SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_______________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) March 19, 1997
AMC ENTERTAINMENT INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 01-12429 43-1304369
(State or Other Jurisdiction( Commission (IRS Employer
of Incorporation) File Number) Identification No.)
106 W. 14TH STREET, KANSAS CITY, MO 64105-1977
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (816) 221-4000<PAGE>
<PAGE>
Item 5. Other Events.
Sale of Senior Subordinated Notes. On March 19, 1997, AMC Entertainment
Inc. (the "Company") sold $200 million aggregate principal amount of 9.5% Senior
Subordinated Notes due 2009 (the "Notes") in a private transaction conforming
with Rule 144A and Regulation S. Net proceeds from the issuance of the Notes
(approximately $193.8 million) were used to reduce borrowings under the
Company's $425 million credit facility (the "Credit Facility"). Amounts repaid
under the Credit Facility will again be available for borrowing thereunder,
and the Company intends to utilize this increased availability to continue
with its current expansion program.
The Notes have not been registered under the Securities Act of 1933 and
may not be offered or sold in the United States or to or for the benefit of
United States persons absent registration or an applicable exemption from the
registration requirements of the Securities Act.
The Notes were issued under an Indenture dated March 19, 1997 (the
"Indenture") between the Company and The Bank of New York, as Trustee, a copy
of which is filed herewith and incorporated herein by reference. The
following summaries of certain provisions of the Indenture and a Registration
Rights Agreement entered into by the Company for the benefit of holders of the
Notes, also filed herewith and incorporated herein by refereence, do not
purport to be complete and are qualified in their entirety by such reference
to the Indenture and Registration Rights Agreement..
Interest on the Notes is payable on March 15 and September 15 of each
year, commencing September 15, 1997. The Notes are redeemable at the option
of the Company, in whole or in part, at any time on or after March 15, 2002
at 104.75% of the principal amount thereof, declining ratably to 100% of the
principal amount thereof on or after March 15, 2006, plus in each case
interest accrued to the redemption date. Upon a Change of Control (as defined
in the Indenture), each holder of the Notes will have the right to require the
Company to repurchase such holder's Notes at a price equal to 101% of the
principal amount thereof plus accrued and unpaid interest to the date of
repurchase. The Notes are subordinated to all existing and future senior
indebtedness (as defined in the Indenture) of the Company.
The Indenture contains certain covenants that, among other things,
restrict the ability of the Company and its subsidiaries to: 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 and other
than a proposed merger of the Company with Durwood, Inc. All of these
limitations are subject to a number of important qualifications. The
Indenture does not impose any limitation on the incurrence by the Company and
its subsidiaries of liabilities that are not considered "Indebtedness" under
the Indenture, such as those that would be incurred under certain
sale/leaseback transactions; nor does the Indenture impose any limitation on
the amount of liabilities incurred by subsidiaries, if any, that might be
designated as Unrestricted Subsidiaries (as defined therein). Furthermore,
there are no restrictions on the ability of the Company and its subsidiaries
to make advances to , or invest in, other entities (including unaffiliated
entities) and no restrictions on the ability of the Company's subsidiaries to
enter into agreements restricting their ability to pay dividends or otherwise
transfer funds to the Company. If the Notes attain "investment grade status"
( as defined in the Indenture), the covenants in the Indenture limiting the
Company's ability to incur indebtedness, pay dividends, acquire stock or
engage in transactions with affiliates will cease to apply.
Under the Registration Rights Agreement, the Company has agreed to use
its best efforts to (i) file and cause to become effective by August 15, 1997,
a registration statement relating to a registered offer to exchange the Notes
(the "Exchange Offer") for notes of the Company with terms identical in all
material respects to the Notes and (ii) cause the Exchange Offer to be
consummated by September 16, 1997. If the Exchange Offer registration
statement is not declared effective by August 17, 1997, the Company has agreed
that in lieu thereof it will use its best efforts to cause to become effective
by September 16, 1997 a shelf registration statement with respect to the
Notes. In the event that either (a) the Exchange Offer Registration Statement
is not filed on or prior to June 17, 1997, (b) the Exchange Offer Registration
Statement is not declared effective on or prior to August 17, 1997 or (c) the
Exchange Offer is not consummated or a Shelf Registration Statement, with
respect to the Notes, is not declared effective on or prior to September 16,
1997, the interest rate borne by the Notes will increase by 0.50% per annum
following June 17, 1997 in the case of clause (a) above, following August 17,
1997 in the case of clause (b) above and following September 15, 1997 in the
case of clause (c) above. The aggregate amount of such increase will in no
event exceed 1.00% per annum. Upon (x) the filing of the Exchange Offer
Registration Statement after June 17, 1997, (y) the effectiveness of the
Exchange Offer Registration Statement after August 17, 1997 or (z) the
consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after September 16, 1997, the
interest rate borne by the Notes from the date of filing, effectiveness or
consummation, as the case may be, will be reduced to 9.5%.
Amendment to Credit Facility and Related Matters. The Company has
amended its Credit Facility to provide greater flexibility with respect to its
growth plans. Previously, the Company was limited to $150 million in capital
expenditures (as defined in the Credit Facility) during each fiscal year plus
the amount of unused capital expenditures from the prior fiscal year. The
Credit Facility, as amended, now generally limits capital expenditures to (i)
$240 million in fiscal 1997 plus the amount of unused capital expenditures
carried forward from fiscal 1996 (approximately $34 million), (ii) with
respect to fiscal 1998, $150 million less the amount by which capital
expenditures with respect to fiscal 1997 exceed (A) $150 million plus (B) the
amount of unused capital expenditures carried forward from fiscal 1996
(approximately $34 million) and (iii) with respect to any other fiscal year,
$150 million per year plus the amount (if any) of unused capital expenditures
from the prior fiscal year. As previously, the permitted amount of capital
expenditures in any fiscal year will be increased by the amount of proceeds
received from sale/leaseback transactions in such year. Further, capital
expenditures made with the proceeds of issues of qualifying subordinated
indebtedness and capital stock are disregarded for purposes of the limitation
on capital expenditures under the Credit Facility.
The Company may seek additional relief with respect to the covenants
under the Credit Facility and may pursue other financing programs to allow it
to continue its increased rate of capital expenditures and to comply with the
terms of the Credit Facility. The Company is currently negotiating a
sale/leaseback transaction with respect to certain of its theatres, including
theatres which are scheduled to open in fiscal 1998, the estimated net
proceeds of which are expected to be approximately $170 million. The
theatres, if any, sold in the proposed sale/leaseback transaction would be
leased back by the Company pursuant to an operating lease. The Company
believes that cash generated from operations, existing cash and equivalents,
amounts which the Company anticipates receiving from the offering of the Notes
and for assets placed in the sale/leaseback transaction and other offerings
and the unused commitment amount under its Credit Facility will be sufficient
to fund operations and planned capital expenditures through the end of fiscal
1998.
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits
(c) Exhibits
4.1 Indenture dated as of March 19, 1997, by and between the
Company and The Bank of New York, as Trustee.
4.2 Registration Rights Agreement dated March 19, 1997, by and
among the Company and the initial purchasers of the Notes.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMC Entertainment Inc.
Date March 28, 1997By /s/ Peter C. Brown
Peter C. Brown
President and
Chief Financial Officer
EXHIBIT 4.1
EXECUTION COPY
AMC Entertainment Inc.,
Issuer,
And
The Bank of New York,
Trustee
Indenture
Dated as of March 19, 1997
9.5% Senior Subordinated Notes
due 2009
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of March 19, 1997*
Trust Indenture
Act SectionIndenture Section
310(a)(1) . . . . . . . . . . . . . . . . . . .608
(b) . . . . . . . . . . . . . . . . . . . . .604, 607, 609
311(a) . . . . . . . . . . . . . . . . . . . . .604
(b) . . . . . . . . . . . . . . . . . . . . .604
(c) . . . . . . . . . . . . . . . . . . . . .604
312(a) . . . . . . . . . . . . . . . . . . . . .701
(b) . . . . . . . . . . . . . . . . . . . . .701
(c) . . . . . . . . . . . . . . . . . . . . .701
314(e) . . . . . . . . . . . . . . . . . . . . .101
315(a) . . . . . . . . . . . . . . . . . . . . 602, 903,1209, 1210
(b) . . . . . . . . . . . . . . . . . . . . .105, 512, 602, 903
(c) . . . . . . . . . . . . . . . . . . . .602, 903, 1209, 1210
(d) . . . . . . . . . . . . . . . . . . . .602, 903, 1209, 1210
316(c) . . . . . . . . . . . . . . . . . . . . .105
318(a) . . . . . . . . . . . . . . . . . . . . .108
* This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
INDENTURE dated as of March 19, 1997 between AMC
Entertainment Inc., a Delaware corporation, as issuer (the "Company") and The
Bank of New York, a New York banking corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the creation of and
issue of its 9.5% Senior Subordinated Notes due 2009 (the "Initial
Securities"), and 9.5% Exchange Senior Subordinated Notes due 2009 (the
"Exchange Securities" and, together with the Initial Securities, the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture;
WHEREAS, upon the effectiveness of the Exchange Offer
Registration Statement (as defined herein) or the Shelf Registration Statement
(as defined herein), as the case may be, this Indenture will be subject to,
and shall be governed by, the provisions of the Trust Indenture Act that are
required or deemed to be part of and to govern indentures qualified under the
Trust Indenture Act; and
WHEREAS, all things necessary have been done to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company
and to make this Indenture a valid agreement of the Company, each in
accordance with its respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a)the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(b)all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c)the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision;
(e)the words "include", "included" and "including" as used
herein shall be deemed in each case to be followed by the phrase
"without limitation"; and
(f)the words "amendment or refinancing" as used herein
shall be deemed in each case to refer to any amendment, renewal,
extension, substitution, refinancing, restructuring, restatement,
replacement, supplement or other modification of any instrument
or agreement; the words "amended or refinanced" shall have a
correlative meaning.
Certain terms, used principally in Articles Five, Ten and
Twelve, are defined in those Articles.
"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,
(i) 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.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means applicable procedures of the
Depositary, Euroclear System or Cedel Bank S.A., as the case may be.
"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 or the city in which the
Trustee's Office is located are authorized or required to be closed or, if no
Note 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.
"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 Keefe 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 Moody's 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
Moody's 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 cents per share, currently has ten votes
per share and the Company's Common Stock, par value 66 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 Securities are
originally issued under the Indenture.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act
of 1934, or if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"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.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any two of the following
officers: its Chairman of the Board, any Vice Chairman, its President, any
Executive Vice President, any Senior Vice President, any Vice President, its
Treasurer or its Secretary, and delivered to the Trustee.
"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 non-recurring 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 by
another Person shall be accounted for on a "pooling of interests" basis and
not as a purchase.
"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 financing costs);
provided, that, (A) in making such computation, 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 for purposes of
calculating the Consolidated EBITDA Ratio.
"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.
"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 101 Barclay Street, 21 W, New York, New York 10286.
"Credit Facility" means that certain Credit Agreement, dated
as of December 27, 1995, among the Company, The Bank of Nova Scotia, as
administrative agent, Chemical Bank, as syndication 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.
"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
Moody's 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.
"Depositary" or "DTC" means The Depository Trust Company, its
nominees and their respective successors.
"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.
"DI Merger" means the proposed merger, referred to in the
Offering Circular of the Company dated March 14, 1997, between the Company and
Durwood, Inc., as the same may be approved by the Board of Directors and
stockholders of the Company.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer by the Issuer to the Holders
of the Initial Securities to exchange all of the Initial Securities for
Exchange Securities, as provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange
Offer Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in the first
recital of this Indenture and refers to any Exchange Securities containing
terms identical in all material respects to the Initial Securities (except
that such Exchange Securities shall not contain terms with respect to transfer
restrictions) that are issued and exchanged for the Initial Securities in
accordance with the Exchange Offer, as provided for in the Registration Rights
Agreement and this Indenture.
"Existing Senior Subordinated Securities" means the Company's
12 % Senior Subordinated Notes due 2002.
"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" means 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 and (ix) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (i) through (viii) 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.
"Initial Securities" has the meaning stated in the first
recital of this Indenture.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"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 Moody's 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 Note, the date on which
the principal of such Note becomes due and payable as provided in such Note
or the Indenture, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Moody's" means Moody's 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.
"Officers' Certificate" means a certificate signed by any two
of the following officers of the Company: its Chairman, any Vice Chairman,
its President, any Executive Vice President, any Senior Vice President, any
Vice President, its Treasurer or its Secretary and delivered to the Trustee.
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.
"Outstanding" when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a)Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b)Securities, or portions thereof, for whose payment,
redemption or purchase money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c)Securities, except to the extent provided in Sections
402 and 403, with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article Four;
and
(d)Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in
whose hands the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, direction, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or
such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (or premium, if any) or interest on any Securities on
behalf of the Company.
"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) Mr. Stanley H. Durwood, his
spouse and any of his lineal descendants and their respective spouses
(collectively, the "Durwood Family") and any Affiliate of any member of the
Durwood Family, (ii) Mr. Stanley H. Durwood's estate, or any trust established
by Mr. Stanley H. Durwood, 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 Durwood Family (whether or not any member of the
Durwood 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 Durwood 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 Securities;
(ii)Indebtedness of the Company under the Credit
Facility in an aggregate principal amount at any one time
outstanding not to exceed the sum of $425 million less any
amount by which any commitment thereunder has been or shall
be permanently reduced in accordance with the terms thereof;
(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 "Limitation on Consolidated Indebtedness";
(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; and
(xiv)Indebtedness not otherwise permitted to be
incurred pursuant to clauses (i) through (xiii) above which,
together with any other Indebtedness pursuant to this clause
(xiv), has an aggregate principal amount that does not
exceed $75 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.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for purposes of this definition,
any Security authenticated and delivered under Section 308 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security.
"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.
"Redemption Date", when used with respect to any Securities
to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement between the Company and the Initial Purchasers named therein dated
as of March 19, 1997 relating to the Securities.
"Registration Statement" means the Registration Statement as
defined in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the March 1 or September 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or vice-chairman of the executive committee of the board of
directors, the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller and any
assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers 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.
"Restricted Payments" shall have the meaning set forth in the
"Limitation on Restricted Payments" covenant.
"Restricted Payments Computation Period" means the period
(taken as one accounting period) from 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 Group, a division of
McGraw Hill, Inc., or any successor to the rating agency business thereof.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" and "Securities" have the meaning set forth in the
first recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture. For all purposes of this
Indenture, the term "Securities" shall include any Exchange Securities to be
issued and exchanged for any Initial Securities in accordance with the
Exchange Offer as provided for in the Registration Rights Agreement and this
Indenture and, for purposes of this Indenture, all Initial Securities and
Exchange Securities shall vote together as one series of Securities under this
Indenture.
