<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1997
REGISTRATION NO. 333-[ ]
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
REGAL CINEMAS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
TENNESSEE 7830 62-1412720
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
7132 COMMERCIAL PARK DRIVE
KNOXVILLE, TENNESSEE 37918
(423) 922-1123
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------------
HERBERT S. SANGER, JR.
WAGNER, MYERS & SANGER, P.C.
1801 FIRST TENNESSEE PLAZA
KNOXVILLE, TENNESSEE 37901-1308
(423) 525-4600
(Address, including zip code, and telephone number, including area code, of
agent for service of process)
---------------------
Copies of all communications to:
F. MITCHELL WALKER, JR.
BASS, BERRY & SIMS PLC
FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238
(615) 742-6200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED
AMOUNT MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE FEE
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<S> <C> <C> <C>
8 1/2% Senior Subordinated Notes due
October 1, 2007......................... $125,000,000 $125,000,000 $37,879
=======================================================================================================
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SUCH SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 12, 1997
PRELIMINARY PROSPECTUS
OFFER TO EXCHANGE ALL OUTSTANDING
8 1/2% SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2007
$125,000,000 PRINCIPAL AMOUNT OUTSTANDING FOR
8 1/2% EXCHANGE SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2007 OF
REGAL CINEMAS LOGO
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1997
---------------------
Regal Cinemas, Inc., a Tennessee corporation (the "Company" or "Regal"),
hereby offers, upon the terms and subject to the conditions set forth in this
Prospectus and the accompanying letter of transmittal (the "Letter of
Transmittal," and together with this Prospectus, the "Exchange Offer"), to
exchange $1,000 principal amount of its 8 1/2% Exchange Senior Subordinated
Notes due October 1, 2007 (the "Exchange Notes"), which have been registered
under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to
a Registration Statement (as defined herein) of which this Prospectus
constitutes a part, for each $1,000 principal amount of the outstanding 8 1/2%
Senior Subordinated Notes due October 1, 2007 (the "Old Notes") of the Company,
of which $125,000,000 principal amount is outstanding. The Exchange Notes and
the Old Notes are collectively referred to herein as the "Notes."
The Company will accept for exchange any and all Old Notes that are validly
tendered on or prior to 5:00 p.m., New York City time, on the date the Exchange
Offer expires, which will be , 1997 (the "Expiration Date"), unless
the Exchange Offer is extended. Tenders of Old Notes may be withdrawn at any
time prior to 5:00 p.m., New York City time, on the business day prior to the
Expiration Date, unless previously accepted for payment. The Exchange Offer is
not conditioned upon any minimum principal amount of Old Notes being tendered
for exchange. However, the Exchange Offer is subject to certain conditions which
may be waived by the Company and to the terms and provisions of the Registration
Rights Agreement (as defined herein). See "The Exchange Offer." Old Notes may be
tendered only in denominations of $1,000 and integral multiples thereof.
The Exchange Notes will be obligations of the Company entitled to the
benefits of the Indenture (as defined herein). The form and terms of the
Exchange Notes are the same in all material respects as the form and terms of
the Old Notes except that the Exchange Notes have been registered under the
Securities Act and will not contain terms restricting the transfer thereof.
Following the completion of the Exchange Offer, none of the Notes will be
entitled to the benefits of the Registration Rights Agreement relating to
contingent increases in the interest rate provided for pursuant thereto. See
"The Exchange Offer."
---------------------
INVESTMENT IN THE NOTES INVOLVES SIGNIFICANT RISKS DISCUSSED UNDER "RISK
FACTORS" ON PAGE 8 WHICH SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
---------------------
The Exchange Notes will bear interest from September 24, 1997. Holders of
Old Notes whose Old Notes are accepted for exchange will be deemed to have
waived the right to receive any payment in respect of interest on the Old Notes
accrued from September 24, 1997 to the date of the issuance of the Exchange
Notes. Interest on the Exchange Notes is payable semi-annually on April 1 and
October 1 of each year, commencing April 1, 1998, accruing from September 24,
1997 at a rate of 8 1/2% per annum.
The Notes are redeemable at the option of the Company in whole or in part,
at any time on or after October 1, 2002, at the redemption prices set forth
herein plus accrued interest to the date of redemption. Upon a Change of Control
(as defined herein), 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 of the Notes plus accrued and unpaid interest to the date of
repurchase. (Continued on next page)
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
The date of this Prospectus is , 1997.
<PAGE> 3
Old Notes initially sold to Qualified Institutional Buyers (as defined in
Rule 144A under the Securities Act) and to certain offshore purchasers (as
defined in Regulation S under the Securities Act) were represented by two global
Notes in definitive fully registered form without coupons, registered in the
name of a nominee of The Depository Trust Company ("DTC"), as depositary. The
Exchange Notes exchanged for Old Notes represented by the global Note will be
represented by a single, global Exchange Note in definitive fully registered
form without coupons, registered in the name of the nominee of DTC, as
depositary. See "Description of Exchange Notes -- Form and Denomination."
The Old Notes are and the Exchange Notes will be general unsecured
obligations of the Company, subordinated in right of payment to all existing and
future senior indebtedness of the Company. In addition, the Notes will be
effectively subordinated to all liabilities of the Company's subsidiaries,
including any liabilities of such subsidiaries as guarantors of senior
indebtedness or other obligations of the Company. As of October 2, 1997, the
Company had $123.6 million of senior indebtedness outstanding, and the Company's
subsidiaries had other liabilities of $10.1 million, consisting primarily of
trade payables and accrued expenses. See "Use of Proceeds" and "Capitalization."
Based on no-action letters issued by the staff of the Securities and
Exchange Commission (the "Commission") to third parties, the Company believes
the Exchange Notes issued pursuant to the Exchange Offer may be offered for
resale, resold and otherwise transferred by holders thereof (other than any such
holder that is an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act provided that such Exchange
Notes are acquired in the ordinary course of such holders' business and such
holders have no arrangements with any person to participate in the distribution
of such Exchange Notes. Each broker-dealer that receives Exchange Notes for its
own account pursuant to the Exchange Offer may be a statutory underwriter and
must acknowledge that it will deliver a prospectus in connection with any resale
of such Exchange Notes. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Old Notes where such Old Notes were acquired by such broker-dealer
as a result of market-making activities or other trading activities. The Company
has agreed that, for a period of 90 days after the Expiration Date, or such
shorter period as will terminate when all Old Notes acquired by broker-dealers
for their own accounts as a result of market-making activities or other trading
activities have been exchanged for Exchange Notes and resold by such
broker-dealers, it will make this Prospectus and any amendment or supplement to
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
The Company will not receive any proceeds from this offering, and no
underwriter is being utilized in connection with the Exchange Offer.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF OLD NOTES IN ANY JURISDICTION IN WHICH
THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE
SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A
PROXY.
The Exchange Notes are a new issue of securities for which there is
currently no trading market. If the Exchange Notes are traded after their
initial issuance, they may trade at a discount from their principal amount,
depending upon prevailing interest rates, the market for similar securities and
other factors, including general economic conditions and the financial condition
and performance of, and prospects for, the Company. Goldman, Sachs & Co. and
Lehman Brothers Inc.
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<PAGE> 4
have advised the Company that they currently intend to make a market in the
Notes. However, they are not obligated to do so, and any market-making activity
with respect to the Old Notes or the Exchange Notes may be discontinued at any
time without notice. Accordingly, there can be no assurance as to the
development or liquidity of any market for the Notes. The Company does not
intend to apply for listing of the Exchange Notes on any securities exchange or
for quotation through the National Association of Securities Dealers Automated
Quotation System.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information filed by the
Company may be inspected and copied at the public reference facilities of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following regional offices: Seven World Trade Center,
13th Floor, New York, New York 10048; and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and at the offices of The Nasdaq
National Market's National Market System, 1735 K Street, N.W., Washington, D.C.
20006; and copies of such material can be obtained from the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. In addition, such material can also
be obtained from the Commission's Web site at http://www.sec.gov.
This Prospectus constitutes a part of a registration statement (the
"Registration Statement") filed by the Company with the Commission under the
Securities Act. As permitted by the rules and regulations of the Commission,
this Prospectus does not contain all of the information contained in the
Registration Statement and the exhibits and schedules thereto and reference is
hereby made to the Registration Statement and the exhibits and schedules thereto
for further information with respect to the Company and the securities offered
hereby. Statements contained herein concerning the provisions of any documents
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission are not necessarily complete, and in each instance reference is made
to the copy of such document so filed. Each such statement is qualified in its
entirety by such reference.
INCORPORATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference and hereby made a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
January 2, 1997.
2. The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended April 3, 1997, July 3, 1997 and October 2, 1997.
3. The Company's Current Report on Form 8-K, dated August 14, 1997, as
amended by a Current Report on Form 8-K/A, dated September 10, 1997.
4. The Company's Current Report on Form 8-K, dated September 25, 1997.
5. The Company's Current Report on Form 8-K, dated October 2, 1997.
Each document or report filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of any offering of securities made by this Prospectus shall be
deemed to be incorporated by reference into this Prospectus and to be a part of
this Prospectus from the date of filing of such document. Any statement
contained in a document incorporated by reference, or deemed to be incorporated
by reference, herein shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is incorporated by reference, or
deemed to be incorporated by reference, herein modifies or
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<PAGE> 5
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM
LEWIS FRAZER III, EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER, SECRETARY
AND TREASURER, REGAL CINEMAS, INC., 7132 COMMERCIAL PARK DRIVE, KNOXVILLE,
TENNESSEE 37918, (423) 922-1123. IN ORDER TO ENSURE TIMELY DELIVERY OF THE
DOCUMENTS, ANY REQUEST SHOULD BE MADE BY , 1997.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND THE ACCOMPANYING LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE EXCHANGE AGENT. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR THE ACCOMPANYING LETTER OF TRANSMITTAL, OR BOTH TOGETHER, NOR ANY
SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
NEITHER THIS PROSPECTUS NOR THE ACCOMPANYING LETTER OF TRANSMITTAL, OR BOTH
TOGETHER, CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
OF THE SECURITIES OFFERED HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
iv
<PAGE> 6
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the more
detailed information and financial statements included elsewhere in this
Prospectus. Unless the context otherwise requires, references in this Prospectus
to the "Company" or "Regal" include the Company and its subsidiaries. Regal's
results of operations for or as of the end of any year refer to its fiscal year
ended or ending on the Thursday closest to December 31. Unless otherwise
indicated, the financial information and other statistical information
(including information regarding the number of theatres and/or screens operated
or under development or construction by the Company) of the Company included
elsewhere in this Prospectus have been restated to include the results of
operations of Litchfield Theatres, Ltd. ("Litchfield"), Neighborhood
Entertainment, Inc. ("Neighborhood"), Georgia State Theatres, Inc. ("Georgia
State") and Cobb Theatres, L.L.C. ("Cobb Theatres"), which were acquired by the
Company on June 15, 1994, April 17, 1995, May 30, 1996 and July 31, 1997,
respectively, and which were accounted for under the pooling of interests
method.
THE COMPANY
Regal is the third largest motion picture exhibitor in the United States
based upon the number of screens in operation. At October 2, 1997, the Company
operated 238 multiplex theatres with an aggregate of 2,111 screens in 22 states.
Since its inception, Regal has increased its average screens per location from
4.8 to 8.9 screens, which management believes is among the highest in the
industry, as compared to the average of approximately 5.7 screens for the five
largest motion picture exhibitors at May 1, 1996.
The Company develops, acquires and operates multiplex theatres in mid-size
metropolitan markets and suburban growth areas of larger metropolitan markets.
At October 2, 1997, Regal had 19 new theatres with 333 screens under
construction and 17 screens under construction at four existing theatres. The
Company seeks to locate theatres in markets that it believes are underscreened
or that are served by older theatre facilities. The Company also seeks to locate
each theatre where it will be the sole or dominant exhibitor within a particular
geographic film licensing zone. Management believes that approximately 72% of
the Company's theatres are located in film licensing zones in which Regal is the
sole exhibitor.
On July 31, 1997, the Company completed the acquisition of the business of
Cobb Theatres, L.L.C. ("Cobb Theatres") through the mergers of three of the
Company's wholly-owned subsidiaries with and into three subsidiaries of Cobb
Theatres and the acquisition by the Company of all the partnership interests of
Tricob Partnership, in accordance with the terms of an Agreement and Plan of
Merger dated June 11, 1997 (the "Cobb Theatres Acquisition"). The Cobb Theatres
Acquisition was accounted for as a pooling of interests. The aggregate
consideration paid by the Company was 2,837,594 shares of the Company's Common
Stock. The Company also assumed approximately $110 million of liabilities,
including $85 million aggregate principal amount outstanding of 10 5/8% Senior
Secured Notes (the "Cobb Notes").
Following the Cobb Theatres Acquisition, the Company completed a tender
offer and consent solicitation for the Cobb Notes (the "Tender Offer"). All but
$170,000 principal amount of the Cobb Notes were repurchased; and the
restrictive covenants and security for the Cobb Notes were released. Regal
initially financed the purchase price of the Cobb Notes under a short-term
credit facility (the "Bank Tender Facility") and subsequently repaid amounts
borrowed thereunder with proceeds from the offering of the Old Notes. The
balance of the proceeds from the offering of the Old Notes was applied to reduce
amounts outstanding under the Former Bank Revolving Credit Facility (as defined
herein). On October 8, 1997, the Company entered into a new bank revolving
credit facility (the "Bank Revolving Credit Facility") which permits borrowings
of up to $250 million.
The Company was incorporated under the laws of the State of Tennessee in
November 1989. The Company's principal offices are located at 7132 Commercial
Park Drive, Knoxville, Tennessee 37918, and its telephone number is (423)
922-1123.
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<PAGE> 7
SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
The Exchange Offer relates to the exchange of up to $125,000,000 aggregate
principal amount of Old Notes for up to an equal aggregate principal amount of
Exchange Notes. The Exchange Notes will be obligations of the Company entitled
to the benefits of the Indenture. The form and terms of the Exchange Notes are
the same as the form and terms of the Old Notes except that the Exchange Notes
have been registered under the Securities Act and will not contain terms
restricting the transfer thereof (and hence are not entitled to the benefits of
the Registration Rights Agreement relating to the contingent increases in the
interest rate provided for pursuant thereto). See "Description of Exchange
Notes."
THE EXCHANGE OFFER......... $1,000 principal amount of Exchange Notes will be
issued in exchange for each $1,000 principal amount
of Old Notes validly tendered pursuant to the
Exchange Offer. As of the date hereof, $125,000,000
in aggregate principal amount of Old Notes are
outstanding. The Company will issue the Exchange
Notes to tendering holders of Old Notes promptly
after the Expiration Date.
RESALE..................... Based on an interpretation by the staff of the
Commission, set forth in no-action letters to third
parties, the Company believes that the Exchange
Notes issued pursuant to the Exchange Offer
generally will be freely transferable by the
holders thereof without registration or any
prospectus delivery requirement under the
Securities Act, except that a "dealer" or any
"affiliate" of the Company, as such terms are
defined under the Securities Act, that exchanges
Old Notes held for its own account (a "Restricted
Holder") may be required to deliver copies of this
Prospectus in connection with any resale of the
Exchange Notes issued in exchange for such Old
Notes. See "The Exchange Offer -- General" and
"Plan of Distribution."
EXPIRATION DATE............ 5:00 p.m., New York City time, on ,
1997, unless the Exchange Offer is extended, in
which case the term "Expiration Date" means the
latest date and time to which the Exchange Offer is
extended. See "The Exchange Offer -- Expiration
Date; Extensions; Amendments."
ACCRUED INTEREST ON THE
EXCHANGE NOTES AND THE
OLD NOTES................ The Exchange Notes will bear interest from
September 24, 1997. Holders of Old Notes whose Old
Notes are accepted for exchange will be deemed to
have waived the right to receive any payment in
respect of interest on such Old Notes accrued from
September 24, 1997 to the date of the issuance of
the Exchange Notes. Consequently, holders who
exchange their Old Notes for Exchange Notes will
receive the same interest payment on April 1, 1998
(the first interest payment date with respect to
the Old Notes and the Exchange Notes) that they
would have received had they not accepted the
Exchange Offer. See "The Exchange Offer -- Interest
on the Exchange Notes."
CONDITIONS TO THE EXCHANGE
OFFER.................... The Exchange Offer is subject to certain
conditions, including the Company's reasonable
determination that it is advisable to proceed or
not to proceed with the Exchange Offer. See "The
Exchange Offer -- Conditions." The Exchange Offer
is not
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<PAGE> 8
conditioned upon any minimum principal amount of
Old Notes being tendered for exchange.
No federal or state regulatory requirements must be
complied with or approvals obtained in connection
with the Exchange Offer, other than applicable
requirements under federal and state securities
laws.
FAILURE TO EXCHANGE OLD
NOTES.................... Holders of the Old Notes who do not tender their
Old Notes in the Exchange Offer will continue to
hold such Old Notes and will be entitled to all the
rights and subject to all limitations applicable
thereto under the Indenture except for any such
rights under the Registration Rights Agreement. To
the extent that Old Notes are tendered and accepted
in the Exchange Offer, the trading market, if any,
for untendered Old Notes could be adversely
affected.
PROCEDURES FOR TENDERING
OLD NOTES................ Each holder of Old Notes wishing to accept the
Exchange Offer must complete, sign and date the
accompanying Letter of Transmittal, or a facsimile
thereof, in accordance with the instructions
contained herein and therein, and mail or otherwise
deliver such Letter of Transmittal, or such
facsimile, together with the Old Notes to be
exchanged and any other required documentation to
IBJ Schroder Bank & Trust Company, as Exchange
Agent, at the address set forth herein and therein
or effect a tender of Old Notes pursuant to the
procedures for book-entry transfer as provided for
herein. See "The Exchange Offer -- Procedures for
Tendering" and "-- Book-entry Transfer."
SPECIAL PROCEDURES FOR
BENEFICIAL HOLDERS....... Any beneficial holder whose Old Notes are
registered in the name of his broker, dealer,
commercial bank, trust company or other nominee and
who wishes to tender in the Exchange Offer should
contact such registered holder promptly and
instruct such registered holder to tender on his
behalf. If such beneficial holder wishes to tender
on his own behalf, such beneficial holder must,
prior to completing and executing the Letter of
Transmittal and delivering his Old Notes, either
make appropriate arrangements to register ownership
of the Old Notes in such holder's name or obtain a
properly completed bond power from the registered
holder. The transfer of record ownership may take
considerable time. Persons holding Old Notes
through The Depository Trust Company ("DTC") and
wishing to accept the Exchange Offer must do so
pursuant to the DTC's Automated Tender Offer
Program ("ATOP") System by which each tendering
participant will agree to be bound by the Letter of
Transmittal. See "The Exchange Offer -- Procedures
for Tendering" and "-- Book-entry Transfer."
GUARANTEED DELIVERY
PROCEDURES............... Holders of Old Notes who wish to tender their Old
Notes and whose Old Notes are not immediately
available or who cannot deliver their Old Notes and
a properly completed Letter of Transmittal or any
other documents required by the Letter of
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<PAGE> 9
Transmittal to the Exchange Agent prior to the
Expiration Date may tender their Old Notes
according to the guaranteed delivery procedures set
forth in "The Exchange Offer -- Guaranteed Delivery
Procedures."
WITHDRAWAL RIGHTS.......... Tenders of Old Notes may be withdrawn at any time
prior to 5:00 p.m., New York City time, on the
business day prior to the Expiration Date, unless
previously accepted for exchange. Any such notice
of withdrawal must (i) specify the name of the
Person having deposited the Old Notes to be
withdrawn (the "Depositor"), (ii) identify the Old
Notes to be withdrawn (including the certificate
number or numbers and principal amount of such Old
Notes), (iii) be signed by the Depositor in the
same manner as the original signature on the Letter
of Transmittal by which such Old Notes were
tendered (including any required signature
guarantees) or be accompanied by documents of
transfer sufficient to have the Trustee with
respect to the Old Notes register the transfer of
such Old Notes into the name of the Depositor
withdrawing the tender and (iv) specify the name in
which any such Old Notes are to be registered, if
different from that of the Depositor. See "The
Exchange Offer -- Withdrawal of Tenders."
ACCEPTANCE OF OLD NOTES
AND DELIVERY OF EXCHANGE
NOTES.................... Subject to certain conditions (as summarized above
in "Expiration Date" and as described more fully in
"The Exchange Offer -- Expiration Date; Extensions;
Amendments"), the Company will accept for exchange
any and all Old Notes which are properly tendered
in the Exchange Offer prior to 5:00 p.m., New York
City time, on the Expiration Date. The Exchange
Notes issued pursuant to the Exchange Offer will be
delivered promptly following the Expiration Date.
See "The Exchange Offer -- General."
CERTAIN FEDERAL INCOME TAX
CONSEQUENCES............. The exchange pursuant to the Exchange Offer will
generally not be a taxable event for federal income
tax purposes. See "Certain Federal Income Tax
Consequences of the Exchange Offer."
EXCHANGE AGENT............. IBJ Schroder Bank & Trust Company, the Trustee
under the Indenture, is serving as exchange agent
(the "Exchange Agent") in connection with the
Exchange Offer. The mailing address of the Exchange
Agent is One State Street Plaza, New York, New York
10004, Attention: Securities Processing, Floor
SC-1. See "The Exchange Offer -- Exchange Agent."
USE OF PROCEEDS............ There will be no cash proceeds payable to the
Company from the issuance of the Exchange Notes
pursuant to the Exchange Offer. Net proceeds
received by the Company from the sale of the Old
Notes were applied to reduce outstanding bank
indebtedness under the Bank Tender Facility and the
Company's Former Bank Revolving Credit Facility.
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<PAGE> 10
SUMMARY DESCRIPTION OF EXCHANGE NOTES
NOTES OFFERED.............. $125,000,000 principal amount of 8 1/2% Exchange
Senior Subordinated Notes due October 1, 2007 of
the Company.
ISSUER..................... Regal Cinemas, Inc.
MATURITY DATE.............. October 1, 2007.
INTEREST PAYMENT DATES..... April 1 and October 1 of each year, commencing
April 1, 1998.
OPTIONAL REDEMPTION........ The Notes are redeemable at the option of the
Company, in whole or in part, at any time on or
after October 1, 2002 at 104.250% of the principal
amount thereof, declining ratably to 100% of the
principal amount thereof on or after October 1,
2005, plus in each case interest accrued to the
redemption date.
CHANGE OF CONTROL.......... Upon a Change of Control (as defined herein), 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. See "Description of Exchange
Notes -- Change of Control."
SINKING FUND............... None.
RANKING.................... The Notes will be subordinated to all existing and
future senior indebtedness of the Company. As of
October 2, 1997, the Company had $123.6 million of
senior indebtedness outstanding, and the Company's
subsidiaries had $10.1 million of other liabilities
(consisting primarily of trade payables and accrued
expenses).
CERTAIN COVENANTS.......... The Indenture contains certain covenants that,
among other things, restrict the ability of the
Company and its Subsidiaries (as defined herein)
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.
If the Notes attain Investment Grade Status (as
defined herein), all of such covenants will cease
to apply, other than certain of the covenants
relating to mergers and a sale of substantially all
of the Company's assets. All of these limitations
are subject to a number of important
qualifications. In particular, 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).
See "Risk Factors -- Limitations of Covenants" and
"Description of Exchange Notes -- Certain
Covenants" and "-- Merger and Sale of Assets."
REGISTRATION RIGHTS
AGREEMENT................ The Company is obligated to consummate the Exchange
Offer or to cause resales of the Old Notes to be
registered under the Securities Act and, in the
event that (i) the Exchange Offer registration
statement has not been filed on or prior to
November 23, 1997, (ii) the Exchange Offer
registration
5
<PAGE> 11
statement is not declared effective on or prior to
February 22, 1998; (iii) the Exchange Offer is not
consummated or a shelf registration statement is
not declared effective on or prior to March 24,
1998; or (iv) any registration statement required
by the Registration Rights Agreement is filed and
declared effective but shall thereafter cease to be
effective without being succeeded immediately by an
additional registration statement filed and
declared effective the interest rate borne by the
Old Notes shall be increased by 0.50% per annum.
The aggregate amount of such increase from the
original interest rate pursuant to these provisions
will in no event exceed 1.00% per annum. Upon the
effectiveness of the Exchange Offer registration
statement or the consummation of the Exchange Offer
or the effectiveness of a shelf registration
statement, as the case may be, the interest rate
borne by the Old Notes from that time will be
reduced to the original interest rate set forth on
the cover page of this Prospectus. See "Description
of Exchange Notes -- Registration Rights".
ABSENCE OF PUBLIC MARKET
FOR THE EXCHANGE NOTES... The Exchange Notes will be a new issue of
securities for which there is currently no trading
market. Although Goldman, Sachs & Co. and Lehman
Brothers Inc. have informed the Company that they
currently intend to make a market in the Exchange
Notes, they are not obligated to do so, and any
such market making may be discontinued at any time
without notice. Accordingly, there can be no
assurance as to the development or liquidity of any
market for the Exchange Notes. The Company does not
intend to apply for listing of the Exchange Notes
on any securities exchange or for quotation on the
National Association of Securities Dealers
Automated Quotation System ("NASDAQ").
6
<PAGE> 12
SUMMARY CONSOLIDATED FINANCIAL AND OPERATING DATA
(DOLLARS IN THOUSANDS)
The summary consolidated financial data set forth below as of and for each
of the fiscal years ended December 31, 1992, December 30, 1993, December 29,
1994, December 28, 1995 and January 2, 1997 and as of and for each of the
nine-month periods ended October 3, 1996 and October 2, 1997, are derived from
the consolidated financial statements of Regal. This information should be read
in conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the Supplemental Consolidated Financial
Statements and Notes thereto incorporated by reference herein.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED NINE MONTHS ENDED
---------------------------------------------------------------------- -----------------------
DECEMBER 31, DECEMBER 30, DECEMBER 29, DECEMBER 28, JANUARY 2, OCTOBER 3, OCTOBER 2,
1992 1993 1994 1995 1997 1996 1997(1)
------------ ------------ ------------ ------------ ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME DATA:
Revenues.................... $167,588 $214,359 $265,005 $309,022 $389,193 $287,188 $348,508
Operating income............ 12,849 22,147 28,412 41,110 58,196 44,108 45,051
Income before extraordinary
item...................... 6,107 8,716 12,702 17,953 25,817 18,644 23,777
Extraordinary item net of
tax:
Gain (loss) on
extinguishment of
debt.................... -- 190 (1,752) (448) (751) (751) (10,020)
Net income.................. 6,107 8,906 10,950 17,505 25,066 17,893 13,757
Ratio of earnings to fixed
charges(2)................ 1.79x 2.91x 3.52x 3.37x 3.97x 3.76x 4.07x
OPERATING DATA(3):
Theatre locations........... 130 160 195 206 223 222 238
Screens..................... 924 1,110 1,397 1,616 1,899 1,803 2,111
Average screens per
location.................. 7.11 6.94 7.16 7.84 8.52 8.12 8.87
</TABLE>
<TABLE>
<CAPTION>
AS OF OCTOBER 2, 1997
---------------------
<S> <C>
BALANCE SHEET DATA:
Total assets.............................................. $583,655
Total long-term debt, including current maturities........ 248,641
Total shareholders' equity................................ 294,650
</TABLE>
- ---------------
(1) For the third quarter and first nine months of 1997, Regal had several
nonrecurring items that were primarily related to the Cobb Theatres
Acquisition, which was consummated during the third quarter. For both
periods, these nonrecurring items were: (i) an extraordinary loss on debt
extinguishment of $10,020,000 net of tax; (ii) merger expenses of $7,789,000
($5,429,000, after tax); (iii) an impairment loss of long-lived assets under
Statement of Financial Accounting Standards No. 121 of $4,960,000
($3,075,000, after tax); and (iv) a deferred tax asset valuation allowance
adjustment that reduced income taxes by $2,309,000. For the first nine
months of 1996, Regal had the following nonrecurring items: (i) an
extraordinary loss on debt extinguishment of $751,000 net of tax; and (ii)
after tax expenses related to mergers and dividends of $1,429,000.
(2) The ratio of earnings to fixed charges is computed by dividing earnings by
fixed charges. For this purpose, "earnings" include pretax income from
continuing operations plus fixed charges (adjusted for interest capitalized
during the period). "Fixed charges" include interest, whether expensed or
capitalized, amortization of debt expenses and the portion of rental expense
that is representative of the interest factor in these rentals.
(3) Theatre locations and screens are stated at the end of the respective
periods.
7
<PAGE> 13
RISK FACTORS
The following risk factors, in addition to the other information contained
in this Prospectus, should be carefully considered in evaluating an investment
in the Notes offered hereby.
DEPENDENCE ON MOTION PICTURE PRODUCTION AND PERFORMANCE; RELATIONSHIP WITH FILM
DISTRIBUTORS
The ability of Regal to operate successfully depends upon a number of
factors, the most important of which is the availability and popularity of
motion pictures and the performance of such motion pictures in the Company's
markets. The Company predominantly licenses "first-run" motion pictures. Poor
performance of, or disruption in the production of or access to, motion pictures
by the major studios and/or independent producers could adversely affect the
Company's business and results of operations. Since film distributors have
historically released those films which they anticipate will be the most
successful during the summer and holiday seasons, poor performance of such films
or disruption in the release of films during such periods could adversely affect
the Company's quarterly results for those particular periods. In addition,
because the Company's business depends to a significant degree on maintaining
good relations with the major film distributors, a deterioration in the
Company's relationship with one or more of the major film distributors could
adversely affect the Company's access to commercially successful films and have
a material adverse effect on the Company's business and results of operations.
EXPANSION PLANS
The Company's growth strategy involves the development of new theatres. The
Company intends to develop approximately 140 to 160 screens during the balance
of 1997 and approximately 500 to 600 screens during 1998. The Company expects
that the capital expenditures in connection with its expansion plan will
aggregate approximately $40 million to $50 million for the fourth quarter of
1997 and $200 million to $225 million during 1998. The Company's ability to open
theatres on a timely and profitable basis is subject to various contingencies,
some of which are beyond the Company's control. There is significant competition
in the United States for site locations from both theatre companies and other
businesses. There can be no assurance that the Company will be able to obtain
attractive theatre sites, negotiate acceptable lease terms, build theatres on a
timely and cost-effective basis, hire, train and retain skilled managers and
personnel and obtain adequate capital resources. There can be no assurance that
the Company will achieve its planned expansion or that new theatres will achieve
levels of profitability comparable to the Company's existing theatres.
ACQUISITION RISKS
The Company's growth strategy also may involve the acquisition of
additional theatres and/or theatre companies. There can be no assurance that the
Company will be able to successfully acquire suitable acquisition candidates or
integrate acquired operations into its existing operations. There can also be no
assurance that future acquisitions will not have an adverse effect upon the
Company's operating results, particularly in the quarters immediately following
the completion of an acquisition while the operations of an acquired business
are being integrated. Once integrated, acquired theatres may not achieve (or may
not be expected to achieve) levels of revenue or profitability comparable with
those achieved by the Company's existing theatres, or otherwise perform as
expected. There is substantial competition for attractive acquisition
candidates.
COMPETITION
The motion picture exhibition industry is highly competitive, particularly
in licensing aspects of films, attracting patrons and finding new theatre sites.
Theatres operated by national and regional circuits and by smaller independent
exhibitors compete with the Company's theatres. Many of the Company's
competitors have been in existence significantly longer than Regal and may be
better
8
<PAGE> 14
established in certain of the markets where the Company's theatres are located.
Many of the Company's competitors have sought to increase the number of theatres
and screens in operation. Such increases may cause certain local markets or
portions thereof to become over screened, resulting in a negative impact on the
earnings of the theatres involved and thus on the Company's theatres in those
markets.
Regal believes that the principal competitive factors in the motion picture
exhibition industry include licensing terms, the seating capacity, location and
reputation of an exhibitor's theatres, the quality of projection and sound
equipment at the theatres and the exhibitor's ability and willingness to promote
the films. Competition for patrons is dependent upon factors such as the
availability of popular films, the location of theatres, the comfort and quality
of theatres and ticket prices. Failure to compete favorably with respect to any
of these factors could have a material adverse effect on the Company's business
and results of operations. Alternative motion picture exhibition delivery
systems, including cable television, video cassettes and pay per view, exist for
the exhibition of filmed entertainment. An expansion of such delivery systems
could have a material adverse effect upon Regal's business and results of
operations.
DEPENDENCE ON SENIOR MANAGEMENT
Regal's success depends upon the continued contributions of its senior
management, including Michael L. Campbell, Chairman, President and Chief
Executive Officer of the Company. The loss of the services of one or more of
Regal's senior management could have a material adverse effect upon its business
and development. Regal's loan agreement provides that Mr. Campbell or a
successor reasonably acceptable to Regal's lenders must be employed as Chief
Executive Officer. Regal has an employment agreement with Mr. Campbell.
FLUCTUATIONS IN QUARTERLY RESULTS OF OPERATIONS
Regal's revenues have been seasonal, coinciding with the timing of releases
of motion pictures by the major distributors. Generally, the most marketable
motion pictures have been released during the summer and the Thanksgiving
through year-end holiday season. The unexpected emergence of a hit film during
other periods can alter the traditional trend. The timing of such releases can
have a significant effect on Regal's results of operations, and the results of
one quarter are not necessarily indicative of results for the next quarter. The
seasonality of motion picture exhibition, however, has become less pronounced in
recent years as studios have begun to release major motion pictures somewhat
more evenly throughout the year.
SUBSTANTIAL INDEBTEDNESS
As of October 2, 1997, the Company had $123.6 million of senior
indebtedness outstanding. The degree to which the Company is leveraged will have
important consequences to holders of Notes, including: (i) the ability of the
Company to obtain additional financing in the future, whether for working
capital, capital expenditures, acquisitions or other purposes, may be impaired;
(ii) a substantial portion of the Company's cash flow from operations will be
dedicated to the payment of interest on the Notes and under the Bank Revolving
Credit Facility and, under certain circumstances, principal amounts of
indebtedness outstanding under the Bank Revolving Credit Facility, thereby
reducing the funds available to the Company for its operations and any future
business opportunities and (iii) the Company may be more vulnerable in the event
of a downturn in its business. The Company's ability to make scheduled payments
or to refinance its indebtedness depends on its financial and operating
performance, which, in turn, is subject to prevailing economic conditions and to
financial, business, competitive and other factors beyond its control. Although
the Company's cash flow from operations has historically been sufficient to meet
its debt service obligations, there can be no assurance that the Company's
operating results will continue to be sufficient for payment of the Company's
indebtedness, including indebtedness under the Notes. See "Capitalization."
9
<PAGE> 15
SUBORDINATION OF NOTES
The Old Notes are and the Exchange Notes will be general unsecured
obligations of the Company subordinated in right of payment to all existing and
future senior indebtedness of the Company, including indebtedness under the Bank
Revolving Credit Facility. As of October 2, 1997, the Company had $123.6 million
of senior indebtedness outstanding, and the Company's subsidiaries had other
liabilities of $10.1 million (consisting primarily of trade payables and accrued
expenses). In addition, the Notes will be effectively subordinated to all
indebtedness and other liabilities (including trade payables) of the Company's
subsidiaries. Subject to certain limitations, the Indenture will permit the
Company and its subsidiaries to incur additional indebtedness, including senior
indebtedness. See "Description of Exchange Notes -- Certain Covenants." The
Company may not pay principal of, premium, if any, or interest on the Notes or
purchase, redeem or otherwise retire the Notes, if any principal, premium, if
any, or interest on any senior indebtedness is not paid when due (whether at
final maturity, upon scheduled installment, acceleration or otherwise) unless
such payment default has been cured or waived or such senior indebtedness has
been repaid in full. In addition, under certain circumstances, if any
non-payment default exists with respect to senior indebtedness (including under
the Bank Revolving Credit Facility), the Company may not make any payments on
the Notes for a specified period of time, unless such default is cured or waived
or such senior indebtedness has been repaid in full. If the Company fails to
make any payment on the Notes when due or within any applicable grace period,
whether or not on account of the payment blockage provisions referred to above,
such failure would constitute an event of default under the Indenture and would
generally entitle the holders of the Notes to accelerate the maturity thereof.
See "Description of Exchange Notes -- Subordination." As a result of the
subordination provisions contained in the Indenture, in the event of a
liquidation or insolvency of the Company, the assets of the Company will be
available to pay obligations on the Notes only after all senior indebtedness and
indebtedness and other liabilities of the Company's existing subsidiaries (or
any future subsidiary) have been paid in full, and therefore there may not be
sufficient assets remaining to pay amounts due on any or all of the Notes then
outstanding. The outstanding capital stock of the Company's subsidiaries has
been pledged to secure senior indebtedness under the Bank Revolving Credit
Facility. In addition, the assets of the Company may be pledged to secure senior
indebtedness, including indebtedness under the Bank Revolving Credit Facility.
See "Description of Exchange Notes" and "Description of Bank Revolving Credit
Facility."
