and shall inure to the benefit of the Trustee
and each and every Holder and their respective successors and assigns.
(c) The provisions contained herein shall be governed by and
construed in accordance with the laws of the State of New York.
(d) The Relevant Creditor and the Relevant Obligor each hereby
irrevocably agrees that any suits, actions or proceedings arising out
of or in connection with the provisions contained herein may be
brought in any state or federal court sitting in The City of New York
and submits and attorneys to the non-exclusive jurisdiction of each
such court.
APPENDIX A
PROVISIONS RELATING TO INITIAL SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall
have the meanings indicated below:
"Definitive Security" means a certificated Initial Security
or an Exchange Security or Private Exchange Security bearing, if
required, the restricted securities legend set forth in Section
2.3(c).
"Depository" means The Depository Trust Company, its
nominees and their respective successors.
"Distribution Compliance Period", with respect to any
Securities, means the period of 40 consecutive days beginning on and
including the later of (i) the day on which such Securities are first
offered to persons other than distributors (as defined in Regulation S
under the Securities Act) in reliance on Regulation S and (ii) the
Closing Date with respect to such Securities.
"Exchange Securities" means the 9 1/2% Senior Subordinated
Notes due 2011 to be issued pursuant to this Indenture in connection
with a Registered Exchange Offer pursuant to the Registration
Agreement.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc. and
NationsBanc Xxxxxxxxxx Securities LLC.
"Initial Securities" means the 9 1/2% Senior Subordinated Notes
due 2011, to be originally issued from time to time, excluding
Exchange Securities and Private Exchange Securities, in one or more
series as provided for in this Indenture.
"New Securities" shall have the meaning set forth in
Section I of the Registration Agreement.
"Original Securities" means Initial Securities in the
aggregate principal amount of $225,000,000 issued on January 27, 1999.
"Private Exchange" means the offer by the Company, pursuant
to Section 2 of the Registration Agreement dated January 21, 1999, or
pursuant to any similar provision of any other Registration Agreement,
to issue and deliver to certain purchasers, in exchange for the
Initial Securities held by such purchasers as part of their initial
distribution, a like aggregate principal amount of Private Exchange
Securities.
"Private Exchange Securities" means those New Securities to
be issued pursuant to this Indenture in connection with a Private
Exchange pursuant to a Registration Agreement.
"Purchase Agreement" means the Purchase Agreement dated
January 21, 1999, between the Company and the Initial Purchasers
relating to the Original Securities, or any similar agreement relating
to any future sale of Initial Securities by the Company.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to a Registration Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for the
Initial Securities, a like aggregate principal amount of Exchange
Securities registered under the Securities Act.
"Registration Agreement" means the Registration Rights
Agreement dated January 21, 1999, between the Company and the Initial
Purchasers relating to the Original Securities, or any similar
agreement relating to any additional Initial Securities.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities" means the Initial Securities, the Exchange
Securities and the Private Exchange Securities, treated as a single
class.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository) or any successor
person thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration
statement issued by the Company in connection with the offer and sale
of Initial Securities or Private Exchange Securities pursuant to a
Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the legend
set forth in Section 2.3(c) hereto.
1.2 Other Definitions
Defined in
Term Section:
"Agent Members"2.1(b)
"Global Security"2.1(a)
"Regulation S" 2.1
"Rule 144A"2.1
2. The Securities
2.1 Form and Dating
The Initial Securities will be offered and sold by the
Company, from time to time, pursuant to one or more Purchase
Agreements. Unless registered under the Securities Act, the Initial
Securities will be resold, initially only to QIBs in reliance on
Rule 144A under the Securities Act ("Rule 144A") and in reliance on
Regulation S under the Securities Act ("Regulation S"). Initial
Securities may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and IAIs under Rule 501(a)(1),
(2), (3) or (7) under the Securities Act, subject to the restrictions
on transfers set forth herein.
(a) Global Securities. Except as provided in Section 2.4,
Securities shall be in the form of one or more permanent global
Securities in definitive, fully registered form ( each a "Global
Security") in each case without interest coupons and with the global
securities legend and, except as otherwise provided herein, the
restricted securities legend set forth in Exhibit 1 hereto. The
Initial Securities shall be deposited on behalf of the purchasers of
the Initial Securities represented thereby with the Securities
Custodian, and registered in the name of the Depository or a nominee
of the Depository, duly executed by the Company and authenticated by
the Trustee as provided in this Indenture. The aggregate principal
amount of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the
Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the
Depository.
