AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
August 30, 2000 by and among AMC Entertainment Inc., a corporation duly
organized and existing under the laws of the State of Delaware and having
its principal office at 106 West 14th Street, Kansas City, Missouri 64105
(the "Company"), The Bank of New York, a banking corporation duly organized
and existing under the laws of the State of New York and having its
principal corporate trust office at 101 Barclay Street 21W, New York, New
York 10286 (the "Resigning Trustee") and HSBC Bank USA a banking
corporation and trust company duly organized and existing under the laws of
the State of New York and having its principal corporate trust office at
140 Broadway, New York, New York 10005-1180 (the "Successor Trustee").
RECITALS:
WHEREAS, there is currently authorized and issued $200,000,000
aggregate principal amount of the Company's 9 ? % Senior Subordinated Notes
due 2009 under an Indenture dated as of March 19, 1997, by and between the
Company and the Resigning Trustee, as amended by the First Supplemental
Indenture dated as of June 9, 1997, by and between the Company and the
Resigning Trustee (said Notes are hereinafter referred to as "Securities"
and said Indenture, as amended, is hereinafter referred to as the
"Indenture");
WHEREAS, Section 609 of the Indenture provides that the Trustee may at
any time resign by giving written notice of such resignation to the
Company, which resignation shall become effective upon the acceptance by a
successor Trustee of its appointment as a successor Trustee;
WHEREAS, Section 609 of the Indenture provides that, if the Trustee
shall resign, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee;
WHEREAS, the Company, by a Board Resolution, has provided for the
appointment of such a successor Trustee;
WHEREAS, Section 610 of the Indenture provides that any successor
Trustee appointed in accordance with the Indenture shall execute,
acknowledge and deliver to the Company and the retiring Trustee an
instrument accepting such appointment under the Indenture, and thereupon
the resignation of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, trusts and duties of the retiring
Trustee;
WHEREAS, Section 610 of the Indenture provides that on the written
request of the Company or the successor Trustee, the retiring Trustee shall
upon payment by the Company of all amounts due the retiring Trustee under
Section 606 of the Indenture execute and deliver an instrument transferring
to such successor Trustee all the rights, powers, duties and obligations
of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
under the Indenture;
WHEREAS, pursuant to Sections 1002 and 305 of the Indenture, Resigning
Trustee was appointed Security Registrar and Paying Agent with respect to
all the Securities authenticated and delivered under the Indenture;
WHEREAS, the Company desires to appoint Successor Trustee as Trustee,
Paying Agent and Security Registrar with respect to all the Securities
heretofore and hereafter authenticated and delivered under the Indenture to
succeed Resigning Trustee under the Indenture; and
WHEREAS, Successor Trustee is willing to accept such appointment as
Trustee, Paying Agent and Security Registrar under the Indenture;
NOW, THEREFORE, the Company, Resigning Trustee and Successor Trustee,
for and in consideration of the premises and of other good valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby consent and agree as follows:
ARTICLE I
THE RESIGNING TRUSTEE
---------------------
SECTION 1.1. Pursuant to Section 609 of the Indenture, Resigning
Trustee hereby notifies the Company that Resigning Trustee is hereby
resigning as Trustee, Paying Agent and Security Registrar under the
Indenture.
SECTION 1.2. Resigning Trustee hereby represents and warrants to
Successor Trustee that:
(a) No covenant or condition contained in the Indenture has been
waived by Resigning Trustee or, to the best of the knowledge of
the Responsible Officers of Resigning Trustee's Corporate Trust
and Agency Group, by the Holders of the percentage in aggregate
principal amount of the Securities required by the Indenture to
effect any such waiver.
(b) There is no action, suit or proceeding pending or, to the best of
the knowledge of the Responsible Officers assigned to Resigning
Trustee's Corporate Trust and Agency Group, threatened against
Resigning Trustee before any court or any governmental authority
arising out of any action or omission by Resigning Trustee as
Trustee, Paying Agent or Security Registrar under the Indenture.
(c) As of the effective date of this Agreement, Resigning Trustee
will hold no property under the Indenture.