LIMITATIONS OF COVENANTS
Although the Indenture limits the incurrence of indebtedness by the Company
and its subsidiaries, such limitation is subject to a number of significant
qualifications. Moreover, 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 the Sale/Leaseback Transaction, if consummated; 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 herein). See " -- Substantial Indebtedness"; and "Description of
Exchange Notes -- Certain Covenants -- Limitation on Consolidated Indebtedness"
and " -- Limitation on Restricted Payments." 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, the covenants
in the Indenture limiting the Company's and its subsidiaries' ability to incur
indebtedness, pay dividends or make other distributions or engage in
transactions with affiliates will cease to apply. See "Description of Exchange
Notes -- Fall-away Event" and " -- Certain Covenants."
10
<PAGE> 16
REPURCHASE OF THE NOTES UPON CHANGE OF CONTROL
Upon the occurrence of a Change of Control (as defined herein), the Company
will be required to make an offer to repurchase the Notes at a price equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of repurchase. Certain events involving a Change of Control will
result in an event of default under the Bank Revolving Credit Facility and may
result in an event of default under other indebtedness of the Company that may
be incurred in the future. An event of default under the Bank Revolving Credit
Facility or other future senior indebtedness could result in an acceleration of
such indebtedness, in which case the subordination provisions of the Notes would
require payment in full of such senior indebtedness before repurchase of the
Notes. See "Description of Exchange Notes -- Subordination," "-- Certain
Covenants," -- Change of Control" and "Description of Bank Revolving Credit
Facility." There can be no assurance that the Company would have sufficient
resources to repurchase the Notes or pay its obligations if the indebtedness
under the Bank Revolving Credit Facility or other future senior indebtedness
were accelerated upon the occurrence of a Change of Control. The inability of
the Company to repurchase all of the tendered Notes would constitute an Event of
Default under the Indenture. These provisions may be deemed to have
anti-takeover effects and may delay, defer or prevent a merger, tender offer or
other takeover attempt. No assurance can be given that the terms of any future
indebtedness will not contain cross default provisions based upon Change of
Control or other defaults under such debt instruments.
RESTRICTIONS UNDER BANK REVOLVING CREDIT FACILITY
The Bank Revolving Credit Facility contains certain financial and other
covenants, including covenants requiring the Company to maintain certain
financial ratios and restricting the ability of the Company to incur
indebtedness or to create or suffer to exist certain liens. The Bank Revolving
Credit Facility also requires that certain amounts of indebtedness thereunder be
repaid by specified dates. The ability of the Company to comply with such
provisions may be affected by events beyond its control. See "Description of
Bank Revolving Credit Facility."
A failure to make any required payment under the Bank Revolving Credit
Facility or to comply with any of the financial and operating covenants included
in the Bank Revolving Credit Facility would result in an event of default
thereunder, permitting the lenders to vote to accelerate the maturity of the
indebtedness under the Bank Revolving Credit Facility. In addition, pursuant to
the subordination provisions of the Notes, a default under the Bank Revolving
Credit Facility may result in the blockage of payments under the Notes. See
"Description of Exchange Notes -- Subordination." If the lenders under the Bank
Revolving Credit Facility accelerate the maturity of the indebtedness
thereunder, there can be no assurance that the Company will have sufficient
assets to satisfy its obligations under the Bank Revolving Credit Facility or
the Notes.
ABSENCE OF PUBLIC MARKET FOR THE NOTES
The Notes are a new issuance of securities for which there is currently no
trading market. The Notes will not be listed on any securities exchange. If the
Exchange Notes are traded after their initial issuance, they may trade at a
discount from their principal amount depending upon prevailing interest rates,
the market for similar securities and other factors, including general economic
conditions and the financial condition and performance of, and prospects for,
the Company. Goldman, Sachs & Co. and Lehman Brothers Inc. have advised the
Company that they currently intend to make a market in the Old Notes and
Exchange Notes. However, they are not obligated to do so, and any market-making
activity with respect to the Old Notes and the Exchange Notes may be
discontinued at any time without notice.
11
<PAGE> 17
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act. All
statements other than statements of historical facts included in this Prospectus
may constitute forward-looking statements. Although the Company believes that
the expectations reflected in such forward-looking statements are reasonable, it
can give no assurance that such expectations will prove to have been correct.
Important factors that could cause actual results to differ materially from the
Company's expectations are disclosed in the foregoing risk factors (the
"Cautionary Statements"). All forward-looking statements are expressly qualified
in their entirety by the Cautionary Statements.
THE COMPANY
Regal is the third largest motion picture exhibitor in the United States
based upon the number of screens in operation. At October 2, 1997, the Company
operated 238 multiplex theatres with an aggregate of 2,111 screens in 22 states.
Since its inception, Regal has increased its average screens per location from
4.8 to 8.9 screens, which management believes is among the highest in the
industry, as compared to the average of approximately 5.7 screens for the five
largest motion picture exhibitors at May 1, 1996.
The Company develops, acquires and operates multiplex theatres in mid-size
metropolitan markets and suburban growth areas of larger metropolitan markets.
At October 2, 1997, Regal had 19 new theatres with 333 screens under
construction and 17 screens under construction at four existing theatres. The
Company seeks to locate theatres in markets that it believes are underscreened
or that are served by older theatre facilities. The Company also seeks to locate
each theatre where it will be the sole or dominant exhibitor within a particular
geographic film licensing zone. Management believes that approximately 72% of
the Company's theatres are located in film licensing zones in which Regal is the
sole exhibitor.
The Company's growth has come through the acquisition of existing theatres
and the development of new theatres. Regal has followed a conservative approach
to capitalizing the Company and, accordingly, has historically financed a
significant portion of its growth through the issuance of Common Stock, both in
acquisitions and in equity offerings. Since its inception, Regal has acquired a
net of 187 theatres with 1,432 screens, developed 51 theatres with 597 screens
and added 82 screens to existing theatres, all of which have served to establish
and enhance the Company's presence in selected geographic markets. Regal
anticipates that its future growth will result largely from the development of
new theatres, as well as the addition of screens to existing theatres, strategic
acquisitions of theatre circuits and the development of entertainment concepts
that complement the Company's theatres.
Regal emphasizes patron satisfaction by providing convenient locations,
comfortable seating, spacious neon-enhanced lobby and concession areas and a
wide variety of film selections. Regal's theatre complexes feature clean, modern
auditoriums with high quality projection and digital stereo surround-sound
systems. Regal's theatres typically contain auditoriums ranging from 100 to 500
seats, allowing the Company to exhibit films on a more cost effective basis for
longer periods by shifting films from larger to smaller auditoriums within the
same complex to accommodate changing attendance levels. In addition, the Company
promotes patron loyalty through specialized marketing programs for its theatres
and feature films.
To complement the Company's theatre development, the Company has developed
its FunScape(TM) comprehensive entertainment complexes designed to increase both
the drawing radius for patrons and patron spending by offering a wider array of
entertainment options at a single destination. Regal opened its first
FunScape(TM) in Chesapeake, Virginia in August 1995 and additional FunScapes(TM)
in Rochester, New York, Syracuse, New York and Brandywine, Delaware. Each
complex includes a 13 to 16 screen theatre and a 50,000 to 70,000 square foot
comprehensive
12
<PAGE> 18
family entertainment center. The Company currently has four additional
FunScape(TM) complexes under construction and may seek to develop additional
FunScape(TM) complexes at strategic locations. The Company also signed an
agreement to include IMAX 3-D theatres in ten new multiplex theatre projects
over the next five years.
BUSINESS STRATEGY
OPERATING STRATEGY. Management believes that the following characteristics
are the key elements of its operating strategy:
- MULTIPLEX THEATRES. Management believes that the Company's multiplex
theatres, substantially all of which show first run movies, promote
increased attendance and maximize operating efficiencies through reduced
labor costs and improved utilization of theatre capacity. The Company's
multiplex theatres enable it to offer a diverse selection of films;
stagger movie starting times; increase management's flexibility in
determining the number of weeks that a film will run and the size of the
auditorium in which it is shown; and serve patrons from common support
facilities.
- COST CONTROL. The Company's tight cost control drives its operating
margins, which management believes are the highest in the movie
exhibition industry. Management's focus on cost control extends from
theatre development through operation of the Company's theatres.
Management believes that it is able to reduce construction and operating
costs by designing prototype theatres adaptable to a variety of locations
and by actively supervising all aspects of construction. In addition,
through the use of detailed daily management reports, the Company closely
monitors theatre level costs. A significant component of theatre level
management's compensation is based on controlling operating expenses at
the theatre level.
- PATRON SATISFACTION/QUALITY CONTROL. Regal emphasizes conveniently
located, modern, high quality facilities that offer a wide variety of
films. To maintain quality and consistency within the Company's theatres,
Regal conducts regular inspections of each theatre and operates a
"mystery shopper" program. To enhance the movie going experience, the
Company invests in high quality projection and stereo sound equipment,
including the latest digital surround-sound systems. As of October 2,
1997, the Company had 74% of its theatres equipped with digital
surround-sound systems.
- CENTRALIZED CORPORATE DECISION MAKING/DECENTRALIZED
OPERATIONS. Functions centralized through the Company's corporate office
include film licensing and concession purchasing, as well as decisions on
theatre construction and configuration. Cost controls at the theatre
level include close monitoring of concession, advertising and payroll
expenses. Regal devotes significant resources to training its theatre
managers, who are responsible for most aspects of its theatres'
day-to-day operations.
- MARKETING. Regal actively markets its theatres through grand opening
promotions, including "VIP" preopening parties, direct mail campaigns,
television commercials in certain markets and promotional activities,
such as live music, spotlights and skydivers, which frequently generate
media coverage. Regal also utilizes special marketing programs for
specific films and concession items. Regal develops patron loyalty
through a number of marketing programs such as a summer children's film
series in which children's films are shown at reduced rates during the
morning hours.
- PERFORMANCE-BASED COMPENSATION PACKAGES. The Company maintains an
incentive program for its corporate personnel, district managers and
theatre managers which rewards employees for incremental improvements in
profitability. The Company believes that its incentive program, which
consists of cash bonuses and stock options, aligns the employees'
interests with those of the Company's shareholders.
13
<PAGE> 19
GROWTH STRATEGY. Management believes that the following characteristics
are the key elements of its growth strategy:
- DEVELOP NEW THEATRES IN EXISTING AND TARGET MARKETS. Regal seeks to
develop multiplex theatres with at least ten screens in both its existing
markets and in other mid-sized metropolitan markets and suburban growth
areas of larger metropolitan markets in the United States. Management
also seeks to locate theatres in areas that are underscreened or that are
served by aging theatre facilities.
- ADD SCREENS TO EXISTING THEATRES. To enhance profitability and maintain
competitiveness at existing theatres, the Company will continue to add
additional screens where appropriate. The Company currently has nine
screens under construction at existing theatre facilities and anticipates
the addition of 60 to 80 screens to certain of its theatres over the next
12 to 24 months. The addition of screens to existing theatres is designed
not to disrupt operations at the theatres.
- ACQUIRE THEATRES. While management believes that a significant portion
of its future growth will come through the development of new theatres,
Regal will continue to consider strategic acquisitions of complementary
theatres or theatre circuits at which Regal believes it can improve
profitability and increase screen counts.
- DEVELOP COMPLEMENTARY THEATRE CONCEPTS. To complement the Company's
theatre development, Regal has opened four FunScapes(TM) and currently
has four additional FunScapes(TM) under construction. The Company may
seek to develop additional FunScape(TM) complexes at strategic locations.
The Company also signed an agreement to include IMAX 3-D theatres in ten
new multiplex theatre projects over the next five years. Management
believes that theatres with IMAX 3-D will draw higher traffic levels than
theatres without them.
14
<PAGE> 20
THE EXCHANGE OFFER
GENERAL
In connection with the sale of the Old Notes, the purchasers thereof became
entitled to the benefits of certain registration rights (the "Registration
Rights"). Pursuant to the agreement governing the Exchange and Registration
Rights (the "Registration Rights Agreement"), the Company agreed to use its best
efforts, at its cost, to file and cause to become effective a registration
statement with respect to the Exchange Offer to exchange the Old Notes for the
Exchange Notes (the "Exchange Offer Registration Statement"). Upon such Exchange
Offer Registration Statement being declared effective, the Company has agreed to
offer the Exchange Notes in return for surrender of the Old Notes. For each Old
Note surrendered to the Company under the Exchange Offer and not withdrawn by
the holder thereof, the Holder will receive an Exchange Note of equal principal
amount. Interest on each Exchange Note will accrue from September 24, 1997. In
the event that applicable interpretations of the staff of the Commission do not
permit the Company to effect the Exchange Offer or under certain other
circumstances, the Company has agreed, at its cost, to use its best efforts to
cause to become effective a shelf registration statement (the "Shelf
Registration Statement") with respect to resales of the Old Notes and to keep
such registration statement effective for a period of two years, or in certain
circumstances, one year. The Company shall, in the event of such a shelf
registration, provide to each holder copies of the prospectus, notify each
holder when the Shelf Registration Statement for the Old Notes has become
effective and take certain other actions as are required to permit unrestricted
resales of the Old Notes.
In the event the Exchange Offer Registration Statement is not filed with
the Commission on or prior to November 23, 1997 or is not declared effective on
or prior to February 22, 1998, then the annual interest rate borne by the Notes
shall be increased by 0.50% per annum following such dates. If such Exchange
Offer is not consummated or a Shelf Registration Statement is not declared
effective by March 24, 1998, then the annual interest rate borne by the Notes
shall be increased by an additional 0.50% per annum after March 24, 1998. Upon
the effectiveness of the Exchange Offer Registration Statement after February
22, 1998 or the consummation of such Exchange Offer or the effectiveness of such
Shelf Registration Statement, as the case may be, after March 24, 1998 the
interest rate borne by the Notes from effectiveness or consummation, as the case
may be, will revert to 8 1/2%.
In the event the Exchange Offer is consummated, the Company, subject to
certain incidental registration rights, will not be required under the
Registration Rights Agreement to file the Shelf Registration Statement to
register any outstanding Notes, and the interest rate on such Notes will remain
at its initial level of 8 1/2%. The Exchange Offer shall be deemed to have been
consummated when the Company has exchanged, pursuant to the Exchange Offer,
Exchange Notes for all Old Notes that have been tendered and not withdrawn prior
to the Expiration Date. In such event, holders of the Old Notes seeking
liquidity in their investment would have to rely on exemptions to registration
requirements under the securities laws, including the Securities Act. See
"Description of Exchange Notes -- Registration Rights" and "Risk Factors."
Upon the terms and subject to the conditions set forth in this Prospectus
and in the accompanying Letter of Transmittal, the Company will accept all Old
Notes properly tendered prior to 5:00 p.m., New York City time, on the
Expiration Date. The Company will issue $1,000 principal amount of Exchange
Notes in exchange for each $1,000 principal amount of outstanding Old Notes
accepted in the Exchange Offer. Holders may tender some or all of their Old
Notes pursuant to the Exchange Offer in denominations of $1,000 and integral
multiples thereof.
Based on no-action letters issued by the staff of the Commission to third
parties, the Company believes that the Exchange Notes issued pursuant to the
Exchange Offer in exchange for the Old Notes may be offered for resale, resold
and otherwise transferred by holders thereof (other than any such holder that is
an "affiliate" of the Company within the meaning of Rule 405 under the
15
<PAGE> 21
Securities Act) without further compliance with the registration and prospectus
delivery requirements of the Securities Act, provided that such Exchange Notes
are acquired in the ordinary course of such holders' business and such holders
have no arrangement or understandings with any person to participate in the
distribution of such Exchange Notes. Any holder of the Old Notes who tenders in
the Exchange Offer for the purpose of participating in a distribution of the
Exchange Notes could not rely on such interpretation by the staff of the
Commission and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction.
Each broker-dealer that receives Exchange Notes for its own account in exchange
for the Old Notes, where such Old Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, may be a
statutory underwriter and must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. See "Plan of Distribution."
As of the date of this Prospectus, $125,000,000 aggregate principal amount
of the Old Notes is outstanding. In connection with the issuance of the Old
Notes, the Company arranged for the Old Notes to be eligible for trading in the
Private Offering, Resale and Trading through Automated Linkages (PORTAL) Market,
the National Association of Securities Dealers' screen based, automated market
trading of securities eligible for resale under Rule 144A under the Securities
Act.
This Prospectus, together with the accompanying Letter of Transmittal (the
"Letter of Transmittal"), is being sent to all registered holders as of
, 1997 (the "Record Date").
The Company shall be deemed to have accepted validly tendered Old Notes
when, as and if the Company has given oral or written notice thereof to IBJ
Schroder Bank & Trust Company (the "Exchange Agent"). See "-- Exchange Agent."
The Exchange Agent will act as agent for the tendering holders of the Old Notes
for the purpose of receiving Exchange Notes from the Company and delivering
Exchange Notes to such holders.
If any tendered Old Notes are not accepted for exchange because of an
invalid tender or the occurrence of certain other events set forth herein,
certificates for any such unaccepted Old Notes will be returned, without
expense, to the tendering holder thereof as promptly as practicable after the
Expiration Date.
Holders of the Notes who tender in the Exchange Offer will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
Letter of Transmittal, transfer taxes with respect to the exchange of the Old
Notes pursuant to the Exchange Offer. The Company will pay all charges and
expenses, other than certain applicable taxes, in connection with the Exchange
Offer. See " -- Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean , 1997, unless the
Company, in its sole discretion, extends the Exchange Offer, in which case the
term "Expiration Date" shall mean the latest date to which the Exchange Offer is
extended.
In order to extend the Expiration Date, the Company will notify the
Exchange Agent of any extension by oral or written notice and will mail to the
record holders of the Old Notes an announcement thereof, prior to 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date. Such announcement may state that the Company is extending the
Exchange Offer for a specified period of time.
The Company reserves the right (i) to delay acceptance of any Old Notes, to
extend the Exchange Offer or to terminate the Exchange Offer and to refuse to
accept the Old Notes not previously accepted, if any of the conditions set forth
herein under "-- Conditions" shall have occurred and shall not have been waived
by the Company (if permitted to be waived by the Company), by giving oral or
written notice of such delay, extension or termination to the Exchange Agent,
and (ii) to amend the terms of the Exchange Offer in any manner deemed by it to
be
16
<PAGE> 22
advantageous to the holders of the Old Notes. Any such delay in acceptance,
extension, termination or amendment will be followed as promptly as practicable
by oral or written notice thereof. If the Exchange Offer is amended in a manner
determined by the Company to constitute a material change, the Company will
promptly disclose such amendment in a manner reasonably calculated to inform the
holders of the Old Notes of such amendment.
Without limiting the manner in which the Company may choose to make public
announcements of any delay in acceptance, extension, termination or amendment of
the Exchange Offer, the Company shall have no obligation to publish, advertise,
or otherwise communicate any such public announcement, other than by making a
timely release to the Dow Jones News Service.
INTEREST ON THE EXCHANGE NOTES
The Exchange Notes will bear interest from September 24, 1997, payable
semiannually on April 1 and October 1, of each year commencing on April 1, 1998,
at the rate of 8 1/2% per annum. Holders of the Old Notes whose Old Notes are
accepted for exchange will be deemed to have waived the right to receive any
payment in respect of interest on the Old Notes accrued from September 24, 1997
until the date of the issuance of the Exchange Notes. Consequently, holders who
exchange their Old Notes for Exchange Notes will receive the same interest
payment on April 1, 1998 (the first interest payment date with respect to the
Old Notes and the Exchange Notes) that they would have received had they not
accepted the Exchange Offer.
PROCEDURES FOR TENDERING
To tender in the Exchange Offer, a holder must complete, sign and date the
Letter of Transmittal, or a facsimile thereof, have the signatures thereon
guaranteed if required by the Letter of Transmittal, and mail or otherwise
deliver such Letter of Transmittal or such facsimile, together with the Old
Notes (unless such tender is being effected pursuant to the procedure described
under "-- Book-entry Transfer" below) and any other required documents, to the
Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date.
The tender by a holder of the Old Notes will constitute an agreement
between such holder and the Company in accordance with the terms and subject to
the conditions set forth herein and in the Letter of Transmittal.
Delivery of all documents must be made to the Exchange Agent at its address
set forth herein. Holders may also request that their respective brokers,
dealers, commercial banks, trust companies or nominees effect such tender for
such holders.
The method of delivery of the Old Notes and the Letter of Transmittal and
all other required documents to the Exchange Agent, including through DTC's ATOP
system as described below, is at the election and risk of the holders. Instead
of delivery by mail, it is recommended that holders use an overnight or hand
delivery service. In all cases, sufficient time should be allowed to assure
timely delivery. No Letter of Transmittal or Notes should be sent to the
Company.
Only a holder of Old Notes may tender such Old Notes in the Exchange Offer.
The term "holder" with respect to the Exchange Offer means any person in whose
name the Old Notes are registered on the books of the Company or any other
person who has obtained a properly completed bond power from the registered
holder, or any person whose Old Notes are held of record by DTC who desires to
deliver through DTC's ATOP system.
Any beneficial holder whose Old Notes are registered in the name of his
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact such registered holder promptly and instruct such
registered holder to tender on his behalf. If such beneficial holder wishes to
tender on his own behalf, such beneficial holder must, prior to completing and
executing the Letter of Transmittal and delivering his Old Notes, either make
appropriate arrangements to register ownership of the Old Notes in such holder's
name or obtain a
17
<PAGE> 23
properly completed bond power from the registered holder. The transfer of record
ownership may take considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
a commercial bank or trust company having an office or correspondent in the
United States or an "eligible guarantor institution" within the meaning of Rule
17Ad-15 under the Exchange Act (an "Eligible Institution") unless the Old Notes
tendered pursuant thereto are tendered (i) by a registered holder who has not
completed the box entitled "Special Issuance Instructions" or "Special Delivery
Instructions" on the Letter of Transmittal or (ii) for the account of an
Eligible Institution.
If the Letter of Transmittal is signed by a person other than the
registered holder of any Old Notes listed therein, such Old Notes must be
endorsed or accompanied by appropriate bond powers which authorize such person
to tender the Old Notes on behalf of the registered holder, in either case
signed as the name of the registered holder or holders appears on the Old Notes.
If the Letter of Transmittal or any Old Notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and unless waived by the Company,
evidence satisfactory to the Company of their authority to so act must be
submitted with the Letter of Transmittal.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of the tendered Old Notes will be determined
by the Company in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any and all Old Notes
not properly tendered or any Old Notes the Company's acceptance of which would,
in the opinion of counsel for the Company, be unlawful. The Company also
reserves the absolute right to waive any irregularities or conditions of tender
as to particular Old Notes. The Company's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in the Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of the Old Notes must be
cured within such time as the Company shall determine. Neither the Company, the
Exchange Agent nor any other person shall be under any duty to give notification
of defects or irregularities with respect to tenders of the Old Notes nor shall
any of them incur any liability for failure to give such notification. Tenders
of the Old Notes will not be deemed to have been made until such irregularities
have been cured or waived. Any Old Notes received by the Exchange Agent that are
not properly tendered and as to which the defects or irregularities have not
been cured or waived will be returned without cost by the Exchange Agent to the
tendering holder of such Old Notes unless otherwise provided in the Letter of
Transmittal, as soon as practicable following the Expiration Date.
In addition, the Company reserves the right in its sole discretion to (a)
purchase or make offers for any Old Notes that remain outstanding subsequent to
the Expiration Date, or, as set forth under "-- Conditions," to terminate the
Exchange Offer and (b) to the extent permitted by applicable law, purchase the
Old Notes in the open market, in privately negotiated transactions or otherwise.
The terms of any such purchases or offers may differ from the terms of the
Exchange Offer.
BOOK-ENTRY TRANSFER
DTC's ATOP system is the only method of processing exchange offers through
DTC. To accept the Exchange Offer through ATOP, participants in DTC must send
electronic instruction to DTC through DTC's communication system in lieu of
sending a signed, hard copy Letter of Transmittal. DTC is obligated to
communicate those electronic instructions to the Exchange Agent. To tender the
Old Notes through ATOP, the electronic instructions sent to DTC and transmitted
by DTC to the Exchange Agent must contain the character by which the participant
acknowledges its receipt of, and agrees to be bound by the terms of, the Letter
of Transmittal ("Electronic Agreement").
18
<PAGE> 24
The exchange of Exchange Notes for the Old Notes will only be made after
timely confirmation of the transfer of the Old Notes to the Exchange Agent and
receipt by the Exchange Agent of an Electronic Agreement.
The method of delivery of the Old Notes is at the option and risk of the
tendering holder and, except as otherwise provided in the Letter of Transmittal,
the delivery will be deemed to be made only when actually received by the
Exchange Agent.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available, or (ii) who cannot deliver their Old Notes, the Letter of
Transmittal or any other required documents to the Exchange Agent prior to the
Expiration Date, may effect a tender if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery)
setting forth the name and address of the holder of the Old Notes, the
certificate number or numbers of such Old Notes and the principal amount of
the Old Notes tendered, stating that the tender is being made thereby, and
guaranteeing that, within five business days after the Expiration Date, the
Letter of Transmittal (or facsimile thereof), together with the
certificate(s) representing the Old Notes to be tendered in proper form for
transfer and any other documents required by the Letter of Transmittal,
will be deposited by the Eligible Institution with the Exchange Agent; and
(c) Such properly completed and executed Letter of Transmittal (or
facsimile or electronic transmission thereof), together with the
certificate(s) representing all tendered Old Notes in proper form for
transfer (or electronic transmission thereof) and all other documents
required by the Letter of Transmittal are received by the Exchange Agent
within five business days after the Expiration Date.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of the Old Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the business
day prior to the Expiration Date, unless previously accepted for exchange.
To withdraw a tender of the Old Notes in the Exchange Offer, a written or
facsimile transmission or, where applicable electronic transmission, notice of
withdrawal must be received by the Exchange Agent at its address set forth
herein prior to 5:00 p.m., New York City time, on the business day prior to the
Expiration Date and prior to acceptance for exchange thereof by the Company. Any
such notice of withdrawal must (i) specify the name of the person having
deposited the Old Notes to be withdrawn (the "Depositor"), (ii) identify the Old
Notes to be withdrawn (including the certificate number or numbers and principal
amount of such Old Notes), (iii) be signed by the Depositor in the same manner
as the original signature on the Letter of Transmittal by which such Old Notes
were tendered (including any required signature guarantees) or be accompanied by
documents of transfer sufficient to permit the Trustee with respect to the Old
Notes to register the transfer of such Old Notes into the name of the Depositor
withdrawing the tender and (iv) specify the name in which any such Old Notes are
to be registered, if different from that of the Depositor or, in the case of
Holders tendering through the ATOP system, otherwise comply with the
requirements of DTC. All questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices will be determined by the
Company, whose determination shall be final and binding on all parties. Any Old
Notes so withdrawn will be deemed not to have been validly tendered for purposes
of the Exchange Offer and no Exchange Notes will be issued with respect thereto
unless the Old Notes so withdrawn are validly retendered. Any Old Notes which
have been tendered but which are not
19
<PAGE> 25
accepted for exchange will be returned to the holder thereof without cost to
such holder as soon as practicable after withdrawal, rejection of tender or
termination of the Exchange Offer. Properly withdrawn Old Notes may be
retendered by following one of the procedures described above under
" -- Procedures for Tendering" at any time prior to the Expiration Date.
CONDITIONS
Notwithstanding any other provision of the Exchange Offer, or any extension
of the Exchange Offer, the Company will not be required to issue Exchange Notes
in exchange for any properly tendered Old Notes not theretofore accepted and may
terminate the Exchange Offer, or, at its option, modify or otherwise amend the
Exchange Offer, if any of the following occurs or is true: (i) the Exchange
Offer, or the making of any exchange by a Holder, violates applicable law or any
applicable interpretation of the Commission or its staff, (ii) any 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, (iii) there shall 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, (iv) there shall have been declared by U.S.
federal, New York State or Canadian federal 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, (v) trading generally
on the New York Stock Exchange, the American Stock Exchange or NASDAQ shall 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 or (vi) the Company
reasonably deems it advisable to terminate the Exchange Offer.
If the Company determines that any condition set forth above exists, the
Company may (i) refuse to accept any Old Notes and return any Old Notes that
have been tendered to the holders thereof, (ii) extend the Exchange Offer and
retain all Old Notes tendered prior to the Expiration of the Exchange Offer,
subject to the rights of such holders of tendered Old Notes to withdraw their
tendered Old Notes, or (iii) waive such termination event with respect to the
Exchange Offer and accept all properly tendered Old Notes that have not been
withdrawn. If such waiver constitutes a material change in the Exchange Offer,
the Company will disclose such change by means of a supplement to this
Prospectus that will be distributed to each registered holder of the Old Notes,
and the Company will extend the Exchange Offer for a period of five to ten
business days, depending upon the significance of the waiver and the manner of
disclosure to the registered holders of the Old Notes, if the Exchange Offer
would otherwise expire during such period. See "Description of Exchange
Notes -- Registration Rights."
EXCHANGE AGENT
IBJ Schroder Bank & Trust Company, the Trustee under the Indenture, has
been appointed as Exchange Agent for the Exchange Offer. Questions and requests
for assistance and requests for additional copies of this Prospectus or of the
Letter of Transmittal should be directed to the Exchange Agent addressed as
follows:
<TABLE>
<CAPTION>
<S> <C>
By Mail, Hand or Overnight Courier: One State Street Plaza
New York, New York 10004
Attention: Securities Processing,
Floor SC-1
Facsimile Transmission: 212-858-2611
Confirm by Telephone: 212-858-2103
</TABLE>
20
<PAGE> 26
FEES AND EXPENSES
The expenses of soliciting tenders pursuant to the Exchange Offer will be
borne by the Company. The principal solicitation for tenders pursuant to the
Exchange Offer is being made by mail. Additional solicitations may be made by
officers and employees of the Company and its affiliates in person, by telecopy
or telephone.
The Company will not make any payments to brokers, dealers or other persons
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
the Exchange Agent for its reasonable out-of-pocket expenses in connection
therewith. The Company may also pay brokerage houses and other custodians,
nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them
in forwarding copies of this Prospectus, Letters of Transmittal and related
documents to the beneficial owners of the Old Notes and in handling or
forwarding tenders for exchange.
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
Exchange Notes offered hereby. In consideration for issuing Exchange Notes as
contemplated in this Prospectus, the Company will receive Old Notes in exchange,
in like principal amount, the terms of which are the same in all material
respects as the form and terms of the Exchange Notes except that the Exchange
Notes have been registered under the Securities Act and will not contain terms
restricting the transfer thereof. The Old Notes surrendered in exchange for the
Exchange Notes will be retired and canceled and cannot be reissued. Accordingly,
issuance of the Exchange Notes will not result in any increase in the
indebtedness of the Company.
The net proceeds to the Company from the sale of the Old Notes was $121
million, after deducting discounts and estimated expenses of the offering. The
Company applied a portion of the net proceeds of the offering of Old Notes to
repay all of the indebtedness outstanding under the Bank Tender Facility.
Borrowings under the Bank Tender Facility were incurred to finance the aggregate
purchase price of the Cobb Notes tendered for repurchase in the Tender Offer and
aggregated $93.6 million (excluding accrued interest on the Cobb Notes through
the date of purchase). The balance of the net proceeds was used to repay a
portion of the indebtedness outstanding under the Company's former revolving
credit facility (the "Former Bank Revolving Credit Facility"). On October 8,
1997, the Company entered into a loan agreement with its bank, establishing a
new revolving credit facility which permits borrowings of up to $250 million
(the "Bank Revolving Credit Facility"). As of October 8, 1997, the Company had
$122 million of indebtedness outstanding under the Bank Revolving Credit
Facility, which indebtedness bore interest at a weighted average interest rate
of 6.22% per annum as of such date. Amounts under the Bank Revolving Credit
Facility may be used by the Company for general corporate purposes, including
the opening of new theatres and possible acquisitions. See "Description of Bank
Revolving Credit Facility."
21
<PAGE> 27
CAPITALIZATION
The following table sets forth, as of October 2, 1997, the consolidated
short-term debt and capitalization of the Company. This table should be read in
conjunction with "Use of Proceeds," "Selected Consolidated Financial Data,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," and the Supplemental Consolidated Financial Statements and the
Notes thereto appearing elsewhere or incorporated by reference in this
Prospectus.
<TABLE>
<CAPTION>
AS OF OCTOBER 2, 1997
----------------------
(DOLLARS IN THOUSANDS)
<S> <C>
Current maturities of long-term debt........................ $ 275
--------
$ 275
========
Former Bank Revolving Credit Facility....................... $122,000
8 1/2% Senior Subordinated Notes due 2007................... 125,000
Other long-term obligations................................. 1,366
--------
Total long-term debt.............................. 248,366
Shareholders' Equity:
Preferred Stock, no par value; 1,000,000 shares
authorized, none outstanding........................... --
Common Stock, no par value, 100,000,000 shares authorized;
36,026,853 shares issued and outstanding; 36,026,853
shares issued and outstanding, as adjusted............. 223,204
Retained earnings......................................... 71,446
--------
Total shareholders' equity........................ 294,650
--------
Total capitalization............................ $543,016
========
</TABLE>
22
<PAGE> 28
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected consolidated financial data for the
Company as of and for each of its most recent five fiscal years and the nine
month periods ended October 3, 1996 and October 2, 1997. The consolidated
financial data for the most recent five fiscal years have been derived from the
Company's audited consolidated financial statements for such periods. The
consolidated financial data for the nine month periods ended October 3, 1996 and
October 2, 1997 have been derived from the Company's unaudited consolidated
financial statements. In management's opinion, such unaudited consolidated
financial statements include all adjustments (consisting of only normal
recurring adjustments) necessary for a fair presentation of the information set
forth therein. Results of operations for the nine month period ended October 2,
1997 are not necessarily indicative of the results that may be expected for the
entire fiscal year ending January 1, 1998. This information should be read in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the Company's Supplemental Consolidated Financial
Statements and Notes thereto and Condensed Consolidated Financial Statements and
Notes thereto incorporated by reference herein.
<TABLE>
<CAPTION>
FOR THE NINE MONTHS
FOR THE FISCAL YEAR ENDED AND AT FISCAL YEAR END AND AT PERIOD END
---------------------------------------------------------------------- -----------------------
DECEMBER 31, DECEMBER 30, DECEMBER 29, DECEMBER 28, JANUARY 2, OCTOBER 3, OCTOBER 2,
1992(1) 1993 1994 1995 1997 1996 1997
------------ ------------ ------------ ------------ ---------- ---------- ----------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME DATA:
Revenues..................... $167,588 $214,359 $265,005 $309,022 $389,193 $287,188 $348,508
Operating income............. 12,849 22,147 28,412 41,110 58,196 44,108 45,051
Income before extraordinary
items...................... 6,107 8,716 12,702 17,953 25,817 18,644 23,777
Extraordinary items:
Gain (loss) on
extinguishment of debt... -- 190 (1,752) (448) (751) (751) (10,020)
-------- -------- -------- -------- -------- -------- --------
Net income................... $ 6,107 $ 8,906 $ 10,950 $ 17,505 $ 25,066 $ 17,893 $ 13,757
Dividends (Neighborhood and
Georgia State)............. (710) (739) (380) (433) (229) (229) --
-------- -------- -------- -------- -------- -------- --------
Net income applicable
to common stock...... $ 5,397 $ 8,167 $ 10,570 $ 17,072 $ 24,837 $ 17,664 $ 13,757
======== ======== ======== ======== ======== ======== ========
Earnings per common share
before effects of
extraordinary item:
Primary.................... $ 0.39 $ 0.38 $ 0.43 $ 0.57 $ 0.74 $ 0.54 $ 0.64
Fully diluted.............. 0.29 0.34 0.43 0.57 0.74 0.54 0.64
Earnings per common share:
Primary.................... 0.34 0.36 0.36 0.55 0.71 0.52 0.37
Fully diluted.............. 0.25 0.32 0.36 0.54 0.71 0.52 0.37
Weighted average shares and
equivalents outstanding:
Primary.................... 15,833 22,728 29,496 31,311 34,800 33,882 37,211
Fully diluted.............. 21,282 25,728 29,669 31,482 34,892 33,882 37,211
BALANCE SHEET DATA (AT END OF
PERIOD):
Total assets................. $137,424 $162,098 $252,630 $349,031 $488,825 $327,984 $583,655
Long-term obligations,
including current
maturities, and redeemable
preferred stock............ 87,869 73,523 117,471 188,456 144,626 27,673 248,641
Total shareholders'
equity............... 25,160 26,649 88,089 109,020 279,302 268,708 294,650
</TABLE>
- ---------------
(1) 1992 results of operations do not include the results of Georgia State.
23
<PAGE> 29
DESCRIPTION OF BANK REVOLVING CREDIT FACILITY
The Company's Bank Revolving Credit Facility permits borrowings of up to
$250 million and bears interest, at the election of the Company, at the bank's
prime lending rate or a rate determined on a spread over LIBOR (with the spread
being based on the Company's financial performance and amount of outstanding
borrowings). As of October 8, 1997, the Company had $122 million of indebtedness
outstanding under the Bank Revolving Credit Facility, which indebtedness bore
interest at a weighted average interest rate of 6.22% per annum as of such date.
Such indebtedness was incurred primarily to finance acquisitions and to
construct theatres. The Bank Revolving Credit Facility expires on October 7,
2002.
The Bank Revolving Credit Facility contains several financial covenants.