The Company shall execute and the Trustee shall, in
accordance with this Section 2.1(b) and pursuant to an order of the
Company, authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository
for such Global Security or Global Securities or the nominee of such
Depository and (b) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instructions or held by
the Trustee as Securities Custodian.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to
any Global Security held on their behalf by the Depository or by the
Trustee as Securities Custodian or under such Global Security, and the
Depository may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members,
the operation of customary practices of such Depository governing the
exercise of the rights of a holder of a beneficial interest in any
Global Security.
(c) Definitive Securities. Except as provided in
Section 2.4, owners of beneficial interests in Global Securities will
not be entitled to receive physical delivery of certificated
Securities.
2.2 Authentication. The Trustee shall authenticate and deliver:
(1) Original Securities for original issue in an aggregate principal
amount of $225,000,000, (2) additional Initial Securities, if and when
issued, in an aggregate principal amount of up to $100,000,000, and
(3) the Exchange Securities for issue only in a Registered Exchange
Offer or a Private Exchange, respectively, pursuant to a Registration
Agreement, for a like principal amount of Initial Securities, in each
case upon a written order of the Company signed by two Officers or by
an Officer and either a Treasurer or an Assistant Treasurer or a
Secretary or an Assistant Secretary of the Company. Such order shall
specify the amount of the Securities to be authenticated and the date
on which the original issue of Securities is to be authenticated and
whether the Securities are to be Initial Securities, Exchange
Securities or Private Exchange Securities. The aggregate principal
amount of Securities outstanding at any time may not exceed
$325,000,000 except as provided in Section 2.08 of this Indenture.
2.3 Transfer and Exchange.(a) Transfer and Exchange of
Definitive Securities. When Definitive Securities are presented to
the Registrar or a co-registrar with a request:
(x) to register the transfer of such Definitive Securities;
or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Definitive Securities
surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Registrar or co-registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing; and
(ii) are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied by
the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or
(B) if such Definitive Securities are being
transferred to the Company, a certification to that effect;
or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act, (i) a
certification to that effect and (ii) if the Company so
requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in
Section 2.3(c)(i).
(b) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depository, in accordance with
this Indenture (including applicable restrictions on transfer set
forth herein, if any) and the procedures of the Depository therefor.
A transferor of a beneficial interest in a Global Security shall
deliver a written order given in accordance with the Depository's
procedures containing information regarding the participant account of
the Depository to be credited with a beneficial interest in the Global
Security and such account shall be credited in accordance with such
instructions with a beneficial interest in the Global Security and the
account of the Person making the transfer shall be debited by an
amount equal to the beneficial interest in the Global Security being
transferred. In the case of a transfer of a beneficial interest in a
Global Security to an IAI, the transferee must furnish a signed letter
to the Trustee containing certain representations and agreements (the
form of which letter can be obtained from the Trustee or the Company
and is attached as Exhibit B).
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in
another Global Security, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of
the Global Security to which such interest is being transferred
in an amount equal to the principal amount of the interest to be
so transferred, and the Registrar shall reflect on its books and
records the date and a corresponding decrease in the principal
amount of Global Security from which such interest is being
transferred.
(iii) Notwithstanding any other provisions of this Appendix
A (other than the provisions set forth in Section 2.4), a Global
Security may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository
or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.
(iv) In the event that a Global Security is exchanged for
Securities in definitive registered form pursuant to Section 2.4
prior to the consummation of a Registered Exchange Offer or the
effectiveness of a Shelf Registration Statement with respect to
such Securities, such Securities may be exchanged only in
accordance with such procedures as are substantially consistent
with the provisions of this Section 2.3 (including the
certification requirements set forth on the reverse of the
Initial Securities intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption
from registration under the Securities Act, as the case may be)
and such other procedures as may from time to time be adopted by
the Company.