(d) Pursuant to Section 303 of the Indenture, Resigning Trustee duly
authenticated and delivered, on various dates, $200,000,000
aggregate principal amount of Securities which are outstanding as
of the effective date hereof.
(e) Each person who so authenticated the Securities was duly elected,
qualified and acting as an officer of Resigning Trustee and
empowered to authenticate the Securities at the respective times
of such authentication and the signature of such person or
persons appearing on such Securities is each such person's
genuine signature.
(f) This Agreement has been duly authorized, executed and delivered
on behalf of Resigning Trustee and constitutes its legal, valid
and binding obligation.
(g) To the best of the knowledge of the Responsible Officers of the
Resigning Trustee's Corporate Trust and Agency Group, no event
has occurred and is continuing which is, or after notice or lapse
of time would become, an Event of Default under Section 501 of
the Indenture.
SECTION 1.3. Resigning Trustee hereby assigns, transfers, delivers
and confirms to Successor Trustee all right, title and interest of
Resigning Trustee in and to the trust under the Indenture, all the rights,
powers, trusts and duties of the Trustee under the Indenture and all
property and money held by such Resigning Trustee under the Indenture.
Resigning Trustee shall execute and deliver such further instruments and
shall do such other things as Successor Trustee may reasonably require so
as to more fully and certainly vest and confirm in Successor Trustee all
the rights, trusts and powers hereby assigned, transferred, delivered and
confirmed to Successor Trustee as Trustee, Paying Agent and Security
Registrar.
SECTION 1.4 Resigning Trustee shall deliver to Successor Trustee,
as of or immediately after the effective date hereof, all of the documents
listed on Exhibit A hereto.
ARTICLE II
THE COMPANY
---------------------
SECTION 2.1. The Company hereby accepts the resignation of Resigning
Trustee as Trustee, Paying Agent and Security Registrar under the Indenture
with respect to all Securities heretofore or hereafter authenticated and
delivered pursuant thereto.
SECTION 2.2. Attached as Exhibit B is a certificate the Secretary or
Assistant Secretary of the Company certifying as to the resolutions adopted
by the Board of Directors of the Company relating to this Agreement and
which are in full force and effect on the date hereof.
SECTION 2.3. The Company hereby appoints Successor Trustee as
Trustee, Paying Agent and Security Registrar under the Indenture with
respect to all Securities heretofore authenticated and delivered pursuant
thereto, to succeed to, and hereby vests Successor Trustee with, all the
rights, powers, trusts and duties of Resigning Trustee under the Indenture
as Trustee, Paying Agent and Security Registrar from the effective date of
its appointment forward.
SECTION 2.4. Within a reasonable period of time after the effective
date of this Agreement, the Company shall cause a notice, substantially in
the form of Exhibit C annexed hereto, to be sent to each Holder of the
Securities in accordance with the provisions of Section 609 of the
Indenture.
SECTION 2.5. The Company hereby represents and warrants to Resigning
Trustee and Successor Trustee that:
(a) The Company is a corporation duly and validly organized and
existing pursuant to the laws of the State of Delaware.
(b) The Indenture and the First Supplemental Indenture were validly
and lawfully executed and delivered by the Company and that
except for the First Supplemental Indenture dated June 9, 1997,
the Indenture has not been amended or modified, is in full force
and effect, and the Securities are validly issued securities of
the Company.
(c) The Company has performed or fulfilled prior to the date hereof,
and will continue to perform and fulfill after the date hereof,
each covenant, agreement, condition, obligation and
responsibility under the Indenture.
(d) No event has occurred and is continuing which is, or after notice
or lapse of time would become, an Event of Default under Section
501 of the Indenture.
(e) No covenant or condition contained in the Indenture has been
waived by Company or, to the best of Company's knowledge, by
Holders of the percentage in aggregate principal amount of the
Securities required to effect any such waiver.
(f) There is no action, suit or proceeding pending or, to the best of
Company's knowledge, threatened against the Company before any
court or any governmental authority arising out of any action or
omission by the Company under the Indenture.