The Company must maintain, as at the end of each fiscal quarter, and at each
funding or transaction date, a ratio of consolidated total indebtedness (as
defined in the Bank Revolving Credit Facility) to theatre level cash flow (as
defined in the Bank Revolving Credit Facility) at a maximum of 3.0 to 1.0. The
Company must also maintain (i) a fixed charge coverage ratio (as defined in the
Bank Revolving Credit Facility) of 1.75 to 1.0 as to any fiscal quarter end and
(ii) minimum consolidated net worth of (A) not less than 90% of the Company's
consolidated net worth on October 8, 1997, and (B) with respect to each fiscal
quarter beginning after October 2, 1997, a minimum net worth equal to the
immediately preceding fiscal quarter plus the sum of (x) 50% of net income (but
not including any net losses) for the fiscal quarter then ended, (y) 100% of all
proceeds realized by the Company from any private placement or public offering
of its stock during the fiscal quarter then ended, and (z) 100% of all additions
to stockholders' equity resulting from the issuance by the Company of its
capital stock to pay for any theatres acquired during the fiscal quarter then
ended. The Bank Revolving Credit Facility also contains covenants prohibiting,
among other things, the Company's incurring additional debt, creating additional
liens, making certain investments, becoming a party to a merger, unless the
Company is the surviving corporation in the merger, selling all or substantially
all of its assets or paying material cash dividends on its Common Stock. The
Company's subsidiaries guarantee amounts outstanding under the Bank Revolving
Credit Facility.
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<PAGE> 30
DESCRIPTION OF EXCHANGE NOTES
The Old Notes were and the Exchange Notes will be issued under an indenture
dated as of September 24, 1997 (the "Indenture"), between Regal Cinemas, Inc.,
as issuer (the "Company") and IBJ Schroder Bank & Trust Company, as trustee (the
"Trustee"). The Exchange Notes are subject to all of the terms of the Indenture,
and Holders of Exchange Notes are referred to the Indenture, a copy of which has
been filed as an exhibit to the Registration Statement of which this Prospectus
is a part. The form of the Exchange Notes and the Old Notes will be identical in
all material respects except that the Exchange Notes have been registered under
the Securities Act and, therefore will not bear restrictive legends restricting
their transfer. The Exchange Notes will not represent new indebtedness of the
Company and will rank pari passu with the Old Notes. Any provision of the
Indenture which requires action by or approval of a specified percentage of the
Holders of the Outstanding Notes shall require the approval of the Holders of
such percentage of Outstanding Old Notes and Exchange Notes, in the aggregate.
Upon the effectiveness of an Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, filed under the Securities Act with
respect to the Notes, the Indenture will be subject to and governed by the Trust
Indenture Act of 1939, as amended. The following summaries of certain material
provisions of the Indenture do not purport to be complete, and where reference
is made to particular provisions of the Indenture, such provisions, including
the definitions of certain terms, are incorporated by reference as a part of
such summaries or terms, which are qualified in their entirety by such
reference. The definitions of certain capitalized terms used in the following
summary are set forth below under "-- Certain Definitions."
GENERAL
The Notes will mature on October 1, 2007 and will be limited to $125
million aggregate principal amount. Each Note will bear interest at the rate set
forth on the cover page hereof from September 24,1997 or from the most recent
interest payment date to which interest has been paid, payable semiannually on
April 1 and October 1 of each year, commencing April 1, 1998, to the person in
whose name the Note (or any predecessor Note) is registered at the close of
business on the March 15 or September 15 next preceding such interest payment
date. Interest will be computed on the basis of a 360-day year of twelve, 30-day
months.
Principal of and premium, if any, and interest on the Notes will be
payable, and the Notes will be exchangeable and transferable, at the office or
agency of the Company in The City of New York (which initially will be the
corporate trust office of the Trustee, One State Street, New York, New York
10004); provided, however, that payment of interest may be made at the option of
the Company by check mailed to the person entitled thereto as shown on the Note
Register. No service charge will be made for any registration of transfer or
exchange or redemption of Notes, except for certain taxes or other governmental
charges that may be imposed in connection with any registration of transfer or
exchange.
The Notes will not be entitled to the benefit of any sinking fund.
FALL-AWAY EVENT
In the event that the Notes achieve 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"), upon
the request of the Company the covenants described under "-- Certain Covenants"
will no longer be applicable to the Company and its Subsidiaries. See
"-- Certain Covenants." As a result, upon the occurrence of the Fall-away Event
the Notes will be entitled to substantially no covenant protection.
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<PAGE> 31
SUBORDINATION
The Notes will be unsecured senior subordinated indebtedness of the Company
ranking pari passu with all other existing and future senior subordinated
indebtedness of the Company. The payment of all Obligations in respect of the
Notes will be subordinated, as set forth in the Indenture, in right of payment
to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness.
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, relating to the Company or to its assets, or any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary, or any assignment for the benefit of creditors or other
marshalling of assets or liabilities of the Company, the holders of Senior
Indebtedness will first be entitled to receive payment in full in cash or Cash
Equivalents 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 will be entitled to receive any
payment or distribution of any kind or character from any source (other than any
payment or distribution in the form of equity securities or subordinated
securities of the Company or any successor obligor provided for by a plan of
reorganization or readjustment that, in the case of any such subordinated
securities, are subordinated in right of payment to all Senior Indebtedness that
may at the time be outstanding to at least the same extent as the Notes are so
subordinated as provided in the Indenture) (such equity securities or
subordinated securities hereinafter being "Permitted Junior Securities") on
account of all Obligations in respect of the Notes or on account of the
purchase, deposit for defeasance or redemption or other acquisition of Notes.
No payment (other than any payments made pursuant to the provisions
described under "-- Defeasance and Covenant Defeasance of the Indenture" 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) may be made by the Company on account of all Obligations in respect
of the Notes or on account of the purchase, redemption, deposit for defeasance
or other acquisition of Notes upon the occurrence of 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 (a "Payment Default")
until such Payment Default shall have been cured or waived or have ceased to
exist or such Senior Indebtedness shall have been discharged or paid in full in
cash or Cash Equivalents.
No payment (other than any payments made pursuant to the provisions
described under "-- Defeasance and Covenant Defeasance of the Indenture" 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), may be made by the Company on account of all Obligations in respect
of the Notes or on account of the purchase, redemption, deposit for defeasance
or other acquisition of Notes for the period specified below ("Payment Blockage
Period") upon the occurrence of any default with respect to any Designated
Senior Indebtedness not covered by the immediately preceding paragraph pursuant
to which the maturity thereof may be accelerated (a "Non-payment Default") and
receipt by the Trustee of written notice thereof from the representatives of the
holders of any Designated Senior Indebtedness.
The Payment Blockage Period will commence upon the date of receipt by the
Trustee of written notice from such representative and shall end on the earliest
of (i) 179 days thereafter (provided any Designated Senior Indebtedness as to
which notice was given shall not theretofore have been accelerated, in which
case the provisions of the second preceding paragraph shall apply), (ii) the
date on which such Non-payment Default is cured, waived or ceases to exist or
such Designated Senior Indebtedness is discharged or paid in full in cash or
Cash Equivalents, (iii) such Designated
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<PAGE> 32
Senior Indebtedness has been discharged or paid in full in cash or Cash
Equivalents or (iv) such Payment Blockage Period shall have been terminated by
written notice to the Trustee from the representative initiating such Payment
Blockage Period, after which the Company will resume making any and all required
payments in respect of the Notes, including any missed payments. In any event,
not more than one Payment Blockage Period may be commenced during any period of
365 consecutive days. No event of default that existed or was continuing on the
date of the commencement of any Payment Blockage Period will be, or can be, made
the basis for the commencement of a subsequent Payment Blockage Period, unless
such default has been cured or waived for a period of not less than 90
consecutive days.
In the event that, notwithstanding the foregoing, the Trustee or any holder
of the Notes shall have received any payment prohibited by the foregoing, then
such payment shall be paid over to the 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.
Failure by the Company to make any required payment in respect of the Notes
when due or within any applicable grace period, whether or not occurring during
a Payment Blockage Period, will result in an Event of Default and, thereafter,
Holders will have the right to require repayment of the Notes in full. See
"-- Events of Default".
By reason of such subordination, in the event of liquidation, receivership,
reorganization or insolvency of the Company, creditors of the Company who are
holders of Senior Indebtedness may recover more, ratably, than the Holders, and
assets which would otherwise be available to pay obligations in respect of the
Notes will be available only after all Senior Indebtedness has been paid in full
in cash or Cash Equivalents, and there may not be sufficient assets remaining to
pay amounts due on any or all of the Notes.
"Senior Indebtedness" means (i) all obligations of the Company, now or
hereafter existing, under or in respect of any Working Capital Agreement,
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 Notes), whether outstanding on the
date of the Indenture or thereafter Incurred, 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 Notes.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (i)
Indebtedness evidenced by the Notes, (ii) Indebtedness of the Company that is
expressly subordinated in right of payment to any Senior Indebtedness of the
Company or the Notes, (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 any
employee, officer or director 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.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness under
any Working Capital Agreement and (ii) any other Senior Indebtedness (a) which
at the time of determination exceeds $25 million in aggregate principal amount,
(b) which is specifically designated in the
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<PAGE> 33
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.
OPTIONAL REDEMPTION
The Notes are redeemable, at the option of the Company, as a whole or in
part, at any time on or after October 1, 2002, at the Redemption Prices
(expressed as percentages of the principal amount thereof) set forth below
together with accrued and unpaid interest to the Redemption Date, if redeemed
during the 12-month period beginning on October 1 of the years indicated:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
- ---- ----------
<S> <C>
2002........................................................ 104.250%
2003........................................................ 102.833%
2004........................................................ 101.417%
2005 and thereafter......................................... 100.000%
</TABLE>
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee not more than 60 days prior to
the Redemption Date by such method as the Trustee shall deem fair and
appropriate; provided, however, that Notes will not be redeemed in amounts less
than the minimum authorized denomination of $1,000. Notice of redemption shall
be mailed by first class mail not less than 30 nor more than 60 days prior to
the Redemption Date to each Holder of Notes to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in a principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note. On and after the Redemption Date, interest
will cease to accrue on Notes or portions thereof called for redemption.
CERTAIN COVENANTS
The Indenture will provide that all of the following restrictive covenants
will be applicable to the Company unless and until the Fall-away Event occurs.
In such event, the Company will be released from its obligations to comply with
the restrictive covenants described below as well as certain other obligations.
The covenants that will be released upon the Fall-away Event are "Limitation on
Consolidated Indebtedness," "Limitation on Restricted Payments," "Limitation on
Transactions with Affiliates," "Limitation on Senior Subordinated Indebtedness"
and clause (c) under the "Merger and Sale of Assets" covenant.
LIMITATION ON CONSOLIDATED INDEBTEDNESS. The Company shall not, and shall
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.
LIMITATION ON RESTRICTED PAYMENTS. The Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend on, or make any distribution in
respect of, any shares of the Capital Stock of the Company or any of its
Subsidiaries (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
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<PAGE> 34
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 clauses (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 "Limitation on Consolidated Indebtedness"
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) (A) Consolidated EBITDA for the Restricted Payments Computation
Period minus (B) 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, (a) the Company may (i) pay
dividends on its Capital Stock within sixty days of the declaration thereof if,
on the declaration date, such dividends could have been paid in compliance with
the foregoing limitation or (ii) 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) and (b) the
term "Restricted Payments" shall not include any dividend on, or distribution in
respect of, any shares of the Capital Stock of a Person that is acquired by the
Company in a business combination accounted for as a pooling of interests in
accordance with Accounting Principles Board Opinions No. 16 (or any successor
thereto) ("APB 16") provided such dividend or distribution is declared and paid
prior to the date of such acquisition and was not in contemplation of such
acquisition within the requirements and interpretations of APB 16.
LIMITATION ON TRANSACTIONS WITH AFFILIATES. The Company shall not, and
shall 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 $5.0
million unless (a) such transaction or series of transactions is on terms that
are no less favorable to the Company or such
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<PAGE> 35
Subsidiary, as the case may be, than would be available at the time of such
transaction or series of transactions in a comparable arm's-length transaction
with a Person that is not an Affiliate of the Company, (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
consideration in excess of $50.0 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.
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 "Limitation on Restricted
Payments" above; (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 Capital Stock in any such
Subsidiary is owned, directly or indirectly (other than by direct or indirect
ownership of Capital Stock 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.
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 Notes.
MERGER AND SALE OF ASSETS
The Company shall not, in a single transaction or through a series of
related transactions, (i) consolidate with or merge with or into any other
Person or permit any other Person to consolidate with or merge into the Company
or (ii) directly or indirectly, sell, assign, transfer, lease or otherwise
dispose of all or substantially all of its properties and assets to any Person
unless (a) either the Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or the Person that acquired such properties and assets of the Company
by assignment, transfer, lease or other disposition (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 by a supplemental indenture, all the
obligations of the Company under the Notes and the Indenture, (b) immediately
before and after giving effect to such transaction on a pro forma basis, no
Default or Event of Default shall have occurred and be continuing, (c)
immediately after giving effect to such transaction on a pro forma basis, the
Surviving Entity could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the Consolidated EBITDA Ratio test described
under the "Limitation on Consolidated Indebtedness" above, and (d) the Company
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel as specified in the Indenture.
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 Notes at
a purchase price (the "Change of Control 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 mall, 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").
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<PAGE> 36
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.
The Change of Control provision of the Notes may in certain circumstances
make it more difficult or discourage a takeover of the Company and, as a result,
may make removal of incumbent management more difficult. The Change of Control
provision, however, is not the result of the Company's knowledge of any specific
effort to accumulate the Company's stock or to obtain control of the Company by
means of a merger, tender offer, solicitation or otherwise, or part of a plan by
management to adopt a series of anti-takeover provisions. Instead, the Change of
Control provision is a result of negotiations between the Company and the
Initial Purchasers. The Company is not presently in discussions or negotiations
with respect to any pending offers which, if accepted, would result in a
transaction involving a Change of Control, although it is possible that the
Company would decide to do so in the future.
The Company's Bank Revolving Credit Facility provides that certain change
of control events with respect to the Company would constitute a default
thereunder. In such circumstances, the subordination provisions in the Indenture
could restrict payments to the Holders of the Notes. Finally, the Company's
ability to pay cash to the Holders of the Notes in connection with a Change of
Control may be limited to the Company's then existing financial resources. There
can be no assurance that sufficient funds will be available when necessary to
make any required purchases.
The provisions of the Indenture would not necessarily afford Holders of the
Notes protection in the event of a highly leveraged transaction, reorganization,
restructuring, merger or similar transaction involving the Company that may
adversely affect the Holders.
If an offer is made to repurchase the Notes pursuant to a Change of Control
Offer, the Company will comply with all tender offer rules under state and
Federal securities laws, including, but not limited to, Section 14(e) under the
Exchange Act and Rule 14(e) thereunder, to the extent applicable to such offer.
ADDITIONAL INFORMATION
Anyone who receives this Prospectus may obtain a copy of the Indenture and
the Registration Rights Agreement without charge by writing to Regal Cinemas,
Inc., Attention: Lewis Frazer III, Chief Financial Officer, 7132 Commercial Park
Drive, Knoxville, Tennessee 37918 (telephone: (423) 922-1123).
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indenture. Reference
is made to the Indenture for the definition of any other capitalized term used
herein for which no definition is provided.
"Acquired Indebtedness" of any particular Person shall mean 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" shall mean, 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, 10% or more of such Person's outstanding 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
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<PAGE> 37
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.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Subsidiaries (including
any issuance or sale by a Subsidiary of Capital Stock of such Subsidiary, and
including a consolidation or merger or other sale of any such Subsidiary with,
into or to another Person in a transaction in which such Subsidiary ceases to be
a Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly Owned Subsidiary of such Person or by such Person to a Wholly
Owned Subsidiary of such Person) of (i) any shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Subsidiaries representing a division or line of business or (iii) other assets
or rights of such Person or any of its Subsidiaries outside of the ordinary
course of business. Notwithstanding the foregoing, the term "Asset Disposition"
shall not include a disposition by a Subsidiary of the Company to the Company or
a Wholly Owned Subsidiary or by the Company or a Subsidiary to a Wholly Owned
Subsidiary.
"Board of Directors" shall mean the Board of Directors of the Company or
any committee of such Board of Directors duly authorized to act under the
Indenture.
"Board Resolution" shall mean 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" shall mean any day other than a Saturday or Sunday or other
day on which banks in New York, New York, Knoxville, Tennessee 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 shall mean any obligations of such
Person and its Subsidiaries on a consolidated basis under any capital lease of
real or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Capital Stock" of any Person shall mean 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" shall mean the occurrence of, after the date of the
Indenture, either of the following events: (a) any Person or any Persons 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, shall beneficially own (within the meaning of Rule 13d-3
under
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the Exchange Act, or any successor provision thereto), directly or indirectly,
at least 50% of the aggregate voting power of all classes of Voting Stock of the
Company (for the purposes of this clause (a) a Person shall be deemed to
beneficially own the Voting Stock of a corporation that is beneficially owned
(as defined above) by another corporation (a "parent corporation") if such
person beneficially owns (as defined above) at least 50% of the aggregate voting
power of all classes of Voting Stock of such parent corporation) or (b) any
Person or Group, together with any Affiliates thereof, shall succeed in having a
sufficient number of its 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 of
such Group, will constitute a majority of the Board of Directors of the Company.
"Closing Date" shall mean the date on which the Notes are originally issued
under the Indenture.
"Consolidated EBITDA" of any Person means for any period, on a consolidated
basis in accordance with GAAP for such Person and its consolidated Subsidiaries,
without duplication, the sum of the amounts for such period of (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) Consolidated Income Tax
Expense (other than income taxes attributable to extraordinary, unusual or
non-recurring gains or losses), (iv) depreciation and amortization expense, (v)
other non-cash charges, (vi) other non-operating expenses that have been
deducted in the determination of Consolidated Net Income and (vii) non-recurring
expenses and charges incurred by such Person in connection with or as a result
of the acquisition of another Person in a business combination accounted for as
a pooling of interests in accordance with Accounting Principles Board Opinions
No. 16 (or any successor thereto); provided, however that for each such
consolidated Subsidiary the items (i) through (vii) shall be included in such
sum only to the extent and in the same proportion that the Consolidated Net
Income of such consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"Consolidated EBITDA Ratio" of any Person means for any period the ratio of
(i) Consolidated EBITDA of such Person for such period to (ii) the sum of (A)
Consolidated Interest Expense of such Person for such period, plus (B) the
annual interest expense with respect to any Indebtedness Incurred or proposed to
be incurred by such person or its consolidated Subsidiaries since the beginning
of such period to the extent not included within clause (ii) (A), minus (C)
Consolidated Interest Expense of such Person with respect to any Indebtedness
that is no longer outstanding or that will no longer be outstanding as a result
of the transaction with respect to which the Consolidated EBITDA Ratio is being
calculated, to the extent included within clause (ii) (A); provided, however
that in making such computation, the Consolidated Interest Expense of such
Person attributable to interest on any Indebtedness bearing a floating interest
rate shall be computed on a pro forma basis as if the rate in effect on the date
of computation had been the applicable rate for the entire period; and provided,
further, that, in the event such Person or any of its consolidated Subsidiaries
has made Asset Dispositions or acquisitions of assets not in the ordinary course
of business (including by merger, consolidation or purchase of Capital Stock)
during or after such period, the computation of the Consolidated EBITDA Ratio
(and for the purpose of such computation, the calculation of Consolidated Net
Income, Consolidated Interest Expense and Consolidated EBITDA) shall be made on
a pro forma basis as if the Asset Dispositions or acquisitions had taken place
on the first day of such period.
"Consolidated Income Tax Expense" of any Person means for any period the
consolidated provision for income taxes of such Person and its consolidated
Subsidiaries for such period determined in accordance with generally accepted
accounting principles.
"Consolidated Interest Expense" of any Person shall mean, on a consolidated
basis for such Person and its consolidated Subsidiaries, without duplication,
for any period, as applied to any Person, (i) 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
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limitation, (1) amortization of debt discount, (2) the net cost under Interest
Rate Protection Agreements (including amortization of discounts), (3) the
interest portion of any deferred payment obligation and (4) 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 (ii) 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" of any Person means for any period the
consolidated net income (or loss) of such Person and its consolidated
Subsidiaries for such period determined in accordance with GAAP; provided that
there shall be excluded therefrom, (a) the net income (or loss) of any Person
that is not a consolidated Subsidiary of such Person except to the extent of the
amount of dividends or other distributions actually paid to such Person by such
other Person during such period, (b) extraordinary gains and losses (and any
unusual gains and losses arising outside the ordinary course of business not
included in extraordinary gains and losses), (c) net gains and losses in respect
of Asset Dispositions and (d) the cumulative effect of changes in accounting
principles and (e) the tax effect of any of the items described in clauses (a)
through (d) above.
"Currency Hedging Obligations" shall mean the obligations of any Person
pursuant to an arrangement designed to protect such Person against fluctuations
in currency exchange rates.
"Debt Rating" shall mean the rating assigned to the Notes 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.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean, 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" shall mean generally
accepted accounting principles in the United States, consistently applied.
"Guarantee" shall mean, 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 shall mean, 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.
"Incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such
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<PAGE> 40
Person (and "Incurrence," "Incurred," "Incurrable" and "Incurring" shall have
meanings correlative to the foregoing); provided, however, that a change in GAAP
that results in an obligation of such Person that exists at such time becoming
Indebtedness shall not be deemed an Incurrence of such Indebtedness.
"Indebtedness" shall mean, 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 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.
"Interest Rate Protection Agreement" shall mean 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" shall mean 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" shall mean Moody's Investor Service, Inc. or any successor to the
rating agency business thereof.
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"Non-Recourse Indebtedness" shall mean 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 could 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.
"Opinion Of Counsel" shall mean a written opinion of counsel to the Company
or any other Person reasonably satisfactory to the Trustee.
"Permitted Indebtedness" shall mean the following:
(i) Indebtedness of the Company under any Working Capital Agreement in
an aggregate principal amount at any one time outstanding not to exceed the
sum of $300 million;
(ii) Indebtedness of the Company under the Notes (including any
Exchange Notes);
(iii) Indebtedness of the Company (other than Indebtedness described
under any clause of this definition) outstanding on the Closing Date after
giving effect to the application of the proceeds of the Notes;
(iv) Indebtedness of the Company or any of its Subsidiaries consisting
of Permitted Interest Rate Protection Agreements;
(v) Indebtedness owed by the Company to any Wholly Owned Subsidiary of
the Company or Indebtedness owed by a Subsidiary of the Company to the
Company or a Wholly Owned Subsidiary of the Company;
(vi) Indebtedness which is exchanged for or the proceeds of which are
used to refinance or refund, or any extension or renewal of, outstanding
Indebtedness Incurred pursuant to clause (iii) of this paragraph (each of
the foregoing, a "refinancing") 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 or the Subsidiary,
as the case may be, incurred in connection with such refinancing;
(vii) Indebtedness of any Subsidiary Incurred in connection with the
Guarantee of 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;
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(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 not otherwise permitted to be incurred pursuant to
clauses (i) through (xii) above which, together with any other Indebtedness
pursuant to this clause (xiii), has an aggregate principal amount that does
not exceed $100 million at any time outstanding.
"Permitted Interest Rate Protection Agreements" shall mean, with respect to
any Person, Interest Rate Protection Agreements entered into in the ordinary
course of business by such Person that are designed to protect such Person
against fluctuations in interest rates with respect to Permitted Indebtedness
and that have a notional amount no greater than the payment due with respect to
Permitted Indebtedness hedged thereby.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Redeemable Capital Stock" shall mean 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 Notes 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.
"Restricted Payments" shall have the meaning set forth in the "Limitation
on Restricted Payments" covenant.
"Restricted Payments Computation Period" shall mean 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" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor to the rating agency business thereof.
"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 shall mean (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."
"Unrestricted Subsidiary" shall mean 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.
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"Voting Stock" shall mean 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).
"Wholly Owned Subsidiary" of any Person shall mean 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.
"Working Capital Agreement" shall mean (i) the Second Amended and Restated
Loan Agreement dated as of July 7, 1993, as amended, among the Company and the
lender named therein and (ii) any other agreement or agreements between the
Company and a financial institution or institutions providing for the making of
loans or advances on a revolving basis, term loans, the issuance of letters of
credit and/or the creation of the bankers' acceptances to fund the Company's
general corporate requirements.
EVENTS OF DEFAULT
The following will be "Events of Default" under the Indenture:
(i) default in the payment of any interest on any Note when it becomes
due and payable and continuance of such default for a period of 30 days;
(ii) default in the payment of the principal of or premium, if any, on
any Note at its Maturity (upon acceleration, optional redemption, required
purchase or otherwise);
(iii) default in the payment of principal and interest on Notes
required to be purchased pursuant to an Offer to Purchase as described
under "Change of Control" when due and payable;
(iv) default in the performance, or breach, of any covenant or
warranty of the Company contained in the Indenture (other than a default in
the performance, or breach, of a covenant or warranty which is specifically
dealt with in clause (i), (ii) or (iii) 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 Notes
then outstanding;
(v) (A) one at more defaults in the payment of principal of or
premium, if any, on Indebtedness of the Company or any Subsidiary
aggregating $5.0 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 any Subsidiary aggregating
$5.0 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;
(vi) any holder of any Indebtedness in excess of $5.0 million in the
aggregate of the Company or any Subsidiary shall notify the Trustee of the
intended sale or disposition of any assets of the Company or any Subsidiary
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
any Subsidiary pursuant to the terms of any agreement or instrument
evidencing any such Indebtedness of the Company or any Subsidiary or in
accordance with applicable law;
(vii) one or more final judgments or orders shall be rendered against
the Company or any Subsidiary for the payment of money, either individually
or in an aggregate amount, in excess of
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$5.0 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
(viii) the occurrence of certain events of bankruptcy, insolvency or
reorganization with respect to the Company or any Subsidiary.
If an Event of Default (other than an Event of Default specified in clause
(viii) above) shall occur and be continuing, the Trustee or the Holders of not
less than 25% in principal amount of the Notes then outstanding may declare the
principal of all Notes immediately due and payable, provided, however, that
after a declaration of acceleration, but before a judgment or decree for payment
of the money due has been obtained by the Trustee, the Holders of a majority in
principal amount of the Outstanding Notes, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences,
subject to certain conditions. If an Event of Default specified in clause (viii)
above occurs and is continuing, then the principal of all the Notes shall become
due and payable without any declaration or other act on the part of the Trustee
or any Holder.
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during the existence of an Event of Default to act with the
required standard of care, to be indemnified by the Holders of Notes before
proceeding to exercise any right or power under the Indenture at the request of
such Holders. The Indenture provides that the Holders of a majority in aggregate
principal amount of the Notes then Outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee.
During the existence of an Event of Default, the Trustee is required to
exercise such rights and powers vested in it under the Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
under the circumstances in the conduct of such person's own affairs.
The Trust Indenture Act of 1939 contains limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payment of claims
in certain cases or to realize on certain property received by it in respect of
any such claims, as security or otherwise, The Trustee is permitted to engage in
other transactions, provided that if it acquires any conflicting interest it
must eliminate such conflict upon the occurrence of an Event of Default or else
resign.
The Company will be required to furnish to the Trustee annually a statement
as to any default by the Company in the performance and observance of its
obligations under the Indenture.
DEFEASANCE AND COVENANT DEFEASANCE OF THE INDENTURE
The Company may, at its option, and at any time, elect to have the
obligations of the Company discharged with respect to all Outstanding Notes
("defeasance"). Such defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the Outstanding Notes
and to have satisfied its other obligations under the Indenture, except for the
following which shall survive until otherwise terminated or discharged: (i) the
rights of Holders of Outstanding Notes to receive payments in respect of the
principal of, premium, if any, and interest on such Notes when such payments are
due, (ii) the Company's obligations with respect to the Notes relating to the
issuance of temporary Notes, the registration, transfer and exchange of Notes,
the replacement of mutilated, destroyed, lost or stolen Notes, the maintenance
of an office or agency in The City of New York, the holding of money for
security payments in trust and statements as to compliance with the Indenture,
(iii) its obligations in connection with the rights, powers, trusts, duties and
immunities of the Trustee and (iv) the defeasance provisions of the Indenture.
In addition, the Company may at its option and at any time, elect to be released
from its obligations
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with respect to certain of its restrictive covenants under the Indenture
("covenant defeasance") and any omission to comply with such obligations shall
not constitute a Default or an Event of Default with respect to the Notes, and
in the event covenant defeasance occurs, certain events (not including
non-payment, bankruptcy and insolvency events) described under "Events of
Default" will no longer constitute Events of Default with respect to the Notes.
In order to exercise either defeasance or covenant defeasance, (i) the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in U.S., dollars, certain U.S. government obligations, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of (and premium, if any, on) and interest on the Outstanding Notes on
the Stated Maturity (or Redemption Date, if applicable) of such principal (and
premium, if any) or installment of interest, (ii) in the case of defeasance, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date of this Offering Circular, 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 of Counsel shall
confirm that, the Holders of the Outstanding Notes 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, (iii) in the case of covenant defeasance, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Notes 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, (iv) the Company shall have delivered
to the Trustee an Opinion of Counsel 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 and (v) the Company must comply with certain other
conditions, including that such defeasance or covenant defeasance will not
result in a breach or violation of, or constitute a default under, the Indenture
or any material agreement or instrument to which the Company is a party or by
which it is bound.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be entered into by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes; provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Note affected thereby: (i) change the Stated Maturity
of the principal of, or any installment of interest on, any Note, 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 any Note 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), (ii) reduce
the amount of, or change the coin or currency of, or impair the right to
institute suit for the enforcement of, the Change of Control Purchase Price,
(iii) reduce the percentage in principal amount of Outstanding Notes, the
consent of whose Holders is necessary to amend or waive compliance with certain
provisions of the Indenture or to waive certain defaults, (iv) modify any of the
provisions relating to supplemental indentures requiring the consent of Holders
or relating to the waiver of past defaults or relating to the waiver of certain
covenants, except to increase the percentage of Outstanding Notes the consent of
whose Holders is required for such actions or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Note affected thereby or (v) modify any of the provisions of
the Indenture relating to the subordination of the Notes in a manner adverse to
any Holder.
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The Holders of a majority in aggregate principal amount of the Outstanding
Notes may waive compliance with certain restrictive covenants and provisions of
the Indenture.
FORM AND DENOMINATION
Except as provided below, the Exchange Notes will be represented by a
global note (the "Global Note") in definitive, fully registered form without
interest coupons and will be deposited with, or on behalf of, The Depository
Trust Company ("DTC"), or with the Trustee, as custodian for DTC, and registered
in the name of a nominee of DTC.
The Company will initially appoint the Trustee at its corporate trust
office as paying agent and registrar for the Notes. In such capacities, the
Trustee will be responsible for, among other things, (i) maintaining a record of
the aggregate holdings of Notes, accepting Notes for exchange and registration
of transfer; (ii) ensuring that payments of principal, premium, if any, and
interest in respect of the Notes received by the Trustee from the Issuer are
duly paid to DTC or its nominees and (iii) transmitting to the Issuer any
notices from holders.
The Company will cause to be kept at the office of the registrar a register
in which, subject to such reasonable regulations as it may prescribe, the
Company will provide for the registration of the Notes and registration of
transfers of the Notes. The Company may vary or terminate the appointment of any
paying agent or registrar, or appoint additional or other such agents or approve
any change in the office through which any such agent acts; provided that there
shall at all times be a paying agent and registrar in the Borough of Manhattan,
The City of New York, New York. The Company will cause notice of any
resignation, termination or appointment of the Trustee or any paying agent or
registrar, and of any change in the office through which any such agent will
act, to be provided to Holders of the Notes.
No service charge will be made for any registration of, transfer or
exchange of the Notes, but the Company may require payment of sums sufficient to
cover any tax or other government charge payable in connection therewith.
GLOBAL NOTE
The following description of the operations and procedures of DTC,
Euroclear and CEDEL are provided solely as a matter of convenience. These
operations and procedures are solely within the control of the respective
settlement systems and are subject to changes by them from time to time. The
Company takes no responsibility for these operations and procedures and urges
investors to contact the system or their participants directly to discuss these
matters.
Upon the issuance of a Global Note representing the Exchange Notes, DTC
will credit, on its internal system, the respective principal amount of the
individual beneficial interests represented by such Global Note to the accounts
with DTC ("participants") or persons who hold interests through participants.
Ownership of beneficial interests in the Global Note will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
DTC or its nominee (with respect to interests of participants) and the records
of participants (with respect to interests of persons other than participants).
AS LONG AS DTC, OR ITS NOMINEE, IS THE REGISTERED HOLDER OF A GLOBAL NOTE,
DTC OR SUCH NOMINEE, AS THE CASE MAY BE, WILL BE CONSIDERED THE SOLE OWNER AND
HOLDER OF THE NOTES REPRESENTED BY SUCH GLOBAL NOTE FOR ALL PURPOSES UNDER THE
INDENTURE AND THE NOTES. Unless DTC notifies the Company that it is unwilling or
unable to continue as a depositary for a Global Note, 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, or an Event of Default has
occurred and is continuing with respect to a Global Note, owners of beneficial
interests in a Global Note will not be entitled to have any portions of such
Global Note registered in their names, will not receive or be entitled to
receive physical delivery of
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Notes in definitive form and will not be considered the owners or Holders of the
Global Note (or any Notes represented thereby) under the Indenture or the Notes.
In addition, no beneficial owner of an interest in a Global Note will be able to
transfer that interest except in accordance with DTC's applicable procedures (in
addition to those under the Indenture referred to herein and, if applicable,
those of Euroclear and CEDEL). In the event that owners of beneficial interests
in a Global Note become entitled to receive Notes in definitive form, such Notes
will be issued only in registered form in denominations of U.S. $1,000 and
integral multiples thereof.
Investors may hold their interests in the Global Note through Euroclear or
CEDEL, if they are participants in such systems, or indirectly through
organizations which are participants in such systems. Investors may also hold
such interests through organizations other than Euroclear and CEDEL that are
participants in the DTC system. Euroclear and CEDEL will hold interests in the
Global Note 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 Global Note in
customers' securities accounts in the depositaries' names on the books of DTC.
Investors may hold their interests in the Global Note directly through DTC, if
they are participants in such system, or indirectly through organizations
(including Euroclear and CEDEL) which are participants in such system. All
interests in a Global Note, including those held through Euroclear or CEDEL, may
be subject to the procedures and requirements of DTC. Those interests held
through Euroclear and CEDEL may also be subject to the procedures and
requirements of such system.
Payments of the principal of, premium, if any, and interest on the Global
Note will be made to DTC or its nominee as the registered owner thereof. Neither
the Company, the Trustee nor any of their respective agents will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Global Notes
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Subject to the following considerations, beneficial interests in the Global
Note will trade in DTC's Same-Day Funds Settlement System, and secondary market
trading activity in such interests will therefore settle in immediately
available funds. The Company expects that DTC or its nominee, upon receipt of
any payment of principal or interest in respect of a Global Note representing
any Notes held by it or its nominee, will immediately credit participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Note for such Notes as shown on
the records of DTC or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Notes held through
such participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of customers
registered in "street name." Such payments will be the responsibility of such
participants.
Transfers between participants in DTC will be effected in accordance with
DTC's procedures, and will be settled in same-day funds. Transfers between
participants in Euroclear and CEDEL will be effected in the ordinary way in
accordance with their respective rules and operating procedures.
Cross-market transfers between DTC participants, on the one hand, and
Euroclear or CEDEL participants, on the other hand, will be effected in DTC in
accordance with DTC's rules on behalf of Euroclear or CEDEL, as the case may be,
by its respective depositary; however, such cross-market transactions will
require delivery of instructions to Euroclear or CEDEL, as the case may be, by
the counterparty in such system in accordance with the rules and procedures and
within the established deadlines (Brussels time) of such system. Euroclear or
CEDEL, as the case may be, will, if the transaction meets its settlement
requirements, deliver instructions to its respective depositary to take action
to effect final settlement on its behalf by delivering or receiving interests in
the relevant Global Note in DTC, and making or receiving payment in accordance
with normal procedures for same-day funds settlement applicable to DTC.
Euroclear participants and CEDEL participants may not deliver instructions
directly to the depositaries for Euroclear or CEDEL.
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Because of time zone differences, the securities account of a Euroclear or
CEDEL participant purchasing an interest in a Global Note from a DTC participant
will be credited, and any such crediting will be reported to the relevant
Euroclear or CEDEL participant, during the securities settlement processing day
(which must be a business day for Euroclear and CEDEL) immediately following the
DTC settlement date. Cash received on Euroclear or CEDEL as a result of sales of
interests in a Global Note by or through a Euroclear or CEDEL participant to a
DTC participant will be received with value on the DTC settlement date but will
be available in the relevant Euroclear or CEDEL cash account only as of the
business day for Euroclear or CEDEL following the DTC settlement date.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Notes (including the presentation of Notes for exchange as
described below) only at the direction of one or more participants to whose
account with DTC interests in the Global Notes are credited and only in respect
of such portion of the aggregate principal amount of the Notes as to which such
participant or participants has or have given such direction. However, if there
is an Event of Default under the Notes, DTC reserves the right to exchange the
Global Notes for legended Notes in certificated form, and to distribute such
notes to its participants.