(c) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii), (iv) and (v), each certificate evidencing the Global
Securities and the Definitive Securities (and all Securities
issued in exchange therefor or in substitution thereof) shall
bear a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF,
BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY
ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY AT ANY TIME
DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN
EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF
THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE WHICH MAY BE
OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE
TRANSFEREE TO THE COMPANY AND THE TRUSTEE (PROVIDED THAT NO
FOREIGN PURCHASER WHO HAS PURCHASED SECURITIES FROM AN INITIAL
PURCHASER (AN "INITIAL FOREIGN PURCHASER") OR ANY PERSON WHO HAS
PURCHASED SECURITIES FROM AN INITIAL FOREIGN PURCHASER OR FROM
ANY OTHER PERSON PURSUANT TO CLAUSE (3) SHALL BE PERMITTED TO
TRANSFER ANY SECURITIES SO PURCHASED BY IT TO AN INSTITUTIONAL
ACCREDITED INVESTOR PURSUANT TO THIS CLAUSE (4) PRIOR TO 40 DAYS
FOLLOWING THE CLOSING DATE), (5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED
INVESTOR HOLDING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE
COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION
AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT
OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT
IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS
OF PARAGRAPH (K)(2) OF RULE 902 UNDER) REGULATION S UNDER THE
SECURITIES ACT."
Each Definitive Security will also bear the following additional
legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented
by a Global Security) pursuant to Rule 144 under the Securities
Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit
the Holder thereof to exchange such Transfer Restricted
Security for a Definitive Security that does not bear the
legends set forth above and rescind any restriction on the
transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
that is represented by a Global Security, the Registrar
shall permit the beneficial owner thereof to exchange such
Transfer Restricted Security for a beneficial interest in a
Global Security that does not bear the legends set forth
above and rescind any restriction on the transfer of such
Transfer Restricted Security,
in either case, if the Holder certifies in writing to the Registrar
that its request for such exchange was made in reliance on Rule 144
(such certification to be in the form set forth on the reverse of the
Initial Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities, as the case may be, during the period of the
effectiveness of a Shelf Registration Statement with respect to
such Initial Securities or Private Exchange Securities, all
requirements pertaining to restricted legends on such Initial
Security or such Private Exchange Securities will cease to apply,
and a global Initial Security or Private Exchange Security
without restricted legends will be available to the transferee of
the beneficial interests in such Initial Securities or Private
Exchange Securities. Upon the occurrence of any of the
circumstances described in this paragraph, the Company will
deliver an Officers' Certificate to the Trustee instructing the
Trustee to issue Securities without legends.
(iv) Upon the consummation of a Registered Exchange Offer
with respect to the Initial Securities pursuant to which certain
Holders of such Initial Securities are offered Exchange
Securities in exchange for their Initial Securities, Exchange
Securities in global form without restrictive legends will be
available to Holders or beneficial owners that exchange such
Initial Securities (or beneficial interests therein) in such
Registered Exchange Offer. Upon the occurrence of any of the
circumstances described in this paragraph, the Company will
deliver an Officers' Certificate to the Trustee instructing the
Trustee to issue Securities without restricted legends.
(v) Upon the consummation of a Private Exchange with
respect to the Initial Securities pursuant to which Holders of
such Initial Securities are offered Private Exchange Securities
in exchange for their Initial Securities, all requirements
pertaining to such Initial Securities that Initial Securities
issued to certain Holders be issued in global form will continue
to apply, and Private Exchange Securities in global form with, to
the extent required by applicable law, the Restricted Securities
Legend set forth in Exhibit 1 hereto will be available to Holders
that exchange such Initial Securities in such Private Exchange.