(g) This Agreement has been duly authorized, executed and delivered
on behalf of Company and constitutes its legal, valid and binding
obligation.
(h) All conditions precedent relating to the appointment of HSBC Bank
USA, as Successor Trustee, Paying Agent and Security Registrar
under the Indenture have been complied with by the Company.
ARTICLE III
THE SUCCESSOR TRUSTEE
---------------------
SECTION 3.1. Successor Trustee hereby represents and warrants to
Resigning Trustee and to the Company that:
(a) Successor Trustee is qualified and eligible under the provisions
of Article Six of the Indenture and under the Trust Indenture Act
to act as Trustee under the Indenture. In making this
representation and warranty, the Successor Trustee is relying
upon the representations and warranties of both the Resigning
Trustee and the Company regarding the Indenture.
(b) This Agreement has been duly authorized, executed and delivered
on behalf of Successor Trustee and constitutes its legal, valid
and binding obligation.
SECTION 3.2. Successor Trustee hereby accepts its appointment as
successor Trustee, Paying Agent and Security Registrar under the Indenture
with respect to all Securities heretofore or hereafter authenticated and
delivered pursuant thereto and all property and money held or to be held
under the Indenture and accepts the rights, powers, trusts, duties and
obligations of Resigning Trustee as Trustee, Paying Agent and Security
Registrar, under the Indenture with respect to all Securities heretofore or
hereafter authenticated and delivered pursuant thereto and all property and
money held or to be held under the Indenture, upon the terms and conditions
set forth therein, with like effect as if originally named as Trustee,
Paying Agent and Security Registrar under the Indenture.
SECTION 3.3. References in the Indenture to "Corporate Trust Office"
or other similar terms shall be deemed to refer to the Corporate Trust
Office of Successor Trustee at 140 Broadway, New York, New York 10005-1180
or any other office of Successor Trustee at which, at any particular time,
its corporate trust business shall be administered.
ARTICLE IV
MISCELLANEOUS
--------------
SECTION 4.1. Capitalized terms not otherwise defined herein shall
have the respective meanings assigned to them in the Indenture.
SECTION 4.2. This Agreement and the resignation, appointment and
acceptance effected hereby shall be effective as of the close of business
on the first date set forth herein above.
SECTION 4.3. Resigning Trustee hereby acknowledges payment or
provision for payment in full by the Company of compensation for all
services rendered by Resigning Trustee under Section 606 of the Indenture
and reimbursement in full by the Company of the expenses, disbursements and
advances incurred or made by Resigning Trustee in accordance with the
provisions of the Indenture. Resigning Trustee acknowledges that it
relinquishes any lien it may have upon all property or funds held or
collected by it to secure any amounts due it pursuant to the provisions of
Section 606 of the Indenture. The Company acknowledges its obligation set
forth in Section 606 of the Indenture to indemnify Resigning Trustee for,
and to hold Resigning Trustee harmless against, any loss, liability and
expense incurred without negligence or bad faith on the part of the
Resigning Trustee and arising out of or in connection with the acceptance
or administration of the trust evidenced by the Indenture prior to the date
hereof (which obligation shall survive the execution hereof).
SECTION 4.4. This Agreement shall be governed by and construed in
accordance with the laws of the jurisdiction which governs the Indenture.
SECTION 4.5. This Agreement may be executed in any number of
counterparts each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
SECTION 4.6. The Company, Resigning Trustee and Successor Trustee
hereby acknowledge receipt of an executed and acknowledged counterpart of
this Agreement and the effectiveness thereof.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed and
acknowledged and their respective seals to be affixed thereunto and duly
attested all as of the day and year first above written.
Company:
AMC Entertainment Inc.
By: /s/ James V. Beynon
---------------------
Name: James V. Beynon
Title: Sr. Vice President & Treasurer
Resigning Trustee:
The Bank of New York
By: /s/ Irene Siegel
---------------------
Name: Irene Siegel
Title: Vice President
Successor Trustee:
HSBC Bank USA
By: /s/ Robert A. Conrad
---------------------
Name: Robert A. Conrad
Title: Vice President