DTC has advised the Company as follows: DTC is a limited purpose trust
company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code, as amended, and a "Clearing Agency" registered pursuant
to the provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participants and facilitate the clearance and settlement of
securities transactions between participants through electronic book-entry
changes in accounts of its participants, thereby eliminating the need for
physical transfer and delivery of certificates. Participants include securities
brokers and dealers, banks, trust companies and clearing corporations and may
include certain other organizations. Indirect access to the DTC system is
available to other entities such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a participant,
either directly or indirectly ("indirect participants").
Although DTC, Euroclear and CEDEL have agreed to the foregoing procedures
in order to facilitate transfers of beneficial ownership interests in the Global
Note among participants of DTC, Euroclear and CEDEL, they are under no
obligation to perform or continue to perform such procedures, and such
procedures may be discontinued at any time. None of the Company, the Trustee nor
any of their respective agents will have any responsibility for the performance
by DTC, Euroclear and CEDEL, their participants or indirect participants of
their respective obligations under the rules and procedures governing their
operations, including maintaining, supervising or reviewing the records relating
to, or payments made on account of, beneficial owner interests in the Global
Note.
CERTIFICATED NOTES
If DTC is at any time unwilling or unable to continue as a depositary for
the reasons set forth above under "-- Global Note", or, in the case of a Global
Note 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 Notes in definitive, fully registered, non-global form without interest
coupons. In all cases, certificates for Notes delivered in exchange for any
Global Note or beneficial interests therein will be registered in the names, and
issued in any approved denominations, requested by DTC. Physical certificates
representing the Notes will not otherwise be available.
CONCERNING THE TRUSTEE
IBJ Schroder Bank & Trust Company is the Trustee under the Indenture.
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IBJ Schroder Bank & Trust Company is also the indenture trustee under the
indenture respecting the Company's 10 5/8% Notes (formerly the Cobb Notes).
GOVERNING LAW
The Indenture and the Notes will be governed by and construed in accordance
with the laws of the State of New York.
REGISTRATION RIGHTS
The Company has entered into the Registration Rights Agreement with the
Goldman, Sachs & Co. and Lehman Brothers, Inc., as the Initial Purchasers of the
Old Notes pursuant to which the Company has agreed, for the benefit of the
holders of the Old Notes, at the Company's cost, to (i) use its best efforts to
file the Exchange Offer Registration Statement, within 60 days after the date of
the original issue of the Notes, with the Commission with respect to the
exchange of the Old Notes for the Exchange Notes, which will have terms
identical in all material respects to the Old Notes (except that the Exchange
Notes will not contain terms with respect to transfer restrictions) and (ii) use
its best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 150 days after the date of
original issuance of the Notes. Promptly after the Exchange Offer Registration
Statement has been declared effective, the Company will offer the Exchange Notes
in exchange for surrender of the Old Notes. The Company will keep the Exchange
Offer open until the Expiration Date. For each Old Note validly tendered to the
Company pursuant to the Exchange Offer and not withdrawn by the holder thereof,
the holder of such Old Note will receive an Exchange Note having a principal
amount equal to the principal amount of such surrendered Note.
In the event that any changes in law or the applicable interpretations of
the staff of the Commission do not permit the Issuer to effect the Exchange
Offer, or if for any reason the Exchange Offer Registration Statement is not
declared effective on or prior to February 22, 1998, or upon the request of an
Initial Purchaser under certain circumstances, the Company will, in lieu of
effecting the registration of the Exchange Notes pursuant to the Exchange Offer
Registration Statement and at its cost, (i) as promptly as practicable, file
with the Commission the Shelf Registration Statement covering resales of the Old
Notes, (ii) use its best efforts to cause the Shelf Registration Statement to be
declared effective under the Securities Act by March 24, 1998 (or promptly in
the event of a request by an Initial Purchaser) and (iii) use its best efforts
to keep effective the Shelf Registration Statement until September 24, 1999 (or
until one year after the date of original issuance of the Notes if such Shelf
Registration Statement is filed at the request of an Initial Purchaser). The
Company will, in the event of the filing of a Shelf Registration Statement,
provide to each holder of the Old Notes copies of the prospectus which is a part
of the Shelf Registration Statement, notify each such holder when the Shelf
Registration Statement for the Old Notes has become effective and take certain
other actions as are required to permit unrestricted resales of the Old Notes. A
holder of Old Notes that sells such Old Notes pursuant to the Shelf Registration
Statement generally will be required to be named as a selling securityholder in
the related prospectus and to deliver a prospectus to purchasers, will be
subject to certain of the civil liability provisions under the Securities Act in
connection with such sales and will be bound by the provisions of the
Registration Rights Agreement which are applicable to such a holder (including
certain indemnification obligations). In addition, each holder of the Old Notes
will be required to deliver information to be used in connection with the Shelf
Registration Statement within the time periods set forth in the Registration
Rights Agreement in order to have their Notes included in the Shelf Registration
Statement and to benefit from the provisions regarding liquidated damages set
forth in the following paragraph.
In the event that (a) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to November 23, 1997, (b) the Exchange
Offer Registration Statement is not declared effective on or prior to February
22, 1998, (c) the Exchange Offer is not consummated
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or a Shelf Registration Statement with respect to the Notes is not declared
effective on or prior to March 24, 1998 or (d) any registration statement
required by the Registration Rights Agreement is filed and declared effective
but shall thereafter cease to be effective (except as specifically permitted
herein) without being succeeded immediately by an additional registration
statement filed and declared effective, then the interest rate borne by the
Notes shall be increased by 0.50% per annum following November 23, 1997 in the
case of clause (a) above, following February 22, 1998 in the case of clause (b)
above, following March 24, 1998 in the case of clause (c) above and following
the date on which the relevant registration statement ceases to be effective in
the case of clause (d) above. The aggregate amount of such increase from the
original interest rate pursuant to these provisions will in no event exceed
1.00% per annum. Upon (w) the filing of the Exchange Offer Registration
Statement after November 23, 1997, (x) the effectiveness of the Exchange Offer
Registration Statement after February 22, 1998, (y) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after March 24, 1998 or (z) the effectiveness of a succeeding
registration statement after the date in clause (d) above, the interest rate
borne by the Notes from the date of such filing, effectiveness or consummation,
as the case may be, will be reduced to 8 1/2%.
The summary herein of certain provisions of the Registration Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all the provisions of the Registration Rights
Agreement, a copy of which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
OF THE EXCHANGE OFFER
The following discussion is based upon current provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), existing and proposed Treasury
Department regulations (the "Regulations") and existing administrative
interpretations and court decisions, and no ruling from the IRS has been or will
be sought. Legislative, judicial or administrative changes or interpretations
may be forthcoming that could alter or modify the statements and conditions set
forth herein. Any such changes or interpretations may or may not be retroactive
and could affect the tax consequences to Holders. Certain Holders of the Old
Notes (including insurance companies, tax-exempt organizations, financial
institutions, broker-dealers, foreign corporations and person who are not
citizens or resident of the United States) may be subject to special rules not
discussed below. Each Holder of an Old Note should consult his, her or its own
tax advisor as to the particular tax consequences of exchanging such Holder's
Old Notes for Exchange Notes, including the applicability and effect of any
state, local or foreign tax laws.
The issuance of the Exchange Notes to Holders of the Old Notes pursuant to
the terms set forth in this Prospectus generally will not constitute an exchange
for United States federal income tax purposes because such issuance does not
represent a significant modification of the debt instruments. Consequently, no
gain or loss would be recognized by Holders of the Old Notes upon receipt of the
Exchange Notes, and ownership of the Exchange Notes will be considered a
continuation of ownership of the Old Notes. For purposes of determining gain or
loss upon the subsequent sale or exchange of the Exchange Notes, a Holder's
basis in the Exchange Notes should be the same as the Holder's basis in the Old
Notes exchanged therefor. A Holder's holding period for the Exchange Notes
should include the Holder's holding period for the Old Notes exchanged therefor.
The issue price, original issue discount inclusion and other tax characteristics
of the Exchange Notes should be identical to the issue price, original issue
discount inclusion and other tax characteristics of the Old Notes exchanged
therefor.
See also "Description of Certain Federal Income Tax Consequences of an
Investment in the Exchange Notes."
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DESCRIPTION OF CERTAIN FEDERAL INCOME TAX
CONSEQUENCES OF AN INVESTMENT IN THE EXCHANGE NOTES
The following is a summary of the material United States federal income tax
consequences of the acquisition, ownership and disposition of the Old Notes or
the Exchange Notes (as defined below). The summary deals with United States
Holders and non-U.S. Holders separately below. The discussion does not cover all
aspects of federal taxation that may be relevant to, or the actual tax effect
that any of the matters described herein will have on, the acquisition,
ownership or disposition of the Old Notes or the Exchange Notes by particular
investors, and does not address state, local, foreign or other tax laws. In
particular, this summary does not discuss all of the tax considerations that may
be relevant to certain types of investors subject to special treatment under the
federal income tax laws (including but not limited to banks, insurance
companies, investors liable for the alternative minimum tax, individual
retirement accounts and other tax-deferred accounts, tax-exempt organizations,
dealers in securities or currencies, investors that will hold the Old Notes or
the Exchange Notes as part of straddles, hedging transactions or conversion
transactions for federal tax purposes or investors whose functional currency is
not United States Dollars). Furthermore, the discussion below is based on
provisions of the Code, and regulations, rulings, and judicial decisions
thereunder as of the date hereof, and such authorities may be repealed, revoked
or modified so as to result in U.S. federal income tax consequences different
from those discussed below. PERSONS CONSIDERING THE PURCHASE, OWNERSHIP, OR
DISPOSITION OF EXCHANGE NOTES SHOULD CONSULT HIS, HER OR ITS OWN TAX ADVISORS
CONCERNING THE U.S. FEDERAL INCOME TAX CONSEQUENCES IN LIGHT OF THEIR PARTICULAR
SITUATIONS AS WELL AS ANY CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE,
LOCAL OR INTERNATIONAL TAXING JURISDICTION OR UNDER ANY APPLICABLE TAX TREATY.
UNITED STATES HOLDER
As used herein, the term "United States Holder" (or "U.S. Holder") means a
beneficial owner of the Old Notes or the Exchange Notes that is (i) a citizen or
resident of the United States for United States federal income tax purposes,
(ii) a corporation created or organized under the laws of the United States or
any State thereof, (iii) a person or entity that is otherwise subject to United
States federal income tax on a net income basis in respect of income derived
from the Old Notes or the Exchange Notes, or (iv) a partnership to the extent
the interest therein is owned by a person who is described in clause (i), (ii)
or (iii) of this paragraph. This summary deals only with U.S. Holders that will
hold the Old Notes or the Exchange Notes as capital assets.
INTEREST
Interest (including any additional interest paid because of failure to
satisfy the requirements of the Registration Rights Agreement ("Additional
Interest")) paid on an Old Note or an Exchange Note will be taxable to a United
States Holder as ordinary income at the time it is received or accrued,
depending on the holder's method of accounting for tax purposes. Although the
Old Notes were issued at a price that is less than their stated principal
amount, the discount was less than 0.25% of the stated redemption price at
maturity multiplied by the number of whole years to maturity. Therefore, for
federal income tax purposes the amount of original issue discount on the Old
Notes that is attributable to the difference between their purchase price and
their stated redemption price is considered to be de minimis and is treated as
zero.
PURCHASE, SALE, EXCHANGE, RETIREMENT AND REDEMPTION OF THE EXCHANGE NOTES
In general (with certain exceptions described below), a United States
Holder's tax basis in an Exchange Note will equal the price paid for the Old
Notes for which such Exchange Note was exchanged pursuant to the Exchange Offer.
A United States Holder generally will recognize gain or loss on the sale,
exchange, retirement, redemption or other disposition of an Old Note or an
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Exchange Note (or portion thereof) equal to the difference between the amount
realized on such disposition and the United States Holder's tax basis in the Old
Note or the Exchange Note (or portion thereof). Except to the extent
attributable to accrued but unpaid interest, gain or loss recognized on such
disposition of an Old Note or Exchange Note will be capital gain or loss. The
tax rate applicable to any such capital gain will depend, among other things,
upon the U.S. Holder's holding period for the Old Note or Exchange Note that is
sold, exchanged or redeemed. Any such gain will generally be United States
source gain.
BOND PREMIUM
If a United States Holder acquires an Exchange Note or has acquired an Old
Note, in each case, for an amount more than its redemption price, the Holder may
elect to amortize such bond premium on a yield to maturity basis. Once made,
such an election applies to all bonds (other than bonds the interest on which is
excludable from gross income) held by the United States Holder at the beginning
of the first taxable year to which the election applies or thereafter acquired
by the United States Holder, unless the IRS consents to a revocation of the
election. The basis of an Exchange Note will be reduced by an amortizable bond
premium taken as a deduction. Bond premium or an Exchange Note or Old Note held
by a U.S. Holder that has not made such an election will decrease the gain or
increase the loss otherwise recognized on disposition of the Note.
MARKET DISCOUNT
The purchase of an Exchange Note or the purchase of an Old Note other than
at original issue may be affected by the market discount provisions of the Code.
These rules generally provide that, subject to a statutorily defined de minimis
exception, if a United States Holder purchases an Exchange Note (or purchased an
Old Note) at a "market discount," as defined below, and thereafter recognizes
gain upon a disposition of the Exchange Note (including dispositions by gift or
redemption), the lesser of such gain (or appreciation, in the case of a gift) or
the portion of the market discount that has accrued ("accrued market discount")
while the Exchange Note (and its predecessor Old Note, if any) was held by such
United States Holder will be treated as ordinary interest income at the time of
disposition rather than a capital gain. For an Exchange Note or an Old Note,
"market discount" is the excess of the stated redemption price at maturity over
the tax basis immediately after its acquisition by a United States Holder.
Market discount generally will accrue ratably during the period from the date of
acquisition to the maturity date of the Exchange Note, unless the United States
Holder elects to accrue such discount on the basis of the constant yield method.
Such an election applies only to the Exchange Note with respect to which it is
made and is irrevocable.
In lieu of including the accrued market discount in income at the time of
disposition, a United States Holder of an Exchange Note acquired at a market
discount (or acquired in exchange for an Old Note acquired at a market discount)
may elect to include the accrued market discount in income currently either
ratably or using the constant yield method. Once made, such an election applies
to all other obligations that the United States Holder purchases at a market
discount during the taxable year for which the election is made and in all
subsequent taxable years of the United States Holder, unless the IRS consents to
a revocation of the election. If an election is made to include accrued market
discount in income currently, the basis of an Exchange Note (or, where
applicable, a predecessor Old Note) in the hands of the United States Holder
will be increased by the accrued market discount thereon as it is includible in
income. A United States Holder of a market discount Exchange Note who does not
elect to include market discount in income currently generally will be required
to defer deductions for interest on borrowings allocable to such Exchange Note,
if any, in an amount not exceeding the accrued market discount on such Exchange
Note until the maturity or disposition of such Exchange Note.
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BACKUP WITHHOLDING AND INFORMATION REPORTING
Payments of interest (including any Additional Interest) and principal on,
and the proceeds of sale or other disposition of the Old Notes or the Exchange
Notes payable to a United States Holder may be subject to information reporting
requirements and backup withholding at a rate of 31% will apply to such payments
if the United States Holder fails to provide an accurate taxpayer identification
number or to report all interest and dividends required to be shown on its
federal income tax returns. Certain United States Holders (including, among
others, corporations) are not subject to backup withholding. United States
Holders should consult their tax advisors as to their qualification for
exemption from backup withholding and the procedure for obtaining such an
exemption. Any amounts withheld under the backup withholding rules from a
payment to a U.S. Holder will be allowed as a credit against such Holder's
United States federal income tax and may entitle the Holder to a refund,
provided that the required information is furnished to the IRS.
CERTAIN U.S. FEDERAL TAX CONSEQUENCES TO NON-U.S. HOLDERS
The following is a general discussion of certain U.S. federal tax
consequences of the ownership and disposition of Notes by a non-U.S. holder who
acquires and owns such Notes as a capital asset within the meaning of Section
1221 of the Code. A "non-U.S. holder" is any person other than a United States
Holder. The rules governing the United States federal income and estate taxation
of a non-U.S. Holder are complex and no attempt will be made herein to provide
more than a summary of such rules. NON-U.S. HOLDERS SHOULD CONSULT WITH THEIR
OWN TAX ADVISORS TO DETERMINE THE EFFECT OF FEDERAL, STATE, LOCAL AND FOREIGN
TAX LAWS WITH REGARD TO AN INVESTMENT IN THE OLD NOTES OR THE EXCHANGE NOTES,
INCLUDING ANY REPORTING REQUIREMENTS.
INTEREST
In general, interest paid to a non-U.S. holder of Notes will not be subject
to U.S. federal income tax or regular withholding tax so long as (a) the
interest in not effectively connected with the conduct of a trade or business
within the United States, (b) the non-U.S. holder does not actually or
constructively own 10% or more of the total combined voting power of all classes
of stock of the Company entitled to vote, (c) the non-U.S. holder is not a
controlled foreign corporation that is related to the Company actually or
constructively through stock ownership and (d) either (i) the beneficial owner
of the Note certifies to the Company or its agent, under penalties of perjury,
that it is a non-U.S. holder and provides its name and address on U.S. Treasury
Form W-8 (or a suitable substitute form) or (ii) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "financial
institution") holds the Note and certifies under penalties of perjury that such
a Form W-8 (or suitable substitute form) has been received from the beneficial
owner by it or by a financial institution between it and the beneficial owner
and furnishes the payor with a copy thereof.
Recently, finalized Treasury regulations provide alternative methods for
satisfying the certification requirement described in clause (d) above. These
Regulations generally are effective for payments made after December 31, 1998,
subject to certain transition rules. Non-U.S. Holders are urged to consult their
own tax advisors regarding the new Treasury Regulations.
DISPOSITION OF NOTES
Non-U.S. holders generally will not be subject to U.S. federal income
taxation on gain recognized on a disposition of Notes so long as (i) the gain is
not effectively connected with the conduct by the non-U.S. holder of a trade or
business within the United States and (ii) in the case of a non-U.S. holder who
is an individual, either such holder is not present in the United States for 183
days or more in the taxable year of disposition or such holder does not (a) have
a "tax home" (within the meaning of section 911(d)(3) of the Code) in the United
States or (b) maintain an office or fixed place of business in the United States
to which the gain is attributable.
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FEDERAL ESTATE TAXES
A Note held by an individual who, at the time of death, is not a citizen or
resident of the United States will not be includible in the individual's gross
estate for purposes of the U.S. federal estate tax as a result of such
individual's death if the individual does not actually or constructively own 10%
or more of the total combined voting power of all classes of stock of the
Company entitled to vote and if, at the time of the individual's death, payments
with respect to such Note would not have been effectively connected with the
conduct by such individual of a trade or business in the United States.
U.S. INFORMATION REPORTING REQUIREMENTS AND BACKUP WITHHOLDING TAX
Generally, payments of interest, premium or principal on the Notes to a
non-U.S. holder will not be subject to information reporting or backup
withholding (assuming the income is otherwise exempt from United States federal
income tax) if the non-U.S. holder complies with the certification requirements
set forth in clause (d) under "-- Interest" above.
Non-U.S. holders will not be subject to information reporting or backup
withholding with respect to the payment of proceeds from the disposition of
Notes effected by, to or through the foreign office of a broker; provided,
however, that if the broker is a U.S. person or a U.S.-related person,
information reporting (but not backup withholding) would apply unless the broker
has documentary evidence in its records as to the non-U.S. holder's foreign
status (and has no actual knowledge to the contrary), or the non-U.S. holder
certifies as to its non-U.S. status under penalty of perjury or otherwise
establishes an exemption. Non-U.S. holders will be subject to information
reporting and backup withholding at a rate of 31% with respect to the payment of
proceeds from the disposition of Notes effected by, to or through the United
States office or a broker, unless the non-U.S. holder certifies as to its
non-U.S. status under penalty of perjury or otherwise establishes an exemption.
Amounts withheld under the backup withholding rules do not constitute a
separate U.S. federal income tax. Rather, amounts withheld under the backup
withholding rules from a payment to a non-U.S. holder will be allowed as a
credit against such non-U.S. holder's U.S. federal income tax liability and any
amounts withheld in excess of such non-U.S. holder's U.S. federal income tax
liability will be refunded, provided that the required information is furnished
to the IRS.
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Old Notes where such Old Notes were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that it will make this Prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale for a period of 90 days
from the Expiration Date, or such shorter period as will terminate when all Old
Notes acquired by broker-dealers for their own accounts as a result of
market-making activities or other trading activities have been exchanged for
Exchange Notes and resold by such broker-dealers.
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer and/or purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
50
<PAGE> 56
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of 90 days from the Expiration Date, or such shorter period as
will terminate when all Old Notes acquired by broker-dealers for their own
accounts as a result of market-making activities or other trading activities
have been exchanged for Exchange Notes and resold by such broker-dealers, the
Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal.
LEGAL MATTERS
The validity of the Exchange Notes will be passed upon for the Company by
Bass, Berry & Sims PLC, Nashville, Tennessee.
EXPERTS
The supplemental consolidated financial statements of Regal at January 2,
1997, and December 28, 1995, and for each of the three years in the period ended
January 2, 1997, incorporated by reference herein have been audited by Coopers &
Lybrand L.L.P., independent accountants, as stated in their report thereon
incorporated by reference herein and is incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing.
The report of Coopers & Lybrand L.L.P., with respect to Regal's
supplemental consolidated financial statements makes reference to the fact that
separate financial statements of Cobb Theatres, L.L.C., including the
Consolidated Balance Sheet as of December 31, 1996, and the Consolidated
Statements of Income and Cash Flows for the year ended December 31, 1996, were
audited by Ernst & Young LLP, independent auditors, as stated in their report
dated July 2, 1997. The report of Coopers & Lybrand L.L.P., with respect to
Regal's supplemental consolidated financial statements, also makes reference to
the fact that separate financial statements of Cobb Theatres, L.L.C., including
Consolidated Balance Sheets as of August 31, 1996 and August 31, 1995 and
Consolidated Statements of Income, Members' Equity and Cash Flows for each of
the two years in the period ended August 31, 1996, were audited by Ernst & Young
LLP, independent auditors, as stated in their report dated October 23, 1996. The
report of Coopers & Lybrand L.L.P. with respect to Regal's supplemental
consolidated financial statements also makes reference to the fact that separate
financial statements of Cobb Theatres, L.L.C. including consolidated statements
of income, members' equity and cash flows for the year ended August 31, 1994,
were audited by LaRocca & Co., P.C., independent auditors, as stated in their
report dated November 15, 1994. The report of Coopers & Lybrand L.L.P. with
respect to Regal's supplemental consolidated financial statements also makes
reference to the fact that separate financial statements of Neighborhood
Entertainment, Inc. included in the Consolidated Statements of Income,
Shareholders' Equity and Cash Flows for the year ended December 29, 1994, were
audited by Ernst & Young LLP, independent auditors, as stated in their report
dated March 21, 1995. The financial statements of Cobb Theatres, L.L.C. are
included in the supplemental consolidated financial statements of Regal in
reliance upon the report of LaRocca & Co., P.C. given upon the reliance of such
firm as experts in accounting and auditing. The financial statements of
Neighborhood Entertainment, Inc. and Cobb Theatres L.L.C. referred to above,
audited by Ernst & Young, LLP, are included in the supplemental consolidated
financial statements of Regal in reliance upon such reports given upon the
authority of such firm as experts in accounting and auditing.
51
<PAGE> 57
======================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SUCH SECURITIES BY ANY PERSON IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT
THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................. iii
Incorporation by Reference............. iii
Prospectus Summary..................... 1
Summary of the Terms of the Exchange
Offer................................ 2
Summary Description of Exchange
Notes................................ 5
Summary Consolidated Financial and
Operating Data....................... 7
Risk Factors........................... 8
The Company............................ 12
The Exchange Offer..................... 15
Use of Proceeds........................ 21
Capitalization......................... 22
Selected Consolidated Financial Data... 23
Description of Bank Revolving Credit
Facility............................. 24
Description of Exchange Notes.......... 25
Certain Federal Income Tax Consequences
of the Exchange Offer................ 46
Description of Certain Federal Income
Tax Consequences of an Investment in
the Exchange Notes................... 47
Certain U.S. Federal Tax Consequences
to Non-U.S. Holders.................. 49
Plan of Distribution................... 50
Legal Matters.......................... 51
Experts................................ 51
</TABLE>
======================================================
======================================================
[REGAL CINEMAS LOGO]
OFFER TO EXCHANGE
$125,000,000
8 1/2% SENIOR SUBORDINATED
NOTES DUE OCTOBER 1, 2007
FOR
8 1/2% EXCHANGE SENIOR
SUBORDINATED NOTES DUE
OCTOBER 1, 2007
---------------------
PRELIMINARY
PROSPECTUS
---------------------
, 1997
======================================================
<PAGE> 58
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Tennessee Business Corporation Act ("TBCA") provides that a corporation
may indemnify any of its directors and officers against liability incurred in
connection with a proceeding if (i) the director or officer acted in good faith,
(ii) in the case of conduct in his or her official capacity with the
corporation, the director or officer reasonably believed such conduct was in the
corporation's best interests, (iii) in all other cases, the director or officer
reasonably believed that his or her conduct was not opposed to the best interest
of the corporation, and (iv) in connection with any criminal proceeding, the
director or officer had no reasonable cause to believe that his or her conduct
was unlawful. In actions brought by or in the right of the corporation, however,
the TBCA provides that no indemnification may be made if the director or officer
was adjudged to be liable to the corporation. In cases where the director or
officer is wholly successful, on the merits or otherwise, in the defense of any
proceeding instigated because of his or her status as an officer or director of
a corporation, the TBCA mandates that the corporation indemnify the director or
officer against reasonable expenses incurred in the proceeding. The TBCA also
provides that in connection with any proceeding charging improper personal
benefit to an officer or director, no indemnification may be made if such
officer or director is adjudged liable on the basis that personal benefit was
improperly received. Notwithstanding the foregoing, the TBCA provides that a
court of competent jurisdiction, upon application, may order that an officer or
director be indemnified for reasonable expenses if, in consideration of all
relevant circumstances, the court determines that such individual is fairly and
reasonably entitled to indemnification, whether or not the standard of conduct
set forth above was met.
Article 8 of the Restated Charter, as amended (the "Charter") of the
Company and its Amended and Restated Bylaws provide that the Company shall
indemnify against liability, and advance expenses to, any present or former
director or officer of the Company to the fullest extent allowed by the TBCA, as
amended from time to time, or any subsequent law, rule or regulation adopted in
lieu thereof. Additionally, the Charter provides that no director of the Company
shall be personally liable to the Company or any of its shareholders for
monetary damages for breach of any fiduciary duty except for liability arising
from (i) any breach of a director's duty of loyalty to the Company or its
shareholders, (ii) acts or omissions not in good faith or which involved
intentional misconduct or a knowing violation of law, (iii) any unlawful
distributions or (iv) receiving any improper personal benefit. The Company has
entered into indemnification agreements with each of the Company's directors and
executive officers.
Directors' and officers' liability insurance has also been obtained by the
Company, the effect of which is to indemnify the directors and officers of the
Company against certain damages and expenses because of certain claims made
against them caused by their negligent act, error or omission.
ITEM 21. EXHIBITS.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <C> <S>
3.1(1) -- Restated Charter of Registrant.
3.2(1) -- Restated Bylaws of Registrant.
4.1(1) -- Specimen Common Stock certificate.
4.2(1) -- Article 5 of the Registrant's Restated Charter (included in
Exhibit 3.1).
4.3 -- Indenture dated September 24, 1997 between Regal Cinemas,
Inc. and IBJ Schroder Bank & Trust Company.
</TABLE>
II-1
<PAGE> 59
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <C> <S>
4.4 -- Form of Regal Cinemas, Inc. 8 1/2% Senior Subordinated Note
due October 1, 2007 (contained in Indenture filed as Exhibit
4.3).
4.5 -- Exchange and Registration Rights Agreement dated September
24, 1997 among Regal Cinemas, Inc., Goldman, Sachs & Co. and
Lehman Brothers Inc.
4.6 -- Registration Rights Agreement dated July 31, 1997 among
Regal Cinemas, Inc., Cobb Theatres, L.L.C., the Members of
Cobb Theatres, L.L.C. and the partners of Tricob
Partnership.
4.7(5) -- Indenture dated March 6, 1996 among Cobb Theatres, L.L.C.,
R.C. Cobb, Inc., Cobb Theatres II, Inc., Cobb Finance Corp.
and IBJ Schroder Bank & Trust Company.
4.8(4) -- First Supplemental Indenture dated August 30, 1996 among
Cobb Theatres, L.L.C., Cobb Finance Corp., R.C. Cobb, Inc.,
Cobb Theatres II, Inc. and IBJ Schroder Bank & Trust
Company.
4.9(4) -- Second Supplemental Indenture dated July 30, 1997 among Cobb
Theatres, L.L.C., Cobb Finance Corp., R.C. Cobb, Inc., Cobb
Theatres II, Inc. and IBJ Schroder Bank & Trust Company.
4.10(4) -- Third Supplemental Indenture dated July 31, 1997 among Regal
Cinemas, Inc., Cobb Theatres, L.L.C., Cobb Finance Corp.,
R.C. Cobb, Inc., Cobb Theatres II, Inc. and IBJ Schroder
Bank & Trust Company.
4.11 -- Fourth Supplemental Indenture dated August 28, 1997 among
Regal Cinemas, Inc., Cobb Finance Corp., R.C. Cobb, Inc.,
Cobb Theatres II, Inc. and IBJ Schroder Bank & Trust
Company.
5.1 -- Opinion of Bass, Berry & Sims PLC.
10.1(1) -- Warrant Certificate dated April 26, 1990.
10.2(1) -- Form of Warrant Certificate executed January 11, 1991.
10.3(1) -- Amended and Restated Subordinated Agreement dated April 20,
1994.
10.4(1) -- Form of Indemnification Agreement.
10.5(1) -- Amended and Restated Warrant Certificate replacing Warrant
Certificate dated April 26, 1990.
10.6(1) -- Form of Amended and Restated Warrant Certificate replacing
Warrant Certificates dated January 11, 1991.
10.7(3) -- Agreement and Plan of Merger dated June 11, 1997 among Regal
Cinemas, Inc., Regal Acquisition Corporation, RAC
Corporation, RAC Finance Corp., Cobb Theatres, L.L.C., R.C.
Cobb, Inc., Cobb Theatres II, Inc., Cobb Finance Corp. and
Tricob Partnership.
10.8(4) -- Agreement and Waiver dated July 31, 1997, by and among Regal
Cinemas, Inc., Regal Acquisition Corporation, RAC
Corporation, RAC Finance Corp., Cobb Theatres, L.L.C., R.C.
Cobb, Inc., Cobb Theatres II, Inc., Cobb Finance Corp. and
Tricob Partnership.
10.9(7) -- Loan Agreement dated October 8, 1997.
MANAGEMENT CONTRACT OR COMPENSATORY PLAN
10.10(1) -- 1993 Employee Stock Incentive Plan.
10.11(1) -- 1993 Outside Directors' Stock Option Plan.
10.12(1) -- Regal Cinemas, Inc. Participant Stock Option Plan.
10.13(1) -- Regal Cinemas, Inc. Employee Stock Option Plan.
10.14(1) -- Agreement of Employment and Covenant Not to Compete by and
between Michael L. Campbell and Regal Cinemas, Inc. dated
March 17, 1990.
10.15(1) -- Agreement of Employment and Covenant Not to Compete by and
between R. Neal Melton and Regal Cinemas, Inc. dated March
17, 1990.
10.16(2) -- 401(k) Profit Sharing Plan.
</TABLE>
II-2
<PAGE> 60
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <C> <S>
11(6)(7) -- Statement re Computation of Per Share Earnings.
21 -- Subsidiaries of the Registrant.
23.1 -- Independent Auditors' Consent.
23.2 -- Independent Auditors' Consent.
23.3 -- Independent Auditors' Consent.
23.4 -- Independent Auditors' Consent.
23.5 -- Consent of Bass, Berry & Sims PLC (contained in opinion
filed as Exhibit 5).
24 -- Power of Attorney (included on signature page).
25 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of IBJ Schroder Bank & Trust Company.
99.1 -- Form of Letter of Transmittal.
99.2 -- Form of Notice of Guaranteed Delivery.
99.3 -- Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
</TABLE>
- ---------------
(1) Incorporated by reference to the Registrant's Registration Statement on Form
S-1, Registration No. 33-62868.
(2) Incorporated by reference to the Registrant's Registration Statement on Form
S-8, Registration No. 333-13295.
(3) Incorporated by reference to Cobb Theatres, L.L.C.'s Quarterly Report on
Form 10-Q for the quarterly period ended May 31, 1997.
(4) Incorporated by reference to the Registrant's Current Report on Form 8-K,
dated August 14, 1997.
(5) Incorporated by reference to Exhibit (4)-1 to Cobb Theatres, L.L.C.'s
Registration Statement on Form S-4 as filed with the Commission on June 7,
1996 (Registration No. 333-02724).
(6) Incorporated by reference to the Registrant's Current Report on Form 8-K/A,
dated September
10, 1997.
(7) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the quarterly period ended October 2, 1997.
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
II-3
<PAGE> 61
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c)(1) That prior to any public reoffering of the securities
registered hereunder through use of a prospectus which is a part of this
registration statement, by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c), the issuer undertakes that
such reoffering prospectus will contain the information called for by the
applicable registration form with respect to reofferings by persons who may
be deemed underwriters, in addition to the information called for by the
other items of the applicable form.
(2) That every prospectus: (i) that is filed pursuant to paragraph (1)
immediately proceeding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expresses in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(e) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this
form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
(f) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it became effective.
II-4
<PAGE> 62
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Knoxville, State of
Tennessee, on November 7, 1997.
REGAL CINEMAS, INC.
By: /s/ MICHAEL L. CAMPBELL
-----------------------------------
Michael L. Campbell
Chairman, President,
Chief Executive Officer and
Director
Dated: November 7, 1997
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears below
hereby constitutes and appoints Michael L. Campbell and Lewis Frazer III, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place, and stead,
in any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ MICHAEL L. CAMPBELL Chairman of the Board,
- --------------------------------------------------- President, Chief Executive
Michael L. Campbell Officer and Director November 7, 1997
(Principal Executive
Officer)
/s/ LEWIS FRAZER III Executive Vice President,
- --------------------------------------------------- Chief Financial Officer,
Lewis Frazer III Secretary and Treasurer November 7, 1997
(Principal Financial and
Accounting Officer)
/s/ R. NEAL MELTON Vice President Equipment and
- --------------------------------------------------- Purchasing and Director
R. Neal Melton November 7, 1997
/s/ PHILIP D. BORACK Director
- ---------------------------------------------------
Philip D. Borack November 7, 1997
</TABLE>
II-5
<PAGE> 63
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ MICHAEL E. GELLERT Director
- ---------------------------------------------------
Michael E. Gellert November 7, 1997
/s/ J. DAVID GRISSOM Director
- ---------------------------------------------------
J. David Grissom November 7, 1997
/s/ WILLIAM H. LOMICKA Director
- ---------------------------------------------------
William H. Lomicka November 7, 1997
/s/ HERBERT S. SANGER, JR. Director
- ---------------------------------------------------
Herbert S. Sanger, Jr. November 7, 1997
/s/ JACK TYRRELL Director
- ---------------------------------------------------
Jack Tyrrell November 7, 1997
</TABLE>
II-6
<PAGE> 64
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------- -------
<C> <C> <S>
3.1(1) -- Restated Charter of Registrant.
3.2(1) -- Restated Bylaws of Registrant.
4.1(1) -- Specimen Common Stock certificate.
4.2(1) -- Article 5 of the Registrant's Restated Charter (included in
Exhibit 3.1).
4.3 -- Indenture dated September 24, 1997 between Regal Cinemas,
Inc. and IBJ Schroder Bank & Trust Company.
4.4 -- Form of Regal Cinemas, Inc. 8 1/2% Senior Subordinated Note
due October 1, 2007 (contained in Indenture filed as Exhibit
4.3).
4.5 -- Exchange and Registration Rights Agreement dated September
24, 1997 among Regal Cinemas, Inc., Goldman, Sachs & Co. and
Lehman Brothers Inc.
4.6 -- Registration Rights Agreement dated July 31, 1997 among
Regal Cinemas, Inc., Cobb Theatres, L.L.C., the Members of
Cobb Theatres, L.L.C. and the partners of Tricob
Partnership.
4.7(5) -- Indenture dated March 6, 1996 among Cobb Theatres, L.L.C.,
R.C. Cobb, Inc., Cobb Theatres II, Inc., Cobb Finance Corp.
and IBJ Schroder Bank & Trust Company.
4.8(4) -- First Supplemental Indenture dated August 30, 1996 among
Cobb Theatres, L.L.C., Cobb Finance Corp., R.C. Cobb, Inc.,
Cobb Theatres II, Inc. and IBJ Schroder Bank & Trust
Company.