(d) Cancelation or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been
exchanged for certificated or Definitive Securities, redeemed,
repurchased or canceled, such Global Security shall be returned by the
Depository to the Trustee for cancelation or retained and canceled by
the Trustee. At any time prior to such cancelation, if any beneficial
interest in a Global Security is exchanged for certificated or
Definitive Securities, redeemed, repurchased or canceled, the
principal amount of Securities represented by such Global Security
shall be reduced and an adjustment shall be made on the books and
records of the Trustee (if it is then the Securities Custodian for
such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(e) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
certificated Securities, Definitive Securities and Global
Securities at the Registrar's or co-registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than
any such transfer taxes, assessments or similar governmental
charge payable upon exchange or transfer pursuant to
Sections 3.06 and 9.05 of this Indenture).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Security for a period
beginning 15 days before the mailing of a notice of redemption or
an offer to repurchase Securities or 15 days before an interest
payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar may deem and treat the
person in whose name a Security is registered as the absolute
owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and
none of the Company, the Trustee, the Paying Agent, the Registrar
or any co-registrar shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same
debt and shall be entitled to the same benefits under this
Indenture as the Securities surrendered upon such transfer or
exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation
to any beneficial owner of a Global Security, a member of, or a
participant in the Depository or any other Person with respect to
the accuracy of the records of the Depository or its nominee or
of any participant or member thereof, with respect to any
ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other
Person (other than the Depository) of any notice (including any
notice of redemption or repurchase) or the payment of any amount,
under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be
made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depository or its
nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only
through the Depository subject to the applicable rules and pro-
cedures of the Depository. The Trustee may rely and shall be
fully protected in relying upon information furnished by the
Depository with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in
any Security (including any transfers between or among Depository
participants, members or beneficial owners in any Global
Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and
to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Certificated Securities.
(a)A Global Security deposited with the Depository or with
the Trustee as Securities Custodian pursuant to Section 2.1 shall be
transferred to the beneficial owners thereof in the form of
certificated Securities in an aggregate principal amount equal to the
principal amount of such Global Security, in exchange for such Global
Security, only if(i) the Depository notifies the Company that it is
unwilling or unable to continue as a Depository for such Global
Security or if at any time the Depository ceases to be a "clearing
agency" registered under the Exchange Act, and a successor depositary
is not appointed by the Company within 90 days of such notice, or
(ii) a Default or an Event of Default has occurred and is continuing
or (iii) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of certificated
Securities under this Indenture.
(b) Any Global Security that is transferable to the
beneficial owners thereof pursuant to this Section 2.4 shall be
surrendered by the Depository to the Trustee located in the Borough of
Manhattan, The City of New York, to be so transferred, in whole or
from time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such
Global Security, an equal aggregate principal amount of certificated
Securities of authorized denominations. Certificated Securities
issued in exchange for any portion of a Global Security transferred
pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple
thereof and registered in such names as the Depository shall direct.
Any certificated Initial Security delivered in exchange for an
interest in the Global Security shall, except as otherwise provided by
Section 2.3(c), bear the restricted securities legend set forth in
Exhibit 1 hereto.
(c) The registered Holder of a Global Security may grant
proxies and otherwise authorize any Person, including Agent Members
and Persons that may hold interests through Agent Members, to take any
action that a Holder is entitled to take under this Indenture or the
Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company will
promptly make available to the Trustee a reasonable supply of
certificated Securities in definitive, fully registered form without
interest coupons.
EXHIBIT 1
To APPENDIX A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT
THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY
PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN
AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE
COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO
AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE WHICH
MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE
TRANSFEREE TO THE COMPANY AND THE TRUSTEE (PROVIDED THAT NO FOREIGN
PURCHASER WHO HAS PURCHASED SECURITIES FROM AN INITIAL PURCHASER (AN
"INITIAL FOREIGN PURCHASER") OR ANY PERSON WHO HAS PURCHASED
SECURITIES FROM AN INITIAL FOREIGN PURCHASER OR FROM ANY OTHER PERSON
PURSUANT TO CLAUSE (3) SHALL BE PERMITTED TO TRANSFER ANY SECURITIES
SO PURCHASED BY IT TO AN INSTITUTIONAL ACCREDITED INVESTOR PURSUANT TO
THIS CLAUSE (4) PRIOR TO 40 DAYS FOLLOWING THE CLOSING DATE),
(5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR
(6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL
ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES THAT IT WILL FURNISH
TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION
AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF
THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF PARAGRAPH (K)(2) OF RULE 902 UNDER)
REGULATION S UNDER THE SECURITIES ACT.
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION
AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[FORM OF FACE OF INITIAL SECURITY]
No.Up to $__________
9 1/2% Senior Subordinated Note due 2011
CUSIP No. ______
AMC Entertainment Inc., a Delaware corporation, promises to
pay to Cede & Co., or registered assigns, the principal sum as set
forth on the Schedule of Increases or Decreases annexed hereto on
February 1, 2011.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument
to be duly executed.