"Senior Indebtedness" means (i) 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), 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,
(ii) Indebtedness of the Company that is expressly subordinated in right of
payment to any Senior Indebtedness of the Company or the Securities including
Indebtedness evidenced by the Existing Senior Subordinated Securities, -
(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.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Special Record Date" means a date fixed by the Trustee for
the payment of any Defaulted Interest pursuant to Section 309.
"Stated Maturity," when used with respect to any Note or any
installment of interest thereof, means the date specified in such Note as the
fixed date on which the principal of such Note 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.
"Surviving Entity" shall have the meaning set forth under
"Merger and Sale of Assets."
"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.
"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.
"Voting Stock" means stock of the class or classes pursuant
to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of a corporation (irrespective of whether or not at the time,
stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
"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 102. Other Definitions.
Defined
Term in Section
"Act" . . . . . . . . . . . . . . . . . . . . . . . .105
"Bankruptcy Order" . . . . . . . . . . . . . . . . . .501
"CEDEL". . . . . . . . . . . . . . . . . . . . . . . .201
"Change of Control Offer". . . . . . . . . . . . . . 1011
"covenant defeasance" . . . . . . . . . . . . . . . .403
"Custodian". . . . . . . . . . . . . . . . . . . . . .501
"Defaulted Interest" . . . . . . . . . . . . . . . . .309
"defeasance" . . . . . . . . . . . . . . . . . . . . .402
"Euroclear". . . . . . . . . . . . . . . . . . . . . .201
"Events of Default". . . . . . . . . . . . . . . . . .501
"Global Security". . . . . . . . . . . . . . . . . . .201
"incorporated provision" . . . . . . . . . . . . . . .108
"indenture security holder". . . . . . . . . . . . . .118
"indenture to be qualified". . . . . . . . . . . . . .118
"indenture trustee". . . . . . . . . . . . . . . . . .118
"institutional trustee". . . . . . . . . . . . . . . .118
"Initial Blockage Period". . . . . . . . . . . . . . 1203
"obligor". . . . . . . . . . . . . . . . . . . . . . .118
"Payment Blockage Period". . . . . . . . . . . . . . 1203
"Permitted Junior Securities" . . . . . . . . . . . 1202
"Physical Securities". . . . . . . . . . . . . . . . .201
"Private Placement Legend" . . . . . . . . . . . . . .202
"Purchase Date" . . . . . . . . . . . . . . . . . . .101
"rate(s) of exchange" . . . . . . . . . . . . . . . .116
"Regulation S Global Security" . . . . . . . . . . . .201
"Relevant Person" . . . . . . . . . . . . . . . . . .119
"Restricted Global Security" . . . . . . . . . . . . .201
"Restricted Payments" . . . . . . . . . . . . . . . 1008
"Restricted Period" . . . . . . . . . . . . . . . . .306
"Security Register" . . . . . . . . . . . . . . . . .305
"Security Registrar" . . . . . . . . . . . . . . . . .305
"Subordinated Obligations" . . . . . . . . . . . . . 1201
"U.S. Government Obligations" . . . . . . . . . . . .404
"U.S. Physical Securities" . . . . . . . . . . . . . .201
Section 103. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that, in the case of any such application
or request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion (other than the certificates
required by Section 1013) with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a)a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b)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;
(c)a statement that, in the opinion of each 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
(d)a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
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 105. Acts of Holders.
(a)Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Trust Indenture Act Section 315) conclusive in
favor of the Trustee and the Company, if made in the manner provided in
this Section.
(b)The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c)The ownership of Securities shall be proved by the Security
Register.
(d)If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of such Holders entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding Trust Indenture Act Section 316(c), any such record date
shall be the record date specified in or pursuant to such Board Resolution,
which 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 such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Securities then Outstanding have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for this purpose the Securities then Outstanding shall be computed
as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act by the
Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(e)Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, suffered or omitted to be done
by the Trustee, any Paying Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(f)For all purposes of this Indenture, all Initial Securities
and Exchange Securities shall vote together as one series of Securities
under this Indenture.
Section 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a)the Trustee by any Holder or the Company shall be sufficient
for every purpose hereunder if made, given, furnished or delivered,
in writing, to or with the Trustee at The Bank of New York, 101
Barclay Street, 21 W, New York, New York 10286, Attention: Corporate
Trust Administration; or
(b)the Company by the Trustee or any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or delivered in writing to the
Company addressed to it at AMC Entertainment Inc., Attention:
Secretary, 106 West 14th Street, Kansas City, Missouri 64105-1977.
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder when mailed whether or not actually
received by such Holder. 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.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of
any event as required by any provision of this Indenture, then any method
of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice.
Section 108. Conflict of Any Provision of Indenture with Trust
Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, or conflicts with any provision (an
"incorporated provision") required by or deemed to be included in this
Indenture by operation of such Trust Indenture Act sections, such imposed
duties or incorporated provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and
the Trustee shall bind their respective successors and assigns, whether so
expressed or not.
Section 111. 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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person (other than the parties hereto and their
successors hereunder, any Paying Agent, the Holders and the holders of
Senior Indebtedness) any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of laws. Upon the issuance of the
Exchange Securities or the effectiveness of the Shelf Registration
Statement, this Indenture shall be subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such
provisions.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
date established for payment of Defaulted Interest pursuant to Section 309,
Stated Maturity or Purchase Date with respect to any Security shall not be
a Business Day, then (notwithstanding any other provision of this Indenture
or of the Securities) payment of interest or principal (and premium, if
any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest
Payment Date, Redemption Date, date established for payment of Defaulted
Interest pursuant to Section 309, Stated Maturity or Purchase Date and no
interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date, Redemption Date, date established for
payment of Defaulted Interest pursuant to Section 309, Stated Maturity or
Purchase Date, as the case may be, to the next succeeding Business Day.
Section 115. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities.
By the execution and delivery of this Indenture, the Company
(i) acknowledges that it has, by separate written instrument, irrevocably
designated and appointed CT Corporation System, 1633 Broadway, New York,
New York 10019, as its respective authorized agent upon which process may
be served in any suit or proceeding arising out of or relating to the
Securities or this Indenture that may be instituted in any federal or state
court in the State of New York, Borough of Manhattan, or brought under
federal or state securities laws or brought by the Trustee (whether in its
individual capacity or in its capacity as Trustee hereunder), and
acknowledges that CT Corporation System has accepted such designation, (ii)
submits to the jurisdiction of any such court in any such suit or
proceeding, and (iii) agrees that service of process upon CT Corporation
System and written notice of said service to it (mailed or delivered to its
Secretary at its principal office in Kansas City, Missouri as specified in
Section 106(b) and Section 106(c) hereof, shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. The
Company further agrees to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment of CT Corporation
System in full force and effect so long as this Indenture shall be in full
force and effect.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise) with respect to itself or its
property, the Company hereby irrevocably waives such immunity in respect
of its obligations under this Indenture and the Securities, to the extent
permitted by law.
Section 116. 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. Each Holder
by accepting any of the Securities waives and releases all such liability.
The waiver and release shall be part of the consideration for the issue of
the Securities.
Section 117. 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 118. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a
part of this Indenture. The following Trust Indenture Act terms used in
this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"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 Trust Indenture Act terms used in this Indenture that
are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by the Commission rule have the
meanings assigned to them by such definitions.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Initial Securities shall be known as the "9.5% Senior
Subordinated Notes due 2009" and the Exchange Securities shall be known as
the "9.5% Exchange Senior Subordinated Notes due 2009", in each case, of the
Company. The Securities and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any Security may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of
the Security.
The definitive Securities shall be printed, lithographed,
typewritten or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The Initial Securities are being offered and sold by the Company
pursuant to a Purchase Agreement, dated March 14, 1997, between the
Company, Goldman, Sachs & Co., Salomon Brothers Inc and Scotia Capital
Markets (USA) Inc.
Initial Securities offered and sold to "qualified institutional
buyers" (as defined in Rule 144A) in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Securities in
definitive, fully registered form without interest coupons substantially
in the form set forth in this Article (collectively, the "Restricted Global
Security") deposited with, or on behalf of, the Depositary or with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Restricted Global Security may from time to time
be increased or decreased by adjustments made on the records of the
Depositary or its nominee, or of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Initial Securities offered and sold in reliance on Regulation S
shall be issued in the form of one or more permanent global Securities in
fully registered form without interest coupons (collectively, the
"Regulation S Global Security" and, together with the Restricted Global
Security, the "Global Securities" or each individually, a "Global
Security") substantially in the form set forth in this Article. The
Regulation S Global Securities will be registered in the name of a nominee
of DTC and deposited with the Trustee on behalf of the Purchasers, for the
accounts of the Euroclear System ("Euroclear") and Cedel Bank, S.A.
("CEDEL"). The aggregate principal amount of the Regulation S Global
Security may from time to time be increased or decreased by adjustments
made on the records of the Depositary or its nominee, or of the Trustee,
as custodian for the Depositary or its nominee, as hereinafter provided.
Until and including the 40th day after the date of this Indenture,
beneficial interests in the Regulation S Global Security may be held only
through Euroclear or CEDEL, unless delivery is made through the Restricted
Global Note in accordance with the certification requirements provided in
this Indenture.
If DTC is at any time unwilling or unable to continue as a depositary,
or if, in the case of the Regulation S Global Security held for an account
of Euroclear or CEDEL, Euroclear or CEDEL, as the case may be, is closed
for business for 14 continuous days or announces an intention to cease or
permanently ceases business, the Company will issue certificates for the
Securities in definitive, fully registered, non-global form without
interest coupons in exchange for the Regulation S Global Security or
Restricted Global Security, as the case may be. In all cases, certificates
for Securities delivered in exchange for any Global Security or beneficial
interests therein will be registered in the names, and issued in any
approved denominations, requested by DTC.
In the case of certificates for Securities in non-global form issued
in exchange for the Regulation S Global Security or Restricted Global
Security, such certificates will bear the first legend appearing under
Section 202 of this Indenture (unless the Company determines otherwise in
accordance with applicable law). The holder of a Security in non-global
form may transfer such Security, subject to compliance with the provisions
of such legend, by surrendering it at the office or agency maintained by
the Company for such purpose in the Borough of Manhattan, The City of New
York, which initially will be the office of the Trustee.
Initial Securities offered and sold other than as global
securities shall be issued in the form of permanent certificated Securities
in registered form in substantially the form set forth in this Article (the
"U.S. Physical Securities").
Section 202. Restrictive Legends.
Unless and until (i) an Initial Security is sold under an
effective Registration Statement or (ii) an Initial Security is exchanged
for an Exchange Security in connection with an effective Registration
Statement, in each case as provided for in the Registration Rights
Agreement and each such Restricted Global Security and each U.S. Physical
Security shall bear the following legend (the "Private Placement Legend")
on the face thereof:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES.
Each Global Security, whether or not an Initial Security, shall
also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC") 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 IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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 CEDE & CO. 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 SECTIONS
306 AND 307 OF THE INDENTURE.
Section 203. Form of Face of Security.
AMC ENTERTAINMENT INC.
9.5% [Exchange] Senior Subordinated Note
due 2009
CUSIP ______
No.
AMC Entertainment Inc., a Delaware corporation (herein called the
"Company", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
or registered assigns, the principal sum of
__________________________DOLLARS [(or such other amount that may from time
to time be indicated on the records of DTC or its nominee or on the records
of the Trustee as custodian for DTC or its nominee as the result of
increases or decreases by adjustments made on the records of DTC or its
nominee or on the records of the Trustee, as the custodian for DTC, in
accordance with the rules and procedures of DTC; provided; however that
such amount may not exceed $200,000,000)] on March 15, 2009, at the office
or agency of the Company referred to below, and to pay interest thereon on
September 15, 1997, and semiannually thereafter, on March 15 and September
15 in each year, from March 19, 1997, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the
rate of 9.5% per annum [subject to adjustment as provided below], until
the principal hereof is paid or duly provided for, and (to the extent
lawful) to pay on demand interest on any overdue interest at the rate borne
by the Securities from the date of the Interest Payment Date on which such
overdue interest becomes payable to the date payment of such interest has
been made or duly provided for. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided
in such Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the March 1
or September 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for, and interest on such defaulted interest at the
interest rate borne by the Securities, to the extent lawful, shall
forthwith cease to be payable to the Holder on such Regular Record Date,
and may be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in
said Indenture.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of March 19, 1997, between the
Company and the Initial Purchasers named therein (the "Registration Rights
Agreement"). In the event that either (a) the Exchange Offer Registration
Statement (as such term is defined in the Registration Rights Agreement)
is not filed with the Securities and Exchange Commission on or prior to the
90th day following the date of original issue of the Securities, (b) the
Exchange Offer Registration Statement has not been declared effective on
or prior to the 150th day following the date of original issue of the
Securities or (c) the Exchange Offer (as such term is defined in the
Registration Rights Agreement) is not consummated or a Shelf Registration
Statement (as such term is defined in the Registration Rights Agreement)
is not declared effective on or prior to the 180th day following the date
of original issue of the Securities, the interest rate borne by this
Security shall be increased by 0.50% per annum following such 90-day period
in the case of clause (a) above, following such 150-day period in the case
of clause (b) above or following such 180-day period in the case of clause
(c) above. The aggregate amount of such increase from the original
interest rate pursuant to these provisions shall in no event exceed 1.00%
per annum. Upon (x) the filing of the Exchange Offer Registration
Statement after the 90-day period described in clause (a) above, (y) the
effectiveness of the Exchange Offer Registration Statement after the 150-
day period described in clause (b) above or (z) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as
the case may be, after the 180-day period described in clause (c) above,
the interest rate borne by this Security from the date of such filing,
effectiveness or consummation, as the case may be, will be reduced to the
interest rate set forth above. The Company shall promptly provide the
Trustee with notice of any change in the interest rate borne by this
Security.]
Securities that remain outstanding after the consummation of the
Exchange Offer and Exchange Securities issued in connection with the
Exchange Offer will be treated as a single class of securities under this
Indenture.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Company
maintained for that purpose in The City of New York (which shall be the
Corporate Trust Office of the Trustee, unless the Company shall designate
and maintain some other office or agency for such purpose), or at such
other office or agency of the Company as may be maintained for such
purpose, in lawful money of the United States of America; provided,
however, that payment of interest may be made at the option of the Company
by check mailed to the address of the Person entitled thereto as such
address shall appear on the Security Register.
Interest on this Security shall be computed on the basis of a
year of twelve 30-day months.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:AMC ENTERTAINMENT INC.