4.9(4) -- Second Supplemental Indenture dated July 30, 1997 among Cobb
Theatres, L.L.C., Cobb Finance Corp., R.C. Cobb, Inc., Cobb
Theatres II, Inc. and IBJ Schroder Bank & Trust Company.
4.10(4) -- Third Supplemental Indenture dated July 31, 1997 among Regal
Cinemas, Inc., Cobb Theatres, L.L.C., Cobb Finance Corp.,
R.C. Cobb, Inc., Cobb Theatres II, Inc. and IBJ Schroder
Bank & Trust Company.
4.11 -- Fourth Supplemental Indenture dated August 28, 1997 among
Regal Cinemas, Inc., Cobb Finance Corp., R.C. Cobb, Inc.,
Cobb Theatres II, Inc. and IBJ Schroder Bank & Trust
Company.
5.1 -- Opinion of Bass, Berry & Sims PLC.
10.1(1) -- Warrant Certificate dated April 26, 1990.
10.2(1) -- Form of Warrant Certificate executed January 11, 1991.
10.3(1) -- Amended and Restated Subordinated Agreement dated April 20,
1994.
10.4(1) -- Form of Indemnification Agreement.
10.5(1) -- Amended and Restated Warrant Certificate replacing Warrant
Certificate dated April 26, 1990.
10.6(1) -- Form of Amended and Restated Warrant Certificate replacing
Warrant Certificates dated January 11, 1991.
10.7(3) -- Agreement and Plan of Merger dated June 11, 1997 among Regal
Cinemas, Inc., Regal Acquisition Corporation, RAC
Corporation, RAC Finance Corp., Cobb Theatres, L.L.C., R.C.
Cobb, Inc., Cobb Theatres II, Inc., Cobb Finance Corp. and
Tricob Partnership.
</TABLE>
<PAGE> 65
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------- -------
<C> <C> <S>
10.8(4) -- Agreement and Waiver dated July 31, 1997, by and among Regal
Cinemas, Inc., Regal Acquisition Corporation, RAC
Corporation, RAC Finance Corp., Cobb Theatres, L.L.C., R.C.
Cobb, Inc., Cobb Theatres II, Inc., Cobb Finance Corp. and
Tricob Partnership.
10.9(7) -- Loan Agreement dated October 8, 1997
MANAGEMENT CONTRACT OR COMPENSATORY PLAN
10.10(1) -- 1993 Employee Stock Incentive Plan.
10.11(1) -- 1993 Outside Directors' Stock Option Plan.
10.12(1) -- Regal Cinemas, Inc. Participant Stock Option Plan.
10.13(1) -- Regal Cinemas, Inc. Employee Stock Option Plan.
10.14(1) -- Agreement of Employment and Covenant Not to Compete by and
between Michael L. Campbell and Regal Cinemas, Inc. dated
March 17, 1990.
10.15(1) -- Agreement of Employment and Covenant Not to Compete by and
between R. Neal Melton and Regal Cinemas, Inc. dated March
17, 1990.
10.16(2) -- 401(k) Profit Sharing Plan.
11(6)(7) -- Statement re Computation of Per Share Earnings.
21 -- Subsidiaries of the Registrant.
23.1 -- Independent Auditors' Consent.
23.2 -- Independent Auditors' Consent.
23.3 -- Independent Auditors' Consent.
23.4 -- Independent Auditors' Consent.
23.5 -- Consent of Bass, Berry & Sims PLC (contained in opinion
filed as Exhibit 5).
24 -- Power of Attorney (included on signature page).
25 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of IBJ Schroder Bank & Trust Company.
99.1 -- Form of Letter of Transmittal.
99.2 -- Form of Notice of Guaranteed Delivery.
99.3 -- Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
</TABLE>
- ---------------
(1) Incorporated by reference to the Registrant's Registration Statement on Form
S-1, Registration No. 33-62868.
(2) Incorporated by reference to the Registrant's Registration Statement on Form
S-8, Registration No. 333-13295.
(3) Incorporated by reference to Cobb Theatres, L.L.C.'s Quarterly Report on
Form 10-Q for the quarterly period ended May 31, 1997.
(4) Incorporated by reference to the Registrant's Current Report on Form 8-K,
dated August 14, 1997.
(5) Incorporated by reference to Exhibit (4)-1 to Cobb Theatres, L.L.C.'s
Registration Statement on Form S-4 as filed with the Commission on June 7,
1996 (Registration No. 333-02724).
(6) Incorporated by reference to the Registrant's Current Report on Form 8-K/A,
dated September 10, 1997.
(7) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the quarterly period ended October 2, 1997.
<PAGE> 1
EXHIBIT 4.3
- --------------------------------------------------------------------------------
REGAL CINEMAS, INC.
ISSUER,
AND
IBJ SCHRODER BANK & TRUST COMPANY,
TRUSTEE
----------
INDENTURE
Dated as of September 24, 1997
----------
8 1/2% Senior Subordinated Notes due 2007
- --------------------------------------------------------------------------------
<PAGE> 2
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF SEPTEMBER 24, 1997*
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C> <C>
ss.310 (a)(1) ........................................................................ 608
(b)............................................................................ 604, 607, 609
ss.311 (a)............................................................................ 604
(b)............................................................................ 604
(c)............................................................................ 604
ss.312 (a)............................................................................ 701
(b)............................................................................ 701
(c)............................................................................ 701
ss.314 (e)............................................................................ 101
ss.315 (a)............................................................................ 602, 903, 1209, 1210
(b)............................................................................ 105, 512, 602, 903
(c)............................................................................ 602, 903, 1209, 1210
(d)............................................................................ 602, 903, 1209, 1210
ss.316 (c)............................................................................ 105
ss.318 (a)............................................................................ 108
</TABLE>
* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
ii
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
Section 101. Definitions............................................................................... 1
Section 102. Other Definitions.........................................................................16
Section 103. Compliance Certificates and Opinions......................................................17
Section 104. Form of Documents Delivered to Trustee....................................................17
Section 105. Acts of Holders...........................................................................18
Section 106. Notices, Etc., to Trustee and Company.....................................................19
Section 107. Notice to Holders; Waiver.................................................................19
Section 108. Conflict of Any Provision of Indenture with Trust Indenture Act...........................20
Section 109. Effect of Headings and Table of Contents..................................................20
Section 110. Successors and Assigns....................................................................20
Section 111. Separability Clause.......................................................................20
Section 112. Benefits of Indenture.....................................................................20
Section 113. Governing Law.............................................................................20
Section 114. Legal Holidays............................................................................21
Section 115. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities..................................................................21
Section 116. No Recourse Against Others................................................................22
Section 117. Reliance on Financial Data................................................................22
Section 118. Incorporation by Reference of Trust Indenture Act.........................................22
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally...........................................................................23
Section 202. Restrictive Legends.......................................................................24
Section 203. Form of Face of Security..................................................................26
Section 204. Form of Reverse of Security...............................................................30
Section 205. Form of Trustee's Certificate of Authentication...........................................35
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms...........................................................................35
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 302. Denominations.............................................................................36
Section 303. Execution, Authentication, Delivery and Dating............................................36
Section 304. Temporary Securities......................................................................37
Section 305. Registration, Registration of Transfer and Exchange.......................................38
Section 306. BookEntry Provisions for Global Securities................................................39
Section 307. Special Transfer Provisions...............................................................41
Section 308. Mutilated, Destroyed, Lost and Stolen Securities..........................................44
Section 309. Payment of Interest; Interest Rights Preserved............................................44
Section 310. Persons Deemed Owners.....................................................................46
Section 311. Cancellation..............................................................................46
Section 312. Computation of Interest...................................................................46
Section 313. CUSIP Numbers.............................................................................46
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance..............................47
Section 402. Defeasance and Discharge..................................................................47
Section 403. Covenant Defeasance.......................................................................47
Section 404. Conditions to Defeasance or Covenant Defeasance...........................................48
Section 405. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions...................................50
Section 406. Reinstatement.............................................................................50
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.........................................................................51
Section 502. Acceleration of Maturity; Rescission and Annulment........................................53
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................54
Section 504. Trustee May File Proofs of Claim..........................................................55
Section 505. Trustee May Enforce Claims Without Possession of Securities...............................56
Section 506. Application of Money Collected............................................................56
Section 507. Limitation on Suits.......................................................................56
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.......................................................57
Section 509. Restoration of Rights and Remedies........................................................57
Section 510. Rights and Remedies Cumulative............................................................58
Section 511. Delay or Omission Not Waiver..............................................................58
Section 512. Control by Holders........................................................................58
Section 513. Waiver of Past Defaults...................................................................58
</TABLE>
iv
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 514. Undertaking for Costs.....................................................................59
Section 515. Waiver of Stay, Extension or Usury Laws...................................................59
Section 516. Application of Trust Indenture Act to this Indenture......................................60
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults........................................................................60
Section 602. Certain Rights of Trustee.................................................................60
Section 603. Not Responsible for Recitals or Issuance of Securities....................................62
Section 604. May Hold Securities.......................................................................62
Section 605. Money Held in Trust.......................................................................62
Section 606. Compensation and Reimbursement............................................................62
Section 607. Conflicting Interests.....................................................................63
Section 608. Corporate Trustee Required; Eligibility...................................................63
Section 609. Resignation and Removal; Appointment of Successor.........................................64
Section 610. Acceptance of Appointment by Successor....................................................65
Section 611. Merger, Conversion, Consolidation or Succession to Business...............................66
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders..............................................66
Section 702. Reports by Trustee........................................................................67
Section 703. Reports by Company........................................................................67
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms......................................68
Section 802. Successor Substituted.....................................................................68
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
Section 901. Supplemental Indentures and Amendments
Without Consent of Holders.........................................................69
</TABLE>
v
<PAGE> 6
<TABLE>
<S> <C> <C>
Section 902. Supplemental Indentures and Certain Amendments with Consent
of Holders............................................................................70
Section 903. Execution of Supplemental Indentures......................................................71
Section 904. Effect of Supplemental Indentures.........................................................71
Section 905. Conformity with Trust Indenture Act.......................................................71
Section 906. Reference in Securities to Supplemental Indentures........................................71
Section 907. Notice of Supplemental Indentures.........................................................72
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest...............................................72
Section 1002. Maintenance of Office or Agency..........................................................72
Section 1003. Money for Security Payments to Be Held in Trust..........................................73
Section 1004. Corporate Existence......................................................................74
Section 1005. Payment of Taxes and Other Claims........................................................74
Section 1006. Maintenance of Properties................................................................75
Section 1007. Limitation on ...........................................................................75
Section 1008. Limitation on Restricted Payments........................................................75
Section 1009. Limitation on Transactions with Affiliates...............................................77
Section 1010. Limitation on Senior Subordinated Indebtedness...........................................77
Section 1011. Change of Control........................................................................77
Section 1012. Provision of Financial Information.......................................................78
Section 1013. Statement as to Compliance...............................................................78
Section 1014. Waiver of Certain Covenants..............................................................79
Section 1015. Fallaway of Certain Covenants............................................................79
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption......................................................................79
Section 1102. Applicability of Article.................................................................80
Section 1103. Election to Redeem; Notice to Trustee....................................................80
Section 1104. Selection by Trustee of Securities to Be Redeemed........................................80
Section 1105. Notice of Redemption.....................................................................80
Section 1106. Deposit of Redemption Price..............................................................81
Section 1107. Securities Payable on Redemption Date....................................................82
Section 1108. Securities Purchased in Part.............................................................82
</TABLE>
vi
<PAGE> 7
<TABLE>
<CAPTION>
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
<S> <C> <C>
Section 1201. Securities Subordinate to Senior Indebtedness............................................82
Section 1202. Payment over of Proceeds upon Dissolution, Etc...........................................83
Section 1203. Suspension of Payment When Senior
Indebtedness in Defau................................................................84
Section 1204. Payment Permitted If No Default..........................................................85
Section 1205. Subrogation to Rights of Holders of Senior Indebtedness..................................86
Section 1206. Provisions Solely to Define Relative Rights..............................................86
Section 1207. Trustee to Effectuate Subordination......................................................87
Section 1208. No Waiver of Subordination Provisions....................................................87
Section 1209. Notice to Trustee........................................................................88
Section 1210. Reliance on Bankruptcy Order or Certificate
of Liquidating Agent Bank............................................................89
Section 1211. Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.....................................................89
Section 1212. Article Applicable to Paying Agents......................................................89
Section 1213. No Suspension of Remedies................................................................89
Section 1214. Trust Moneys Not Subordinated............................................................90
Section 1215. Duties Owed by Trustee to Holders of Senior Indebtedness.................................90
EXHIBITS
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
</TABLE>
viii
<PAGE> 8
INDENTURE dated as of September 24, 1997 between Regal Cinemas, Inc., a
Tennessee corporation, as issuer (the "Company"), and IBJ Schroder Bank & Trust
Company, 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 8 1/2% Senior Subordinated Notes due 2007 (the "Initial Securities"), and 8
1/2% Exchange Senior Subordinated Notes due 2007 (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;
<PAGE> 9
(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 outstanding
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.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Subsidiaries (including
any issuance or sale by a Subsidiary of Capital Stock of such Subsidiary, and
including a consolidation or merger or other sale of any such Subsidiary with,
into or to another Person in a transaction in which such Subsidiary ceases to be
a Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly Owned Subsidiary of such Person or by such Person to a Wholly
Owned Subsidiary of such Person) of (i) any shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Subsidiaries representing a division or line of business
-2-
<PAGE> 10
or (iii) other assets or rights of such Person or any of its Subsidiaries
outside of the ordinary course of business. Notwithstanding the foregoing, the
term "Asset Disposition" shall not include a disposition by a Subsidiary of the
Company to the Company or a Wholly Owned Subsidiary or by the Company or a
Subsidiary to a Wholly Owned Subsidiary.
"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 or an Assistant 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 or trust companies in New York, New York, Knoxville,
Tennessee or the city in which the Corporate Trust Office is located are
authorized or required by law, regulation or executive order to be closed or, if
no Security is outstanding, the city in which the principal corporate trust
office of the Trustee is located.
"Capital Lease Obligation" of any Person means any obligations of such
Person and its Subsidiaries on a consolidated basis under any capital lease of a
real or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"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
-3-
<PAGE> 11
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" shall mean the occurrence of, after the date of the
Indenture, either of the following events: (a) any Person or any Persons 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, shall beneficially own (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision thereto), directly or
indirectly, at least 50% of the aggregate voting power of all classes of Voting
Stock of the Company (for the purposes of this clause (a) a Person shall be
deemed to beneficially own the Voting Stock of a corporation that is
beneficially owned (as defined above) by another corporation (a "parent
corporation") if such person beneficially owns (as defined above) at least 50%
of the aggregate voting power of all classes of Voting Stock of such parent
corporation) or (b) any Person or Group, together with any Affiliates thereof,
shall succeed in having a sufficient number of its 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 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.
-4-
<PAGE> 12
"Consolidated EBITDA" of any Person means for any period, on a
consolidated basis in accordance with GAAP for such Person and its consolidated
Subsidiaries, without duplication, the sum of the amounts for such period of (i)
Consolidated Net Income, (ii) Consolidated Interest Expense, (iii) Consolidated
Income Tax Expense (other than income taxes attributable to extraordinary,
unusual or non-recurring gains or losses), (iv) depreciation and amortization
expense, (v) other non-cash charges, (vi) other non-operating expenses that have
been deducted in the determination of Consolidated Net Income and (vii)
non-recurring expenses and charges incurred by such Person in connection with or
as a result of the acquisition of another Person in a business combination
accounted for as a pooling of interests in accordance with Accounting Principles
Board Opinions No. 16 (or any successor thereto); provided, however, that for
each such consolidated Subsidiary the items (i) through (vii) shall be included
in such sum only to the extent and in the same proportion that the Consolidated
Net Income of such consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"Consolidated EBITDA Ratio" of any Person means for any period the
ratio of (i) Consolidated EBITDA of such Person for such period to (ii) the sum
of (A) Consolidated Interest Expense of such Person for such period, plus (B)
the annual interest expense with respect to any Indebtedness Incurred or
proposed to be incurred by such person or its consolidated Subsidiaries since
the beginning of such period to the extent not included within clause (ii) (A),
minus (C) Consolidated Interest Expense of such Person with respect to any
Indebtedness that is no longer outstanding or that will no longer be outstanding
as a result of the transaction with respect to which the Consolidated EBITDA
Ratio is being calculated, to the extent included within clause (ii) (A);
provided, however, that in making such computation, the Consolidated Interest
Expense of such Person attributable to interest on any Indebtedness bearing a
floating interest rate shall be computed on a pro forma basis as if the rate in
effect on the date of computation had been the applicable rate for the entire
period; and provided, further, that, in the event such Person or any of its
consolidated Subsidiaries has made Asset Dispositions or acquisitions of assets
not in the ordinary course of business (including by merger, consolidation or
purchase of Capital Stock) during or after such period, the computation of the
Consolidated EBITDA Ratio (and for the purpose of such computation, the
calculation of Consolidated Net Income, Consolidated Interest Expense and
Consolidated EBITDA) shall be made on a pro forma basis as if the Asset
Dispositions or acquisitions had taken place on the first day of such period.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person and its consolidated
Subsidiaries for such period determined in accordance with generally accepted
accounting principles.
"Consolidated Interest Expense" of any Person shall mean, on a
consolidated basis for such Person and its consolidated Subsidiaries, without
duplication, for any period, as applied to any Person, (i) 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, (1) amortization of debt discount, (2) the net cost under
Interest Rate Protection Agreements (including amortization of discounts), (3)
the interest portion of any deferred payment
-5-
<PAGE> 13
obligation and (4) 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 (ii)
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" of any Person means for any period the
consolidated net income (or loss) of such Person and its consolidated
Subsidiaries for such period determined in accordance with GAAP; provided that
there shall be excluded therefrom, (a) the net income (or loss) of any Person
that is not a consolidated Subsidiary of such Person except to the extent of the
amount of dividends or other distributions actually paid to such Person by such
other Person during such period, (b) extraordinary gains and losses (and any
unusual gains and losses arising outside the ordinary course of business not
included in extraordinary gains and losses), (c) net gains and losses in respect
of Asset Dispositions and (d) the cumulative effect of changes in accounting
principles and (e) the tax effect of any of the items described in clauses (a)
through (d) above.
"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 One State Street, New York, New York 10004, Attention:
Corporate Trust Administration.
"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 any Working Capital Agreement and (ii) any other Senior Indebtedness (a)
which at the time of determination exceeds $25 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.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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<PAGE> 14
"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.
"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.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required
-7-
<PAGE> 15
pursuant to GAAP or otherwise, of any such Indebtedness or other obligation on
the balance sheet of such Person (and "Incurrence," "Incurred," "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing); provided,
however, that a change in GAAP that results in an obligation of such Person that
exists at such time becoming Indebtedness shall not be deemed an Incurrence of
such Indebtedness.
"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
-8-
<PAGE> 16
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 Security, the date on which the
principal of such Security becomes due and payable as provided in such Security
or the Indenture, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Moody's" means 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.
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<PAGE> 17
"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, its Chief Financial Officer 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.
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<PAGE> 18
"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 Indebtedness" shall mean the following:
(i) Indebtedness of the Company under any Working Capital
Agreement in an aggregate principal amount at any one time outstanding
not to exceed the sum of $300 million;
(ii) Indebtedness of the Company under the Securities
(including any Exchange Securities);
(iii) Indebtedness of the Company (other than Indebtedness
described under any clause of this definition) outstanding on the
Closing Date after giving effect to the application of the proceeds of
the Securities;
(iv) Indebtedness of the Company or any of its Subsidiaries
consisting of Permitted Interest Rate Protection Agreements;
(v) Indebtedness owed by the Company to any Wholly Owned
Subsidiary of the Company or Indebtedness owed by a Subsidiary of the
Company to the Company or a Wholly Owned Subsidiary of the Company;
(vi) Indebtedness which is exchanged for or the proceeds of
which are used to refinance or refund, or any extension or renewal of,
outstanding Indebtedness Incurred pursuant to clause (iii) of this
paragraph (each of the foregoing, a "refinancing") 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 or the Subsidiary, as the case may be, incurred
in connection with such refinancing;
(vii) Indebtedness of any Subsidiary Incurred in connection
with the Guarantee of Indebtedness of the Company;
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<PAGE> 19
(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"; and
(xiii) Indebtedness not otherwise permitted to be incurred
pursuant to clauses (i) through (xii) above which, together with any
other Indebtedness pursuant to this clause (xiii), has an aggregate
principal amount that does not exceed $100 million at any time
outstanding.
"Permitted Interest Rate Protection Agreements" means, with respect to
any Person, Interest Rate Protection Agreements entered into in the ordinary
course of business by such Person that are designed to protect such Person
against fluctuations in interest rates with respect to Permitted Indebtedness
and that have a notional amount no greater than the payment due with respect to
Permitted Indebtedness hedged thereby.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"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.
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<PAGE> 20
"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
September 24, 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 15 or September 15 (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
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<PAGE> 21
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 any Working Capital Agreement,
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 Incurred, 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, (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 any
employee, officer or director 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 Security or any
installment of interest thereof, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" of any person means (i) any corporation of which more than
50% of the outstanding shares of Capital Stock having ordinary voting power for
the election of directors is owned directly or indirectly by such Person and
(ii) any partnership, limited liability company, association, joint venture or
other entity in which such Person, directly or indirectly, has more
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<PAGE> 22
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.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"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).
"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.
"Working Capital Agreement" mean (i) the Second Amended and Restated
Loan Agreement dated as of July 7, 1993, as amended, among the Company and the
lender named therein and (ii) any other agreement or agreements between the
Company and a financial institution or institutions providing for the making of
loans or advances on a revolving basis, term loans, the issuance of letters of
credit and/or the creation of the bankers' acceptances to fund the Company's
general corporate requirements.
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<PAGE> 23
SECTION 102. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
DEFINED
TERM IN SECTION
---- ----------
<S> <C>
"Act" ..........................................................................................105
"APB 16" ......................................................................................1008
"Bankruptcy Order"..............................................................................501
"CEDEL".........................................................................................201
"Change of Control Offer"......................................................................1011
"Change of Control Payment Date"...............................................................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
</TABLE>
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<PAGE> 24
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
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<PAGE> 25
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
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<PAGE> 26
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 Corporate Trust
Office; 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 Regal Cinemas, Inc., Attention:
Secretary, 7132 Commercial Park Drive, Knoxville, Tennessee 37918.
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
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<PAGE> 27
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 shall
bind its 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
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<PAGE> 28
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 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 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 Knoxville, Tennessee as specified in
Section 106(b) 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.
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<PAGE> 29
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.
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<PAGE> 30
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 "8 1/2% Senior
Subordinated Notes due 2007" and the Exchange Securities shall be known as the
"8 1/2% Exchange Senior Subordinated Notes due 2007", 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 September 19, 1997, among the Company,
Goldman, Sachs & Co., and Lehman Brothers 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.
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<PAGE> 31
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 Security 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:
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<PAGE> 32
THE SECURITIES 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 WHOM
THE TRANSFERROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR
ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES
ACT, (2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (5) TO AN
INSTITUTION THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (IF APPLICABLE) 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
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<PAGE> 33
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF
THE INDENTURE.
SECTION 203. FORM OF FACE OF SECURITY.
REGAL CINEMAS, INC.
8 1/2% [Exchange]* Senior Subordinated Note due 2007
NO._______ CUSIP ______
Regal Cinemas, Inc., a Tennessee 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 $125,000,000)]** on October 1, 2007, at the
office or agency of the Company referred to below, and to pay interest thereon
on April 1, 1998, and semiannually thereafter, on April 1 and October 1 in each
year, from September 24, 1997, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, at the rate of 8 1/2% 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 15 or September 15 (whether or not a Business Day), as the case may
- ----------
* Include only for Exchange Securities.
** Include only for Global Securities
*** Include only for Initial Securities.
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<PAGE> 34
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 registered 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 September 24, 1997, between the
Company and the Initial Purchasers named therein (the "Registration Rights
Agreement"). In the event that (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 60th day following the
date of original issuance of the Securities, (b) the Exchange Offer Registration
Statement is not declared effective on or prior to the 150th day following the
date of original issuance of the Securities, (c) the Exchange Offer (as defined
in the Registration Rights Agreement) is not consummated or, if applicable, the
Shelf Registration Statement (as defined in the Registration Rights Agreement)
is not declared effective on or prior to the 180th day following the date of
original issuance of the Securities or (d) any registration statement required
by the Registration Rights Agreement is filed and declared effective but shall
thereafter cease to be effective (except as specifically permitted herein)
without being succeeded immediately by an additional registration statement
filed and declared effective, then the interest rate borne by this Security
shall be increased by 0.50% per annum following such 60-day period in the case
of clause (a) above, following such 150-day period in the case of clause (b)
above, following such 180-day period in the case of clause (c) above and
following the date on which the relevant registration statement ceases to be
effective in the case of clause (d) 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 (w) the filing of the Exchange Offer Registration
Statement after the 60-day period described in clause (a) above, (x) the
effectiveness of the Exchange Offer Registration Statement after the 150-day
period described in clause (b) above, (y) the consummation of the Exchange Offer
or, if applicable, the effectiveness of the Shelf Registration Statement (as
defined in the Registration Rights Agreement), as the case may be, after the
180-day period described in clause (c) above or (z) the effectiveness of a
succeeding registration statement after the date in clause (d) 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.]*
- --------
* Include only for Initial Securities.
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<PAGE> 35
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: REGAL CINEMAS, INC.
By ________________________
Name:
Title:
Attest:
By ________________________
Name:
Title:
____________________
Authorized Signature
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<PAGE> 36
SECTION 204. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company designated as its 8 1/2% [Exchange]* Senior Subordinated Notes due 2007
(the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $125,000,000, which may be
issued under an indenture (the "Indenture") dated as of September 24, 1997
between the Company, as issuer, and IBJ Schroder Bank & Trust Company, 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 redeemable, at the option of the Company, as a whole
or in part, upon not less than 30 nor more than 60 days' notice by first-class
mail, at any time on or after October 1, 2002, at a Redemption Price equal to
the percentage of the principal amount set forth below if redeemed during the
12-month period beginning October 1 of the years indicated together with accrued
and unpaid interest, if any, to the Redemption Date:
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
2002............................................. 104.250%
2003............................................. 102.833
2004............................................. 101.417
2005 and thereafter.............................. 100%
</TABLE>
- --------
* Include only for Exchange Securities.
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<PAGE> 37
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
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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
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<PAGE> 39
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:
Regal Cinemas, Inc.
7132 Commercial Park Drive
Knoxville, Tennessee 37918
Attention: Secretary
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<PAGE> 40
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: 1
- ----------
1 Signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
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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.
IBJ SCHRODER BANK & TRUST
COMPANY,
as Trustee
Dated:
By: _______________________
Authorized Officer
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 $125,000,000, 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 "8 1/2%
Senior Subordinated Notes due 2007" and the Exchange Securities shall be known
and designated as the "8 1/2% Exchange Senior Subordinated Notes due 2007". The
Stated Maturity of the Securities shall be October 1, 2007, and, subject to any
adjustment set forth therein, they shall bear interest at the rate of 8 1/2% per
annum from September 24, 1997, or the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable on April 1, 1998, and
semiannually thereafter on April 1 and October 1 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.
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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
$125,000,000.
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.
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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.
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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.
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<PAGE> 45
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 selected for redemption under Section 1105 and ending at the
close of business on the day of such mailing or to transfer or exchange any
Security so selected for redemption in whole or in part.
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.
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<PAGE> 46
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
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<PAGE> 47
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.
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<PAGE> 48
(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
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<PAGE> 49
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 Two Years. If the holder of a
beneficial interest in a Restricted Global Security or U.S. Physical
Security wishes at any time after the second anniversary of the date of
original issuance of the Securities 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
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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
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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.
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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 and
accuracy 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.
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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
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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.
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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
September 24, 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
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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.
Notwithstanding the provisions of this Article Four, the obligations of
the Company to the Trustee under Section 606 shall survive.
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
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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 payment of principal and interest when due
and payable on any Security required to be repurchased pursuant to an
Offer to Purchase upon a Change of Control;
(d) 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), (b) or (c) 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;
(e) (A) one or more defaults in the payment of principal of or
premium, if any, on Indebtedness of the Company or any Subsidiary,
aggregating $5.0 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 any Subsidiary
aggregating $5.0
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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;
(f) any holder of any Indebtedness in excess of $5.0 million
in the aggregate of the Company or any Subsidiary shall notify the
Trustee of the intended sale or disposition of any assets of the
Company or any Subsidiary 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 any Subsidiary pursuant
to the terms of any agreement or instrument evidencing any such
Indebtedness of the Company or any Subsidiary or in accordance with
applicable law;
(g) one or more final judgments or orders shall be rendered
against the Company or any Subsidiary for the payment of money, either
individually or in an aggregate amount, in excess of $5.0 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
(h) the Company or any Subsidiary 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
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(i) a court of competent jurisdiction in any involuntary case
or proceeding enters a Bankruptcy Order against the Company or any
Subsidiary, and such Bankruptcy Order remains unstayed and in effect
for 60 consecutive days; or
(j) a Custodian shall be appointed out of court with respect
to the Company or any Subsidiary, or with respect to all or any
substantial part of the property of the Company or any Subsidiary.
"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(h), (i) or (j)) 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 immediately. If an Event of Default specified in Section 501(h), (i) or
(j) 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,
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(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(e) 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
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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.
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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.
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: Subject to Article Twelve, 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;
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(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.
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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
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(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.
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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), which provisions are incorporated by reference herein:
(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
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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.
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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,
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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.
The obligations of the Company under this Section shall not be
subordinated to the payment of Senior Indebtedness pursuant to Article 12. 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 payment of principal of (and premium, if any) or interest
on 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 payment of principal of (and premium, if any) or interest
on 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.
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
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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
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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
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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.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided no such list need be furnished if the Trustee shall be the
Security Registrar.
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 this Section 701,
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 this Section 701.
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).
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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).
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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, (i) consolidate with or merge with or into any other
Person or (ii) directly or indirectly, sell, assign, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets to
any Person unless:
(a) either the Company shall be the continuing Person or the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person that acquired such properties
and assets of the Company by assignment, transfer, lease or other
disposition (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 by supplemental indenture, 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 after giving effect to such transaction on a
pro forma basis, the Surviving Entity could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section
1007 hereof.
In connection with any consolidation, merger, transfer or lease
contemplated hereby, the Company shall deliver, or cause to be delivered, to the
Trustee, in the form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or lease and the supplemental indenture in
respect thereto comply with the provisions described herein and that all
conditions precedent herein provided for or relating to such transaction have
been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation, merger or sale, assignment, transfer, lease or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 801, the Surviving Entity 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
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a lease) described and listed in Section 801 in which the Company is not the
Surviving Entity, the Surviving Entity 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 which shall not be
inconsistent with the provisions of this Indenture; provided that, in
each case, such other 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 Ten hereof or in Article
Twelve 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.
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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 (including consents
obtained in connection with a tender offer or exchange offer for the
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.
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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.
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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.
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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
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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, or mail to each such Holder or both, 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 or
mailing, 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
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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, and shall not permit any of its Subsidiaries to,
directly or indirectly:
(a) declare or pay any dividend on, or make any distribution
in respect of, any shares of the Capital Stock of the Company or any of
its Subsidiaries (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
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or made after the Closing Date (including the proposed Restricted Payment) does
not exceed the sum of:
(i)(A) Consolidated EBITDA for the Restricted Payments
Computation Period minus (B) 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, (a) the Company may (i) 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 and (ii), 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) and (b) the
term "Restricted Payments" shall not include any dividend on, or distribution in
respect of, any shares of the Capital Stock of a Person that is acquired by the
Company in a business combination accounted for as a pooling of interests in
accordance with Accounting Principles Board Opinions No. 16 (or any successor
thereto) ("APB 16") provided such dividend or distribution is declared and paid
prior to the date of such acquisition and was not in contemplation of such
acquisition within the requirements and interpretations of APB 16.
SECTION 1009. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
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(a) The Company shall not, and shall 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 $5.0 million unless (a) such transaction or
series of transactions is on terms that are no less favorable to the Company or
such Subsidiary, as the case may be, than would be available at the time of such
transaction or series of transactions in a comparable arm's-length transaction
with a Person that is not an Affiliate of the Company, (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
consideration in excess of $50.0 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 Capital Stock in any such Subsidiary is
owned, directly or indirectly (other than by direct or indirect ownership of
Capital Stock 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
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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 of the Company ending after the date hereof (which on the
date hereof ends on the Thursday closest to December 31), a brief certificate of
its principal executive officer, principal financial officer or principal
accounting officer stating that a review of the Company's activities during such
year and of performance under this Indenture has been made under his supervision
and that, to such officer's knowledge, the Company is in compliance with all
covenants and conditions to be complied with by it under this Indenture. 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.
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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 in part and from time to time, at any time on or after October 1, 2002
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.
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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 and the amount of accrued interest,
if any, to be paid;
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(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, that such Securities
must be surrendered to the Paying Agent to collect the Redemption Price
plus accrued interest, if any, 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 (or portions thereof) to be redeemed as well
as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such
partial redemption;
(g) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the Redemption Date, and upon surrender of such Security, a new
Security or Securities in the aggregate principal amount equal to the
unredeemed portion thereof will be issued; and
(h) the name and address of the Paying Agent and 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, prior to 11:00 a.m.,
New York City time (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.
Once notice of redemption is mailed in accordance with Section 1105,
such notice of redemption shall be irrevocable and Securities called for
redemption become due and payable on the Redemption Date and at the Redemption
Price plus accrued interest as of such date, if any. Upon surrender to the
Trustee or Paying Agent, such Securities called for redemption shall be paid at
the Redemption Price plus accrued interest thereon to the Redemption Date, but
installments of interest, the maturity of which is on or prior to the Redemption
Date, shall be payable to
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Holders of record at the close of business on the relevant record dates referred
to in the Securities. Interest shall accrue on or after the Redemption Date and
shall be payable only if the Company defaults in payment of the Redemption
Price. 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
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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).
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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 Nonpayment 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)
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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, promptly returned 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
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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) 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.
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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.
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(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 three
Business Days 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.
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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.
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
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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.
* * *
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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.
REGAL CINEMAS, INC.
By /s/ MICHAEL L. CAMPBELL
-------------------------------
Title: Chief Executive Officer
By /s/ LEWIS FRAZER III
-------------------------------
Title: Chief Financial Officer
Attest: /s/ SUSAN SEAGRAVES
-----------------------------
Title: Vice President and
Corporate Controller
IBJ SCHRODER BANK & TRUST
COMPANY
By /s/ BARBARA MCCLUSKEY
-------------------------------
Title: Vice President
Attest: /s/ MAX VOLMAR
-----------------------------
Title: Assistant Secretary
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EXHIBIT A-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
IBJ Schroder Bank &
Trust Company
One State Street
New York, New York 10004
Re: 8 1/2% Senior Subordinated Notes due 2007 of Regal Cinemas, Inc.
Reference is hereby made to the Indenture, dated as of September 24,
1997 (the "Indenture"), between Regal Cinemas, Inc., as issuer (the "Company"),
and IBJ Schroder Bank & Trust Company, 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 the Restricted Global Security (CUSIP No. 758754AA3) and held
with the Depositary in the name of Cede & Co. (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.
U75844AA5).
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
<PAGE> 99
(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 November 4,
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: ____________, ____ Signature Guarantee
________________________________
A-1-2
<PAGE> 100
EXHIBIT A-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
IBJ Schroder Bank &
Trust Company
One State Street
New York, New York 10004
Re: 8 1/2% Senior Subordinated Notes due 2007 of Regal Cinemas, Inc.
Reference is hereby made to the Indenture, dated as of September 24,
1997 (the "Indenture"), between Regal Cinemas, Inc., as issuer (the "Company"),
and IBJ Schroder Bank & Trust Company, 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 the Securities
which are evidenced by the Regulation S Global Security (CUSIP No. U75844AA5)
and held with the Depositary in the name of Cede & Co. (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. 758754AA3), 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> 101
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: ____________, ____ Signature Guarantee
________________________________
A-2-2
<PAGE> 102
EXHIBIT A-3
FORM OF CERTIFICATE FOR TRANSFER OF U.S. PHYSICAL SECURITIES TO
REGULATION S GLOBAL SECURITY OR RESTRICTED GLOBAL SECURITY
IBJ Schroder Bank &
Trust Company
One State Street
New York, New York 10004
Re: 8 1/2% Senior Subordinated Notes due 2007 of Regal Cinemas, Inc.
Reference is hereby made to the Indenture, dated as of September 24,
1997 (the "Indenture"), between Regal Cinemas, Inc., as issuer (the "Company"),
and IBJ Schroder Bank & Trust Company, 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 (Certificate No.
__________, 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.
758754AA3] [Regulation S Global Security (CUSIP No. U75844AA5)].
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
<PAGE> 103
(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
November 4, 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.
A-3-2
<PAGE> 104
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: ____________, ____ Signature Guarantee
________________________________
A-3-3
<PAGE> 105
EXHIBIT A-4
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER TWO YEARS
IBJ Schroder Bank &
Trust Company
One State Street
New York, New York 10004
Re: 8 1/2% Senior Subordinated Notes due 2007 of Regal Cinemas, Inc.