AMC ENTERTAINMENT INC.,
by
Name:
Title:
by
Name:
Title:
[CORPORATE SEAL]
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:_________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
9 1/2% Senior Subordinated Note
due 2011
1. Interest
(a) AMC Entertainment Inc., a Delaware corporation (such
corporation, and its successors under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per
annum shown above. The Company will pay interest semiannually on
February 1 and August 1 of each year in immediately available funds.
Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from
January 27, 1999. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Company shall pay interest
on overdue principal at the rate borne by the Securities plus 1% per
annum, and it shall pay interest on overdue installments of interest
at the rate borne by the Securities to the extent lawful.
(b) Special Interest. The holder of this Security is
entitled to the benefits of a Registration Agreement, dated as of
January 21, 1999, between the Company and the Purchasers named therein
(the "Registration Agreement"). Capitalized terms used in this
paragraph (b) but not defined herein have the meanings assigned to
them in the Registration Agreement. In the event that (i) neither the
Exchange Offer Registration Statement nor the Shelf Registration
Statement has been filed with the Commission on or prior to the 90th
day following the date of the original issuance of the Securities,
(ii) neither the Exchange Offer Registration Statement nor the Shelf
Registration Statement has been declared effective on or prior to the
150th day following the date of the original issuance of the
Securities, (iii) neither the Registered Exchange Offer has been
consummated nor the Shelf Registration Statement has been declared
effective on or prior to the 180th day following the date of the
original issuance of the Securities, or (iv) after the Exchange Offer
Registration Statement or the Shelf Registration Statement has been
declared effective, such Registration Statement thereafter ceases to
be effective or usable in connection with the Exchange Offer, in the
case of the Exchange Offer Registration Statement, or resales of the
Securities, in the case of the Shelf Registration Statement, at any
time that the Company is obligated to maintain the effectiveness
thereof pursuant to the Registration Agreement (each such event
referred to in clauses (i) through (iv) above being referred to herein
as a "Registration Default"), interest (the "Special Interest") shall
accrue (in addition to stated interest on the Securities) from and
including the date on which the first such Registration Default shall
occur to but excluding the date on which all Registration Defaults
have been cured, at a rate per annum equal to .50% of the principal
amount of the Securities; provided, however, that such rate per annum
shall increase by .50% per annum from and including the 91st day after
the first such Registration Default (and each successive 30th day
thereafter) unless and until all Registration Defaults have been
cured; provided further, however, that in no event shall the Special
Interest accrue at a rate in excess of 1.00% per annum. The Special
Interest will be payable in cash semiannually in arrears each February
1 and August 1, in immediately available funds.
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of
Securities at the close of business on the January 15 or July 15 next
preceding the interest payment date even if Securities are canceled
after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in
money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Payments in
respect of the Securities represented by a Global Security (including
principal, premium and interest) will be made by wire transfer of
immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in
respect of a certificated Security (including principal, premium and
interest), by mailing a check to the registered address of each Holder
thereof; provided, however, that payments on the Securities may also
be made, in the case of a Holder of at least $1,000,000 aggregate
principal amount of Securities, by wire transfer to a U.S. dollar
account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice
to the Trustee or the Paying Agent to such effect designating such
account no later than 30 days immediately preceding the relevant due
date for payment (or such other date as the Trustee may accept in its
discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking
association (the "Trustee"), will act as Paying Agent and Registrar.
The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its domestically
incorporated Wholly-Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated
as of January 27, 1999 (the "Indenture"), between the Company and the
Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. 77aaa-77bbbb) as in effect
on the date of the Indenture (the "TIA"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in
the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a
statement of those terms.
The Securities are senior subordinated unsecured obligations
of the Company limited to $325,000,000 aggregate principal amount at
any one time outstanding (subject to Sections 2.01 and 2.08 of the
Indenture). The Indenture imposes certain limitations on the ability
of the Company and its Subsidiaries to, among other things, incur
additional indebtedness, pay dividends or make distributions in
respect of their capital stock, purchase or redeem capital stock,
enter into transactions with stockholders or certain affiliates, or
consolidate, merge or sell all or substantially all of the Company's
assets, other than in certain transactions between the Company and one
or more of its Wholly-Owned Subsidiaries. These limitations are
subject to significant exceptions, and most would cease to be
effective if the Securities attain Investment Grade Status.