By
Attest:
By
Authorized Signature
Section 204. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company designated as its 9.5% [Exchange] Senior Subordinated Notes due
2009 (the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $200,000,000,
which may be issued under an indenture (the "Indenture") dated as of March
19, 1997, between the Company, as issuer, and The Bank of New York, as
trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of
the Company, the Trustee and the Holders of the Securities, and of the
terms upon which the Securities are, and are to be, authenticated and
delivered.
The Securities are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture and in any other
agreements entered into by the Trustee, as permitted or required by the
Indenture, to acknowledge or effectuate such subordination, to the prior
payment in full in cash or Cash Equivalents of all Senior Indebtedness of
the Company, whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed. Each Holder by his acceptance
hereof agrees to be bound by such provisions and authorizes and expressly
directs the Trustee, on his behalf, to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided for
in the Indenture and appoints the Trustee his attorney-in-fact for such
purpose.
On or before each payment date, the Company shall deliver or
cause to be delivered to the Trustee or the Paying Agent an amount in U.S.
Dollars sufficient to pay the amount due on such payment date.
The Securities are subject to redemption upon not less than 30
nor more than 60 days' notice by first-class mail, at any time after March
15, 2002, as a whole or in part, at the election of the Company, at a
Redemption Price equal to the percentage of the principal amount set forth
below if redeemed during the 12-month period beginning March 15 of the
years indicated together with accrued and unpaid interest, if any, to the
Redemption Date:
YearRedemption Price
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 104.75%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 103.5625%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 102.375%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 101.1875%
2006 and thereafter. . . . . . . . . . . . . . . . . . . . .
.100.00%
In the case of any redemption of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption Date
will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof. Securities (or portions
thereof) for whose redemption and payment provision is made in accordance
with the Indenture shall cease to bear interest from and after the
Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued
in the name of the Holder hereof upon the cancellation hereof.
Upon the occurrence of a Change of Control, the Company will be
required to make a Change of Control Offer, subject to certain limitations
provided in the Indenture, at a Purchase Price in cash in an amount equal
to 101% of the principal amount of this Security plus accrued and unpaid
interest.
If an Event of Default shall occur and be continuing, the
principal amount of all the Securities may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
If money for the payment of the principal of (and premium, if
any) or interest on this Security remains unclaimed for two years, the
Trustee or Paying Agent shall pay the money back to the Company at its
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.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company and the Trustee with the consent of
the Holders of a majority in aggregate principal amount of the Securities
at the time Outstanding. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place, and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the
Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained
for such purpose in The City of New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more replacement
Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, the Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any registration of transfer
or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to pay all documentary, stamp or similar issue
or transfer taxes or other governmental charges payable in connection with
any registration of transfer or exchange.
Prior to the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
Subject to certain limitations imposed by the Trust Indenture
Act, 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.
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of
the Company or the Trustee, respectively, 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 Holder waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
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 the Holders.
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.
This Security shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to principles of
conflicts of laws.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture. Requests may be made
to:
AMC Entertainment Inc.
106 West 14th Street
Kansas City, Missouri 64105-1977
Attention: Secretary<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 1011 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 1011 of the Indenture, state the amount (must
be an integral multiple of $1,000) below:
$_____________________.
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
<PAGE>
Section 205. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:
By
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to
$200,000,000, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 303, 304, 305, 308, 906, 1011 or 1108 or
pursuant to an Exchange Offer.
The Initial Securities shall be known and designated as the "9.5%
Senior Subordinated Notes due 2009" and the Exchange Securities shall be
known and designated as the "9.5% Exchange Senior Subordinated Notes due
2009". The Stated Maturity of the Securities shall be March 15, 2009, and,
subject to any adjustment set forth therein, they shall bear interest at
the rate of 9.5% per annum from March 19, 1997, or the most recent Interest
Payment Date to which interest has been paid or duly provided for, payable
on September 15, 1997, and semiannually thereafter on March 15 and
September 15 in each year and at said Stated Maturity, until the principal
thereof is paid or duly provided for.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company
maintained for such purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose;
provided, however, that, at the option of the Company, interest may be paid
by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Security Register.
The Securities shall not be redeemable, other than as provided
in Article Eleven.
Section 302. Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 or any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any
two of the following: its Chairman, any Vice Chairman, its President, its
Vice Presidents or its Treasurer, under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
The Trustee shall (upon Company Order) authenticate and deliver
Securities for original issue in an aggregate principal amount of up to
$200,000,000.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Each reference
in this Indenture to authentication by the Trustee includes authentication
by such agent.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder.
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 Trust Indenture Act. 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 Registrar or Paying
Agent, the Trustee shall be entitled to appropriate compensation therefor
pursuant to Section 606. The Company or any of its Wholly Owned
Subsidiaries incorporated in the United States 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 Securities.
In case the Company, pursuant to Article Eight, shall be
amalgamated, consolidated or merged with or into any other Person or shall
convey, transfer, lease or otherwise dispose of substantially all of its
properties and assets to any Person, and the successor Person resulting
from such amalgamation, consolidation, or surviving such merger, or into
which the Company shall have been merged, or the successor Person which
shall have received a conveyance, transfer, lease or other disposition as
aforesaid, shall have executed an indenture supplemental hereto with the
Trustee pursuant to Article Eight, any of the Securities authenticated or
delivered prior to such amalgamation, consolidation, merger, conveyance,
transfer, lease or other disposition may, from time to time, at the request
of the successor Person, be exchanged for other Securities executed in the
name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the
Securities surrendered for such exchange and of like principal amount; and
the Trustee, upon Company Order of the successor Person, shall authenticate
and deliver replacement Securities as specified in such request for the
purpose of such exchange. If replacement Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant
to this Section in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of any
Holder but without expense to such Holder, shall provide for the exchange
of all Securities at the time Outstanding held by such Holder for
Securities authenticated and delivered in such new name.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such
purpose pursuant to Section 1002, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and make available
for delivery in exchange therefor a like principal amount of definitive
Securities of authorized denominations. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at one of its offices or
agencies maintained pursuant to Section 1002 a register (the register
maintained in such office and in any other office or agency designated
pursuant to Section 1002 being herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities. Said office or agency is hereby
initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 1002,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more replacement Securities of any authorized
denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations of a like
aggregate principal amount upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange (including an exchange of Initial Securities for Exchange
Securities), the Company shall execute, and the Trustee shall authenticate
and make available for delivery, the replacement Securities which the
Holder making the exchange is entitled to receive; provided that no
exchange of Initial Securities for Exchange Securities shall occur until
an Exchange Offer Registration Statement shall have been declared effective
by the Commission and the Initial Securities to be exchanged for the
Exchange Securities shall be cancelled by the Trustee.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange or redemption, shall (if so required by the
Company or the Security Registrar) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and
the Security Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to pay all documentary, stamp or similar issue
or transfer taxes or other governmental charges that may be imposed in
connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 303, 304, 906, 1011 or 1108 not
involving any transfer or pursuant to an Exchange Offer.
The Company shall not be required to issue replacement Securities
or register the transfer of or exchange any Security during a period
beginning at the opening of business 15 days before the mailing of a
notice of redemption of the Securities under Section 1105 and ending at the
close of business on the day of such mailing.
Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange
or assignment of such Holder's Security in violation of any provision of
this Indenture and/or applicable United States federal or state securities
law.
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 Depositary Participants or beneficial owners of interests 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.
Section 306. Book-Entry Provisions for Global Securities.
(a)The Global Securities initially shall (i) be registered in
the name of the Depositary for such Global Security or the nominee of such
Depositary, (ii) be deposited with, or on behalf of, the Depository or with
the Trustee, as custodian for such Depositary and (iii) bear legends as set
forth in Section 202.
The Depository or its nominee shall be the Holder of the Global
Securities, and owners of beneficial interests in the Securities
represented by the Global Securities shall hold such interests pursuant to
the procedures and practices of the Depositary. Any such owner's
beneficial ownership of any such Securities will be shown only on, and the
transfer of such ownership interest shall be effected only through, records
maintained by the Depositary or its nominee. Investors in the Regulation
S Global Security may hold their interests in Regulation S Global Security
through Euroclear or CEDEL, if they are participants in such systems, or
indirectly through organizations which are participants in such systems.
After the expiration of the Restricted Period (but not earlier), investors
in the Regulation S Global Security may also hold such interests through
organizations other than Euroclear or CEDEL that are participants in the
Depositary's system. Euroclear and CEDEL will hold interests in the
Regulation S Global Security on behalf of their participants through
customers' securities accounts in their respective names on the books of
their respective depositaries, which, in turn, will hold such interests in
the Regulation S Global Security in customer's securities accounts in the
depositaries' names on the books of the Depositary. All interests in a
Global Security, including those held through Euroclear or CEDEL, may be
subject to the procedures and requirements of the Depositary. Those
interests held through Euroclear and CEDEL will be subject to the
procedures and requirements of such system. As used herein, the term
"Restricted Period" means the period of 40 consecutive days beginning on
and including the first day after the later of (i) the day that Goldman,
Sachs & Co. advises the Company and the Trustee of the day on which the
Securities are first offered to persons other than distributors (as defined
in Regulation S) and (ii) the original issue date of the Securities.
(b)Transfers of any Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of
beneficial owners in any Global Security may be transferred in accordance
with the rules and procedures of the Depositary and the provisions of
Section 307.
Unless (i) the Depositary notifies the Company that it is
unwilling or unable to continue as depositary for a Global Security or
ceases to be a "Clearing Agency" registered under the Exchange Act or
announces an intention permanently to cease business or does in fact do so
and a successor Depositary is not appointed by the Company within 90 days
of such notice, (ii) an Event of Default has occurred and is continuing
with respect to a Global Security or (iii) in the case of a Global Security
held for the account of Euroclear or CEDEL, Euroclear or CEDEL, as the case
may be, is closed for business for 14 continuous Business Days or announces
an intention to cease or permanently ceases business, owners of beneficial
interests in a Global Security will not be entitled to have any portions
of such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Securities in definitive form and
will not be considered the owners or holders of the Global Security.
(c)Securities issued in exchange for a Global Security or any
portion thereof pursuant to the last sentence of subsection (b) of this
Section shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to that
of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear any legends required hereunder.
Any Global Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Registrar. With regard to any Global
Security to be exchanged in part, either such Global Security shall be so
surrendered for exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Security, the
principal amount thereof shall be reduced, by an amount equal to the
portion thereof to be so exchanged, by means of an appropriate adjustment
made on the records of the Trustee. Upon any such surrender or adjustment,
the Trustee shall authenticate and make available for delivery the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof. In the event of the occurrence of any
of the events specified in the last sentence of subsection (b) of this
Section 306, the Company will promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive form.
(d)Except as otherwise set forth in this Indenture or a Global
Security, owners of beneficial interests in the Securities evidenced by a
Global Security will not be entitled to any rights under this Indenture
with respect to such Global Security, and the Depositary or its nominee may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the owner and Holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any such agent from giving effect to any
written certification, proxy or other authorization furnished by the
Depositary or its nominee or impair, as between the Depositary or its
nominee and such owners of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary or its
nominee as Holder of any Security.
Section 307. Special Transfer Provisions.
Unless and until (i) an Initial Security is sold under an
effective Registration Statement, or (ii) an Initial Security is exchanged
for an Exchange Security in connection with an effective Exchange Offer
Registration Statement, in each case pursuant to the Registration Rights
Agreement, the following provisions shall apply:
(a)Restricted Global Security to Regulation S Global Security.
If, at any time, an owner of a beneficial interest in a Restricted
Global Security deposited with the Depositary (or the Trustee as
custodian for the Depositary) wishes to transfer its interest in such
Restricted Global Security to a Person who is required or permitted
to take delivery thereof in the form of an interest in a Regulation
S Global Security, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Regulation S Global Security as
provided in this Section 307(a). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures from
an Agent Member directing the Trustee to credit or cause to be
credited a beneficial interest in the Regulation S Global Security in
an amount equal to the beneficial interest in the applicable
Restricted Global Security to be exchanged, (2) a written order given
in accordance with the Applicable Procedures containing information
regarding the participant account of the Depositary and the Euroclear
or CEDEL account (if applicable) to be credited with such increase,
and (3) a certificate substantially in the form of Exhibit A-1 hereto
given by the owner of such beneficial interest, the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be
reduced the aggregate principal amount of the applicable Restricted
Global Security and to increase or cause to be increased the aggregate
principal amount of the applicable Regulation S Global Security by the
principal amount of the beneficial interest in the Restricted Global
Security to be exchanged, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial
interest in the Regulation S Global Security equal to the reduction
in the aggregate principal amount of the applicable Restricted Global
Security, and to debit, or cause to be debited, from the account of
the Person making such exchange or transfer the beneficial interest
in the Restricted Global Security that is being exchanged or
transferred.
(b)Regulation S Global Security to Restricted Global Security.
If, at any time, an owner of a beneficial interest in a Regulation S
Global Security deposited with the Depositary or with the Trustee as
custodian for the Depositary wishes to transfer its interest in such
Regulation S Global Security to a Person who is required or permitted
to take delivery thereof in the form of an interest in a Restricted
Global Security, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Restricted Global Security, as
provided in this Section 307(b). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures from
an Agent Member, directing the Trustee, as Registrar, to credit or
cause to be credited a beneficial interest in the Restricted Global
Security equal to the beneficial interest in the Regulation S Global
Security to be exchanged, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the
participant account of the Depositary to be credited with such
increase and (3) if such transfer is requested prior to the expiration
of the Restricted Period, a certificate in the form of Exhibit A-2
attached hereto given by the owner of such beneficial interest, the
Trustee, as Registrar, shall instruct the Depositary to reduce or
cause to be reduced the aggregate principal amount of such Regulation
S Global Security and to increase or cause to be increased the
aggregate principal amount of the applicable Restricted Global
Security by the principal amount of the beneficial interest in the
Regulation S Global Security to be exchanged, and the Trustee, as
Registrar, shall instruct the Depositary, concurrently with such
reduction, to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the
applicable Restricted Global Security equal to the reduction in the
aggregate principal amount of such Regulation S Global Security and
to debit or cause to be debited from the account of the Person making
such transfer the beneficial interest in the Regulation S Global
Security that is being transferred. After the expiration of the
Restricted Period, the certificate described in clause (3) above shall
no longer be required to effect transfers pursuant to this Section
307(b).
(c)Transfers of U.S. Physical Securities for Restricted Global
Security or Regulation S Global Security. If the holder of a U.S.
Physical Security wishes at any time to transfer such holder's U.S.