Reference is hereby made to the Indenture, dated as of September 24,
1997 (the "Indenture"), between Regal Cinemas, Inc., as issuer (the "Company"),
and IBJ Schroder Bank & Trust Company, 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 $125,000,000 principal amount of
Securities which are evidenced by a [Restricted Global Security (CUSIP No.
758754AA3) and held with the Depositary in the name of Cede & Co.] [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. U75844AA5).
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 two years will have elapsed since September 24, 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 $125,000,000 principal amount of
Securities that are evidenced by a [Restricted Global Security (CUSIP No.
758754AA3) 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. U75844AA5).
<PAGE> 106
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 two years will have elapsed since September 24, 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:
A-4-2
<PAGE> 1
Exhibit 4.5
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of September 24,
1997, among Regal Cinemas, Inc., a Tennessee corporation (the "Company"),
Goldman, Sachs & Co. and Lehman Brothers Inc., as representatives of the
purchasers (the "Purchasers") identified on Schedule I to the Note Purchase
Agreement (as defined herein), of the 82% Senior Subordinated Notes due October
1, 2007 of the Company.
The Company proposes to issue and sell to the Purchasers (as defined
herein) upon the terms set forth in the Note Purchase Agreement the Securities
(as defined herein). As an inducement to the Purchasers to enter into the Note
Purchase Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers for the benefit of
holders (as defined herein) from time to time of the Registrable Securities (as
defined herein) as follows:
1 Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest, if any, that would
otherwise accrue on the Securities under the terms thereof and the
Indenture, without giving effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer
registered with the Commission under the Exchange Act.
"Closing" shall mean the date of the closing of the issuance
and sale of the Securities pursuant to the Note Purchase Agreement.
"Commission" shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares the
Exchange Registration Statement effective or as of which the Exchange
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the
Shelf Registration Statement otherwise becomes effective.
<PAGE> 2
"Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to
time.
"Exchange Offer" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned
thereto in Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto
in Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including
any successors or assigns), in each case for so long as such person
owns any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of September
24, 1997, between the Company and IBJ Schroder Bank & Trust Company, as
Trustee, as the same shall be amended from time to time.
"Note Purchase Agreement" shall mean the Purchase Agreement,
dated as of September 19, 1997, between the Purchasers and the Company
relating to the Securities.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the
form of Exhibit A hereto.
The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when
(i) in the circumstances contemplated by Section 2(a) hereof, the
Security has been exchanged for an Exchange Security in an Exchange
Offer as contemplated in Section 2(a) hereof (provided that any
Exchange Security received by a broker-dealer in an Exchange Offer in
exchange for a Registrable
2
<PAGE> 3
Security that was not acquired by the broker-dealer directly from the
Company will also be a Registrable Security through and including the
earlier of the 90th day after the Exchange Offer is completed or such
time as such broker-dealer no longer owns such Security); (ii) in the
circumstances contemplated by Section 2(b) hereof, a Shelf Registration
Statement registering such Security under the Securities Act has been
declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; (iii) such
Security is sold pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is
removed by the Company or pursuant to the Indenture; (iv) such Security
is eligible to be sold pursuant to paragraph (k) of Rule 144; or (v)
such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto
in Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned
thereto in Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a holder
who acquires Exchange Securities outside the ordinary course of such
holder's business, (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for
the purpose of distributing Exchange Securities and (iv) a holder that
is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer
directly from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"Securities" shall mean, collectively, the 82% Senior
Subordinated Notes due October 1, 2007 of the Company to be issued and
sold to the Purchasers, and securities issued in exchange therefor or
in lieu thereof pursuant to the Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto
in Section 2(b) hereof.
3
<PAGE> 4
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2 Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act, as soon as practicable, but no later than 60 days
after the Closing, a registration statement relating to an offer to exchange
(such registration statement, the "Exchange Registration Statement," and such
offer, the "Exchange Offer") any and all of the Securities for a like aggregate
principal amount at maturity of debt securities issued by the Company, which
debt securities are substantially identical to the Securities, respectively (and
are entitled to the benefits of a trust indenture which is substantially
identical to the Indenture or is the Indenture and which has been qualified
under the Trust Indenture Act), except that they have been registered pursuant
to an effective registration statement under the Securities Act and do not
contain provisions for the additional interest contemplated in Section 2(c)
below (such new debt securities hereinafter called "Exchange Securities"). The
Company agrees to use its best efforts to cause the Exchange Registration
Statement to become effective under the Securities Act as soon as practicable,
but no later than 150 days after the Closing. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply with
all applicable tender offer rules and regulations under the Exchange Act. The
Company further agrees to use its best efforts to commence and complete the
Exchange Offer promptly, but no later than 45 days after such registration
statement has become effective, hold the Exchange Offer open for at least 30
days and issue Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been Acompleted" only
if the debt securities received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are, upon receipt, transferable by
each such holder without need for further compliance with Section 5 of the
Securities Act and the Exchange Act (except for the requirement to deliver a
prospectus included in the Exchange Registration Statement applicable to resales
by any broker-dealer of Exchange Securities received by such broker-dealer
pursuant to an Exchange Offer in exchange for Registrable Securities other than
those acquired by the broker-dealer directly from the Company), and without
material restrictions under the blue sky or securities laws of a substantial
majority of the States of the United States of America. The Exchange Offer shall
be deemed to have been completed upon the earlier to occur of (i) the Company
having exchanged the Exchange Securities for all outstanding Registrable
Securities pursuant to the Exchange Offer and (ii) the Company having exchanged,
pursuant to the Exchange Offer, Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer, which shall be on a date that is at least 30
days following the commencement of the Exchange Offer. The Company agrees (x) to
include in the Exchange Registration Statement a prospectus for use in
connection with any resales of Exchange Securities by a broker-dealer, other
than resales of Exchange Securities received by a broker-dealer pursuant to an
Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company, and (y) to keep such Exchange
Registration Statement effective for a period (the "Resale Period") beginning
when Exchange Securities are first issued in the Exchange Offer and ending upon
the earlier of the expiration of the 90th day after the Exchange Offer has been
completed or such time as such broker-dealers no longer own any Registrable
Securities. With respect to such Exchange Registration Statement, each
broker-dealer that holds
4
<PAGE> 5
Exchange Securities received in an Exchange Offer in exchange for Registerable
Securities not acquired by it directly from the Company shall have the benefit
of the rights of indemnification and contribution set forth in Sections 6(a),
(c), (d) and (e) hereof.
(b) If prior to the time the Exchange Offer is completed existing
Commission interpretations are changed such that the Securities received by
holders other than Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each such
holder without need for further compliance with Section 5 of the Securities Act
(except for the requirement to deliver a prospectus included in the Exchange
Registration Statement applicable to resales by broker-dealers of Exchange
Securities received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities other than those acquired by the
broker-dealer directly from the Company), in lieu of conducting the Exchange
Offer contemplated by Section 2(a) the Company shall file under the Securities
Act as soon as practicable, but no later than the later of 30 days after the
time such obligation to file arises and 60 days after the Closing, a "shelf"
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the "Shelf Registration" and such registration
statement, the "Shelf Registration Statement"). In addition, in the event that
the Purchasers shall not have resold all of the Securities initially purchased
by them from the Company pursuant to the Note Purchase Agreement prior to the
consummation of the Exchange Offer, the Company shall file under the Securities
Act as soon as practicable a Shelf Registration Statement. The Company agrees to
use its best efforts (i) to cause the Shelf Registration Statement to become or
be declared effective no later than 120 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement continuously
effective in order to permit the prospectus forming a part thereof to be usable
by holders for resales of Registrable Securities for a period ending on the
earlier of the second anniversary of the Closing or such time as there are no
longer any Registrable Securities outstanding, provided, however, that no holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the prospectus forming a part thereof for
resales of Registrable Securities unless such holder is an Electing Holder, and
(ii) after the Effective Time of the Shelf Registration Statement, promptly upon
the request of any holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such holder to use the
prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement, provided, however,
that nothing in this Clause (ii) shall relieve any such holder of the obligation
to return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof. The Company further agrees to
supplement or make amendments to the Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to each Electing Holder copies
5
<PAGE> 6
of any such supplement or amendment prior to its being used or promptly
following its filing with the Commission. Notwithstanding the immediately
preceding sentence, the Company may postpone, for a period not to exceed 30
days, supplementing or amending the Shelf Registration Statement if (i) the
Company is in possession of material non-public information related to a
proposed financing, recapitalization, acquisition, business combination or other
material transaction and the Board of Directors of the Company determines (in
good faith in a written resolution) that disclosure of such information would
have a material adverse effect on the business or operations of the Company and
its subsdiaries and disclosure of such information is not otherwise required by
law and (ii) the Company delivers notice (which shall include a copy of the
resolution of the Board of Directors with respect to such determination) to the
Electing Holders and any placement agent or underwriting as contemplated by
Section 3(d)(viii)(F) to the effect that Electing Holders may not make offers or
sales under the Shelf Registration Statement; provided, however, that the
Company may deliver only two such notices within any 12-month period. Promptly
upon the earlier of (x) public disclosure of such material non-public
information, (y) the date on which such non-public information is no longer
material and (z) 30 days after the date notice is given by the Company pursuant
to clause (ii) above, the Company shall supplement or amend the Shelf
Registration Statement as required by the immediately preceding sentence and
give notice to the Electing Holders that offers and sales under the Shelf
Registration Statement may be resumed.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement on or prior to the 60th day after the Closing, or (ii)
such Exchange Registration Statement has not become effective or been declared
effective by the Commission on or before the 150th day after the Closing, or
(iii) the Exchange Offer is not consummated or a Shelf Registration Statement is
not declared effective on or prior to the 180th day after the Closing, or (iv)
any Exchange Registration Statement or Shelf Registration Statement required by
Section 2(a) or 2(b) hereof is filed and declared effective but shall thereafter
either be withdrawn by the Company or shall become subject to an effective stop
order issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically permitted
herein) without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default", then, as liquidated damages for each
such Registration Default, subject to the provisions of Section 9(b), the
interest rate borne by the Registrable Securities shall be increased by 0.50%
per annum following such 60-day period in the case of clause (i) above,
following such 150-day period in the case of clause (ii) above, following such
180-day period in the case of clause (iii) above and following the date on which
such Exchange Offer Registration Statement or the Shelf Registration Statement,
as the case may be, ceases to become effective in the case of clause (iv) above;
provided that the aggregate amount of such increase in the interest rate will in
no event exceed 1.00% per annum. Upon (w) the filing of the Exchange Offer
Registration Statement after the 60-day period described in clause (i) above,
(x) the effectiveness of the Exchange Offer Registration Statement after the
150-day period described in clause (ii) above, (y) the consummation of the
Exchange Offer or the effectiveness of the Shelf Registration Statement, as the
case may be, after the 180-day period described in clause
6
<PAGE> 7
(iii) above or (z) the effectiveness of a succeeding registration statement
after the date in clause (iv) above, the interest rate borne by the Registrable
Securities from the date of filing, effectiveness or consummation, as the case
may be, will be reduced to the original interest rate.
(d) The Company shall take all reasonable actions necessary or
advisable to be taken by it to ensure that the transactions contemplated herein
are effected as so contemplated.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3 Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 60 days after the Closing, an Exchange
Registration Statement on any form which may be utilized by the Company
and which shall permit the Exchange Offer and resales of Exchange
Securities by broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use its best efforts to cause such
Exchange Registration Statement to become effective as soon as
practicable thereafter, but no later than 150 days after the Closing;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in
Section 2(a) hereof and
7
<PAGE> 8
as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies
of the prospectus included therein (as then amended or supplemented),
in conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer
reasonably may request prior to the expiration of the Resale Period,
for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement or
the initiation or threatening of any proceedings for that purpose, (D)
if at any time the representations and warranties of the Company
contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose or (F) at any time
during the Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder or contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(iv) in the event that the Company would be required, pursuant
to Section 3(c)(iii)(F) above, to notify any broker-dealers holding
Exchange Securities, without unreasonable delay prepare and furnish to
each such holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers
of such Exchange Securities during the Resale Period, such prospectus
shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be
8
<PAGE> 9
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use its reasonable best efforts to (A) register or
qualify the Exchange Securities under the securities laws or blue sky
laws of such jurisdictions as are contemplated by Section 2(a), if such
registration or qualification is required by such laws, no later than
the commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all
other actions as may be reasonably necessary or advisable to enable
each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that the
Company shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise
be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its articles of incorporation
or bylaws or any agreement between it and its shareholders;
(vii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but no later than eighteen months after the effective
date of such Exchange Registration Statement, an earning statement of
the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall, as soon as practicable (or
as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which may be
utilized by the Company and which shall register all of the Registrable
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<PAGE> 10
Securities for resale by the holders thereof in accordance with such
method or methods of disposition as may be specified by such of the
holders as, from time to time, may be Electing Holders and use its
reasonable best efforts to cause such Shelf Registration Statement to
become effective as soon as practicable but in any case within the time
periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder shall
be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time, and no holder shall be
entitled to use the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has returned a
completed and signed Notice and Questionnaire to the Company by the
deadline for response set forth therein; provided, however, holders of
Registrable Securities shall have at least 28 calendar days from the
date on which the Notice and Questionnaire is first mailed to such
holders to return a completed and signed Notice and Questionnaire to
the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Company shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as may be
required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being used
or filed with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities covered
by such Shelf Registration Statement in accordance with the intended
methods of disposition by the Electing Holders provided for in such
Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person
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<PAGE> 11
deemed to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) any sales or placement agent
therefor, (D) counsel for any such underwriter or agent and (E) not
more than one counsel for all the Electing Holders the opportunity to
participate in the preparation of such Shelf Registration Statement,
each prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal
place of business or such other reasonable place for inspection by the
persons referred to in Section 3(d)(vi) who shall certify to the
Company that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; 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 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) other than as a result of a breach of this
Section 3(d)(vii), (B) such person shall be required so 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
requirement) 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,
complies with applicable requirements of the federal securities laws
and the rules and regulations of the Commission and 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;
(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm such
advice in writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed and, with respect to such
Shelf Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by
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<PAGE> 12
the Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation
or threatening of any proceedings for that purpose, (D) if at any time
the representations and warranties of the Company contemplated by
Section 3(d)(xvii) or Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company 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 or (F) if
at any time when a prospectus is required to be delivered under the
Securities Act, such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does
not conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(ix) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(x) if requested by any managing underwriter or underwriters,
any placement or sales agent or any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of
the Commission and as such managing underwriter or underwriters, such
agent or such Electing Holder specifies should be included therein
relating to the terms of the sale of such Registrable Securities,
including information with respect to the principal amount at maturity
of Registrable Securities being sold by such Electing Holder or agent
or to any underwriters, the name and description of such Electing
Holder, agent or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation payable
in respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of the
Registrable Securities to be sold by such Electing Holder or agent or
to such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi) an executed copy
(or, in the case of an Electing Holder, a conformed copy) of such
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<PAGE> 13
Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of
an Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number of copies
of such Shelf Registration Statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so
requested by such Electing Holder, agent or underwriter, as the case
may be) and of the prospectus included in such Shelf Registration
Statement (including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, and
such other documents, as such Electing Holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the
offering and disposition of the Registrable Securities owned by such
Electing Holder, offered or sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent and underwriter
to satisfy the prospectus delivery requirements of the Securities Act;
and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment
or supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently provided
to such person by the Company, in connection with the offering and
sale of the Registrable Securities covered by the prospectus
(including such preliminary and summary prospectus) or any supplement
or amendment thereto;
(xii) use its reasonable best efforts to (A) register or
qualify the Registrable Securities to be included in such Shelf
Registration Statement under such securities laws or blue sky laws of
such jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall
reasonably request, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective under
Section 2(b) above and for so long as may be necessary to enable any
such Electing Holder, agent or underwriter to complete its distribution
of Securities pursuant to such Shelf Registration Statement and (C)
take any and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that
the Company shall not be required for any such purpose to (1) qualify
as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(d)(xii), (2) consent to general service of process in any
such jurisdiction or (3) make any changes to its articles of
incorporation or bylaws or any agreement between it and its
shareholders;
(xiii) use its reasonable best efforts to obtain the consent
or approval of each governmental agency or authority, whether federal,
state or local, which may be required
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<PAGE> 14
to effect the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or to
consummate the disposition of, their Registrable Securities;
(xiv) cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates shall be printed, lithographed or engraved, or produced by
any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering,
enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at
least two business days prior to any sale of the Registrable
Securities;
(xv) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including customary
provisions relating to indemnification and contribution, and take such
other actions in connection therewith as any Electing Holders
aggregating at least 20% in aggregate principal amount at maturity of
the Registrable Securities at the time outstanding shall reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any portion
of the offering contemplated by the Shelf Registration is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
Electing Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof in form, substance and scope as are
customarily made in connection with an offering of debt securities
pursuant to any appropriate agreement or to a registration statement
filed on the form applicable to the Shelf Registration; (B) obtain an
opinion of counsel to the Company in customary form and covering such
matters, of the type customarily covered by such an opinion, as the
managing underwriters, if any, or as any Electing Holders of at least
20% in aggregate principal amount at maturity of the Registrable
Securities at the time outstanding may reasonably request, addressed to
such Electing Holder or Electing Holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof and dated
the effective date of such Shelf Registration Statement (and if such
Shelf Registration Statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto) (it being
agreed that the matters to be covered by such opinion shall include the
due
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<PAGE> 15
incorporation and good standing of the Company and its subsidiaries;
the qualification of the Company and its subsidiaries to transact
business as foreign corporations; the due authorization, execution and
delivery of the relevant agreement of the type referred to in Section
3(d)(xvi) hereof; the due authorization, execution, authentication and
issuance, and the validity and enforceability, of the Securities; the
absence of material legal or governmental proceedings involving the
Company; the absence of a breach by the Company or any of its
subsidiaries of, or a default under, material agreements binding upon
the Company or any subsidiary of the Company; the absence of
governmental approvals required to be obtained in connection with the
Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section 3(d)(xvi) hereof, except
such approvals, if any, as may be required under state securities or
blue sky laws; the material compliance as to form of such Shelf
Registration Statement and any documents incorporated by reference
therein (in each case other than the financial statements and other
financial information contained therein) and of the Indenture with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder, respectively; and,
as of the date of the opinion and of the Shelf Registration Statement
or most recent post-effective amendment thereto, as the case may be,
the absence from such Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, and from the
documents incorporated by reference therein (in each case other than
the financial statements and other financial information contained
therein) of an untrue statement of a material fact or the omission to
state therein a material fact necessary to make the statements therein
not misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were filed with
the Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public accountants of
the Company addressed to the selling Electing Holders, the placement or
sales agent, if any, therefor or the underwriters, if any, thereof,
dated (i) the effective date of such Shelf Registration Statement and
(ii) the effective date of any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective
amendment to such Shelf Registration Statement which includes unaudited
or audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus (and,
if such Shelf Registration Statement contemplates an underwritten
offering pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective
amendment to such Shelf Registration Statement which includes unaudited
or audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus,
dated the date of the closing under the underwriting agreement relating
thereto), such letter or letters to be in customary form and covering
such matters of the type customarily covered by letters of such type;
(D) deliver such documents and certificates, including officers'
certificates, as may be reasonably requested by any Electing Holders of
at least 20% in aggregate principal amount at maturity of the
Registrable Securities at the
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<PAGE> 16
time outstanding or the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof to evidence the accuracy of
the representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company;
and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Exchange and Registration Rights Agreement pursuant
to Section 9(h) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the amendment
or waiver proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an 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 National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to time)
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, assist such broker-dealer in complying
with the requirements of such Rules and By-Laws, including by (A) if
such Rules or By-Laws shall so require, engaging a "qualified
independent underwriter" (as defined in such Schedule (or any successor
thereto)) to participate in the preparation of the Shelf Registration
Statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of
the offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Registrable Securities, (B) indemnifying
any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof (or to
such other customary extent as may be requested by such underwriter)
and (C) 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; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but in any event not later than eighteen months after
the effective date of such Shelf Registration Statement, an earning
statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
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<PAGE> 17
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, the placement or
sales agent, if any, therefor and the managing underwriters, if any, thereof,
the Company shall without delay prepare and furnish to each of the Electing
Holders, to each placement or sales agent, if any, and to each such underwriter,
if any, a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder and shall not 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 in light of the
circumstances then existing. Each Electing Holder agrees that upon receipt of
any notice from the Company pursuant to Section 3(d)(viii)(F) hereof, such
Electing Holder shall forthwith discontinue the disposition of Registrable
Securities pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such Electing Holder shall have received copies of
such amended or supplemented prospectus, and if so directed by the Company, such
Electing Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Electing Holder's
possession of the prospectus covering such Registrable Securities at the time of
receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice and
Questionnaire, the Company may require such Electing Holder to furnish to the
Company such additional information regarding such Electing Holder and such
Electing Holder's intended method of distribution of Registrable Securities as
may be required in order to comply with the Securities Act. Each such Electing
Holder agrees to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Electing Holder to the
Company or of the occurrence of any event in either case as a result of which
any prospectus relating to such Shelf Registration contains or would contain an
untrue statement of a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Securities
or omits to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not
contain, with respect to such Electing Holder or the disposition of such
Registrable Securities, 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 in light of the circumstances then existing.
(g) Until the expiration of two years after the Closing, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule 144)
to, resell any of the Securities that have been
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<PAGE> 18
reacquired by any of them except pursuant to an effective registration statement
under the Securities Act.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including fees and
disbursements of counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(d)(xii)
hereof and determination of their eligibility for investment under the laws of
such jurisdictions as any managing underwriters or the Electing Holders may
designate, including any fees and disbursements of counsel for the Electing
Holders (subject to the limitations of Clause (i) below) or underwriters in
connection with such qualification and determination, (c) all expenses relating
to the preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Securities and the preparation of
documents referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and any counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses (including all
salaries and expenses of the Company's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount at
maturity of the Registrable Securities held by Electing Holders (which counsel
shall be reasonably satisfactory to the Company), (j) any fees charged by
securities rating services for rating the Securities, and (k) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the holders
of the Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
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<PAGE> 19
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof and any further amendments or supplements to any
such registration statement or prospectus, when it becomes effective or
is filed with the Commission, as the case may be, and, in the case of
an underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not 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 at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(d)(viii)(F) or Section
3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(e) or Section
3(c)(iv) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(d) or Section 3(c) hereof, as then amended or
supplemented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not 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 in the light of the circumstances then existing;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by a
holder of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be,
will conform or conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and none of
such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by a holder of Registrable Securities expressly for use therein.
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<PAGE> 20
(c) The compliance by the Company with all of the provisions
of this Exchange and Registration Rights Agreement and the consummation
of the transactions herein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any subsidiary
of the Company is a party or by which the Company or any subsidiary of
the Company is bound or to which any of the property or assets of the
Company or any subsidiary of the Company is subject, nor will such
action result in any violation of the provisions of the articles of
incorporation, or the bylaws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Exchange and
Registration Rights Agreement, except the registration under the
Securities Act of the Securities, qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications, if any, as may be required under State
securities or blue sky laws in connection with the offering and
distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been
duly authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement and each person who
participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities against any losses, claims, damages or
liabilities, joint or several, to which such holder, agent or underwriter may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Exchange Registration Statement or Shelf Registration
Statement, as the case may be, under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such holder,
Electing Holder, agent or underwriter, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company shall, and it hereby agrees
to, reimburse such holder, such Electing Holder, such agent and such underwriter
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable to any such
person in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
or preliminary, final or summary prospectus, or amendment or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Company by such person expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from the Electing
Holder of such Registrable Securities and from each underwriter named in any
such underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, and all other holders of Registrable Securities,
against any losses, claims, damages or liabilities to which the Company or such
other holders of Registrable Securities may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Electing Holder, agent or underwriter, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
20
<PAGE> 21
such Electing Holder or underwriter expressly for use therein, and (ii)
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that no such Electing Holder
shall be required to undertake liability to any person under this Section 6(b)
for any amounts in excess of the dollar amount of the proceeds to be received by
such Electing Holder from the sale of such Electing Holder's Registrable
Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action 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) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall
21
<PAGE> 22
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by
such indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount at maturity of Registrable Securities registered or underwritten, as the
case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each holder, agent and underwriter and each person, if any, who controls any
holder, agent or underwriter within the meaning of the Securities Act; and the
obligations of the holders and any agents or underwriters contemplated by this
Section 6 shall be in addition to any liability which the respective holder,
agent or underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company (including any
person who, with his consent, is named in any registration statement as about to
become a director of the Company) and to each person, if any, who controls the
Company within the meaning of the Securities Act.
22
<PAGE> 23
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by Electing Holders holding at least a majority in aggregate principal amount at
maturity of the Registrable Securities to be included in such offering, provided
that such designated managing underwriter or underwriters is or are reasonably
acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) 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 (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
23
<PAGE> 24
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the holders from time to time
of the Registrable Securities may be irreparably harmed by any such failure, and
accordingly agree that the Purchasers and such holders, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at 7132 Commercial Park Drive, Knoxville, Tennessee 37918, Attention: Executive
Vice President-Chief Financial Officer, with a copy to Bass, Berry & Sims, 2700
First American Center, Nashville, Tennessee 37238-2700, Attention: F. Mitchell
Walker, Jr., and if to a holder, to the address of such holder set forth in the
security register or other records of the Company, or to such other address as
the Company or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders from
time to time of the Registrable Securities and the respective successors and
assigns of the parties hereto and such holders. In the event that any transferee
of any holder of Registrable Securities shall acquire Registrable Securities, in
any manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action of any kind, be
deemed a beneficiary hereof for all purposes and such Registrable Securities
shall be held subject to all of the terms of this Exchange and Registration
Rights Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by all of the applicable terms and provisions
of this Exchange and Registration Rights Agreement. If the Company shall so
request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Registrable Securities subject to all of the applicable
terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the
24
<PAGE> 25
Registrable Securities pursuant to the Note Purchase Agreement and the transfer
and registration of Registrable Securities by such holder and the consummation
of an Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indenture and
the form of Securities) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
holders of at least a majority in aggregate principal amount at maturity of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of Registrable
Securities shall be made available for inspection and copying on any business
day by any holder of Registrable Securities for proper purposes only (which
shall include any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in Section 9(c) above
and at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Agreed to and accepted as of the date referred to above.
REGAL CINEMAS, INC.
By: /S/ MICHAEL L. CAMPBELL
------------------------------
Name: Michael L. Campbell
Title: Chief Executive Officer
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
As Representatives of the several
Purchasers
By: /S/ GOLDMAN, SACHS & CO.
-----------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Purchasers
25
<PAGE> 26
Exhibit A
REGAL CINEMAS, INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE](1)
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in Regal Cinemas, Inc. (the
"Company") 82% Senior Subordinated Notes due 2007 (the "Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Regal Cinemas,
Inc., 7132 Commercial Park Drive, Knoxville, Tennessee 37918, Attention:
Executive Vice-President-Chief Financial Officer,
- ----------
(1) Not less than 28 calendar days from date of mailing.
<PAGE> 27
REGAL CINEMAS, INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement") between Regal
Cinemas, Inc. (the "Company") and the Purchasers named therein. Pursuant to the
Exchange and Registration Rights Agreement, the Company has filed with the
United States Securities and Exchange Commission (the "Commission") a
registration statement on Form [___] (the "Shelf Registration Statement") for
the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the "Securities Act"), of the Company's 82% Senior Subordinated Notes
due 2007 (the "Securities"). A copy of the Exchange and Registration Rights
Agreement is attached hereto. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Exchange and Registration Rights
Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Exchange and
Registration Rights Agreement.
A-2
<PAGE> 28
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
A-3
<PAGE> 29
QUESTIONNAIRE
(i (A) Full Legal Name of Selling Securityholder:
______________________________________________________________
(B) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
______________________________________________________________
(C) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) below are Held:
______________________________________________________________
(ii Address for Notices to Selling Securityholder:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Telephone: ___________________________
Fax: ___________________________
Contact Person: ___________________________
(iii) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(A) Principal amount at maturity of Registrable Securities
beneficially owned: _________________________________________
CUSIP No(s). of such Registrable Securities:_________________
(B) Principal amount at maturity of Securities other than
Registrable Securities beneficially owned:___________________
A-4
<PAGE> 30
CUSIP No(s). of such other Securities:_______________________
(C) Principal amount at maturity of Registrable Securities which
the undersigned wishes to be included in the Shelf
Registration Statement:______________________________________
CUSIP No(s). of such Registrable Securities to be included in
the Shelf Registration Statement:____________________________
(iv) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(v) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(vi) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Registered Securities may be listed or quoted at
the
A-5
<PAGE> 31
time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M (which governs manipulation, stabilization and trading
activity during a distribution of securities).
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company, and any underwriters in an
underwritten offering of such Selling Securityholder's Registrable Securities
listed in Item(3) above, in connection with the preparation of the Shelf
Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(d) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may
A-6
<PAGE> 32
occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the Exchange
and Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Regal Cinemas, Inc.
7132 Commercial Park Drive
Knoxville, Tennessee 37918
Attention: Executive Vice-President-Chief Financial Officer
(423) 922-1123
(ii) With a copy to:
Bass, Berry & Sims
2700 First American Center
Nashville, Tennessee 37238-2700
Attention: F. Mitchell Walker, Jr.
(615) 742-6200
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
A-7
<PAGE> 33
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated: ________________
_________________________________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:______________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Bass, Berry & Sims
2700 First American Center
Nashville, Tennessee 37238-2700
Attention: F. Mitchell Walker, Jr.
(615) 742-6200
A-8
<PAGE> 34
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
First Bank National Association
Regal Cinemas, Inc.
c/o First Bank National Association
First Trust Center
180 East Fifth Street
St. Paul, MN 55101
Attention: Trust Officer
Re: Regal Cinemas, Inc. (the "Company")
8 1/2% Senior Subordinated Notes due 2007
-----------------------------------------
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount at maturity of the above-referenced
Notes pursuant to an effective Registration Statement on Form [___] (File No.
333-_______) filed by the Company.
We hereby certify that the prospectus delivery requirements,
if any, of the Securities Act of 1933, as amended, have been satisfied and that
the above-named beneficial owner of the Notes is named as a "Selling Holder" in
the Prospectus dated ___________, 199__ or in supplements thereto, and that the
aggregate principal amount at maturity of the Notes transferred are the Notes
listed in such Prospectus opposite such owner's name.
Dated:
Very truly yours,
------------------------------
(Name)
By:
---------------------------
(Authorized Signature)
B-1
<PAGE> 1
Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of July 31, 1997 by and between
Regal Cinemas, Inc. (the "Company") and Cobb Theatres, L.L.C. ("Cobb Theatres"),
each of the former affiliate holders of membership interests of Cobb Theatres
and each of the former affiliate holders of Partnership Interests (as
hereinafter defined) (Cobb Theatres, the former holders of membership interests
in Cobb Theatres and the former holders of Partnership Interests being
collectively referred to herein as the "former Cobb Affiliate Holders").
WHEREAS, as of the date of this Agreement, the former Cobb Affiliate
Holders own 2,837,594 shares of the Company's Common Stock, no par value per
share (the "Stock");
WHEREAS, the Board of Directors has authorized the officers of the
Company to prepare and execute this Agreement, in the name and on behalf of the
Company, to offer certain registration rights to the Holders (as hereinafter
defined), the acceptance of which shall be evidenced by their execution of this
Agreement;
NOW, THEREFORE, the Company and the Holders agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Holder" means each former Cobb Affiliate Holder that owns
Registrable Securities. For purposes of this Agreement, the Company may deem and
treat the registered holder of a Registrable Security as the Holder and absolute
owner thereof, and the Company shall not be affected by any notice to the
contrary.
"Registrable Securities" means (a) the Stock received by
Holders in the Mergers of R.C. Cobb, Inc. ("Cobb I"), Cobb Theatres II, Inc.
("Cobb II") and Cobb Finance Corp ("Cobb Finance"), each a wholly-owned
subsidiary of Cobb Theatres with Regal Acquisition Corporation, RAC Corporation
and RAC Finance Corp., each an Alabama corporation and a wholly owned subsidiary
of the Company (the "Mergers") or any distribution to Holders from Cobb
Theatres, (b) the stock received by Holders in the acquisition of all of the
interests of Tricob Partnership (the "Partnership Interests") and (c) any
securities issued or issuable in respect of the Stock referred to above by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, reclassification, merger or consolidation, and any other
securities issued pursuant to any other pro rata distribution with respect to
such Stock. For purposes of this Agreement, a Registrable Security ceases to be
a Registrable Security when (x) it has been effectively registered under the
Securities Act and sold or distributed to the public in accordance with an
effective registration statement covering it, or (y) it is eligible for sale or
sold, distributed or otherwise disposed of pursuant to Rule 144 or 145 (or any
successor or similar provision) under the Securities Act.
<PAGE> 2
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
2. Demand Registration. (a) Subject to the terms and conditions set
forth herein, if at any time any Holder shall request the Company in writing to
register under the Securities Act all or a part of the Registrable Securities
held by such Holders (a "Demand Registration"), within five business days of
receipt of such request the Company shall serve written notice of such
registration request to all Holders and the Company will include in such
registration all Registrable Securities of such Holders with respect to which
the Company has received written requests for inclusion therein within 5 days
after receipt by the Holders of such notice. The Company shall use all
reasonable efforts to cause to be filed and declared effective as soon as
reasonably practicable a registration statement, on such appropriate form as the
Company in its discretion shall determine, providing for the sale of all of such
Registrable Securities by such Holders; provided, however, that such request
shall express the present intention of the Holders to offer or cause the
offering of such Registrable Securities for distribution in an underwritten
public offering thereof. The registration statement filed pursuant to this
Section 2(a) is hereinafter referred to as the "Demand Registration Statement."
The Company's obligation to use all reasonable efforts to
cause Registrable Securities to be registered in accordance with this Section
2(a) is subject to each of the following limitations, conditions and
qualifications:
(i) No notice given by the Holders shall be effective
hereunder, with respect to the Demand Registration Statement,
until after such time as results covering at least 30 days of
combined operations of Cobb I, Cobb II and Cobb Finance and
the Company have been published by the Company, in the form of
a quarterly earnings report, an effective registration
statement filed with the SEC, a report to the SEC on Form 10-Q
or 8-K, or any other public filing or announcement which
includes such combined results of operations.
(ii) The Company may postpone for a reasonable period
of time, not to exceed 60 days, the filing or the
effectiveness of the registration requested pursuant to this
Section 2(a) if the Company determines that (A) such
registration might have an adverse effect on any plan or
proposal by the Company or any of its subsidiaries with
respect to any financing, acquisition, recapitalization,
reorganization or other material transaction or (B) the
Company is in possession of material non-public information
and disclosure of such information is not in the best
interests of the Company or any of its subsidiaries; provided,
however, that (i) the Company shall give written notice of
such postponement to the Holders and (ii) as soon as the
conditions permitting such delay no longer obtain, the Company
shall give notice of that fact to the Holders participating in
the registration, and shall proceed with the registration
unless such Holders shall have elected, at any time prior to
the close of
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<PAGE> 3
business on the tenth business day after the Company has so
notified such Holders, to withdraw their request for
registration, and such withdrawn request shall not constitute
a request hereunder.
(iii) The Company shall not be required to effect any
registration pursuant to this Section 2(a) unless such
registration relates to 1,000,000 Registrable Securities,
subject to adjustment and for a stock split or stock dividend.
(iv) The obligation of the Company to register
Registrable Securities pursuant to this Section 2(a) shall
expire after one Demand Registration Statement filed by reason
of a request pursuant to Section 2(a) shall have become
effective and remained effective for the period specified in
Section 4(a)(ii) hereof.
(b) The Company agrees that, except as otherwise permitted by
Section 2(d) hereof, it will not effect any public sale or distribution (or any
registration with respect thereto) of any of its Stock during a period beginning
on the 30th day prior to, and ending on the earlier of the 30th day after, the
date such Demand Registration Statement is declared effective or the date when
attempts to effect such registration are abandoned by or at the request of the
Holders participating in such registration (the "Hold-Back Period").
(c) The Company shall have the right to select any recognized
investment banking firm(s) to administer the offering.
(d) The Company and, at the Company's election, any other
holders of Stock with registration rights, may include in any registration
requested pursuant to Section 2(a) any shares of Stock which it or they shall
determine so to include (the "Additional Registrable Securities") and the
consent of the Holders shall not be required with respect thereto; provided,
however, that, if, in the opinion of the managing underwriter of such offering,
the inclusion in such registration statement of all Additional Registrable
Securities would materially interfere with the successful marketing of the
Holders' Registrable Securities, then the number of the Additional Registrable
Securities shall be reduced to such number, if any, that, in the opinion of such
managing underwriter(s), can be included in such underwriting without such
interference with the successful marketing of the Holders' Registrable
Securities.