5. Optional Redemption
Except as set forth below, the Securities may not be
redeemable prior to February 1, 2004. On and after that date, the
Company may redeem the Securities in whole at any time or in part from
time to time at the following redemption prices (expressed in
percentages of principal amount), plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders of record
on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the date of redemption),
if redeemed during the 12-month period beginning on or after
February 1 of the years set forth below:
Period
2004
2005
2006
2007 and thereafter
Redemption
Price
104.750%
103.167%
101.583%
100.000%
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to
each Holder of Securities to be redeemed at his or her registered
address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date
is deposited with the Paying Agent on or before the redemption date
and certain other conditions are satisfied, on and after such date
interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Subordination
The Securities are subordinated to Senior Indebtedness of
the Company. To the extent provided in the Indenture, Senior
Indebtedness of the Company must be paid before the Securities may be
paid. The Company agrees, and each Securityholder by accepting a
Security agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints
the Trustee as attorney-in-fact for such purpose.
9.Repurchase of Securities at the Option of Holders upon Change of
Control
Upon a Change of Control, the Company will be required to
make an offer, subject to certain conditions specified in the
Indenture, to repurchase all or any part of the Securities of each
Holder at a purchase price equal to 101% of the principal amount of
the Securities to be repurchased plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of
purchase) as provided in, and subject to the terms of, the Indenture.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture.
Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorse-
ments or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion
of the Security not to be redeemed) or to transfer or exchange any
Securities for a period of 15 days prior to a selection of Securities
to be redeemed or 15 days before an interest payment date.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Company at its written request unless an abandoned
property law designates another Person. After any such payment,
Holders entitled to the money must look only to the Company and not to
the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the
Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture,
(i) the Indenture or the Securities may be amended without prior
notice to any Securityholder but with the written consent of the
Holders of at least a majority in aggregate principal amount of the
outstanding Securities and (ii) any default or noncompliance with any
provision may be waived with the written consent of the Holders of at
least a majority in principal amount of the outstanding Securities.
Subject to certain exceptions set forth in the Indenture, without the
consent of any Holder of Securities, the Company and the Trustee may
amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article Five of
the Indenture; (iii) to provide for uncertificated Securities in
addition to or in place of certificated Securities; (iv) to make
certain changes in the subordination provisions; (v) to add Guarantees
with respect to the Securities; (vi) to secure the Securities;
(vii) to add additional covenants or to surrender rights and powers
conferred on the Company; (viii) to comply with the requirements of
the SEC in order to effect or maintain the qualification of the
Indenture under the TIA; or (ix) to make any change that does not
adversely affect the rights of any Securityholder.
15. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding, subject to certain limitations, may
declare all the Securities to be immediately due and payable. Certain
events of bankruptcy or insolvency are Events of Default and shall
result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the
Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
refuse to enforce the Indenture or the Securities unless it receives
reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities
then outstanding may direct the Trustee in its exercise of any trust
or power under the Indenture. The Holders of a majority in aggregate
principal amount of the Securities then outstanding, by written notice
to the Company and the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict
with any judgment or decree, and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the
Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal
with and collect obligations owed to it by the Company or its
Affiliates and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation.
By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration
for the issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common),
TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
21. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience
to Securityholders. No representation is made as to the accuracy of
such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the
Indenture which has in it the text of this Security.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may substitute
another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by
this certificate occurring prior to the expiration of the period
referred to in Rule 144(k) under the Securities Act after the later of
the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such
Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1)Gto the Company; or
(2)Gpursuant to an effective registration statement under
the Securities Act of 1933; or
(3)Gto a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule
144A, in each case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933; or
(4)Goutside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities
Act of 1933; or
(5)Gto an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act of 1933) that has furnished to the Trustee a signed
letter containing certain representations and
agreements (the form of which letter can be obtained
from the Trustee or the Company); or
(6)Gpursuant to another available exemption from
registration provided by Rule 144 under the Securities
Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the
name of any person other than the registered holder thereof;
provided, however, that if box (4), (5) or (6) is checked, the
Trustee may require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act of 1933.