Physical Security to a Person who wishes to take delivery thereof in
the form of a beneficial interest in the Regulation S Global Security
or the Restricted Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with the
provisions of this Section 307(c). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures from
an Agent Member directing the Trustee to credit or cause to be
credited a beneficial interest in the Regulation S Global Security or
Restricted Global Security, as the case may be, in a principal amount
equal to that of the U.S. Physical Securities to be so transferred,
(2) a written order given in accordance with the Applicable Procedures
containing information regarding the participant account of the
Depositary (and the Euroclear or CEDEL account, as applicable) to be
credited with such beneficial interest and (3) a certificate in
substantially the form set forth in Exhibit A-3, given by the holder
of such U.S. Physical Security, the Trustee, as Security Registrar,
shall instruct the Depositary to increase the principal amount of the
Regulation S Global Security or the Restricted Global Security, as the
case may be, by the principal amount of the U.S. Physical Security to
be so transferred, and to cancel or cause to be canceled such U.S.
Physical Security.
(d)Restricted Global Security or U.S. Physical Security to
Regulation S Global Security After Three Years. If the holder of a
beneficial interest in a Restricted Global Security or U.S. Physical
Security wishes at any time after March 15, 2000 to (A) transfer such
interest to a Person who wishes to take delivery thereof in the form
of a beneficial interest in the Regulation S Global Security or (B)
to exchange such interest for a beneficial interest in a Regulation
S Global Security, such transfer or exchange may be effected, subject
to the Applicable Procedures, only in accordance with this Section
307(d). Upon receipt by the Trustee of (1) in the case of a transfer
or exchange of an interest in the Restricted Global Security or a U.S.
Physical Security, instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Trustee to
credit or cause to be credited to a beneficial interest in the
Regulation S Global Security in an amount equal to that the beneficial
interest in the Restricted Global Security to be so transferred or
exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account
of the Depositary (and, if applicable, the Euroclear or CEDEL account,
as the case may be) to be credited with such beneficial interest and
(3) a certificate substantially in the form of Exhibit A-4 hereto
given by the holder of such beneficial interest, the Trustee, as
Registrar, shall (i) in the case of a transfer or exchange of an
interest in the Restricted Global Security, instruct the Depositary
to reduce the principal amount of the Restricted Global Security, and
to increase the principal amount of the Regulation S Global Security,
by the principal amount of the beneficial interest in the Restricted
Global Security to be so transferred or exchanged, and to credit or
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global Security
having a principal amount equal to the amount by which the principal
amount of the Restricted Global Security was reduced upon such
transfer or exchange or (ii) in the case of a transfer or exchange of
a U.S. Physical Security, cancel such U.S. Physical Security and
increase the principal amount of the Regulation S Global Security
accordingly.
(e)General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth in this
Indenture and in the Private Placement Legend and agrees that it will
transfer such Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 306 or this
Section 307. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the
Registrar.
Section 308. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee, or
(b) the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Security, and there is delivered to
the Company and the Trustee such security or indemnity as may be required
by them to save each of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon Company Order the
Trustee shall authenticate and make available for delivery, in exchange for
any such mutilated Security or in lieu of any such destroyed, lost or
stolen Security, a replacement Security of like tenor and principal amount,
bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a replacement Security, pay such
Security.
Upon the issuance of any replacement Securities under this
Section, the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute a
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and
interest on such defaulted interest at the interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest
thereon herein collectively called "Defaulted Interest"), shall forthwith
cease to be payable to the Holder on the Regular Record Date by virtue of
having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Subsection (a) or (b)
below:
(a)The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Subsection provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date.
In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the
following Subsection (b).
(b)The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this Subsection, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 310. Persons Deemed Owners.
Prior to the time of due presentment for registration of
transfer, the Company or the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 309) interest
on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
Section 311. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the
Trustee, be made available for delivery to the Trustee and shall be
promptly cancelled by it. The Company shall deliver to the Trustee for
cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly cancelled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be delivered to the Company if by a Company Order the Company shall
direct that cancelled Securities be returned to it.
Section 312. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360 day year of twelve 30-day months.
Section 313. 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 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 such omission of
such numbers.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either Section 402 or Section
403 be applied to all Outstanding Securities upon compliance with the
conditions set forth below in this Article Four.
Section 402. Defeasance and Discharge.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 402, the Company shall be deemed to have been
discharged from its obligations with respect to all Outstanding Securities
on the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities, which shall thereafter be deemed
to be "Outstanding" only for the purposes of Section 405 and the other
Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, on
demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights
of Holders of Outstanding Securities to receive solely from the trust fund
described in Section 404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest
on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 308,
1002 and 1013, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith,
including the Company's obligations under Section 606 hereof and (D) this
Article Four. Subject to compliance with this Article Four, the Company
may exercise its option under this Section 402 notwithstanding the prior
exercise of its option under Section 403 with respect to the Securities.
Section 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 403, the Company shall be released from its
obligations under any covenant contained in Articles Eight and Twelve and
in Sections 1004 through 1012 with respect to the Outstanding Securities
on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities shall thereafter
be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of
any thereof) in connection with such covenants, but shall continue to be
deemed "Outstanding" for all other purposes hereunder (it being understood
that such Securities shall not be deemed Outstanding for financial
accounting purposes). For this purpose, such covenant defeasance means
that, with respect to the Outstanding Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition
or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Sections 501(c) and
501(d), but, except as specified above, the remainder of this Indenture
(including Section 606 hereof) and such Securities shall be unaffected
thereby. In addition, upon the Company's exercise under Section 401 of the
option applicable to Section 403, Sections 501(c) through (f) shall not
constitute Events of Default.
Section 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 402 or Section 403 to the Outstanding Securities:
(1)The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Article Four 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 1103 hereof, a notice of its election to redeem all of the
Outstanding Securities at a future date in accordance with Article
Eleven hereof, 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 501(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)Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound and is not prohibited by
Article Twelve hereof.
(4)In the case of an election under Section 402, the Company
shall have delivered to the Trustee an Opinion of Counsel in the
United States stating that (x) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (y)
since March 14, 1997, there has been a change in the applicable United
States federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of such
defeasance and will be subject to United States 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.
(5)In the case of an election under Section 403, the Company
shall have delivered to the Trustee an Opinion of Counsel in the
United States to the effect that the Holders of the Outstanding
Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of such covenant defeasance
and will be subject to United States 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.
(6)The Company shall have delivered to the Trustee an Opinion
of Counsel in the United States to the effect that such deposit shall
not cause the Trustee or the trust so created to be subject to the
Investment Company Act of 1940.
(7)The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to
its election under Section 402 or 403 was not made by the Company with
the intent of preferring the Holders over other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others.
(8)The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each
stating that all conditions precedent relating to either the
defeasance under Section 402 or the covenant defeasance under Section
403 (as the case may be) have been complied with.
Section 405. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 405, the "Trustee") pursuant to Section 404 in
respect of the Outstanding Securities shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal (and premium, if any) and interest, but
such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee on an after-tax
basis against any tax, fee or other charge imposed on or assessed against
the cash or U.S. Government Obligations deposited pursuant to Section 404
or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Securities.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by it as
provided in Section 404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 404(1)), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 405, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 402 or 403, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 405; provided, however, that, if the
Company makes any payment of principal of (or premium, if any) or interest
on any Security following 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 held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. Events 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 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);
(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 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 501(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 501(g), (h) or
(i) occurs and is continuing, then the principal of all the Securities
shall ipso facto 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
501(c) and 501(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 Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
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 501(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
has been discharged or the holders thereof have rescinded their declaration
of acceleration in respect of such Indebtedness, and 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 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a)default is made in the payment of any interest on any
Security when it becomes due and payable and such default continues
for a period of 30 days, or
(b)default is made in the payment of the principal of (or
premium, if any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, with
interest upon the overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon
overdue installments of interest, at the rate borne by the Securities; and,
in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights
of the Holders under this Indenture by such appropriate private or judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
such rights.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a)to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b)to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized
by each Holder to make such 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 the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
proposal, plan of reorganization, arrangement, adjustment or composition
or other similar arrangement affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Subject to Article Twelve, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606; and
SECOND: To the payment of the amounts then due and unpaid upon
the Securities for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(a)such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b)the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(c)such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d)the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e)no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture except in the
manner provided in this Indenture and for the equal and ratable benefit of
all the Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right as between itself and the Company,
which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 309) interest on the
respective due dates expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case the
Company, the Trustee and the Holders shall, subject to any determination
in such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights and Remedies Cumulative.
Except as provided in Section 308, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to
be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(a)such direction shall not be in conflict with any rule of law
or with this Indenture or expose the Trustee to personal liability or
be prejudicial to Holders not joining therein, and
(b)subject to the provisions of Trust Indenture Act Section
315, the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(a)in the payment of the principal of (or premium, if any) or
interest on any Security, or
(b)arising from a failure to make or consummate a Change of
Control Offer in accordance with the provisions of Section 1011
hereof, or
(c)in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, which
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 covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 516. Application of Trust Indenture Act to this Indenture.
Prior to the effectiveness of the Registration Statement, this
Indenture shall incorporate and be governed by the provisions of the Trust
Indenture Act. After the effectiveness of the Registration Statement, this
Indenture shall be subject to the provisions of the Trust Indenture Act
that are required to be a part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
Within 90 days after the occurrence of any Default, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear
in the Security Register, notice of such Default hereunder known to the
Trustee, unless such Default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders; and
provided further that, in the case of any default or breach of the
character specified in Section 501(c), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
Section 602. Certain Rights of Trustee.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through (d):
(a)the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b)any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c)whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d)the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e)the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f)the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
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 at the sole cost of the Company;
(g)the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h)no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it;
(i)the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture; and
(j)the Trustee shall not be deemed to have notice of any Event
of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and
this Indenture.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities, and, subject to Trust Indenture Act
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.
Section 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Company.
Section 606. Compensation and Reimbursement.
The Company agrees:
(a)to pay to the Trustee from time to time such compensation
as shall be agreed to in writing by the Company and the Trustee for
all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(b)except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel of its selection), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(c)to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense including taxes (other than
taxes based upon, measured by or determined by the income of the
Trustee) incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to notify the Company shall not relieve the
Company of its obligations hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim and lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of Holders of particular
Securities.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 606, except with respect to
funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(f) or Section
501(g), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
Section 607. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b)
of the Trust Indenture Act provided, however, that there shall be excluded
from the operation of Trust Indenture Act Section 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 Trust Indenture Act Section
310 (b) (1) are met; for purposes of this Section 607 and clause (i) of the
first proviso contained in TIA Section 310(b), the Indenture dated as of
August 1, 1992, as amended, among the Company, American Multi-Cinema, Inc.,
a Missouri corporation, AMC Realty, Inc., a Delaware corporation, AMC
Philadelphia, Inc., a Delaware corporation and BUDCO Theatres, Inc. and The
Bank of New York, providing for the issuance of 12 % Senior Subordinated
Notes Due 2002, is hereby deemed to be specifically described.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Act Section 310(a)(1) and
which shall have a combined capital and surplus of at least $50,000,000 and
have its Corporate Trust Office in any state of the United States of
America to the extent there is such an institution eligible and willing to
serve. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, State,
Territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 609. Resignation and Removal; Appointment of Successor.
(a)No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under Section
610.
(b)The Trustee, or any successor Trustee, may resign at any
time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee or the Holders of a majority in principal amount of the
Outstanding Securities may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(c)The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d)If at any time:
(1)the Trustee shall fail to comply with the provisions of
Trust Indenture Act Section 310(b) after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2)the Trustee shall cease to be eligible under Section 608 and
shall fail to resign after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(3)the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, the Holder of any Security who has
been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.
(e)If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with Section 610, become the successor
Trustee and supersede the successor Trustee appointed by the Company. If
no successor Trustee shall have been so appointed by the Company or the
Holders of the Securities and so accepted appointment, the Holder of any
Security who has been a bona fide Holder for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f)The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of Securities as their names and addresses appear in the
Security Register and to an authorized representative of the holders of
Designated Senior Indebtedness. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after such removal, the removed
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
Section 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all amounts due it under Section 606,
execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee, and shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder subject to the claim and lien
provided for in Section 606. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 611. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities; and in case at that time
any of the Securities shall not have been authenticated, any 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 Securities shall have the full force to be and
effect provided for anywhere in the Securities or this Indenture.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Trust
Indenture Act Section 312.
Section 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, as provided in Trust Indenture Act Section 313(c), a
brief report dated as of such May 15 if required by Trust Indenture Act
Section 313(a).
Section 703. Reports by Company.
The Company shall:
(a)file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time
in such rules and regulations;
(b)file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c)transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to Subsections (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
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).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms.
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 1007 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 Officer's 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.
The conditions set forth in this Section 801 shall be deemed satisfied
by the DI Merger and the transactions related thereto, provided that the
Company will be the Surviving Entity with respect to the DI Merger.
Section 802. 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
801, 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 801 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 NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
Section 901. Supplemental Indentures and Amendments
Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a)to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the
Company herein and in the Securities;
(b)to add to the covenants of the Company, for the benefit of
the Holders, or to surrender any right or power herein or in the
Securities conferred upon the Company;
(c)to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided that, in
each case, such provisions shall not adversely affect the interests
of the Holders in any material respect;
(d)to secure the Securities; or
(e)to make any change in Article Twelve hereof or in Article
Ten or the related definitions herein contained that would limit or
terminate the benefits available to any holder of Senior Indebtedness
(or authorized representatives therefor) under such Article;
(f)to make any other change that does not adversely affect the
rights of any Holder; or
(g)to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the
Trust Indenture Act, as amended.
Notwithstanding the foregoing, no amendment may be made to
Article Twelve hereof that adversely affects the rights of any holder of
any Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or their representative) consent to such change.
Section 902.Supplemental Indentures and Certain Amendments with
Consent
of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of such
Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into one or
more indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of waiving or modifying in any manner the
rights of the Holders under this Indenture; provided, however, that no such
supplemental indenture, amendment or waiver shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(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
Purchase Price that would be payable in connection with a Change of
Control Offer; 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 513
and 1014, 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 any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Trust Indenture Act Sections 315(a)
through (d) and Section 602 hereof) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities so modified as to conform, in the opinion of
the Trustee and the Board of Directors, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 107, setting forth
in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the
terms of the Securities and this Indenture.
Principal of (premium, if any) and interest shall be considered
paid on the date due if as of 10:00 a.m. (New York City time) on such date
the Trustee or the Paying Agent if other than the Company or an Affiliate
of the Company holds in accordance with this Indenture money in immediately
available funds sufficient to pay all principal (premium, if any) and
interest then due and the Trustee, the Paying Agent or the Affiliate of the
Company, as the case may be, is not prohibited from paying such money to
the Holders on that date pursuant to the terms of this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain, in The City of New York, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Corporate Trust Office
of the Trustee shall be such office or agency of the Company, unless the
Company shall designate and maintain some other office or agency for one
or more of such purposes. The Company will give prompt written notice to
the Trustee of any change in the location of any such office or agency.