(e) If, in the opinion of the managing underwriter(s) of any
offering, the distribution of a specified portion of the Holders' shares would
materially interfere with the registration and sale, in accordance with the
intended method thereof, of the initially proposed shares to be offered by all
Holders, then the number of Holders' shares to be included in such registration
statement shall be reduced (pro rata among the Holders on the basis of the
number of shares that each such Holder requested be included) to such number, if
any, that, in the opinion of such managing underwriter(s), can be included
without such interference. If, as a result of the cutback provisions of the
preceding sentence, all Holders are not entitled to include at least 75% of such
Holders' requested shares in such registration, such Holders (as a group) may
elect to withdraw their request
3
<PAGE> 4
to include Holders' shares in such registration (a "Withdrawal Election"); if a
Withdrawal Election is made in accordance with this sentence, then no Demand
Registration shall be deemed to have been made.
(f) As a condition to each Holder's right to include shares in
a registration pursuant to this Section, such Holder shall, if requested by the
Company or the managing underwriter(s) in connection with such registration and
distribution, (A) agree to sell the shares on the basis provided in any
underwriting arrangements entered into in connection therewith and (B) complete
and execute all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents which are customary in similar transactions and
required under the terms of such underwriting arrangements.
3. Piggy-back Registration.
(a) If at any time or times after the date hereof the Company
proposes to make an underwritten registered public offering of its Common Stock
under the Securities Act, other than an offering pursuant to a demand
registration under Section 2 hereof or an offering registered on Form S-8, Form
S-4, or comparable forms, the Company shall, not less than 5 business days prior
to the proposed filing date of the registration form, give written notice of the
proposed registration to the Holders, and at the written request of the Holders
delivered to the Company within 2 business days after the receipt of such
notice, shall include in such registration and offering, and in any underwriting
of such offering, all shares of Common Stock that may have been designated in
the Holders' request.
(b) If a registration in which the Holders have the right to
participate pursuant to this Section 3 is an underwritten primary offering on
behalf of the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration, together with the securities being offered by the Company,
exceeds the number which can be effectively sold in such offering, the Company
shall include in such registration (i) first, the securities of the Company
proposed to be sold by the Company, and (ii) second, to the extent possible, the
Registrable Securities proposed to be sold by the Holder pursuant to such
registration on a pro rata basis among such Holders. If a registration in which
the Holders have the right to participate pursuant to this Section 3 is partly
or wholly an underwritten secondary offering and the managing underwriters
advise the Company and the Holders in writing that in their opinion the number
of securities requested to be included in such registration, together with the
securities being offered by the Company, exceeds the number which can be
effectively sold in such offering and the reasons therefor, then the Company
shall include in such registration (i) first the number of shares of Common
Stock to be sold by the Company, and (ii) second, to the extent possible, the
Registrable Securities proposed to be sold by the Holders and the other selling
shareholders pursuant to such registration, in proportion to the number of
shares of Common Stock so requested by each of them to be included.
4
<PAGE> 5
4. Registration Procedures. (a) Whenever the Company is required to use
all reasonable efforts to effect the registration of any Registrable Securities
under the Securities Act pursuant to the terms and conditions of Section 2(a) or
Section 3 (such Registrable Securities being hereinafter referred to as the
"Subject Shares"), the Company will use all reasonable efforts to effect the
registration of the Subject Shares in accordance with the intended method of
disposition thereof. Without limiting the generality of the foregoing, the
Company will as soon as practicable:
(i) prepare and file with the Securities and Exchange
Commission (the "SEC") a registration statement on any
appropriate form under the Securities Act with respect to the
Subject Shares and use all reasonable efforts to cause such
registration statement to become effective;
(ii) prepare and file with the SEC such amendments
and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with
the provisions of the Securities Act with respect to the
disposition of all Subject Shares and other securities covered
by such registration statement until the earlier of (A) such
time as all of such Subject Shares and other securities have
been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement and (B) the expiration of 15 days after
such registration statement becomes effective; provided, that,
if the offering of Subject Shares pursuant to such
registration statement is terminated or suspended by any stop
order, injunction or other order or requirement of the SEC or
any other governmental agency or court, the foregoing time
period shall be extended by the number of days during the
period from and including the date such stop order, injunction
or other order or requirement becomes effective to and
including the date when such termination or suspension no
longer exists;
(iii) furnish the Holders of the Subject Shares
covered by such registration statement, without charge, such
number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case
without exhibits unless specifically requested), such number
of copies of the prospectus included in such registration
statement (including each preliminary prospectus), such
documents incorporated by reference in such registration
statement or prospectus, and such other documents, as such
Holders may reasonably request;
(iv) use all reasonable efforts to register or
qualify the Subject Shares cov ered by such registration
statement under the securities or blue sky laws of such
jurisdictions as the managing underwriter(s) shall reasonably
recommend, and do any and all other acts and things which may
be reasonably necessary or advisable to enable the Holders to
consummate the disposition in such jurisdictions of the
Subject Shares covered by such registration statement, except
that the Company shall not for any such purpose be required to
(A) qualify generally to do business as a foreign
5
<PAGE> 6
corporation in any jurisdiction wherein it is not so
qualified, (B) subject itself to taxation in any such
jurisdiction wherein it is not so subject, or (C) consent to
general service of process in any such jurisdiction or
otherwise take any action that would subject it to the general
jurisdiction of the courts of any jurisdiction in which it is
not so subject;
(v) otherwise use all reasonable efforts to comply
with all applicable rules and regulations of the SEC;
(vi) furnish, at the Company's expense, unlegended
certificates representing ownership of the securities being
sold in such denominations as shall be requested and instruct
the transfer agent to release any stop transfer orders with
respect to the Subject Shares being sold;
(vii) notify each Holder at any time when a
prospectus relating to the Subject Shares is required to be
delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such
Registration Statement contains any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein (in the case of the prospectus or
any preliminary prospectus, in light of the circumstances
under which they were made) not misleading, and the Company
will, as promptly as practicable thereafter, prepare and file
with the SEC and furnish a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers
of Subject Shares such prospectus will not contain any 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;
(viii) enter into customary agreements (including an
underwriting agreement in customary form in the case of an
underwritten offering); make such representations and
warranties to the Holders and underwriter(s) (in the case of
underwritten offerings) in form, substance and scope as are
customarily made by issuers to sellers or underwriter(s) in
similar offerings;
(ix) make available for inspection by the Holders,
any underwriter or agent participating in any disposition
pursuant to such Registration Statement, and any attorney,
accountant or other similar professional advisor retained by
any such Holders, underwriter(s) or agents (collectively, the
"Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors
and employees to supply all information reasonably requested
by any such Inspector in connection with such Registration
Statement. The Holders agree that Records and other
information which the Company determines to be confidential
and
6
<PAGE> 7
of which determination the Inspectors are so notified shall
not be disclosed by the Inspectors unless (i) the release of
such Records is ordered pursuant to a subpoena, court order or
regulatory or agency request or (ii) the information in such
Records has been generally disseminated to the public. Each
Holder agrees that it will, upon learning that disclosure of
such Record is sought in a court of competent jurisdiction or
by a governmental agency, give notice to the Company and allow
the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Records deemed
confidential;
(x) obtain for delivery to the Company, the
underwriter(s) or agent, with copies to the Holders, a "cold
comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the
type customarily covered by "cold comfort" letters as the
Holders or the managing underwriter(s) reasonably request;
(xi) obtain for delivery to the Holders and the
underwriter(s) or agent an opinion or opinions from counsel
for the Company in customary form and reasonably satisfactory
to the Holders, underwriter(s) or agents and their counsel;
(xii) make available to its security holders earnings
statements, which need not be audited, satisfying the
provisions of Section 11(a) of the Securities Act no later
than 90 days after the end of the 12-month period beginning
with the first month of the Company's first quarter commencing
after the effective date of the Registration Statement, which
earnings statements shall cover said 12 month period;
(xiii) make every reasonable effort to prevent the
issuance of any stop order suspending the effectiveness of the
registration statement or of any order preventing or
suspending the effectiveness of such registration statement at
the earliest possible moment;
(xiv) cause the Subject Shares to be registered with
or approved by such other governmental agencies or authorities
within the United States as may be reasonably necessary to
enable the Holders or the underwriter(s) to consummate the
disposition of such securities;
(xv) cooperate with the Holders and the managing
underwriter(s), or any other interested party (including any
interested broker-dealer) in making any filings or submission
reasonably required to be made, and the furnishing of all
appropriate information in connection therewith, with the
National Association of Securities Dealers, Inc. ("NASD");
7
<PAGE> 8
(xvi) effect the listing of the Subject Shares on the
NASDAQ National Market or other national securities exchange
on which shares of the Company's Stock shall then be listed;
and
(xvii) take all other steps necessary to effect the
registration of the Subject Shares contemplated hereby.
(b) The Holders shall provide (in writing and signed by the
Holders and stated to be specifically for use in the related registration
statement, preliminary prospectus, prospectus or other document incident
thereto) all such information and materials, including without limitation, the
intended plan of distribution, and take all such action as may be required in
order to permit the Company to comply with all applicable requirements of the
SEC and any applicable state securities laws and to obtain any desired
acceleration of the effective date of any registration statement prepared and
filed by the Company pursuant to this Agreement.
(c) Each Holder agrees, that if the managing underwriter so
requires, whether or not any of such Holder's Registrable Securities are
included in such registration, not to effect any sale or distribution, including
any sale pursuant to Rule 144 or 145 of the Securities Act, of any securities of
the Company which are similar to the securities included in such registration
(other than as part of the underwritten offering), without the consent of the
managing underwriter(s), for a period of 120 days after the date notice is given
pursuant to Section 2(a) or Section 3(a) hereof; provided, however, that if the
registration statement filed in connection therewith becomes effective within
such 120-day period, such 120-day period shall be extended for such period as
may be required pursuant to the terms and conditions of any underwriting
agreement entered into in connection with such proposed registration.
(d) The Holders shall, if requested by the Company or the
managing underwriter(s) in connection with any proposed registration and
distribution pursuant to this Agreement, (i) agree to sell the Subject Shares on
the basis provided in any underwriting arrangements entered into in connection
therewith and (ii) complete and execute all questionnaires, powers of attorney,
indemnities, underwriting agreement and other documents customary in similar
offerings.
(e) Upon receipt of any notice from the Company that the
Company has become aware that the prospectus (including any preliminary
prospectus) included in any registration statement filed pursuant to Section
2(a) or Section 3 hereof, as then in effect, contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, the Holders shall
forthwith discontinue disposition of Subject Shares pursuant to the registration
statement covering the same until the Holders' receipt of copies of a
supplemented or amended prospectus and, if so directed by the Company, deliver
to the Company all copies other than permanent file copies then in the Holder's
possession, of the prospectus covering the Subject Shares that was in effect
prior to such amendment or supplement.
8
<PAGE> 9
(f) Holders of the Subject Shares shall pay all out-of-pocket
expenses incurred in connection with the Demand Registration Statement filed
pursuant to Section 2(a) (provided, however, that if the Company or any other
holders sell shares pursuant to Section 2(d) hereof then the Company or such
other holders, as the case may be, shall pay their pro rata share of such
expenses), and the Company shall pay expenses incurred in connection with the
registration statements filed pursuant to Section 3 of this Agreement. Such
expenses shall include, without limitation, all SEC and blue sky registration
and filing fees (including NASD fees), printing expenses, transfer agents and
registrars' fees, fees and disbursements of the Company's counsel and
accountants. Holders shall pay all underwriting discounts, commissions and
expenses attributable to the Subject Shares sold pursuant to any registration
statement.
5. Investment Representations. Each Holder hereby represents and
warrants to, and agrees with the Company that:
(a) the Holder has acquired the Stock for investment.
(b) the Holder's knowledge and expertise in financial and
business matters are such that it is capable of evaluating the merits and risks
of the purchase of the Stock.
(c) the Holder and such of its representatives as it deems
necessary, including professional, tax and legal advisors, have received and had
adequate opportunity to review such information concerning the Company as it
deems necessary for purposes of evaluating an investment in the Stock,
including, but not limited to, the Company's Annual Report on Form 10-K for the
year ended January 2, 1997 and the Company's Quarterly Report on Form 10-Q for
the quarter ended April 3, 1997, which contain various risk factors relating to
an investment in the Stock.
(d) the Holder has been advised that the offering, sale and
delivery of the Stock to it pursuant to the Mergers and/or acquisition of the
Partnership Interests have not been registered under the 1933 Act and that any
public offering or sale or other transfer or disposition by the Holder of any of
the Stock will, under current law, require either (i) compliance with Rule 144
promulgated by the Commission under the 1933 Act, (ii) the registration under
the 1933 Act of the Stock to be offered and sold, or (iii) the availability of
another exemption from such registration under the 1933 Act.
6. Conditions Precedent to Registration. The Company's obligations
under this Agreement to effect the registration of any Registrable Securities
are subject to the agreement to and the performance by the Holders of such
Registrable Securities of the obligations of such Holders contained in this
Agreement. Unless a Holder shall, if requested by the Company, complete, execute
and deliver all agreements, questionnaires, indemnities and other documents
customary in a proposed registration or deemed necessary by the Company to
evidence such Holder's agreements and obligation under this Agreement, the
Company will have no obligation to register such Holder's Registrable
Securities.
9
<PAGE> 10
7. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by telecopy (with correct answer back received), telecopy
or facsimile at the address or number designated below (if delivered on a
business day during normal business hours where such notice is to be received),
or the first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the first business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
service, fully prepaid, addressed to such address, or upon actual receipt of
such mailing whichever shall first occur. The addresses for such communications
shall be:
If to the Company:
Regal Cinemas, Inc.
7132 Commercial Park Drive
Knoxville, TN 37918
Telecopy: (423) 922-6085
with a copy to:
Wagner, Myers & Sanger, P.C.
1801 Plaza Tower
Knoxville, TN 37929
Attention: Herbert S. Sanger, Jr., Esq.
Bass, Berry & Sims PLC
1st American Center, 27th Floor
Nashville, TN 37238
Telecopy: (615) 742-6298
Attention: F. Mitchell Walker, Jr., Esq.
If to a Holder,
to the address of such Holder shown on the stock ledger books
of the Company.
with a copy to:
Sirote & Permutt
222 Arlington Avenue South
Birmingham, Alabama 35205
Attention: David M. Wooldridge
and
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<PAGE> 11
A. V. LaRocca, CPA
LaRocca & Co., P.C.
2101 Highland Avenue, South, Suite 500
Birmingham, AL 35205
The Company may from time to time change its address for
notices under this Section 7 by giving at least 10 days' written notice of such
changed address to each of the Holders. Each Holder may from time to time change
its address for notices under this Section 7 by giving at least 10 days' written
notice of such changed address to the Company.
9. Heading. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
10. Binding Effect; Amendments. This Agreement shall be binding upon
and inure to the benefit of the Company and the Holders; provided, however, that
the Company may amend, modify, or supplement this Agreement at any time without
the consent of the Holders if it determines that such action is in the best
interests of the Company and its shareholders as a whole.
11. No Third Party Beneficiaries; No Assignment. This Agreement is
intended for the benefit of the Company and the Holders and is not for the
benefit of, nor may any provision hereof be enforced by, any other person. The
rights of the Holders hereunder are not assignable.
12. Expiration Date. This Agreement shall expire on July 31, 1999.
13. Governing Law. Upon acceptance by the Holders, this Agreement shall
be governed by and construed and enforced in accordance with the internal laws
of the State of Tennessee without regard to the principles of conflicts of laws.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its authorized officer and the Holders have executed this Agreement,
each as of the date hereof.
REGAL CINEMAS, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
11
<PAGE> 12
HOLDERS:
_____________________________________________
Rowland C. Cobb, Jr.
_____________________________________________
Jefferson R. Cobb
_____________________________________________
Robert M. Cobb
JEFFERSON R. COBB REVOCABLE MANAGEMENT
TRUST
By:__________________________________________
Name:________________________________________
Title:_______________________________________
ROBERT M. COBB REVOCABLE MANAGEMENT TRUST
By:__________________________________________
Name:________________________________________
Title:_______________________________________
COBB THEATRES, L.L.C.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
12
<PAGE> 1
Exhibit 4.11
REGAL CINEMAS, INC.
COBB FINANCE CORP.
R.C. COBB, INC.
COBB THEATRES II, INC.
---------------
10 5/8% SENIOR SECURED NOTES DUE 2003
--------------
FOURTH SUPPLEMENTAL INDENTURE
---------------
DATED AS OF AUGUST 28, 1997
---------------
SUPPLEMENTING INDENTURE DATED AS OF MARCH 6, 1996
---------------
IBJ SCHRODER BANK & TRUST COMPANY
---------------
TRUSTEE
<PAGE> 2
FOURTH SUPPLEMENTAL INDENTURE, dated as of August 28, 1997 (the "Fourth
Supplemental Indenture"), among REGAL CINEMAS, INC., a Tennessee corporation
(the "Company"), COBB FINANCE CORP., an Alabama corporation ("Finance Corp.,"
and together with the Company, the "Issuers"), R.C. COBB, INC. an Alabama
corporation ("R.C. Cobb"), COBB THEATRES II, INC. ("Cobb Theatres II," and
together with R.C. Cobb, the "Guarantors"), and IBJ SCHRODER BANK & TRUST
COMPANY, a New York banking corporation, as trustee (the "Trustee").
WHEREAS, the Issuers and the Guarantors have executed and delivered to
the Trustee that certain Indenture dated as of March 6, 1996 among the Issuers,
the Guarantors and the Trustee (the "Original Indenture"), as amended by that
certain First Supplemental Indenture dated August 30, 1996 (the "First
Supplemental Indenture"), by that certain Second Supplemental Indenture dated
July 30, 1997 (the "Second Supplemental Indenture") and by that certain Third
Supplemental Indenture dated July 31, 1997 (the "Third Supplemental Indenture")
(the Original Indenture as amended by the First Supplemental Indenture, the
Second Supplemental Indenture, the Third Supplemental Indenture and this Fourth
Supplemental Indenture being herein referred to as the "Indenture"); and
WHEREAS, there have been issued and are now outstanding under the
Indenture $85,000,000 principal amount of 10 5/8% New Senior Secured Notes due
2003 (the "Notes"); and
WHEREAS, pursuant to an Agreement and Plan of Merger dated June 11,
1997 among the Company, Regal Acquisition Corporation, RAC Corporation, RAC
Finance Corp., Cobb Theatres, L.L.C., R. C. Cobb, Cobb Theatres II, Finance
Corp. and Tricob Partnership, the Company acquired all of the issued and
outstanding shares of stock of Finance Corp., R. C. Cobb and Cobb Theatres II
(collectively, the "Subsidiaries"); and
WHEREAS, in connection with the mergers, the Company assumed all the
obligations of Cobb Theatres, L.L.C. under the Indenture; and
WHEREAS, Section 4.15 of the Indenture provides that upon a Change of
Control, the Company shall, within ten (10) days following a Change of Control,
make an offer for the purchase of the Notes at a price payable in cash equal to
101% of the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon until the date of purchase; and
WHEREAS, the Company has offered to purchase the Notes for cash, upon
the terms and conditions set forth in an Offer to Purchase and Consent
Solicitation Statement dated as of August 14, 1997 (the "Statement") from all of
the Holders thereof, at a purchase price determined as set forth in the
Statement with reference to a fixed spread of 50 basis points over the yield to
maturity of the United States Treasury 7 1/8% Notes due February 24, 2000 (of
which an amount equal to 1% of the principal amount of each Note purchased shall
constitute a consent payment that will
2
<PAGE> 3
only be paid for Notes tendered on or prior to the Consent Date (as defined in
the Statement)) plus accrued and unpaid interest up to, but not including the
date of payment (the "Tender Offer"); and
WHEREAS, in connection with the Tender Offer, the Company also
solicited consents for certain proposed amendments to the Indenture to eliminate
or amend certain of the covenants and other provisions contained in the
Indenture; and
WHEREAS, Holders who validly tender their Notes are deemed to
acknowledge and agree that the Tender Offer constitutes a waiver of the Holders'
right to receive, and satisfies the obligation of the Company to provide, a
Change of Control Offer, pursuant to Section 4.15 of the Indenture; and
WHEREAS, Section 9.03 of the Indenture provides, in relevant part, that
the Issuers, the Guarantors and the Trustee may enter into indentures
supplemental to the Indenture with the consent of at least 66 2/3% in principal
amount of Notes outstanding to, among other things, delete and/or amend certain
provisions of the Indenture, such consent having been obtained in connection
with the above-described consent solicitation; and
WHEREAS, all things necessary to make this Fourth Supplemental
Indenture a valid and binding supplemental indenture and agreement according to
its terms have been done.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, Finance Corp., the Guarantors and the Trustee
covenant and agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 101. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Original Indenture has the same meaning when
used in this Fourth Supplemental Indenture unless otherwise defined herein (in
which case the definition set forth herein shall govern);
(b) a term defined anywhere in this Fourth Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa; and
(d) headings are for convenience of reference only and do not affect
interpretation.
3
<PAGE> 4
ARTICLE TWO
AMENDMENT
SECTION 201. Deletion of Certain Provisions.
Pursuant to the terms of the Statement, and the consent of 66 2/3% of
the Holders having been obtained by the Company, the Indenture is hereby amended
to delete the following sections in their entirety and any and all references to
such sections shall be deleted throughout the Indenture:
(a) Section 3.09 -- Offer to Purchase by Application of Excess
Proceeds.
(b) Section 4.03 -- Reports.
(c) Section 4.07 -- Restricted Payments.
(d) Section 4.08 -- Dividend and Other Payment Restrictions Affecting
Subsidiaries.
(e) Section 4.09 -- Incurrence of Indebtedness and Issuance of
Disqualified Interests.
(f) Section 4.10 -- Asset Sales.
(g) Section 4.12 -- Transactions with Affiliates.
(h) Section 4.13 -- Liens.
(i) Section 4.14 -- Continued Existence.
(j) Section 4.15 -- Offer to Repurchase Upon Change of Control.
(k) Section 4.16 -- Additional Subsidiary Guarantees.
(l) Section 4.17 -- Limitation on Issuances and Sales of Equity
Interests of Wholly Owned Subsidiaries.
(m) Section 4.18 -- Business Activities.
(n) Section 4.19 -- Advances to Subsidiaries.
(o) Section 4.20 -- Restriction on Nature of Indebtedness and
Activities of Finance Corp.
4
<PAGE> 5
(p) Section 4.21 -- Restriction on Indirect Subsidiaries.
(q) Section 5.01 -- Merger, Consolidation, or Sale of Assets.
SECTION 202. Amendment of Article 10.
Article 10 of the Indenture is hereby deleted in its entirety and any
and all references to Article 10 (or any Section therein) is hereby deleted
throughout the Indenture. The Trustee and the Collateral Agent are hereby
authorized to release the Collateral Documents and all Collateral held pursuant
thereto. In connection therewith, the Trustee shall instruct the Collateral
Agent to release the Liens.
SECTION 203. Amendment of Article 11.
Article 11 of the Indenture in hereby deleted in its entirety and any
and all references to Article 11 (or any Section therein) is hereby deleted
throughout the Indenture, and the Trustee is hereby authorized to release the
Subsidiary Guarantee executed by each of the Guarantors.
SECTION 204. Deletion of Certain Definitions.
In connection with the amendment or deletion of the Sections referenced
in Sections 201, 202 and 203 hereof, Article 1 of the Indenture is hereby
amended to delete the following definitions in their entirety and delete
reference to them throughout the Indenture:
(a) "Acquired Indebtedness";
(b) "Affiliate Transaction";
(c) "Approved Theatre Swap";
(d) "Asset Sale";
(e) "Asset Sale Offer";
(f) "Capital Lease Obligation";
(g) "Cash Equivalents";
(h) "Change of Control";
(i) "Change of Control Offer";
5
<PAGE> 6
(j) "Change of Control Payment";
(k) "Change of Control Payment Date";
(l) "Collateral";
(m) "Collateral Agent";
(n) "Collateral Documents";
(o) "Consolidated Net Income";
(p) "Consolidated Cash Flow";
(q) "Consolidated Net Worth";
(r) "Disqualified Interests";
(s) "Existing Indebtedness";
(t) "Existing Tricob Contracts";
(u) "Fixed Charges";
(v) "Fixed Charge Coverage Ratio";
(w) "Guarantors";
(x) "Guarantee";
(y) "Headquarters Lease";
(z) "Hedging Obligations";
(aa) "Indebtedness";
(bb) "Lien";
(cc) "Obligations";
(dd) "Operating Agreement";
(ee) "Net Income";
6
<PAGE> 7
(ff) "Net Proceeds";
(gg) "Permitted Investments";
(hh) "Permitted Liens";
(ii) "Permitted Refinancing Indebtedness";
(jj) "Restricted Investment";
(kk) "Restricted Payments";
(ll) "Sipsey River Contract";
(mm) "Subsidiary Guaranties"; and
(nn) "Subsidiary Intercompany Notes".
SECTION 206. Amendment of Section 6.01.
In connection with the amendment or deletion of certain covenants in
the Indenture pursuant to Sections 201, 202 and 203 hereof, Section 6.01 of the
Indenture, which sets forth certain events constituting a default under the
Indenture, is hereby amended as follows:
(a) Subsection (a) is hereby amended to delete "or the Guarantors"
in the first line.
(b) Subsection (b) is hereby amended to delete "or the Guarantors"
in the first line.
(c) Subsection (c) is hereby deleted in its entirety.
(d) Subsection (d) is hereby deleted in its entirety and replaced
with the following:
"(d) the Issuers fail to observe or perform any other
covenant, representation, warranty or other agreement in this
Indenture or the Notes and the Default continues for the
period and after the notice specified below;"
(e) Subsection (g) is hereby deleted in its entirety;
(f) Subsection (h) is hereby amended to delete "any Guarantor" in
the first line.
(g) Subsection (j) is hereby deleted in its entirety.
7
<PAGE> 8
SECTION 207. Change of Control Offer.
Holders who validly tender their Notes pursuant to the terms of the
Tender Offer are deemed to acknowledge and agree that the Tender Offer
constitutes a waiver of the Holders' right to receive, and satisfies the
obligation of the Company to provide, a Change of Control Offer, pursuant to
Section 4.15 of the Indenture.
SECTION 208. Name of Notes.
The Notes shall hereafter be referred to as "10 5/8% Notes due 2003."
SECTION 209. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS FOURTH SUPPLEMENTAL INDENTURE, THE INDENTURE,
THE NOTES AND THE GUARANTEES.
SECTION 210. Effectiveness.
Provided that this Fourth Supplemental Indenture has been executed by
all parties hereto and a fully-executed copy has been delivered to the Trustee,
the provisions of this Fourth Supplemental Indenture will take effect upon the
acceptance by the Company of all Notes validly tendered (and not withdrawn)
pursuant to the Tender Offer.
SECTION 211. Reaffirmation of Indenture.
Except as supplemented by this Fourth Supplemental Indenture, the
Original Indenture as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture and the Third Supplemental Indenture is in all
respects ratified and confirmed, and the Original Indenture as supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and this Fourth Supplemental Indenture shall be read,
taken and construed as one and the same instrument so that all of the rights,
remedies, terms and conditions, covenants and agreements of the Original
Indenture, as amended, shall apply and remain in full force and effect.
8
<PAGE> 9
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
REGAL CINEMAS, INC.
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
COBB FINANCE CORP.
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
R.C. COBB, INC.
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
9
<PAGE> 10
COBB THEATRES II, INC.
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
IBJ SCHRODER BANK & TRUST
COMPANY, INC., as Trustee
By:____________________________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
10
<PAGE> 1
Exhibit 5.1
B A S S, B E R R Y & S I M S P L C
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
2700 FIRST AMERICAN CENTER 1700 RIVERVIEW TOWER
NASHVILLE, TENNESSEE 37238-2700 POST OFFICE BOX 1509
TELEPHONE (615) 742-6200 KNOXVILLE, TENNESSEE 37901-1509
TELECOPIER (615) 742-6293 TELEPHONE (423) 521-6200
TELECOPIER (423) 521-6234
November 12, 1997
Regal Cinemas, Inc.
7132 Commercial Park Drive
Knoxville, Tennessee 37918
Re: REGISTRATION STATEMENT ON FORM S-4
Ladies and Gentlemen:
We have acted as your counsel in connection with your preparation of a
Registration Statement on Form S-4 (the "Registration Statement") to be filed by
you with the Securities and Exchange Commission (the "Commission") on November
12, 1997, with respect to $125,000,000 aggregate principal amount of 8 1/2%
Exchange Senior Subordinated Notes due October 1, 2007 (the "Exchange Notes") of
Regal Cinemas, Inc. (the "Company"). The Exchange Notes will be offered in
exchange for the Company's issued and outstanding 8 1/2% Senior Subordinated
Notes due October 1, 2007 (the "Old Notes"), as described in the Registration
Statement.
The Exchange Notes are to be issued pursuant to the terms of an
indenture (the "Indenture") dated September 24, 1997 between the Company and IBJ
Schroder Bank & Trust Company, as trustee (the "Trustee"), and the related
Exchange and Registration Rights Agreement among the Company, Goldman Sachs &
Co. and Lehman Brothers Inc. (the "Registration Rights Agreement").
In connection with this opinion, we have examined and relied upon such
records, documents, certificates, and other instruments as in our judgment are
necessary or appropriate in order to express the opinions hereinafter set forth
and have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based on the foregoing and such other matters as we have deemed
relevant, we are of the opinion that the Exchange Notes, when duly executed and
authenticated in accordance with the terms of the Indenture, and delivered in
exchange for Old Notes in accordance with the terms of the Indenture, will have
been validly issued and will be legally binding obligations of the Company.
We hereby consent to the reference to our law firm in the Registration
Statement under the caption "Legal Matters" and filing of this opinion
with the Commission as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
<PAGE> 1
EXHIBIT 21
SUBSIDIARIES OF THE REGISTRANT
Regal Investment Company, a Delaware corporation
R.C. Cobb, Inc., an Alabama corporation
Cobb Theatres II, Inc., an Alabama corporation
Cobb Finance Corp., an Alabama corporation
<PAGE> 1
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to the
incorporation by reference in this Registration Statement (Form S-4) and related
Prospectus of Regal Cinemas, Inc. for the registration of $125,000,000 of its
senior subordinated notes of our report dated July 2, 1997, with respect to the
consolidated financial statements of Cobb Theatres, L.L.C. for the year ended
December 31, 1996 included in the Current Report on Form 8-K/A (Amendment No. 1)
of Regal Cinemas, Inc. and to the incorporation by reference therein of our
report dated October 23, 1996, with respect to the consolidated financial
statements of Cobb Theatres, L.L.C. for the years ended August 31, 1996 and 1995
included in the Annual Report (Form 10-K) for the year ended August 31, 1996 of
Cobb Theatres, L.L.C., filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Birmingham, Alabama
November 6, 1997
<PAGE> 1
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement (Form S-4) and related Prospectus of Regal Cinemas, Inc.
for the registration of $125,000,000 of its senior subordinated notes and to the
incorporation by reference therein of our report dated March 21, 1995 (with
respect to the financial statements of Neighborhood Entertainment, Inc. not
separately presented), included in the Current Report on Form 8-K/A dated
September 10, 1997 of Regal Cinemas, Inc. filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Richmond, Virginia
November 7, 1997
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration
statement of Regal Cinemas, Inc. on Form S-4 of our report dated November 15,
1994, (with respect to the consolidated financial statements of Cobb Theatres,
L.L.C. not separately presented) appearing in Regal Cinemas, Inc. Current Report
on Form 8 K/A dated September 10, 1997 filed with the Securities and Exchange
Commission. We also consent to the reference of our firm under the caption
"Experts."
/s/ LaRocca & Co., P.C.
LAROCCA & CO., P. C.
Birmingham, Alabama
November 7, 1997
<PAGE> 1
Exhibit 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement of
Regal Cinemas, Inc. on Form S-4 of our report dated February 6, 1997, except for
the combination with Cobb Theatres, L.L.C. ("Cobb Theatres") described in Note 1
as to which the date is July 31, 1997, on our audits of the supplemental
consolidated financial statements of Regal Cinemas, Inc. as of December 28, 1995
and January 2, 1997, and for each of the three years in the period ended January
2, 1997, which report is included in Regal Cinemas, Inc. Current Report on Form
8-K/A, dated September 10, 1997. The supplemental consolidated financial
statements give retroactive effect to the acquisitions of Cobb Theatres and
Neighborhood Entertainment, Inc. ("Neighborhood"), which have been accounted for
as poolings of interests.
We also consent to the incorporation by reference in this registration statement
of our report dated February 6, 1997, on our audits of the consolidated
financial statements of Regal Cinemas, Inc. as of December 28, 1995 and January
2, 1997, and for each of the three years in the period ended January 2, 1997,
which report is included in the Annual Report on Form 10-K of Regal Cinemas,
Inc. for the year ended January 2, 1997, filed with the Securities and Exchange
Commission. We also consent to the reference of our firm under the caption
"Experts."
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Knoxville, Tennessee
November 7, 1997
<PAGE> 1
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)
----------
IBJ SCHRODER BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-5375195
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. national bank) Identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
IBJ SCHRODER BANK & TRUST COMPANY
One State Street
New York, New York 10004
(212) 858-2000
(Name, address and telephone number of agent for service)
REGAL CINEMAS,INC.
(Exact name of obligor as specified in its charter)
Tennessee 62-1412720
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7132 Commercial Park Drive
Knoxville, Tennessee 37918
(Address of principal executive offices) (Zip code)
----------
8 1/2% SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2007
(Title of indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
Item 1. General information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department Two Rector Street, New York,
New York
Federal Deposit Insurance Corporation Washington, D.C.
Federal Reserve Bank of New York Second District 33 Liberty
Street New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Defaults by the Obligor.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of any
such default.
None
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether there
has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
None
Item 13. Defaults by the Obligor.
<PAGE> 3
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of any
such default.
None
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether there
has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
Not Applicable
Item 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
*1. A copy of the Charter of IBJ Schroder Bank & Trust Company as
amended to date. (See Exhibit 1A to Form T-1, Securities and
Exchange Commission File No. 22-18460).
*2. A copy of the Certificate of Authority of the trustee to
Commence Business (Included in Exhibit 1 above).
*3. A copy of the Authorization of the trustee to exercise
corporate trust powers, as amended to date (See Exhibit 4 to
Form T-1, Securities and Exchange Commission File No.
22-19146).
*4. A copy of the existing By-Laws of the trustee, as amended to
date (See Exhibit 4 to Form T-1, Securities and Exchange
Commission File No. 22-19146).
5. Not Applicable
6. The consent of United States institutional trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
<PAGE> 4
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a
reference to the copy of the Exhibit heretofore filed with the
Securities and Exchange Commission, to which there have been no
amendments or changes.
NOTE
In answering any item in this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor and its
directors or officers, the trustee has relied upon information
furnished to it by the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Item 2, the
answer to said Item are based on incomplete information.
Item 2, may, however, be considered as correct unless amended by an
amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to Items
1, 2 and 16 of this form since to the best knowledge of the trustee,
the obligor is not in default under any indenture under which the
applicant is trustee.
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
IBJ Schroder Bank & Trust Company, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York, and State of New York, on the 5th day of November, 1997.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Stephen J. Giurlando
--------------------------------
Stephen J. Giurlando
Assistant Vice President
<PAGE> 6
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, as amended, in connection with the issue by Regal Cinemas, Inc. of its 8
1/2% Senior Subordinated Notes due October 1, 2007, we hereby consent that
reports of examinations by Federal, State, Territorial, or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Stephen J. Giurlando
--------------------------------
Stephen J. Giurlando
Assistant Vice President
Dated: November 5, 1997
<PAGE> 7
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
OF NEW YORK, NEW YORK
AND FOREIGN AND DOMESTIC SUBSIDIARIES
REPORT AS OF JUNE 30, 1997
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN THOUSANDS
--------------
ASSETS
<S> <C>
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ............................................$ 41,319
Interest-bearing balances........................................................................$ 314,579
Securities: Held-to-maturity securities...........................................................$ 180,111
Available-for-sale securities.........................................................$ 47,600
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries and in IBFs:
Federal Funds sold and Securities purchased under agreements to resell...........................$ 694,859
Loans and lease financing receivables:
Loans and leases, net of unearned income.......................................$ 1,955,686
LESS: Allowance for loan and lease losses......................................$ 62,876
LESS: Allocated transfer risk reserve..........................................$ -0-
Loans and leases, net of unearned income, allowance, and reserve.................................$ 1,892,810
Trading assets held in trading accounts..............................................................$ 603
Premises and fixed assets (including capitalized leases).............................................$ 3,709
Other real estate owned..............................................................................$ 202
Investments in unconsolidated subsidiaries and associated companies..................................$ -0-
Customers' liability to this bank on acceptances outstanding.........................................$ 81
Intangible assets....................................................................................$ -0-
Other assets.........................................................................................$ 67,092
TOTAL ASSETS.........................................................................................$ 3,242,965
</TABLE>
<PAGE> 8
LIABILITIES
<TABLE>
<S> <C>
Deposits:
In domestic offices.............................................................................$ 1,694,675
Noninterest-bearing ......................................................$ 263,641
Interest-bearing .........................................................$ 1,431,034
In foreign offices, Edge and Agreement subsidiaries, and IBFs...................................$ 1,121,075
Noninterest-bearing ......................................................$ 17,535
Interest-bearing .........................................................$ 1,103,540
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
Federal Funds purchased and Securities sold under agreements to repurchase......................$ 25,000
Demand notes issued to the U.S. Treasury............................................................$ 60,000
Trading Liabilities.................................................................................$ 140
Other borrowed money:
a) With a remaining maturity of one year or less................................................$ 38,369
b) With a remaining maturity of more than one year..............................................$ 1,763
c) With a remaining maturity of more than three years...........................................$ 2,242
Bank's liability on acceptances executed and outstanding............................................$ 81
Subordinated notes and debentures...................................................................$ -0-
Other liabilities...................................................................................$ 69,908
TOTAL LIABILITIES...................................................................................$ 3,013,253
Limited-life preferred stock and related surplus....................................................$ -0-
EQUITY CAPITAL
Perpetual preferred stock and related surplus.......................................................$ -0-
Common stock........................................................................................$ 29,649
Surplus (exclude all surplus related to preferred stock)............................................$ 217,008
Undivided profits and capital reserves..............................................................$ (17,000)
Net unrealized gains (losses) on available-for-sale securities......................................$ 55
Cumulative foreign currency translation adjustments.................................................$ -0-
TOTAL EQUITY CAPITAL................................................................................$ 229,712
TOTAL LIABILITIES AND EQUITY CAPITAL................................................................$ 3,242,965
</TABLE>
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
FOR
8 1/2% SENIOR SUBORDINATED NOTES
OF
REGAL CINEMAS, INC.