__________________________
Your Signature
Signature Guarantee:
Date: ___________________ __________________________
Signature must be guaranteedSignature of Signature
by a participant in aGuarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
____________________________________________________________
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is
$[ ]. The following increases or decreases in this Global
Security have been made:
Date of
Exchange
Amount of decrease
in Principal
Amount of this
Global Security
Amount of increase
in Principal Amount
of this Global
Security
Principal amount of
this Global
Security following
such decrease or
increase
Signature of
authorized
signatory of
Trustee or
Securities
Custodian
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.11 (Change of Control) of the
Indenture, check the box:
___
/ /
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.11 of the Indenture,
state the amount:
$
Date: __________________ Your Signature: __________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:_______________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee.
EXHIBIT A
[FORM OF FACE OF SECURITY]
No.Up to $__________
9 1/2% Senior Subordinated Note due 2011
CUSIP No. ______
AMC Entertainment Inc., a Delaware corporation, promises to
pay to Cede & Co., or registered assigns, the principal sum as set
forth on the Schedule of Increases or Decreases annexed hereto on
February 1, 2011.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth on
the other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument
to be duly executed.
AMC ENTERTAINMENT INC.,
by
Name:
Title:
by
Name:
Title:
[CORPORATE SEAL]
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:_________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF SECURITY]
9 1/2% Senior Subordinated Note due 2011
1. Interest.
AMC Entertainment Inc., a Delaware corporation (such
corporation, and its successors under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per
annum shown above. The Company will pay interest semiannually on
February 1 and August 1 of each year in immediately available funds.
Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from
January 27, 1999. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Company shall pay interest
on overdue principal at the rate borne by the Securities plus 1% per
annum, and it shall pay interest on overdue installments of interest
at the rate borne by the Securities to the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of
Securities at the close of business on the January 15 or July 15 next
preceding the interest payment date even if Securities are canceled
after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in
money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Payments in
respect of the Securities represented by a Global Security (including
principal, premium and interest) will be made by wire transfer of
immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in
respect of a certificated Security (including principal, premium and
interest), by mailing a check to the registered address of each Holder
thereof; provided, however, that payments on the Securities may also
be made, in the case of a Holder of at least $1,000,000 aggregate
principal amount of Securities, by wire transfer to a U.S. dollar
account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice
to the Trustee or the Paying Agent to such effect designating such
account no later than 30 days immediately preceding the relevant due
date for payment (or such other date as the Trustee may accept in its
discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking
association (the "Trustee"), will act as Paying Agent and Registrar.
The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its domestically
incorporated Wholly-Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated
as of January 27, 1999 (the "Indenture"), between the Company and the
Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. 77aaa-77bbbb) as in effect
on the date of the Indenture (the "TIA"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in
the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a
statement of those terms.
The Securities are senior subordinated unsecured obligations
of the Company limited to $325,000,000 aggregate principal amount at
any one time outstanding (subject to Sections 2.01 and 2.08 of the
Indenture). The Indenture imposes certain limitations on the ability
of the Company and its Subsidiaries to, among other things, incur
additional indebtedness, pay dividends or make distributions in
respect of their capital stock, purchase or redeem capital stock,
enter into transactions with stockholders or certain affiliates, or
consolidate, merge or sell all or substantially all of the Company's
assets, other than in certain transactions between the Company and one
or more of its Wholly-Owned Subsidiaries. These limitations are
subject to significant exceptions, and most would cease to be
effective if the Securities attain Investment Grade Status.
5. Optional Redemption
Except as set forth below, the Securities may not be
redeemable prior to February 1, 2004. On and after that date, the
Company may redeem the Securities in whole at any time or in part from
time to time at the following redemption prices (expressed in
percentages of principal amount), plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders of record
on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the date of redemption),
if redeemed during the 12-month period beginning on or after
February 1 of the years set forth below:
Period
Redemption
Price
2004
104.750%
2005
103.167%
2006
101.583%
2007 and thereafter
100.000%
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to
each Holder of Securities to be redeemed at his or her registered
address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date
is deposited with the Paying Agent on or before the redemption date
and certain other conditions are satisfied, on and after such date
interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Subordination
The Securities are subordinated to Senior Indebtedness of
the Company. To the extent provided in the Indenture, Senior
Indebtedness of the Company must be paid before the Securities may be
paid. The Company agrees, and each Securityholder by accepting a
Security agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints
the Trustee as attorney-in-fact for such purpose.