If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes,
and may from time to time rescind such designation; provided, however, that
no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in The City of New York
for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and any change in the
location of any such office or agency.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any)
or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any Securities, deposit with a Paying Agent
a sum in same day funds (or New York Clearing House funds if such deposit
is made prior to the date on which such deposit is required to be made)
sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of such
action or any failure so to act.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a)hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(b)give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment
of principal (and premium, if any) or interest; and
(c)at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held
by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request unless an abandoned
property law designates another person, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, 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 1005. 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 1006. 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 1007. 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 2.0:1.
Section 1008. 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 1007 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) 2 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, (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) or (c) pay dividends on the Company's existing $1.75
Cumulative Convertible Preferred Stock or any replacement or refinancing
thereof.
Section 1009. 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 (other than the DI Merger) 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 1008; (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 1010. 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 1011. 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% 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 1011, the Company will
comply with any applicable securities laws and regulations, including any
applicable requirements of Section 14(e) of, and Rule 14e-1 under, the
Exchange Act.
Section 1012. Provision of Financial Information.
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 135 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 60 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. In addition, 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.
Section 1013. Statement as to Compliance.
The Company shall deliver to the Trustee, within 30 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
March 19, 1998. For purposes of this Section 1013, 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 1014. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1005 to 1012, 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 Act 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 1015. 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
(the occurrence of the foregoing events, being collectively referred to as
the "Fall-away Event"), the covenants described under Sections 801(c) and
1007 to 1010 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 Moody's 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 1015, verifying the Investment Grade Status of the
Securities. As a result, upon the occurrence of the Fall-away Event the
Securities will be entitled to substantially no covenant protection.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company,
as a whole or from time to time in part, subject to the conditions and at
the Redemption Prices specified in the form of Security in Sections 203,
204 and 205 hereto, together with accrued and unpaid interest to the
Redemption Date.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture,
shall be made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem the Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 60
days prior to the Redemption Date fixed by it (unless a shorter notice
period shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities to be redeemed.
Such notice shall be accompanied by an Officers' Certificate and an Opinion
of Counsel from the Company to the effect that such redemption shall comply
with the conditions herein.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Securities;
provided, however, that no such partial redemption shall reduce the portion
of the principal amount of a Security not redeemed to less than $1,000.
Securities and any portions of such Securities selected by the Trustees
shall be in amounts of $1,000 or integral multiples thereof.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to
be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state (including CUSIP number,
if any):
(a)the principal amount of each Security held by such Holder
to be redeemed;
(b)the Redemption Date;
(c)the Redemption Price;
(d)that on the Redemption Date the Redemption Price will become
due and payable upon each such Security, and that interest thereon
shall cease to accrue on and after said date;
(e)the CUSIP number;
(f)if fewer than all of the Outstanding Securities are to be
redeemed, then the identification and principal amounts at Maturity of the
particular Securities to be redeemed; and
(g)the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at its request, by the
Trustee in the name and at the expense of the Company.
Section 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit or
cause to be deposited with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in same day funds (or New York
Clearing House funds if such deposit is made prior to the applicable
Redemption Date) sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price
together with accrued interest to the Redemption Date; provided, however,
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such on the relevant Record
Dates according to the terms and the provisions of Section 309.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if
any, thereon) shall, until paid, bear interest from the Redemption Date at
the rate borne by such Security.
Section 1108. Securities Purchased in Part.
Any Security that is to be purchased only in part shall be
surrendered to the Paying Agent at the office of the Paying Agent or to the
office or agency referred to in Section 1002 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security, without service charge, a
replacement Security or Securities, of any authorized denomination as
requested by such Holder in an aggregate principal amount equal to, and in
exchange for, the principal amount of the Security so surrendered that is
not purchased.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness.
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. All provisions of this
Article Twelve shall be subject to Section 1214.
This Article 12 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 1202. Payment over of Proceeds upon Dissolution, Etc.
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
marshalling 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 1202(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 Eight shall not be deemed a
dissolution, winding-up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling 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 Eight.
Section 1203 Suspension of Payment When Senior
Indebtedness in Default.
(a)Unless Section 1202 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 Sections 402 and 403 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 1202 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 Sections 402 and 403
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 ("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 the
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 or such Designated Senior
Indebtedness is discharged or shall have been paid in full in cash or Cash
Equivalents, (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 calculated from the day on which the Payment Blockage
Period began. 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 1204. Payment Permitted If No Default.
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 1202 or under the conditions described in Section 1203, from making
payments at any time of principal of (and premium, if any) or interest on
the Securities.
Section 1205. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness in cash
or Cash Equivalents, the Holders of the Securities 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 the holders of such Senior Indebtedness to the extent that
payment of Senior Indebtedness has been made under Section 1202 of this
Indenture from amounts otherwise payable to Holders of the Securities, to
receive payments and distributions of assets of the Company of any kind or
character from any source, whether in cash, property or securities
applicable to the Senior Indebtedness until the Subordinated Obligations
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee would
be entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness, and
the Holders of the Securities, be or be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
Section 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall:
(a)impair, as between the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal
of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms;
or
(b)affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness; or
(c)except as set forth in Section 502, prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture
including filing and voting claims in any proceeding under any
Bankruptcy Law, subject to the rights, if any, under this Article of
the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such
remedy.
For greater certainty, if the Trustee or the Holder of any
Security shall have received any payment or distribution of assets of the
Company of any kind or character from any source, whether in cash, property
or securities, to which neither the Trustee nor the Holder is, at the time
of such receipt, entitled pursuant to the terms of this Indenture read
without reference to this Article Twelve, such payment or distribution
shall not be subject to Section 1202 and shall be promptly remitted by the
Trustee or the Holder of the Security, as the case may be, to the Company.
Section 1207. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for
any and all such purposes. Upon the written direction of the Company and
upon being furnished with an Officers' Certificate stating that one or more
named persons are holders of Senior Indebtedness and specifying the amount
and nature of such Senior Indebtedness, the Trustee, from time to time, for
and on behalf of all present and future Holders of the Securities, shall
execute and deliver deeds of subordination in favor of the person or
persons named or referred to in such Officers' Certificate providing that
such person or persons and his or their successors or assigns are entitled
to all the rights and benefits of this Article as the holder or holders of
Senior Indebtedness. An executed counterpart of each such deed shall be
delivered by the Trustee to the Company and another such counterpart shall
be retained by the Trustee. Nothing contained in this Section 1207 shall
impair the rights of any holders of Senior Indebtedness in whose favor such
a deed of subordination has not been so executed and delivered.
Section 1208. No Waiver of Subordination Provisions.
(a)No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or the Trustee or by any act or failure to act by any
such holder, or by any non-compliance by the Company or the Trustee with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
(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 1007 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 1209. Notice to Trustee.
(a)The Company shall give prompt written notice to the Trustee
of any fact known to it which would prohibit the making of any payment or
distribution to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to
or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company and an
authorized representative for the holders of Senior Indebtedness or any
trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist;
provided, however, that, if the Trustee shall not have received the notice
provided for in this Section or Section 1203 hereof at least one Business
Day prior to the date on which by the terms of this Indenture any money may
become payable for any purpose (including the payment of the principal of
(and premium, if any) or interest on or any amounts payable in connection
with any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purpose for which such money was
received and shall not be affected with respect to such action taken by any
notice to the contrary which may be received by it on or after such date.
(b)Subject to the provisions of Trust Indenture Act Sections
315(a) through (d), the Trustee shall be entitled to rely on any written
notice delivered to it from time to time by an authorized representative
for the holders of Senior Indebtedness for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the
holders of the 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 Twelve. In the event that the Trustee determines in good faith
that further 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, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article and,
if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person
to receive such payment.
Section 1210. Reliance on Bankruptcy Order or Certificate
of Liquidating Agent Bank.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Trust Indenture Act Sections 315(a) through (d), and the Holders of the
Securities shall be entitled to rely on any Bankruptcy Order entered by any
court of competent jurisdiction, or a certificate of (i) the trustee in
bankruptcy as to matters over which it has authority, or (ii) assignee for
the benefit of all creditors as to matters over which it has authority,
delivered to the Trustee or to the Holders of Securities from time to time
by any Person, 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; provided that such court,
trustee, assignee or other Person has been apprised of, or the order or
certificate makes reference to, the provisions of this Article.
Section 1211. Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
Subject to the terms of this Article, the Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness which may at any time be
held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article shall subordinate to Senior
Indebtedness the claims of, or payments to, the Trustee under or pursuant
to Section 606.
Section 1212. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that this Section 1212 shall not apply to the
Company or any Affiliate of the Company if any of them or any such
Affiliate acts as Paying Agent.
Section 1213. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
Maturity of the Securities pursuant to Article Five or to pursue any rights
or remedies hereunder or under applicable law; 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 502 and the date of acceleration of
any such Indebtedness under the Credit Facility.
Section 1214. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of U.S. Government Obligations held in
trust under Article Four of this Indenture by the Trustee (or such other
trustee who shall have satisfied the requirements of Section 608 and who
shall agree to comply with the provisions of Article Four applicable to it)
and which were deposited in accordance with the terms of Article Four of
this Indenture and not in violation of Section 1203 of this Indenture for
the payment of principal of (and premium, if any) 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
Twelve and none of the Holders 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 1215. Duties Owed by Trustee to 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 for any such holders
if it shall mistakenly (in the absence of gross negligence or willful
misconduct) pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities which any
holders of Senior Indebtedness shall be entitled by virtue of this Article
or otherwise.
The Trustee shall not be charged with knowledge of the existence of Senior
Indebtedness or of any facts that would prohibit any payment hereunder
unless a Trust Officer of the Trustee shall have received notice to that
effect at the address of the Trustee set forth in Section 106. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read
into this Indenture against the Trustee.
Section 1216. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee or any authenticating Agent in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it, to
the same extent as any other holder of Senior Indebtedness, and nothing in
this Indenture shall deprive the Trustee or any Authenticating Agent of any
of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
* * *
<PAGE>
This Indenture may be signed in any number of counterparts with
the same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original
of this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
AMC ENTERTAINMENT INC.
By
/s/ Peter C. Brown
Title: President and CFO
By
/s/ Richard E. Obert
Title: Senior Vice President
Attest: /s/ Nancy L. Gallagher
Title: Vice President and Secretary
THE BANK OF NEW YORK
By
/s/ Mary La Gumina
Title: Assistant Vice
President<PAGE>
SCHEDULE I
PROVISIONS FOR INTER-COMPANY SUBORDINATED DEBT
1.1Certain Definitions. Unless otherwise defined in
this Schedule I, terms defined in the Indenture in respect of the 9.5%
Senior Subordinated Notes due 2009 dated as of March 19, 1997 (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 Permissible Indebtedness under this 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 or is so subordinated as provided herein.
2.1Agreement 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 Obligor 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.
2.2Liquidation; 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 marshalling 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.
2.3Securities 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.
2.4Subrogation. 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.
2.5Relative 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.
2.6Subordination 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 attorns to the non-exclusive jurisdiction of each such court.<PAGE>
EXHIBIT A-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
The Bank of New York
101 Barclay Street, 21 W
New York, New York 10286
Re: 9.5% Securities due 2009 of AMC Entertainment Inc.
Reference is hereby made to the Indenture, dated as of March 19,
1997 (the "Indenture"), between AMC Entertainment Inc., as issuer (the
"Company") and The Bank of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $200,000,000 principal amount of
Securities which are evidenced by the Restricted Global Security (CUSIP No.
001669AF7) and held with the Depositary in the name of ____________________
(the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Securities to a Person who will take delivery
thereof in the form of an equal principal amount of Securities evidenced
by the Regulation S Global Security (CUSIP No. U02381AA6).
In connection with such request and in respect of such
Securities, the Transferor hereby certifies that such transfer has been
effected in compliance with the transfer restrictions applicable to the
Global Securities and pursuant to and in accordance with Rule 903, Rule 904
or Rule 144 under the United States Securities Act of 1933, as amended (the
"Securities Act"), and accordingly the Transferor hereby further certifies
that:
(A)if the transfer has been effected pursuant to Rule 903 or
Rule 904:
(1)the offer of the Securities was not made to a person in the
United States;
(2)either:
(a)at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any person acting on its behalf reasonably believed and believes
that the transferee was outside the United States; or
(b)the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
(3)no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable;
(4)the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5)if the transfer is being requested prior to ____, 1997, upon
completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary
through Euroclear or Cedel Bank or both (Common Code ____________);
and
(B) If the transfer has been effected pursuant to Rule 144, the
Securities have been transferred in a transaction permitted by Rule 144
under the Securities Act.
Upon giving effect to this request to exchange a beneficial
interest in such Restricted Global Security for a beneficial interest in
a Regulation S Global Security, the resulting beneficial interest shall be
subject to the restrictions on transfer applicable to Regulation S Global
Security pursuant to the Indenture and the Securities.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings
set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ____________, ____<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
The Bank of New York
101 Barclay Street, 21 W
New York, New York 10286
Re: 9.5% Securities due 2009 of AMC Entertainment Inc.
Reference is hereby made to the Indenture, dated as of March 19,
1997 (the "Indenture"), between AMC Entertainment Inc., as issuer (the
"Company") and The Bank of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $200,000,000 principal amount of the
Securities which are evidenced by the Regulation S Global Security (CUSIP
No. U02381AA6) and held with the Depositary in the name of
____________________ (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Securities to a Person who will
take delivery thereof in the form of an equal principal amount of
Securities evidenced by the Restricted Global Security (CUSIP No.
001669AF7), to be held with the Depositary.
In connection with such request and in respect of such
Securities, the Transferor hereby certifies that such transfer is being
effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the Securities
are being transferred to a Person that the Transferor reasonably believes
is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Securities are being
transferred in compliance with any applicable blue sky securities laws of
any state of the United States.
Upon giving effect to this request to exchange a beneficial
interest in Regulation S Global Securities for a beneficial interest in the
Restricted Global Security, the resulting beneficial interest shall be
subject to the restrictions on transfer applicable to the U.S Global
Securities pursuant to the Indenture and the Securities Act.<PAGE>
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings
set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ____________, ____<PAGE>
EXHIBIT A-3
FORM OF CERTIFICATE FOR TRANSFER OF U.S. PHYSICAL SECURITIES TO
REGULATION S GLOBAL SECURITY OR RESTRICTED GLOBAL SECURITY
The Bank of New York
101 Barclay Street, 21 W
New York, New York 10286
Re:9.5% Securities due 2009 of AMC Entertainment Inc.