PURSUANT TO THE
EXCHANGE OFFER
IN RESPECT OF
ALL OF ITS OUTSTANDING 8 1/2% SENIOR SUBORDINATED
NOTES DUE OCTOBER 1, 2007
FOR
8 1/2% EXCHANGE SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2007
PURSUANT TO THE PROSPECTUS DATED , 1997
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
1997 UNLESS THE EXCHANGE OFFER IS EXTENDED (THE "EXPIRATION DATE"). TENDERS OF
OLD NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M. ON THE BUSINESS DAY
PRIOR TO THE EXPIRATION DATE.
To: IBJ Schroder Bank & Trust Company as Exchange Agent
<TABLE>
<C> <C> <C>
By Registered or Certified Mail: By Facsimile Transmission: By Hand/Overnight Delivery:
(For Eligible Institutions Only)
IBJ Schroder Bank & Trust Company (212) 858-2611 IBJ Schroder Bank & Trust Company
P.O. Box 84 One State Street Plaza
Bowling Green Station Confirm by Telephone: New York, New York 10004
New York, New York 10274-0084 (212) 858-2103 Attention: Securities Processing
Attention: Reorganization Operations Department Floor SC-1
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION VIA
FACSIMILE, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE EXCHANGE NOTES FOR THEIR OLD
NOTES PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW)
THEIR OLD NOTES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
By execution hereof, the undersigned acknowledges receipt of the Prospectus
(the "Prospectus"), dated , 1997, of Regal Cinemas, Inc., a
Tennessee corporation (the "Company"), which, together with this Letter of
Transmittal and the instructions hereto (the "Letter of Transmittal"),
constitute the Company's offer (the "Exchange Offer") to exchange $1,000
principal amount of its 8 1/2% Exchange Senior Subordinated Notes due October 1,
2007 (the "Exchange Notes") that have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to a Registration Statement
of which the Prospectus constitutes a part, for each $1,000 principal amount of
its outstanding 8 1/2% Senior Subordinated Notes due October 1, 2007 (the "Old
Notes"), upon the terms and subject to the conditions set forth in the
Prospectus.
This Letter of Transmittal is to be used by Holders if: (i) certificates
representing Old Notes are to be physically delivered to the Exchange Agent
herewith by Holders, (ii) tender of Old Notes is to be made through the
Authorized Tender Offer Program ("ATOP") System at The Depository Trust Company
("DTC") pursuant to the procedures set forth in the Prospectus under "The
Exchange Offer -- Procedures
<PAGE> 2
for Tendering" and "-- Book Entry Transfer;" or (iii) tender of Old Notes is to
be made according to the guaranteed delivery procedures set forth in the
Prospectus under "The Exchange Offer -- Procedures for Tendering." DELIVERY OF
DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
Unless the context otherwise requires, the term "Holder" with respect to
the Exchange Offer means any person: (i) in whose name Old Notes are registered
on the books of the Company or any other person who has obtained a properly
completed bond power from the registered Holder; or (ii) whose Old Notes are
held of record by DTC who desires to deliver such Old Notes by participating in
the ATOP System.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders who wish to tender their Old Notes must complete
this letter in its entirety.
All capitalized terms used herein and not defined herein shall have the
meaning ascribed to them in the Prospectus.
The instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the
Prospectus, this Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Exchange Agent. See Instruction 8 herein.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR OLD NOTES
MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY.
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, list the certificate numbers and
principal amounts on a separately executed schedule and affix the schedule to
this Letter of Transmittal. Tenders of Old Notes will be accepted only in
principal amounts equal to $1,000 or integral multiples thereof.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES TENDERED HEREBY
- ---------------------------------------------------------------------------------------------------------
CERTIFICATE OR PRINCIPAL
REGISTRATION AMOUNT
NUMBER(S) TENDERED*
NAME(S) AND ADDRESS(ES) OF HOLDER(S) (ATTACH SIGNED LIST IF (IF LESS THAN
(PLEASE FILL IN) NECESSARY) ALL)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
TOTAL PRINCIPAL AMOUNT OF
OLD NOTES TENDERED
- ---------------------------------------------------------------------------------------------------------
* Need not be completed by Holders who wish to tender with respect to all Old Notes listed.
See Instruction 2.
- ---------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 3
If Holders desire to tender Old Notes pursuant to the Exchange Offer and
(i) certificates representing such Old Notes are not lost but are not
immediately available or (ii) time will not permit this Letter of Transmittal,
certificates representing such Old Notes or other required documents to reach
the Exchange Agent prior to the Expiration Date, such Holders may effect a
tender of such Old Notes in accordance with the guaranteed delivery procedures
set forth in the Prospectus under "The Exchange Offer -- Procedures for
Tendering."
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Holder(s) of Old Notes:
---------------------------------------------------------------------------
Window Ticker No. (if any):
---------------------------------------------------------------------------
Date of Execution of
Notice of Guaranteed Delivery:
---------------------------------------------------------------------------
Name of Eligible Institution that Guaranteed Delivery:
---------------------------------------------------------------------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
---------------------------------------------------------------------------
Address:
---------------------------------------------------------------------------
3
<PAGE> 4
Gentlemen:
Subject to the terms of the Exchange Offer, the undersigned hereby tenders
to the Company the principal amount of Old Notes indicated above. Subject to and
effective upon the acceptance for exchange of the principal amount of Old Notes
tendered in accordance with this Letter of Transmittal, the undersigned sells,
assigns and transfers to, or upon the order of, the Company all right, title and
interest in and to the Old Notes tendered hereby. The undersigned hereby
irrevocably constitutes and appoints the Exchange Agent its agent and
attorney-in-fact (with full knowledge that the Exchange Agent also acts as the
agent of the Company and as Trustee under the Indenture for the Old Notes and
the Exchange Notes) with respect to the tendered Old Notes with full power of
substitution to (i) deliver certificates for such Old Notes to the Company, or
transfer ownership of such Old Notes on the account books maintained by DTC,
together in either such case, with all accompanying evidences of transfer and
authenticity to, or upon the order of, the Company and (ii) present such Old
Notes for transfer on the books of the Company and receive all benefits and
otherwise exercise all rights of beneficial ownership of such Old Notes, all in
accordance with the terms of the Exchange Offer. The power of attorney granted
in this paragraph shall be deemed irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that he or she has full
power and authority to tender, sell, assign and transfer the Old Notes tendered
hereby and that the Company will acquire good and unencumbered title thereto,
free and clear of all liens, restrictions, charges and encumbrances and not
subject to any adverse claim, when the same are acquired by the Company. The
undersigned also acknowledges that this Exchange Offer is being made in reliance
upon an interpretation by the staff of the Securities and Exchange Commission
that the Exchange Notes issued in exchange for the Old Notes pursuant to the
Exchange Offer may be offered for sale, resold and otherwise transferred by
holders thereof (other than any such holder that is an "affiliate" of the
Company within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act provided that such Exchange Notes are acquired in the ordinary
course of such holders' business and such holders have no arrangement with any
person to participate in the distribution of such Exchange Notes.
The undersigned represents that (i) the Exchange Notes acquired pursuant to
the Exchange Offer are being obtained in the ordinary course of such holder's
business, (ii) such holder has no arrangements with any person to participate in
the distribution of such Exchange Notes and (iii) such holder is not an
"affiliate," as defined under Rule 405 of the Securities Act of the Company or,
if such holder is an affiliate, that such holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable. If the undersigned is not a broker-dealer or is a
broker-dealer but will not receive Exchange Notes for its own account in
exchange for Old Notes, the undersigned represents that it is not engaged in,
and does not intend to engage in, a distribution of Exchange Notes. If the
undersigned is a broker-dealer that will receive Exchange Notes for its own
account in exchange for Old Notes, it represents that the Old Notes to be
exchanged for Exchange Notes 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 Securities Act of 1933, as amended,
in connection with any resale of such Exchange Notes acquired pursuant to the
Exchange Offer; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
The undersigned will upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the assignment and transfer of the Old Notes tendered
hereby.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted validly tendered Old Notes when, and if, the Company has given oral or
written notice thereof to the Exchange Agent. If any tendered Old Notes are not
accepted for exchange pursuant to the Exchange Offer for any reason,
certificates for any such unaccepted Old Notes will be returned (except with
respect to tenders through DTC), without expense, to the undersigned at the
address shown below or at a different address shown below or at a different
address as may be indicated under "Special Issuance Instructions" as promptly as
practicable after the Expiration Date.
4
<PAGE> 5
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned and every obligation under this Letter of Transmittal shall be
binding upon the undersigned's heirs, personal representatives, successors and
assigns.
The undersigned understands that the Company reserves the right, at any
time and from time to time, in its sole discretion (subject to its obligation
under the Registration Rights Agreement) (i) to delay accepting any Old Notes or
to delay the issuance and exchange of Exchange Notes for Old Notes, to extend
the Exchange Offer or, if any of the conditions set forth in the Prospectus
under the caption "The Exchange Offer -- Conditions" shall not have been
satisfied, to terminate the Exchange Offer, by giving oral or written notice of
such delay, extension or termination to the Exchange Agent or (ii) to amend the
terms of the Exchange Offer in any manner.
The undersigned understands that tenders of Old Notes pursuant to the
procedures described under the caption "The Exchange Offer -- Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the Exchange Offer. Any tender of Old Notes
pursuant to this Letter of Transmittal may be withdrawn only in accordance with
the applicable procedures set forth herein and in the Prospectus.
Unless otherwise indicated under "Special Issuance Instructions," please
issue the certificates representing the Exchange Notes issued in exchange for
the Old Notes accepted for exchange and return any Old Notes not tendered or not
exchanged, in the name(s) of the undersigned. Similarly, unless otherwise
indicated under "Special Delivery Instructions," please send the certificates
representing the Exchange Notes issued in exchange for the Old Notes accepted
for exchange and any certificates for Old Notes not tendered or not exchanged
(and accompanying documents, as appropriate) to the undersigned at the address
shown below the undersigned's signatures, unless, in either event, tender is
being made through DTC. In the event that both "Special Issuance Instructions"
and "Special Delivery Instructions" are completed, please issue the certificates
representing the Exchange Notes issued in exchange for the Old Notes accepted
for exchange and return any Old Notes not tendered or not exchanged in the
name(s) of, and send said certificates to, the person(s) so indicated. The
undersigned recognizes that the Company has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Old Notes from the name of the registered holder(s) thereof if the Company
does not accept for exchange any of the Old Notes so tendered.
5
<PAGE> 6
SPECIAL ISSUANCE INSTRUCTIONS
To be completed ONLY if the Exchange Notes are to be issued in the name of
someone other than the undersigned.
Name
- -------------------------------------------------------
Address
- -------------------------------------------------------
- -------------------------------------------------------
Book Entry Transfer Facility Account:
- -------------------------------------------------------
Employer Identification or Social Security Number:
- -------------------------------------------------------
(Please print or type)
SPECIAL DELIVERY INSTRUCTIONS
To be completed ONLY if the Exchange Notes are to be sent to someone other
than the undersigned, or to the undersigned at an address other than that shown
above under "Description of Old Notes Tendered Hereby."
Name
- -------------------------------------------------------
Address
- -------------------------------------------------------
- -------------------------------------------------------
- -------------------------------------------------------
(Please print or type)
6
<PAGE> 7
REGISTERED HOLDER(S) OF OLD NOTES SIGN HERE
(In addition, complete Substitute Form W-9 below)
X
- --------------------------------------------------------------------------------
X
- --------------------------------------------------------------------------------
(Signature(s) of Registered Holder(s))
Must be signed by registered holder(s) exactly as name(s) appear(s) on the
Old Notes or on a security position listing as the owner of the Old Notes or by
the person(s) authorized to become registered holder(s) by properly completed
bond powers transmitted herewith. If signature is by attorney-in-fact, trustee,
executor, administrator, guardian, officer of a corporation or other person
acting in a fiduciary capacity, please provide the following information.
(Please print or type):
Name and Capacity (full title):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Address (including zip code):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
Taxpayer Identification or Social Security No:
- --------------------------------------------------------------------------------
Dated:
- ---------------------------
SIGNATURE GUARANTEE
(If Required -- See Instruction 3)
Authorized Signature:
- --------------------------------------------------------------------------------
(Signature of Representative of Signature Guarantor)
Name and Title:
- --------------------------------------------------------------------------------
Name of Plan:
- --------------------------------------------------------------------------------
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
Dated:
- ---------------------------
7
<PAGE> 8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD NOTES. The certificates
for the tendered Old Notes (or a confirmation of a book-entry transfer into the
Exchange Agent's account at DTC in case of Holders participating in the ATOP
System), as well as a properly completed and duly executed copy of this Letter
of Transmittal or facsimile hereof (or electronic acceptance of and agreement to
this Letter of Transmittal in the case of Holders participating through the ATOP
System) and any other documents required by this Letter of Transmittal must be
received by the Exchange Agent at its address set forth herein prior to 5:00
p.m., New York City time, on the Expiration Date. The method of delivery of the
tendered Old Notes, this Letter of Transmittal and all other required documents
to the Exchange Agent is at the election and risk of the Holder and, except as
otherwise provided below, the delivery will be deemed made only when actually
received by the Exchange Agent. Instead of delivery by mail, it is recommended
that the Holder use an overnight or hand delivery service. In all cases,
sufficient time should be allowed to assure timely delivery. No Letters of
Transmittal or Old Notes should be sent to the Company.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available or (ii) who cannot deliver their Old Notes, this Letter of
Transmittal or any other documents required hereby to the Exchange Agent prior
to the Expiration Date must tender their Old Notes and follow the guaranteed
delivery procedures set forth in the Prospectus. Pursuant to such procedures:
(i) such tender must be made by or through an Eligible Institution; (ii) prior
to the Expiration Date, the Exchange Agent must have received from the Eligible
Institution a properly completed and duly executed Notice of Guaranteed Delivery
(by facsimile transmission, mail or hand delivery) setting forth the name and
address of the Holder of the Old Notes, the certificate number or numbers of
such Old Notes and the principal amount of Old Notes tendered, stating that the
tender is being made thereby and guaranteeing that, within five business days
after the Expiration Date, this Letter of Transmittal (or facsimile or
electronic transmission thereof) together with the certificate(s) representing
the Old Notes (or electronic transmission thereof) and any of the required
documents will be deposited by the Eligible Institution with the Exchange Agent;
and (iii) such properly completed and executed Letter of Transmittal (or
facsimile hereof), as well as all other documents required by this Letter of
Transmittal and the certificate(s) representing all tendered Old Notes in proper
form for transfer, must be received by the Exchange Agent within five business
days after the Expiration Date, all as provided in the Prospectus under the
caption "The Exchange Offer -- Guaranteed Delivery Procedures." Any Holder of
Old Notes who wishes to tender Old Notes pursuant to the guaranteed delivery
procedures described above must ensure that the Exchange Agent receives the
Notice of Guaranteed Delivery prior to 5:00 p.m., New York City time, on the
Expiration Date.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Old Notes will be determined by
the Company in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any and all Old Notes
not properly tendered or any Old Notes the Company's acceptance of which would,
in the opinion of counsel for the Company, be unlawful. The Company also
reserves the right to waive any irregularities or conditions of tender as to
particular Old Notes. The Company's interpretation of the terms and conditions
of the Exchange Offer (including the instructions in this Letter of Transmittal)
will be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured within such
time as the Company shall determine. Neither the Company, the Exchange Agent nor
any other person shall be under any duty to give notification of defects or
irregularities with respect to tenders of Old Notes, nor shall any of them incur
any liability for failure to give such notification. Tenders of Old Notes will
not be deemed to have been made until such defects or irregularities have been
cured or waived. Any Old Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned without cost by the Exchange Agent to the
tendering Holders of Old Notes, unless otherwise provided in this Letter of
Transmittal, as soon as practicable following the Expiration Date.
8
<PAGE> 9
2. PARTIAL TENDERS; WITHDRAWALS. Tenders of Old Notes will be accepted in
all denominations of $1,000 and integral multiples in excess thereof. If less
than the entire principal amount of any Old Notes is tendered, the tendering
Holder should fill in the principal amount tendered in the third column of the
chart entitled "Description of Old Notes Tendered Hereby." The entire principal
amount of Old Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated. If the entire principal amount of all Old
Notes is not tendered, Old Notes for the principal amount of Old Notes delivered
to the Exchange Agent will be deemed to have been tendered unless otherwise
indicated. If the entire principal amount of all Old Notes is not tendered, Old
Notes for the principal amount of Old Notes not tendered and a certificate or
certificates representing Exchange Notes issued in exchange of any Old Notes
accepted will be sent to the Holder at his or her registered address, unless a
different address is provided in the appropriate box on this Letter of
Transmittal or unless tender is made through the ATOP System, promptly after the
Old Notes are accepted for exchange.
A tender pursuant to the Exchange Offer may be withdrawn subject to the
procedures set forth in this Letter of Transmittal and the Prospectus, at any
time prior to the Expiration Date, if not theretofore accepted for exchange. To
withdraw a tender of Old Notes in the Exchange Offer, a written, facsimile, or
where applicable, electronic transmission notice of withdrawal must be received
by the Exchange Agent at its address set forth herein prior to 5:00 p.m., New
York City time, on the business day prior to the Expiration Date. Any such
notice of withdrawal must (i) specify the name of the person having deposited
the Old Notes to be withdrawn (the "Depositor"), (ii) specify the serial numbers
on the particular certificates evidencing the Old Notes to be withdrawn and the
name of the registered holder thereof (if certificates have been delivered or
otherwise identified to the Exchange Agent), (iii) be signed by the Holder in
the same manner as the original signature on the Letter of Transmittal by which
such Old Notes were tendered (including any required signature guarantees) or be
accompanied by documents or transfer sufficient to have the Securities Registrar
with respect to the Old Notes register the transfer of such Old Notes into the
name of the person withdrawing the tender, and (iv) specify the name in which
any such Old Notes are to be registered, if different from that of the
Depositor, or, in the case of Holders tendering through the ATOP System,
otherwise comply with the requirements of DTC. All questions as to the validity,
form and eligibility (including time of receipt) of such notices will be
determined by the Company in its sole discretion, which determination shall be
final and binding on all parties. Any Old Notes so withdrawn will be deemed not
to have been validly tendered for purposes of the Exchange Offer and no Exchange
Notes will be issued with respect thereto unless the Old Notes so withdrawn are
validly retendered. Properly withdrawn Old Notes may be retendered by following
one of the procedures described in the Prospectus under the caption "The
Exchange Offer -- Procedures for Tendering" at any time prior to the Expiration
Date.
3. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES. If this Letter of Transmittal (or facsimile hereof) is
signed by the registered Holder(s) of the Old Notes tendered hereby, the
signature must correspond with the name(s) as written on the face of the Old
Notes without alteration, enlargement or any change whatsoever.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder(s) of Old Notes tendered and the certificate(s) for Exchange
Notes issued in exchange therefor is to be issued (or any untendered principal
amount of Old Notes is to be reissued) to the registered Holder, such Holder
need not and should not endorse any tendered Old Note, nor provide a separate
bond power. In any other case, such holder must either properly endorse the Old
Notes tendered or transmit a properly completed separate bond power with this
Letter of Transmittal, with the signatures on the endorsement or bond power
guaranteed by an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a person
other than the registered Holder(s) of any Old Notes listed, such Old Notes must
be endorsed or accompanied by appropriate bond powers signed as the name of the
registered Holder(s) appears on the Old Notes and guaranteed by an Eligible
Institution.
If this Letter of Transmittal (or facsimile hereof) or any Old Notes or
bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, or officers of corporations or others acting in a
9
<PAGE> 10
fiduciary or representative capacity, such persons should so indicate when
signing, and unless waived by the Company, evidence satisfactory to the Company
of their authority so to act must be submitted with this Letter of Transmittal.
Endorsements on Old Notes or signatures on bond powers required by this
Instruction 3 must be guaranteed by an Eligible Institution.
Signatures on this Letter of Transmittal (or facsimile hereof) must be
guaranteed by an Eligible Institution unless the Old Notes tendered pursuant
thereto are tendered (i) by a registered Holder who has not completed the box
set forth herein entitled "Special Issuance Instructions" or the box entitled
"Special Delivery Instructions" or (ii) for the account of an Eligible
Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering Holders should
indicate, in the applicable spaces, the name and address to which Exchange Notes
or substitute Old Notes for principal amounts not tendered or not accepted for
exchange are to be issued or sent, if different from the name and address of the
person signing this Letter of Transmittal. In the case of issuance in a
different name, the taxpayer identification or social security number of the
person named must also be indicated.
5. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Old Notes pursuant to the Exchange Offer. If,
however, certificates representing Exchange Notes or Old Notes for principal
amounts not tendered or accepted for exchange are to be delivered to, or are to
be registered or issued in the name of, any person other than the registered
Holder of the Old Notes tendered hereby, or if tendered Old Notes are registered
in the name of any person other than the person signing this Letter of
Transmittal, or if a transfer tax is imposed for any reason other than the
exchange of Old Notes pursuant to the Exchange Offer, then the amount of any
such transfer taxes (whether imposed on the registered Holder or any other
person) will be payable by the tendering Holder. If satisfactory evidence of
payment of such taxes or exemption therefrom is not submitted with this Letter
of Transmittal, the amount of such transfer taxes will be billed directly to
such tendering Holder.
Except as provided in this Instruction 5, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
6. WAIVER OF CONDITIONS. The Company reserves the absolute right to amend,
waive or modify specified conditions in the Exchange Offer in the case of any
Old Notes tendered.
7. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any tendering Holder
whose Old Notes have been mutilated, lost, stolen or destroyed should contact
the Exchange Agent at the address indicated herein for further instruction.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance and requests for additional copies of the Prospectus, this Letter
of Transmittal or the Notice of Guaranteed Delivery may be directed to the
Exchange Agent at the address specified in the Prospectus. Holders may also
contact their broker, dealer, commercial bank, trust company or other nominee
for assistance concerning the Exchange Offer.
IMPORTANT TAX INFORMATION
Under federal income tax laws, a Holder whose tendered Old Notes are
accepted for payment is required to provide the Exchange Agent (as payer) with
such Holder's correct TIN on Substitute Form W-9 below or otherwise establish a
basis for exemption from backup withholding. If such Holder is an individual,
the TIN is his social security number. If the Exchange Agent is not provided
with the correct TIN, a $500 penalty may be imposed by the Internal Revenue
Service, and payments made with respect to Exchange Notes purchased pursuant to
the Exchange Offer may be subject to backup withholding. A willful failure to
provide a correct TIN may subject a Holder to criminal penalties, including
imprisonment.
Certain Holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt Holders should indicate their exempt status on
10
<PAGE> 11
Substitute Form W-9. A foreign person may qualify as an exempt recipient by
submitting to the Exchange Agent a properly completed Internal Revenue Service
Form W-8, signed under penalties of perjury, attesting to that Holder's exempt
status. A Form W-8 can be obtained from the Exchange Agent. See the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any payments made to the Holder or other payee. Backup withholding is not
an additional federal income tax. Rather, the amount of federal income tax
liability of persons subject to backup withholding that would have to be paid
(through estimated tax payments, other withholding, or other means) will be
reduced by the amount of tax withheld. If backup withholding results in an
overpayment of taxes, a refund may be obtained from the Internal Revenue
Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to the Exchange
Notes, the Holder is required to provide the Exchange Agent with either: (i) the
Holder's correct TIN by completing the form below, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such Holder is awaiting a
TIN) and that (A) the Holder has not been notified by the Internal Revenue
Service that the Holder is subject to backup withholding as a result of failure
to report all interest or dividends or (B) the Internal Revenue Service has
notified the Holder that the Holder is no longer subject to backup withholding;
or (ii) an adequate basis for exemption.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered Holder of
the Old Notes. If the Old Notes are held in more than one name or are held not
in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
11
<PAGE> 12
PAYOR'S NAME: REGAL CINEMAS, INC.
THIS SUBSTITUTE FORM W-9 MUST BE COMPLETED AND SIGNED
Please provide your social security number or other taxpayer identification
number on the following Substitute Form W-9 and certify therein that you are
subject to backup withholding.
<TABLE>
<S> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------
SUBSTITUTE
FORM W-9
PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT
RIGHT AND CERTIFY BY SIGNING AND DATING BELOW.
PART 2 -- CHECK THE BOX IF YOU ARE NOT SUBJECT TO
BACKUP WITHHOLDING UNDER THE PROVISIONS OF SECTION
3406(A)(1)(C) OF THE INTERNAL REVENUE CODE BECAUSE
(1) YOU ARE EXEMPT FROM BACKUP WITHHOLDING, (2) YOU
HAVE NOT BEEN NOTIFIED THAT YOU ARE SUBJECT TO
BACKUP WITHHOLDING AS A RESULT OF FAILURE TO REPORT
ALL INTEREST OR DIVIDENDS OR (3) THE INTERNAL
REVENUE SERVICE HAS NOTIFIED YOU THAT YOU ARE NO
LONGER SUBJECT TO BACKUP WITHHOLDING. [ ]
DEPARTMENT OF THE ---------------------------
TREASURY SOCIAL SECURITY
NUMBER OR EMPLOYER
INTERNAL REVENUE IDENTIFICATION
SERVICE NUMBER
PAYOR'S REQUEST
FOR TAXPAYER
IDENTIFICATION
NUMBER ("TIN")
-----------------------------------------------------------------------------------
CERTIFICATION: UNDER PENALTIES OF PERJURY, I
CERTIFY THAT THE INFORMATION PROVIDED ON THIS FORM
IS TRUE, CORRECT AND COMPLETE.
SIGNATURE: -----------------------------------
DATE: ------------------------------------------
PART 3 --
AWAITING TIN [ ]
------------------------------------------------------------------------------------------------------------------
NOTE: ANY FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY CASH PAYMENTS IN EXCESS
OF $10.00 MADE TO YOU.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9.
------------------------------------------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAX IDENTIFICATION NUMBER
I CERTIFY UNDER PENALTIES OF PERJURY THAT A TAXPAYER IDENTIFICATION NUMBER HAS NOT BEEN ISSUED TO ME, AND EITHER (A) I
HAVE MAILED OR DELIVERED AN APPLICATION TO RECEIVE A TAXPAYER IDENTIFICATION NUMBER TO THE APPROPRIATE INTERNAL REVENUE
SERVICE CENTER OR SOCIAL SECURITY ADMINISTRATION OFFICE, OR (B) I INTEND TO MAIL OR DELIVER AN APPLICATION IN THE NEAR
FUTURE. I UNDERSTAND THAT IF I DO NOT PROVIDE A TAXPAYER IDENTIFICATION NUMBER WITHIN 60 DAYS, 31% OF ALL REPORTABLE
PAYMENTS MADE TO ME THEREAFTER WILL BE WITHHELD, UNTIL I PROVIDE A NUMBER.
------------------------------------------------------ ------------------------------------------------------
Signature Date
------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
<S> <C>
---
---
</TABLE>
12
<PAGE> 13
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
IBJ SCHRODER BANK & TRUST COMPANY
<TABLE>
<C> <C> <C>
By Registered or Certified Mail: By Facsimile: By Hand or Overnight Courier:
IBJ Schroder Bank & Trust Company (212) 858-2611 IBJ Schroder Bank & Trust Company
P.O. Box 84 Confirm by Telephone: One State Street Plaza
Bowling Green Station (212) 858-2103 New York, New York 10004
New York, New York 10274-0084 Attn: Securities Processing
Attn: Reorganization Operations Floor SC-1
Department
</TABLE>
13
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR
8 1/2% SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2007
OF
REGAL CINEMAS, INC.
As set forth in the Prospectus, dated , 1997 (the
"Prospectus"), of Regal Cinemas, Inc. (the "Company") in the section entitled
"The Exchange Offer -- Procedures for Tendering," and in the accompanying Letter
of Transmittal and instructions thereto (the "Letter of Transmittal"), this form
or one substantially equivalent hereto must be used to accept the Company's
exchange offer (the "Exchange Offer") to purchase all of its outstanding 8 1/2%
Senior Subordinated Notes due October 1, 2007 (the "Old Notes") if (i)
certificates representing the Old Notes to be tendered for purchase and payment
are not lost but are not immediately available or (ii) time will not permit the
Letter of Transmittal, certificates representing such Old Notes or other
required documents to reach the Exchange Agent prior to the Expiration Date.
This form may be delivered by an Eligible Institution by mail or hand delivery
or transmitted, via telegram, telex or facsimile, to the Exchange Agent as set
forth below. All capitalized terms used herein but not defined herein shall have
the meanings ascribed to them in the Prospectus.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 1997 UNLESS THE OFFER IS EXTENDED (THE "EXPIRATION DATE").
TENDERS OF OLD NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M. ON THE
BUSINESS DAY PRIOR TO THE EXPIRATION DATE.
THE EXCHANGE AGENT
IBJ SCHRODER BANK & TRUST COMPANY
<TABLE>
<C> <C> <C>
By Registered or Certified By Facsimile Transmission: By Hand/Overnight Delivery:
Mail: (For Eligible Institutions
Only)
IBJ Schroder Bank & Trust (212) 858-2611 IBJ Schroder Bank & Trust
Company Company
P.O. Box 84 One State Street Plaza
Bowling Green Station New York, New York 10004
New York, New York 10274-0084 Confirm by Telephone: Attention: Securities
Attention: Reorganization (212) 858-2103 Processing
Operations Department Floor SC-1
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION VIA TELEGRAM,
TELEX OR FACSIMILE, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
This form is not to be used to guarantee signatures. If a signature on the
Letter of Transmittal is required to be guaranteed by an "Eligible Institution"
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tender(s) to the Company, upon the terms and subject
to the conditions set forth in the Exchange Offer and the Letter of Transmittal,
receipt of which is hereby acknowledged, the aggregate principal amount of Old
Notes set forth below pursuant to the guaranteed delivery procedures set forth
in the Prospectus (and Letter of Transmittal).
<PAGE> 2
The undersigned understands that tenders of Old Notes will be accepted only
in principal amounts equal to $1,000 or integral multiples thereof. The
undersigned understands that tenders of Old Notes pursuant to the Exchange Offer
may not be withdrawn after 5:00 p.m., New York City time on the Business Day
prior to the Expiration Date. Tenders of Old Notes may also be withdrawn if the
Exchange Offer is terminated without any such Old Notes being purchased
thereunder or as otherwise provided in the Prospectus.
All authority herein conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall survive the death or incapacity of the undersigned and
every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
Principal Amount of Old Notes Tendered:*
$
--------------------------------------------------------------
Certificate No(s). (if available):
--------------------------------------------------------------
Total Principal Amount Represented by Certificate(s):
$
--------------------------------------------------------------
*Must be in denominations of principal amount of $1,000 and
any integral multiple thereof.
2
<PAGE> 3
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
PLEASE SIGN HERE
X
- -----------------------------------------------------
X Date:
- ------------------------------------------------------ -----------
Signature(s) of Owner(s)
or Authorized Signatory
Area Code and Telephone Number:
- -----------------------------------------------------
Must be signed by the holder(s) of Old Notes as their name(s) appear(s) on
certificates for Old Notes or on a security position listing, or by person(s)
authorized to become registered holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her full title below. If Old Notes will be delivered by book-entry
transfer to The Depository Trust Company, provide account number.
Please print name(s) and address(es)
Name(s):
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
Capacity:
------------------------------------------------------------------
------------------------------------------------------------------
Address(es):
------------------------------------------------------------------
------------------------------------------------------------------
Account Number:
---------------------------------------------------------------
------------------------------------------------------------------
3
<PAGE> 4
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a financial institution (including most banks, savings and
loan associations and brokerage houses) that is a participant in the Securities
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Program or the Stock Exchanges Medallion Program, hereby guarantees
that the undersigned will deliver to the Exchange Agent the certificates
representing the Old Notes being tendered hereby or confirmation of book-entry
transfer of such Old Notes into the Exchange Agent's account at The Depository
Trust Company, in proper form for transfer, together with any other documents
required by the Letter of Transmittal within three New York Stock Exchange
trading days after the Expiration Date.
Name of Firm
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Area Code & Telephone No.
- --------------------------------------------------------------------------------
Authorized Signature
- --------------------------------------------------------------------------------
Name
- --------------------------------------------------------------------------------
(Please Type or Print)
Title
- --------------------------------------------------------------------------------
Date
- --------------------------------------------------------------------------------
NOTE: DO NOT SEND CERTIFICATES OF OLD NOTES WITH THIS FORM. CERTIFICATES
OF OLD NOTES SHOULD BE SENT ONLY WITH A COPY OF THE PREVIOUSLY
EXECUTED LETTER OF TRANSMITTAL.
4
<PAGE> 1
Exhibit 99.3
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
- ----------------------------------------------------------- -------------------------------------------------------------
GIVE THE GIVE THE EMPLOYER
SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF-- NUMBER OF--
- ----------------------------------------------------------- -------------------------------------------------------------
<C> <S> <C> <C> <C>
1. An individual's account. The individual 7. Corporate account The corporation
2. Two or more individuals (joint The actual owner of 8. Partnership account held in The partnership
account) the account or, if the name of the business
combined funds, the
first individual on the 9. Association, club or other tax The organization
the account(1) exempt organization
3. Custodian account of a minor The minor(2) 10. A broker or registered nominee The broker or nominee
(Uniform Gift to Minors Act) nominee
4. a. The usual revocable savings The grantor-trustee(1) 11. Account with the Department of The public entity
trust account (grantor is Agriculture in the name of a
also trustee) public entity (such as a State or
b. So-called trust account The actual owner(1) local government, school district
that is not a legal or valid or prison) that receives
trust under state law agricultural program payments
5. Sole proprietorship account The owner(3)
6. A valid trust, estate or Legal entity
pension trust
(Do not furnish the
identifying number of
the personal
representative or
trustee unless the
legal entity itself is
not designated in the
account title)(4)
- ----------------------------------------------------------- -------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Show the name of the owner. The name of the business or the "doing business
as" name may also be entered. Either the social security number or the
employer identification number may be used.
(4) List first and circle the name of the legal trust, estate or pension trust.
Note: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number ("TIN") or you don't know
your number obtain Form SS-5, Application for a Social Security Number Card, or
Form SS-4, Application for Employer Identification Number, at the local office
of the Social Security Administration or the Internal Revenue Service and apply
for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on all interest, dividends
and broker transactions payments include the following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a), or an individual
retirement plan, or a custodial account under Section 403(b)(7).
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States or any
subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government or any
agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a).
- An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
- An entity registered at all times under the Investment Company Act of 1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. NOTE: You may be
subject to backup withholding if this interest is $600 or more, and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- Payments described in section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
EXEMPT PAYEES DESCRIBED ABOVE SHOULD FILE FORM W-9 TO AVOID POSSIBLE ERRONEOUS
BACKUP WITHHOLDING. COMPLETE THIS SUBSTITUTE FORM W-9 AS FOLLOWS:
ENTER YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE
FORM, SIGN, DATE AND RETURN THE FORM TO THE PAYER.
Certain payments other than interest, dividends and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the sections 6041, 6041A(a), 6044, 6045, 6049,
6050A and 6050N and the regulations thereunder.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividends,
interest or other payments to give taxpayer identification numbers to payers who
must report the payments to IRS. IRS uses the numbers for identification
purposes and to help verify the accuracy of tax returns. Payers must be given
the numbers whether or not recipients are required to file tax returns. Payers
must generally withhold 31% of taxable interest, dividend and certain other
payments to a payee who does not furnish a taxpayer identification number to a
payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail
to furnish your correct taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure which is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE STATEMENTS WITH RESPECT TO WITHHOLDING. If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Willfully falsifying
certifications or affirmations, may subject you to criminal penalties including
fines and/or imprisonment.
(4) MISUSE OF TAXPAYER IDENTIFICATION NUMBERS. If the payer discloses or uses
taxpayer identification numbers in violation of Federal law, the payer may be
subject to civil and criminal penalties.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