9.Repurchase of Securities at the Option of Holders upon Change of
Control
Upon a Change of Control, the Company will be required to
make an offer, subject to certain conditions specified in the
Indenture, to repurchase all or any part of the Securities of each
Holder at a purchase price equal to 101% of the principal amount of
the Securities to be repurchased plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of
purchase) as provided in, and subject to the terms of, the Indenture.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture.
Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorse-
ments or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion
of the Security not to be redeemed) or to transfer or exchange any
Securities for a period of 15 days prior to a selection of Securities
to be redeemed or 15 days before an interest payment date.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Company at its written request unless an abandoned
property law designates another Person. After any such payment,
Holders entitled to the money must look only to the Company and not to
the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the
Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture,
(i) the Indenture or the Securities may be amended without prior
notice to any Securityholder but with the written consent of the
Holders of at least a majority in aggregate principal amount of the
outstanding Securities and (ii) any default or noncompliance with any
provision may be waived with the written consent of the Holders of at
least a majority in principal amount of the outstanding Securities.
Subject to certain exceptions set forth in the Indenture, without the
consent of any Holder of Securities, the Company and the Trustee may
amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article Five of
the Indenture; (iii) to provide for uncertificated Securities in
addition to or in place of certificated Securities; (iv) to make
certain changes in the subordination provisions; (v) to add Guarantees
with respect to the Securities; (vi) to secure the Securities;
(vii) to add additional covenants or to surrender rights and powers
conferred on the Company; (viii) to comply with the requirements of
the SEC in order to effect or maintain the qualification of the
Indenture under the TIA; or (ix) to make any change that does not
adversely affect the rights of any Securityholder.
15. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding, subject to certain limitations, may
declare all the Securities to be immediately due and payable. Certain
events of bankruptcy or insolvency are Events of Default and shall
result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the
Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
refuse to enforce the Indenture or the Securities unless it receives
reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities
then outstanding may direct the Trustee in its exercise of any trust
or power under the Indenture. The Holders of a majority in aggregate
principal amount of the Securities then outstanding, by written notice
to the Company and the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict
with any judgment or decree, and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the
Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal
with and collect obligations owed to it by the Company or its
Affiliates and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation.
By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration
for the issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common),
TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
21. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience
to Securityholders. No representation is made as to the accuracy of
such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the
Indenture which has in it the text of this Security.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may substitute
another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Security.
Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature guarantor
acceptable to the Trustee.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.11 (Change of Control) of the
Indenture, check the box:
___
/ /
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.11 of the Indenture,
state the amount:
$
Date: __________________ Your Signature: __________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:_______________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the
Trustee.
EXHIBIT B
Form of
Transferee Letter of Representation
AMC Entertainment Inc.
In care of
[ ]
[ ]
[ ]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ]
principal amount of the 9 1/2% Senior Subordinated Notes due 2011 (the
"Securities") of AMC Entertainment Inc. (the "Company").
Upon transfer, the Securities would be registered in the name of
the new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act")), purchasing for our own account or for
the account of such an institutional "accredited investor" at least
$250,000 principal amount of the Securities, and we are acquiring the
Securities not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Securities, and we invest in or purchase securities similar to the
Securities in the normal course of our business. We, and any accounts
for which we are acting, are each able to bear the economic risk of
our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold
except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are
purchasing Securities to offer, sell or otherwise transfer such
Securities prior to the date that is two years after the later of the
date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only
(a) to the Company, (b) pursuant to a registration statement that has
been declared effective under the Securities Act, (c) in a transaction
complying with the requirements of Rule 144A under the Securities Act
("Rule 144A"), to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that is purchasing for
its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A,
(d) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an
institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing
for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of
Securities of $250,000, or (f) pursuant to any other available
exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that
the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and in
compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the
Securities is proposed to be made pursuant to clause (e) above prior
to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this
letter to the Company and the Trustee, which shall provide, among
other things, that the transferee is an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act and that it is acquiring such Securities for
investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Company and the
Trustee reserve the right prior to the offer, sale or other transfer
prior to the Resale Restriction Termination Date of the Securities
pursuant to clause (d), (e) or (f) above to require the delivery of an
opinion of counsel, certifications or other information satisfactory
to the Company and the Trustee.
TRANSFEREE:_________________,
by:_______________________