Reference is hereby made to the Indenture, dated as of March 19,
1997 (the "Indenture"), between AMC Entertainment Inc., as issuer (the
"Company") and The Bank of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $___________ principal amount of
Securities which are evidenced by a definitive Physical Security (Cusip No.
__________ in the name of _________________) (the "Transferor"). The
Transferor has requested a transfer of such interest in the Securities to
a Person that will take delivery thereof in the form of an equal principal
amount of Securities evidenced by the [Restricted Global Security Cusip
No._____] [Regulation S Global Security] [(Cusip No. [__________])].
In connection with such request and in respect of such
Securities, the Transferor does hereby certify that: [if such request is
made for transfer to the Regulation S Global Security: such transfer has
been effected pursuant to and in accordance with Rule 903, Rule 904 or Rule
144 under the United States Securities Act of 1933, as amended (the
"Securities Act") and accordingly the Transferor does hereby further
certify that:
(1)if the transfer has been effected pursuant to Rule 903 or
Rule 904:
(A)the offer of the Securities was not made to a person
in the United States;
(B)either:
(i)at the time the buy order was originated, the
transferee was outside the United States or the Transferor
and any person acting on its behalf reasonably believed that
the transferee was outside the United States, or
(ii)the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in
the United States;
(C)no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; [and]
(D)the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; [and
(E)if the transfer is being requested prior to _____,
1997: Upon completion of the transaction, the beneficial
interest being transferred as described above is to be held with
the Depositary through Euroclear or Cedel Bank or both (Common
Code __________);] or
(2)if the transfer has been effected pursuant to Rule 144, the
Securities have been transferred in a transaction permitted by Rule
144.]
[(3)if such request is made for transfer to the Restricted
Global Security: Such transfer is being effected pursuant to and in
accordance with Rule 144A under the Securities Act, and, accordingly,
the Transferor hereby further certifies that the Securities are being
transferred to a person that the Transferor reasonably believes is
purchasing the Securities for its own account, or for one or more
accounts with respect to which such person exercises sole investment
discretion, and such person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings
set forth in Regulation S under the Securities Act.
Upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary through
Euroclear or Cedel Bank or both (Common Code_____)
[Insert Name of Transferor]
By:
Name:
Title:
Dated:_______, ____<PAGE>
EXHIBIT A-4
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER THREE YEARS
The Bank of New York
101 Barclay Street, 21 W
New York, New York 10286
Re: 9.5% Securities due 2009 of AMC Entertainment Inc.
Reference is hereby made to the Indenture, dated as of March 19,
1997 (the "Indenture"), between AMC Entertainment Inc., as issuer (the
"Company") and The Bank of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the
Indenture.
[For transfers: This letter relates to $200,000,000 principal
amount of Securities which are evidenced by a [Restricted Global Security
(CUSIP No. ____________) and held with the Depositary in the name of
______________________] [a U.S. Physical Security (CUSIP No.
________________) registered in the name of _________________] [and held
for the benefit of _________________] (the "Beneficial Owner"). The
Beneficial Owner has requested that its beneficial interest in such
Securities be transferred to a Person that will take delivery thereof in
the form of an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. U02381AA6).
In connection with such request and in respect of such
Securities, the Beneficial Owner does hereby certify that upon such
transfer, (a) a period of at least three years will have elapsed since
March __, 1997, (b) the Beneficial Owner during the three months preceding
the date of such transfer was not an "affiliate" of the Company (as defined
in Rule 144 under the Securities Act), and it was not acting on behalf of
such an affiliate and (c) such Person to whom such transfer is being made
is not an "affiliate" of the Company.]
[For exchanges: This letter relates to $200,000,000 principal
amount of Securities that are evidenced by a [Restricted Global Security
(CUSIP No. __________) and held with the Depositary in the name of [
] [and held for the benefit of ] ] (the
"Beneficial Owner"). The Beneficial Owner has requested that its
beneficial interest in such Securities be exchanged for a beneficial
interest in an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. U02381AA6).
In connection with such request and in respect of such
Securities, the Beneficial Owner does hereby certify that [it is located
and acquired such securities outside the United States (if the Restricted
Period has ended) and that such transfer is being made in accordance with
Rule 903 or 904 of Regulation S promulgated under the U.S. Securities Act
of 1933][, upon such exchange, (a) it will be the beneficial owner of such
Securities, (b) a period of at least three years will have elapsed since
March __, 1997 and (c) the Beneficial Owner will not be, and during the
three months preceding the date of such exchange will not have been, an
"affiliate" of the Company (as defined in Rule 144 under the Securities
Act), and it is not acting on behalf of such an affiliate.]]
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
Dated:[Insert Name of Beneficial Owner]
By:
Name:
Title:
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions . . . . . . . . . . . . . . . . 1
"Agent Member". . . . . . . . . . . . . . . . . . . . . . 2
"Applicable Procedures" . . . . . . . . . . . . . . . . . 2
"Bankruptcy Laws" . . . . . . . . . . . . . . . . . . . . 2
"Commission". . . . . . . . . . . . . . . . . . . . . . . 4
"Company" . . . . . . . . . . . . . . . . . . . . . . . . 4
"Company Request" . . . . . . . . . . . . . . . . . . . . 4
"Corporate Trust Office". . . . . . . . . . . . . . . . . 5
"Depositary". . . . . . . . . . . . . . . . . . . . . . . 5
"Event of Default". . . . . . . . . . . . . . . . . . . . 6
"Exchange Offer". . . . . . . . . . . . . . . . . . . . . 6
"Exchange Offer Registration Statement" . . . . . . . . . 6
"Exchange Securities" . . . . . . . . . . . . . . . . . . 6
"Holder". . . . . . . . . . . . . . . . . . . . . . . . . 7
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . 7
"Initial Securities". . . . . . . . . . . . . . . . . . . 7
"Interest Payment Date" . . . . . . . . . . . . . . . . . 7
"Non-Payment Default" . . . . . . . . . . . . . . . . . . 8
"Officers' Certificate" . . . . . . . . . . . . . . . . . 9
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . 9
"Paying Agent". . . . . . . . . . . . . . . . . . . . . . 10
"Payment Default" . . . . . . . . . . . . . . . . . . . . 10
"Redemption Date" . . . . . . . . . . . . . . . . . . . . 12
"Redemption Price". . . . . . . . . . . . . . . . . . . . 12
"Registration Rights Agreement" . . . . . . . . . . . . . 12
"Registration Statement". . . . . . . . . . . . . . . . . 12
"Regular Record Date" . . . . . . . . . . . . . . . . . . 12
"Regulation S". . . . . . . . . . . . . . . . . . . . . . 12
"Responsible Officer" . . . . . . . . . . . . . . . . . . 12
"Securities Act". . . . . . . . . . . . . . . . . . . . . 13
"Security" and "Securities" . . . . . . . . . . . . . . . 13
"Shelf Registration Statement". . . . . . . . . . . . . . 14
"Special Record Date" . . . . . . . . . . . . . . . . . . 14
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . 14
"U.S. Dollars". . . . . . . . . . . . . . . . . . . . . . 14
Section 102. Other Definitions . . . . . . . . . . . . . 15
Section 103. Compliance Certificates and Opinions. . . . 16
Section 104. Form of Documents Delivered to Trustee. . . 16
Section 105. Acts of Holders . . . . . . . . . . . . . . 17
Section 106. Notices, Etc., to Trustee and Company . . . 18
Section 107. Notice to Holders; Waiver . . . . . . . . . 18
Section 108. Conflict of Any Provision of Indenture with
Trust Indenture Act. . . . . . . . . . . . . . . . . 19
Section 109. Effect of Headings and Table of Contents. . 19
Section 110. Successors and Assigns. . . . . . . . . . . 19
Section 111. Separability Clause . . . . . . . . . . . . 19
Section 112. Benefits of Indenture . . . . . . . . . . . 19
Section 113. Governing Law . . . . . . . . . . . . . . . 19
Section 114. Legal Holidays. . . . . . . . . . . . . . . 20
Section 115. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities. . . . . . . . . . . . . . . . . . . 20
Section 116. No Recourse Against Others. . . . . . . . . 20
Section 117. Reliance on Financial Data. . . . . . . . . 21
Section 118. Incorporation by Reference of Trust Indenture
Act. . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . 22
Section 202. Restrictive Legends . . . . . . . . . . . . 23
Section 203. Form of Face of Security. . . . . . . . . . 25
Section 204. Form of Reverse of Security . . . . . . . . 27
Section 205. Form of Trustee's Certificate of Authentication 33
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms . . . . . . . . . . . . . . 33
Section 302. Denominations . . . . . . . . . . . . . . . 34
Section 303. Execution, Authentication, Delivery and Dating 34
Section 304. Temporary Securities. . . . . . . . . . . . 35
Section 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . 35
Section 306. Book-Entry Provisions for Global Securities 37
Section 307. Special Transfer Provisions . . . . . . . . 38
Section 308. Mutilated, Destroyed, Lost and Stolen Securities 41
Section 309. Payment of Interest; Interest Rights Preserved 42
Section 310. Persons Deemed Owners . . . . . . . . . . . 43
Section 311. Cancellation. . . . . . . . . . . . . . . . 43
Section 312. Computation of Interest . . . . . . . . . . 43
Section 313. CUSIP Numbers . . . . . . . . . . . . . . . 43
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . . . 44
Section 402. Defeasance and Discharge. . . . . . . . . . 44
Section 403. Covenant Defeasance . . . . . . . . . . . . 44
Section 404. Conditions to Defeasance or Covenant Defeasance 45
Section 405. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions . . . 47
Section 406. Reinstatement . . . . . . . . . . . . . . . 47
ARTICLE FIVE
REMEDIES
Section 501. Events of Default . . . . . . . . . . . . . 48
Section 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . . . 50
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . 51
Section 504. Trustee May File Proofs of Claim. . . . . . 52
Section 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . 52
Section 506. Application of Money Collected. . . . . . . 53
Section 507. Limitation on Suits . . . . . . . . . . . . 53
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.. . . . . . . . . . . . . 54
Section 509. Restoration of Rights and Remedies. . . . . 54
Section 510. Rights and Remedies Cumulative. . . . . . . 54
Section 511. Delay or Omission Not Waiver. . . . . . . . 54
Section 512. Control by Holders. . . . . . . . . . . . . 54
Section 513. Waiver of Past Defaults . . . . . . . . . . 55
Section 514. Undertaking for Costs . . . . . . . . . . . 55
Section 515. Waiver of Stay, Extension or Usury Laws . . 56
Section 516. Application of Trust Indenture Act to this
Indenture. . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults. . . . . . . . . . . . . 56
Section 602. Certain Rights of Trustee . . . . . . . . . 56
Section 603. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . 58
Section 604. May Hold Securities . . . . . . . . . . . . 58
Section 605. Money Held in Trust . . . . . . . . . . . . 58
Section 606. Compensation and Reimbursement. . . . . . . 58
Section 607. Conflicting Interests . . . . . . . . . . . 59
Section 608. Corporate Trustee Required; Eligibility . . 59
Section 609. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . . 60
Section 610. Acceptance of Appointment by Successor. . . 61
Section 611. Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . . . . . 61
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders 62
Section 702. Reports by Trustee. . . . . . . . . . . . . 62
Section 703. Reports by Company. . . . . . . . . . . . . 62
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . . 63
Section 802. Successor Substituted . . . . . . . . . . . 64
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
Section 901. Supplemental Indentures and Amendments
Without Consent of Holders. . . . . . . . . . . . . . . . 64
Section 902. Supplemental Indentures and Certain Amendments
with Consent of Holders. . . . . . . . . . . . . . . 65
Section 903. Execution of Supplemental Indentures. . . . 66
Section 904. Effect of Supplemental Indentures . . . . . 66
Section 905. Conformity with Trust Indenture Act . . . . 67
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . 67
Section 907. Notice of Supplemental Indentures . . . . . 67
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest 67
Section 1002. Maintenance of Office or Agency. . . . . . 67
Section 1003. Money for Security Payments to Be Held in Trust 68
Section 1004. Corporate Existence. . . . . . . . . . . . 69
Section 1005. Payment of Taxes and Other Claims. . . . . 69
Section 1006. Maintenance of Properties. . . . . . . . . 70
Section 1007. Limitation on . . . . . . . . . . . . . . 70
Section 1008. Limitation on Restricted Payments. . . . . 70
Section 1009. Limitation on Transactions with Affiliates. 72
Section 1010. Limitation on Senior Subordinated Indebtedness. 72
Section 1011. Change of Control. . . . . . . . . . . . . 72
Section 1012. Provision of Financial Information . . . . 73
Section 1013. Statement as to Compliance.. . . . . . . . 73
Section 1014. Waiver of Certain Covenants. . . . . . . . 74
Section 1015. Fall-away of Certain Covenants.. . . . . . 74
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption. . . . . . . . . . . . 74
Section 1102. Applicability of Article . . . . . . . . . 74
Section 1103. Election to Redeem; Notice to Trustee. . . 75
Section 1104. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . . . . 75
Section 1105. Notice of Redemption . . . . . . . . . . . 75
Section 1106. Deposit of Redemption Price. . . . . . . . 76
Section 1107. Securities Payable on Redemption Date. . . 76
Section 1108. Securities Purchased in Part . . . . . . . 77
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness 77
Section 1202. Payment over of Proceeds upon Dissolution, Etc 77
Section 1203. Suspension of Payment When Senior
Indebtedness in Default . . . . . . . . . . . . . . . . . 79
Section 1204. Payment Permitted If No Default. . . . . . 80
Section 1205. Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 80
Section 1206. Provisions Solely to Define Relative Rights 81
Section 1207. Trustee to Effectuate Subordination. . . . 81
Section 1208. No Waiver of Subordination Provisions. . . 82
Section 1209. Notice to Trustee. . . . . . . . . . . . . 82
Section 1210. Reliance on Bankruptcy Order or Certificate
of Liquidating Agent Bank . . . . . . . . . . . . . . . . 83
Section 1211. Rights of Trustee As a Holder of Senior
Indebtedness;
Preservation of Trustee's Rights. . . . . . . . . . . . . 83
Section 1212. Article Applicable to Paying Agents. . . . 84
Section 1213. No Suspension of Remedies. . . . . . . . . 84
Section 1214. Trust Moneys Not Subordinated. . . . . . . 84
Section 1215. Duties Owed by Trustee to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 85
Section 1216. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights. . . . . . 85
EXHIBITS
Schedule I - PROVISIONS FOR INTER-COMPANY SUBORDINATED DEBT
A-1- Form of Certificate for Exchange or Registration of
Transfer From Restricted Global Security to
Regulation S Global Security
A-2- Form of Certificate for Exchange or Registration of
Transfer From Regulation S Global Security to
Restricted Global Security
A-3- Form of Certificate for Transfer of U.S. Physical
Securities to Regulation S Global Security or
Restricted Global Security
A-4- Form of Certificate for Transfer or Exchange after
Three Years
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of March 19, 1997, between AMC ENTERTAINMENT INC., a Delaware
corporation (the "Company"), and GOLDMAN, SACHS & CO., SALOMON BROTHERS INC
and SCOTIA CAPITAL MARKETS (USA) INC. (the "Initial Purchasers").
This Agreement is made in connection with the Purchase Agreement
dated March 19, 1997 between the Company and the Initial Purchasers (the
"Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchasers of an aggregate of $200,000,000 principal amount of the
Company's 9.5% Senior Subordinated Notes due 2009 (the "Initial Securities").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchasers and
their direct and indirect transferees the registration rights set forth in
this Agreement. The execution of this Agreement is a condition to the closing
under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1.Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and also
includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City
of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Exchange Securities" shall mean the 9.5% Senior Subordinated Notes
due 2009 issued by the Company under the Indenture containing terms
identical in all material respects to the Initial Securities (except that
(i) interest thereon shall accrue from the last date on which interest
was paid on the Initial Securities or, if no such interest has been paid,
from the date of their original issue, (ii) the transfer restrictions
thereon shall be eliminated and (iii) certain provisions relating to an
increase in the stated rate of interest thereon shall be eliminated), to
be offered to Holders of Initial Securities in exchange for Initial
Securities pursuant to the Exchange Offer. Exchange Securities shall
evidence the same debt as Initial Securities.
"Holders" shall mean each Initial Purchaser, for so long as it owns
any Registrable Securities, and each of its successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture relating to the Initial
Securities dated as of
March 19, 1997 between the Company and The Bank of New York, as trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities;
provided that whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company shall be disregarded in determining
whether such consent or approval was given by the Holders of such
required percentage or amount.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Initial Securities;
provided, however, that the Initial Securities shall cease to be
Registrable Securities when (i) a Registration Statement with respect to
such Initial Securities shall have been declared effective under the 1933
Act and such Initial Securities shall have been disposed of pursuant to
such Registration Statement, (ii) such Initial Securities shall have been
sold to the public pursuant to Rule 144 (or any similar provision then
in force, but not Rule 144A) under the 1933 Act, (iii) such Initial
Securities shall have ceased to be outstanding or (iv) such Initial
Securities have been exchanged for Exchange Securities upon consummation
of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. ("NASD") registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws and compliance with the rules of
the NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any
of the Exchange Securities or Registrable Securities), (iii) all fees and
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements, certificates representing the
Exchange Securities and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all
fees and expenses incurred in connection with the listing, if any, of any
of the Registrable Securities on any securities exchange or exchanges,
(vi) the fees and disbursements of counsel for the Company and counsel
for the Initial Purchasers, and in the case of a Shelf Registration
Statement required to be filed under Section 2(b)(i), (ii) or (iii), the
reasonable fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which counsel shall
also be counsel for the Initial Purchasers); (vii) the fees and
disbursements of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (viii) the
fees and expenses of the Trustee, and any escrow agent or custodian, and
(ix) any fees and disbursements of the underwriters customarily required
to be paid by issuers or sellers of securities and the reasonable fees
and expenses of any special experts retained by the Company in connection
with any Registration Statement, but excluding fees of counsel to the
underwriters and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to
such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Initial
Securities under the Indenture.
2.Registration Under the 1933 Act. (a) Exchange Offer
Registration. To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company shall use its
best efforts (A) to file within 90 days after the Closing Date an Exchange
Offer Registration Statement covering the offer by the Company to the Holders
to exchange all of the Registrable Securities for Exchange Securities, (B) to
cause such Exchange Offer Registration Statement to be declared effective by
the SEC within 150 days after the Closing Date, (C) to cause such Registration
Statement to remain effective until the closing of the Exchange Offer and (D)
to consummate the Exchange Offer within 180 days following the Closing Date.
The Exchange Securities will be issued under the Indenture. If the Company
effects the Exchange Offer, the Company will be entitled to close the Exchange
Offer 30 days after the commencement thereof, provided that the Company has
accepted all of the Registrable Securities theretofore validly tendered in
accordance with the terms of the Exchange Offer. Upon the effectiveness of
the Exchange Offer Registration Statement, the Company shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable
each Holder (other than Participating Broker-Dealers (as defined in Section
3(f))) eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company
within the meaning of Rule 405 under the 1933 Act, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the
United States.
In connection with the Exchange Offer, the Company shall:
(i)mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii)keep the Exchange Offer open for not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if required
by applicable law);
(iii)use the services of the Depositary for the Exchange Offer
with an address in the Borough of Manhattan, City of New York;
(iv)permit Holders to withdraw tendered Registrable Securities at
any time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending
to the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange, and
a statement that such Holder is withdrawing his election to have such
Initial Securities exchanged; and
(v)otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i)accept for exchange Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration Statement and the letter of
transmittal;
(ii)deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company; and
(iii)issue, and cause the Trustee promptly to authenticate and
deliver Exchange Securities to each Holder of Registrable Securities
equal in principal amount to the Registrable Securities of such Holder
so accepted for exchange.
Registrable Securities that remain outstanding after the
consummation of the Exchange Offer and Exchange Securities issued in
connection with the Exchange Offer will be treated as a single class of
securities under the Indenture.
Interest on each Exchange Security will accrue from the last date
on which interest was paid on the Registrable Securities surrendered in
exchange therefor or, if no interest has been paid on the Registrable
Securities, from the date of its original issue. The Exchange Offer shall not
be subject to any conditions, other than (i) that the Exchange Offer, or the
making of any exchange by a Holder, does not violate applicable law or any
applicable interpretation of the Staff of the SEC, (ii) the due tendering of
Registrable Securities in accordance with the Exchange Offer, (iii) that no
action or proceeding shall have been instituted or threatened in any court or
by or before any governmental agency with respect to the Exchange Offer which,
in the Company's judgment, would reasonably be expected to impair the ability
of the Company to proceed with the Exchange Offer, (iv) that there shall not
have been adopted or enacted any law, statute, rule or regulation which, in
the Company's judgment, would reasonably be expected to impair the ability of
the Company to proceed with the Exchange Offer, (v) that there shall not have
been declared by U.S. federal or New York State authorities a banking
moratorium which, in the Company's judgment, would reasonably be expected to
impair the ability of the Company to proceed with the Exchange Offer, (vi)
that trading generally on the New York Stock Exchange, the American Stock
Exchange or in the Nasdaq National Market shall not have been suspended by
order of the Commission or any other governmental authority, which, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer and (vii) that each Holder of
Registrable Securities (other than Participating Broker-Dealers) who wishes
to exchange such Registrable Securities for Exchange Securities in the
Exchange Offer shall have represented that (A) it is not an affiliate (as
defined in Rule 405 of the 1933 Act) of the Company, or if it is an affiliate,
such Holder will comply with the registration and prospectus delivery
requirements of the 1933 Act, to the extent applicable, (B) any Exchange
Securities to be received by it were acquired in the ordinary course of
business and (C) at the time of the commencement of the Exchange Offer it has
no arrangement with any person to participate in the distribution (within the
meaning of the 1933 Act) of the Exchange Securities and shall have made such
other representations as may be reasonably necessary under applicable SEC
rules, regulations or interpretations to render the use of Form S-4 or another
appropriate form under the 1933 Act available; provided, however, that none
of the foregoing conditions shall relieve the Company of its obligations under
this Agreement or effect any increase in the interest rate borne by the
Initial Securities pursuant to this Agreement. To the extent permitted by
law, the Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies
in all material respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (iii) any prospectus forming
part of any Exchange Offer Registration Statement, and any supplement to such
prospectus, at the time of issuance does not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
For greater certainty, the Company's obligation to use its best
efforts to make the Exchange Offer hereunder terminates at the close of
business on the 180th day following the Closing Date.
(b)Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the Staff of the SEC, the Company
determines that it is not permitted to effect the Exchange Offer as
contemplated by Section 2(a) hereof, or (ii) if for any other reason the
Exchange Offer Registration Statement is not declared effective within 150
days following the Closing Date, or (iii) upon the request of any Initial
Purchaser (with respect to any Registrable Securities which it acquired
directly from the Company) following the consummation of the Exchange Offer
if such Initial Purchaser shall hold Registrable Securities which it acquired
directly from the Company and if such Initial Purchaser is not permitted, in
the opinion of counsel to the Initial Purchasers, pursuant to applicable law
or applicable interpretation of the Staff of the SEC to participate in the
Exchange Offer, the Company shall, at its cost:
(A)as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the Majority
Holders of such Registrable Securities and set forth in such Shelf
Registration Statement, and use its best efforts to cause such
Shelf Registration Statement to be declared effective by the SEC by
the 180th day after the Closing Date (or promptly in the event of
a request by any Initial Purchaser pursuant to clause (iii) above).
In the event that the Company is required to file a Shelf
Registration Statement upon the request of any Initial Purchaser
pursuant to clause (iii) above, the Company shall file and have
declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of
Registrable Securities held by such Holder or Initial Purchaser
after completion of the Exchange Offer;
(B)use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be lawfully delivered by Holders for a
period of three years from the date the Shelf Registration
Statement is declared effective by the SEC (or one year from the
date the Shelf Registration Statement is declared effective if such
Shelf Registration Statement is filed upon the request of any
Initial Purchaser pursuant to clause (iii) above) or such shorter
period which will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be outstanding; and
(C)notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the
applicable requirements of the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and
any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming
part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time),
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not
misleading.
The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required
by Section 3(b) below, to use all reasonable efforts to cause any such
amendment to become effective and such Shelf Registration to become usable as
soon as thereafter practicable and to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(c)Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or 2(b) and, in the
case of any Shelf Registration Statement, will reimburse the Holders or
Initial Purchasers for the reasonable fees and disbursements of one firm or
counsel designated in writing by the Majority Holders to act as counsel for
the Holders of the Registrable Securities in connection therewith, and, in the
case of an Exchange Offer Registration Statement, will reimburse the Initial
Purchasers for the reasonable fees and disbursements of one counsel in
connection therewith. Each Holder shall pay all expenses of its counsel other
than as set forth in the preceding sentence, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d)Effective Registration Statement. (i) The Company will be
deemed not to have used its best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite period if the
Company voluntarily takes any action that would result in any such
Registration Statement not being declared effective or in the Holders of
Registrable Securities covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period unless (A) such action is
required by applicable law or (B) such action is taken by the Company in good
faith and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets,
so long as the Company promptly complies with the requirements of Section 3(k)
hereof, if applicable.
(ii)An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.
(e)Increase in Interest Rate. In the event that (i) the Exchange
Offer Registration Statement is not filed with the Commission on or prior to
the 90th calendar day after the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 150th
calendar day after the Closing Date or (iii) the Exchange Offer is not
consummated or a Shelf Registration Statement with respect to the Registrable
Securities is not declared effective on or prior to the 180th calendar day
after the Closing Date, the interest rate borne by the Initial Securities
shall be increased by 0.50% per annum following such 90-day period in the case
of clause (i) above, following such 150-day period in the case of clause (ii)
above and following such 180-day period in the case of clause (iii) above;
provided that the aggregate increase in such interest rate will in no event
exceed 1.00% per annum. Upon (x) the filing of the Exchange Offer
Registration Statement after the 90-day period described in clause (i) above,
(y) the effectiveness of the Exchange Offer Registration Statement after the
150-day period described in clause (ii) above or (z) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after the 180-day period described in clause (iii) above, the
interest rate borne by the Initial Securities from the date of such filing,
effectiveness or consummation, as the case may be, will be reduced to the
original interest rate.
(f)Specific Enforcement. Without limiting the remedies available
to the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that
it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the
Company's obligations under Section 2(a) and Section 2(b) hereof.
3.Registration Procedures. In connection with the obligations
of the Company with respect to the Registration Statements pursuant to
Sections 2(a) and 2(b) hereof, the Company shall:
(a)prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2, on the appropriate form under the
1933 Act, which form (i) shall be selected by the Company, (ii) shall,
in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (iii) shall
comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith, and use its best
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b)prepare and file with the SEC such amendments and post-
effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for
the applicable period; cause each Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the 1933 Act; and comply with the provisions
of the 1933 Act with respect to the disposition of all securities covered
by each Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the selling
Holders thereof;
(c)in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is
being filed and advising such Holders that the distribution of
Registrable Securities will be made in accordance with the method elected
by the Majority Holders; and (ii) furnish to each Holder of Registrable
Securities, to counsel for the Initial Purchasers, to counsel for the
Holders and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter
may reasonably request, including financial statements and schedules and,
if the Holder so requests, all exhibits (including those incorporated by
reference) in order to facilitate the public sale or other disposition
of the Registrable Securities; and (iii) subject to the provisions of
this Agreement, hereby consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d)use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering
of Registrable Securities shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, to
cooperate with the Holders in connection with any filings required to be
made with the NASD, and do any and all other acts and things which may
be reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d) or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e)in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for the Initial Purchasers promptly
and, if requested by such Holder or counsel, confirm such advice in
writing promptly (i) when a Registration Statement has become effective
and when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to such offering
cease to be true and correct in all material respects, (v) of the receipt
by the Company or its legal counsel of any notification with respect to
the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (vi) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement
is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which requires the making of any changes in such Registration Statement
or Prospectus in order to make the statements therein not misleading and
(vii) of any determination by the Company that a post-effective amendment
to a Registration Statement would be appropriate;
(f)(A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Securities for Exchange Securities for the resale of such
Exchange Securities, (ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in
the Exchange Offer Registration Statement a statement that any broker-
dealer who holds Registrable Securities acquired for its own account as
a result of market-making activities or other trading activities (a
"Participating Broker-Dealer"), and who receives Exchange Securities for
Registrable Securities pursuant to the Exchange Offer, may be a statutory
underwriter and must deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange Securities, (iv)
subject to the last paragraph of Section 3, hereby consent to the use of
the Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or supplement thereto, by any broker-dealer in
connection with the sale or transfer of the Exchange Securities covered
by the Prospectus or any amendment or supplement thereto, and (v) include
in the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the
following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Securities. If the undersigned is
a broker-dealer that will receive Exchange Securities for its own
account in exchange for Registrable Securities, it represents that
the Registrable Securities to be exchanged for Exchange Securities
were acquired by it as a result of market-making activities or
other trading activities and acknowledges that it will deliver a
prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities pursuant to the
Exchange Offer; and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a Prospectus
in connection with the exchange of registrable Securities, the broker-
dealer will not be deemed to admit that it is an underwriter within the
meaning of the 1933 Act; and
(B)to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its best
efforts to cause to be delivered at the request of an entity
representing the Participating Broker-Dealers (which entity shall
be Goldman, Sachs & Co., unless it elects not to act as such
representative) only one, if any, "cold comfort" letter with
respect to the Prospectus in the form existing on the last date for
which exchanges are accepted pursuant to the Exchange Offer and
with respect to each subsequent amendment or supplement, if any,
effected during the period specified in clause (C) below; and
(C)to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its best
efforts to maintain the effectiveness of the Exchange Offer
Registration Statement for a period of 180 days following the
closing of the Exchange Offer; and
(D)the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration
Statement as would otherwise be contemplated by Section 3(b), or
take any other action as a result of this Section 3(f), for a
period exceeding 180 days after the closing of the Exchange Offer
(as such period may be extended by the Company) and Participating
Broker-Dealers shall not be authorized by the Company to, and shall
not, deliver such Prospectus after such period in connection with
resales contemplated by this Section 3.
(g)(A) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (B) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any request
by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for additional
information;
(h)make every reasonable effort to prevent the issuance, and if
issued, to obtain the withdrawal at the earliest possible time, of any
order suspending the effectiveness of a Registration Statement as soon
as practicable and provide prompt written notice to each Holder of the
withdrawal of any such order;
(i)in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
including financial statements and schedules (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(j)in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold and not bearing any restrictive legends; and cause such Registrable
Securities to be in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling Holders or
the underwriters, if any, may reasonably request at least two business
days prior to the closing of any sale of Registrable Securities;
(k)in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Section
3(e)(vi) hereof, use its best efforts to prepare a supplement or post-
effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain at the time
of such delivery any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission. At such time as such public disclosure is otherwise made or
the Company determines that such disclosure is not necessary, in each
case to correct any misstatement of a material fact or to include any
omitted material fact, the Company agrees promptly to notify each Holder
of such determination and to furnish each Holder such numbers of copies
of the Prospectus, as amended or supplemented, as such Holder may
reasonably request;
(l)obtain a CUSIP number for all Exchange Securities, or
Registrable Securities, as the case may be, not later than the effective
date of the applicable Registration Statement, and provide the Trustee
with printed certificates for the Exchange Securities or the Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(m)(i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Securities, or Registrable Securities, as
the case may be, (ii) cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture
to be so qualified in accordance with the terms of the TIA and
(iii) execute, and use its best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(n)in the case of a Shelf Registration, enter into agreements
(including underwriting agreements, if requested, in customary form) and
take all other customary and appropriate actions (including those
reasonably requested by the Majority Holders) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration:
(i)to the extent possible, make such representations and
warranties to the Holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten
offerings as may be reasonably requested by them;
(ii)obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the holders of a majority in principal amount of the
Registrable Securities being sold) addressed to each selling Holder
and the underwriters, if any, and dated, in the case of the initial
opinion, as of the effective date of such Shelf Registration
Statement, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings and such
other matters as may be reasonably requested by such Holders and
underwriters;
(iii)obtain "cold comfort" letters and updates thereof
from the Company's independent certified public accountants
addressed to the underwriters, if any, and will use best efforts to
have such letters addressed to the selling Holders of Registrable
Securities, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters
to underwriters in connection with similar underwritten offerings;
(iv)enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose
of soliciting purchases of Registrable Securities, which agreement
shall be in form, substance and scope customary for similar
offerings;
(v)if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 5 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to
said Section; and
(vi)cause its officers to execute and deliver such documents
and certificates and updates thereof as may be reasonably requested
by the underwriters and as are customarily delivered in
underwritten offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
and (ii) each closing under any underwriting or similar agreement as and
to the extent required thereunder. In the case of any underwritten
offering, the Company shall provide written notice to the Holders of all
Registrable Securities of such underwritten offering at least 30 days
prior to the filing of a prospectus supplement for such underwritten
offering. Such notice shall (x) offer each such Holder the right to
participate in such underwritten offering, (y) specify a date, which
shall be no earlier than 10 days following the date of such notice, by
which such Holder must inform the Company of its intent to participate
in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten offering;
(o)in the case of a Shelf Registration, make reasonably available
for inspection by representatives of the Holders of the Registrable
Securities and any underwriters participating in any disposition pursuant
to a Shelf Registration Statement and any counsel or accountant retained
by such Holders or underwriters, all relevant financial and other
records, pertinent corporate documents and properties of the Company
customarily inspected by underwriters in primary underwritten offerings
reasonably requested by any such persons, and cause the respective
officers, directors, employees, and any other agents of the Company to
supply all relevant information reasonably requested by, and customarily
supplied in connection with primary underwritten offerings to, any such
representative, underwriter, special counsel or accountant in connection
with a Registration Statement; provided, however, that each such party
shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the
Company in writing as being confidential, until such time as (a) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise), (b) such person
shall be required to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such order)
and only after such person shall have given the Company prompt prior
written notice of such requirements or (c) such information is required
to be set forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration Statement
or an amendment or supplement to such prospectus in order that such Shelf
Registration Statement, prospectus, amendment or supplement, as the case
may be, does not contain an untrue statement of a material fact or omit
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(p)(i) a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to a Prospectus, provide copies of such document to the
Initial Purchasers and their counsel, and make such changes in any such
document prior to the filing thereof as any of the Initial Purchaser or
their counsel may reasonably request; (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of Registrable
Securities, to the Initial Purchasers, to counsel on behalf of the
Holders and to the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any, and make such changes in any
such document prior to the filing thereof as the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders, their
counsel and any underwriter may reasonably request; and (iii) cause the
representatives of the Company to be available for discussion of such
document as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders or any
underwriter and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall not have previously been
advised and furnished a copy or to which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall reasonably object;
(q)in the case of a Shelf Registration, use its best efforts to
cause the Registrable Securities to be rated with the appropriate rating
agencies, if so requested by the Majority Holders or by the underwriter
or underwriters of an underwritten offering of Registrable Securities,
if any, unless the Registrable Securities are already so rated;
(r)otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC so long as they are applicable to the
Exchange Offer or the Shelf Registration Statement and make generally
available to its security holders (or otherwise provide in accordance
with Section 11(a) of the 1933 Act), as soon as reasonably practicable,
an earnings statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder; and
(s)In the event that any broker-dealer registered under the 1934
Act shall underwrite any Registrable Securities or participate as a
member of any underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the
By-laws of the NASD) thereof, whether as a Holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, cooperate and assist in any
filings required to be made with the NASD including (i) cooperating, if
required, in the engagement by such broker-dealer of a "qualified
independent underwriter" to participate in the preparation of the
Registration Statement relating to such securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
yield of such Registrable Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 5 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair
Practice of the NASD.
In the case of a Shelf Registration Statement, the Company may (as
a condition to such Holder's participation in the Shelf Registration) require
each Holder of Registrable Securities to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing for inclusion in the Shelf Registration Statement, and the
Company may exclude from the Shelf Registration Statement the Registrable
Securities of, and shall not then be obligated under Section 2(e) hereof to,
any such Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company shall give any such notice to suspend
the disposition of Registrable Securities pursuant to a Shelf Registration
Statement as a result of the happening of any event or the discovery of any
facts, each of the kind described in Section 3(e)(vi) hereof, the Company
shall be deemed to have used its best efforts to keep the Shelf Registration
Statement effective during such period of suspension provided that the Company
shall use its best efforts to file and have declared effective (if an
amendment) as soon as practicable an amendment or supplement to the Shelf
Registration Statement and shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date
of the giving of such notice to and including the date when the Holders shall
have received copies of the supplemented or amended Prospectus necessary to
resume such dispositions.
4.Underwritten Registrations. If any of the Registrable
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Majority Holders of such
Registrable Securities included in such offering; such selection must be
approved by the Company, which approval shall not be unreasonably withheld or
delayed.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5.Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Initial Purchaser, each Holder, including
Participating Broker-Dealers, each underwriter who participates in an offering
of Registrable Securities, their respective affiliates, and the respective
directors, officers, employees, agents and each Person, if any, who controls
any of such parties within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i)against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii)against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii)against any and all expenses whatsoever, as incurred
(including fees and disbursements of counsel chosen by any indemnified
party), reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any Initial
Purchaser, any Holder, including Participating Broker-Dealers or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(b)In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, each
Initial Purchaser, each underwriter who participates in an offering of
Registrable Securities and the other selling Holders and each of their
respective directors and officers (including each officer of the Company who
signed the Registration Statement) and each Person, if any, who controls the
Company, any Initial Purchaser, any underwriter or any other selling Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all losses, liabilities, claims, damages and expenses
described in the indemnity contained in Section 5(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Holder, expressly for use in the Registration Statement (or
any amendment thereto), or the Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(c)Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it
may have other than on account of this indemnity agreement. The indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall
pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
If an indemnified party includes (x) the Initial Purchasers or such
controlling persons of the Initial Purchasers, such firm shall be designated
in writing by Goldman, Sachs & Co. or (y) Holders of Securities (other than
the Initial Purchasers) or controlling persons of such Holders, such firm
shall be designated in writing by Holders of a majority in aggregate principal
amount of such Securities. In all other cases, such firm shall be designated
by the Company. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement, unless the reasonableness of such fees and expenses is being
challenged in good faith by the indemnifying party. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 5 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d)In order to provide for just and equitable contribution in
circumstances in which any of the indemnity provisions set forth in this
Section 5 are for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company, the
Initial Purchasers and the Holders shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity incurred by the Company, the Initial Purchaser and the Holders, as
incurred; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation. As between the Company, the Initial Purchasers
and the Holders, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect
(i) the relative benefits received by the Company, on the one hand, the
Initial Purchasers on another hand, and the Holders on another hand, from the
offering of the Exchange Securities or Registrable Securities included in such
offering, and (ii) the relative fault of the Company, on the one hand, the
Initial Purchasers on another hand, and the Holders on another hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of the parties shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by such Holder, Participating Broker-Dealer or other indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
the Initial Purchasers and the Holders of the Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
Section 5 were to be determined by pro rata allocation or by any other method
of allocation that does not take into account the relevant equitable
considerations. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in this
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigation or defending any such action or claim.
For purposes of this Section 5, each affiliate of an Initial Purchaser or a
Holder, and each director, officer, employee, agent and Person, if any, who
controls an Initial Purchaser or a Holder or such affiliate within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the
same rights to contribution as the Initial Purchaser or such Holder, and each
director of the Company and each officer of the Company who signed the
Registration Statement, and each Person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The indemnity and
contribution provisions contained in this section shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any indemnified party and (iii)
the sale of any Initial Securities or Exchange Securities. The remedies
provided for in this Section are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law
or in equity. The parties hereto agree that any underwriting discount or
commission or reimbursement of fees paid to an Initial Purchaser pursuant to
the Purchase Agreement shall not be deemed to be a benefit received by such
Initial Purchaser in connection with the offering of the Exchange Securities
or Registrable Securities included in such offering.
6.Miscellaneous. (a) Rule 144 and Rule 144A. For so long as
the Company is subject to the reporting requirements of Section 13 or 15 of
the 1934 Act, the Company covenants that it will file the reports required to
be filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act
and the rules and regulations adopted by the SEC thereunder, that if it at any
time is not required to file such reports, it will upon the request of any
Holder of Registrable Securities (i) make publicly available such information
as is necessary to permit sales of Registrable Securities pursuant to Rule 144
under the 1933 Act, (ii) deliver such information to a prospective purchaser
as is necessary to permit sales pursuant to Rule 144A under the 1933 Act and
it will take such further action as any Holder of Registrable Securities may
reasonably request, and (iii) take such further action that is reasonable in
the circumstances, in each case, to the extent required from time to time to
enable such Holder to sell its Registrable Securities without registration
under the 1933 Act within the limitation of the exemptions provided by (x)
Rule 144 under the 1933 Act, as such Rule may be amended from time to time,
(y) Rule 144A under the 1933 Act, as such Rule may be amended from time to
time, or (z) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing, nothing in this Section 6
shall be deemed to require the Company to register any of its securities
pursuant to the 1934 Act. The Company shall, upon request, provide a copy of
this Agreement to prospective purchasers of Registrable Securities identified
to the Company by the Initial Purchasers.
(b)No Inconsistent Agreements. The Company has not entered into
and, on or after the date of this Agreement, will not enter into any agreement
with respect to its securities which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c)Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of
Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure; provided, however, that no amendment,
modification, supplement or waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder.
(d)Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions
of this Section 6(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to
the Company, to AMC Entertainment Inc., Attention: Secretary, 106 West 14th
Street, Kansas City, Missouri 64105-1977.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged by the
recipient's facsimile machine operator, if telecopied; and on the next
business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the person giving the same to the Trustee, at the
address specified in the Indenture.
(e)Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms hereof or of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(f)Third Party Beneficiary. The Initial Purchasers shall be third
party beneficiaries to the agreements made hereunder between the Company, on
the one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders
hereunder.
(g)Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h)Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i)GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(j)Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k)Submission to Jurisdiction; Waiver of Immunities; Agent for
Service. The Company irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by any Holder or by any person who
controls any Holder arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York Court, (ii)
waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed CT Corporation System, 1633 Broadway,
New York, New York, 10019, as their authorized agent (the "Authorized Agent")
upon whom process may be served in any such action arising out of or based on
this Agreement or the transactions contemplated hereby which may be instituted
in any New York Court by any Holder or by any person who controls any Holder,
expressly consents to the jurisdiction of any such court in respect of any
such action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable.
The Company represents and warrants that the Authorized Agent has agreed to
act as such agent for service of process and agrees to take any and all
action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice
of such service to the Company shall be deemed, in every respect, effective
service of process upon the Company.
____________________________
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
AMC ENTERTAINMENT INC.
By /s/ Richard E. Obert
Name:
Richard E. Obert
Title:
Senior Vice President
Confirmed and accepted as of
the date first above written:
By:GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
SCOTIA CAPITAL MARKETS (USA) INC.
By:GOLDMAN, SACHS & CO.
By /s/ Marcus Colwell
Name: Marcus Colwell
Title: Vice President
<PAGE>
EXHIBIT 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of March 19, 1997
between
AMC ENTERTAINMENT INC.,
Issuer
and
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
SCOTIA CAPITAL MARKETS (USA) INC.
