INDENTURE

 

TABLE OF CONTENTS

 

ARTICLE I Definitions and Incorporation by Reference		1
Section 1.01	Definitions	1
Section 1.02	Other Definitions	24
Section 1.03	Incorporation by Reference of Trust Indenture Act	24
Section 1.04	Rules of Construction	25
ARTICLE II The Securities		26
Section 2.01	Amount of Securities; Issuable in Series	26
Section 2.02	Form and Dating	27
Section 2.03	Execution and Authentication	27
Section 2.04	Registrar and Paying Agent	28
Section 2.05	Paying Agent To Hold Money in Trust	28
Section 2.06	Holder Lists	29
Section 2.07	Replacement Securities	29
Section 2.08	Outstanding Securities	29
Section 2.09	Temporary Securities	29
Section 2.10	Cancellation	30
Section 2.11	Defaulted Interest	30
Section 2.12	CUSIP Numbers, Common Codes or ISINs	31
Section 2.13	Computation of Interest	31
ARTICLE III Redemption		32
Section 3.01	Notices to Trustee	32
Section 3.02	Selection of Securities To Be Redeemed	32
Section 3.03	Notice of Redemption	32
Section 3.04	Effect of Notice of Redemption	33
Section 3.05	Deposit of Redemption Price	33
Section 3.06	Securities Redeemed in Part	33
ARTICLE IV Covenants		34
Section 4.01	Payment of Securities	34
Section 4.02	Corporate Existence	34
Section 4.03	Payment of Taxes and Other Claims	34
Section 4.04	Maintenance of Properties	35
Section 4.05	Limitation on Consolidated Indebtedness	35
Section 4.06	Limitation on Restricted Payments	35
Section 4.07	Limitation on Transactions with Affiliates	39
Section 4.08	Limitation on Liens Securing Indebtedness	41
Section 4.09	Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries	41
Section 4.10	Future Guarantors	43
Section 4.11	Change of Control	43
Section 4.12	Provision of Financial Information	44

 

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Section 4.13	Statement as to Compliance	44
Section 4.14	Waiver of Certain Covenants	44
Section 4.15	Further Instruments and Acts	45
Section 4.16	Payment for Consent	45
Section 4.17	Covenant Suspension	45
ARTICLE V Successor Company		46
Section 5.01	Consolidation	46
Section 5.02	Successor Substituted	47
ARTICLE VI Defaults and Remedies		47
Section 6.01	Events of Default	47
Section 6.02	Acceleration; Rescission and Annulment	49
Section 6.03	Other Remedies	51
Section 6.04	Waiver of Past Defaults	51
Section 6.05	Control by Majority	51
Section 6.06	Limitation on Suits	51
Section 6.07	Rights of Holders to Receive Payment	52
Section 6.08	Collection Suit by Trustee	52
Section 6.09	Trustee May File Proofs of Claim	52
Section 6.10	Priorities	52
Section 6.11	Undertaking for Costs	53
Section 6.12	Waiver of Stay or Extension Laws	53
ARTICLE VII Trustee		53
Section 7.01	Duties of Trustee	53
Section 7.02	Rights of Trustee	55
Section 7.03	Individual Rights of Trustee	56
Section 7.04	Trustee’s Disclaimer	56
Section 7.05	Notice of Defaults	56
Section 7.06	Reports by Trustee to Holders	56
Section 7.07	Compensation and Indemnity	56
Section 7.08	Replacement of Trustee	57
Section 7.09	Successor Trustee by Merger	58
Section 7.10	Eligibility; Disqualification	58
Section 7.11	Preferential Collection of Claims Against Company	59
ARTICLE VIII Discharge of Indenture; Defeasance		59
Section 8.01	Discharge of Liability on Securities; Defeasance	59
Section 8.02	Conditions to Defeasance	60
Section 8.03	Application of Trust Money	61
Section 8.04	Repayment to Company	61
Section 8.05	Indemnity for Government Obligations	62
Section 8.06	Reinstatement	62
ARTICLE IX Amendments		62
Section 9.01	Without Consent of Holders	62

 

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Section 9.02	With Consent of Holders	63
Section 9.03	Compliance with Trust Indenture Act	64
Section 9.04	Revocation and Effect of Consents and Waivers	64
Section 9.05	Notation on or Exchange of Securities	64
Section 9.06	Trustee To Sign Amendments	65
ARTICLE X Guarantees		65
Section 10.01	Parent Guarantee and Subsidiary Guarantees	65
Section 10.02	Execution and Delivery of Parent Guarantee and Subsidiary Guarantees	67
Section 10.03	Limitation on Liability; Termination, Release and Discharge	67
Section 10.04	Right of Contribution	69
Section 10.05	No Subrogation	69
ARTICLE XI Miscellaneous		69
Section 11.01	Trust Indenture Act Controls	69
Section 11.02	Notices	70
Section 11.03	Communication by Holders with Other Holders	71
Section 11.04	Certificate and Opinion as to Conditions	71
Section 11.05	Statements Required in Certificate or Opinions	71
Section 11.06	When Securities Disregarded	72
Section 11.07	Rules by Trustee, Paying Agent and Registrar	72
Section 11.08	Legal Holidays	72
Section 11.09	Governing Law	72
Section 11.10	No Recourse Against Others	72
Section 11.11	Successors	73
Section 11.12	Separability Clause	73
Section 11.13	Reliance on Financial Data	73
Section 11.14	Multiple Originals	73
Section 11.15	Table of Contents; Headings	73

 

Exhibit A		Provisions Relating to Initial Securities and Exchange Securities
Appendix I to Exhibit A		Form of Initial Security
Exhibit B		Form of Certificate to Be Delivered in Connection with Transfers Pursuant to Regulation S
Exhibit C		Form of Guarantee
Exhibit D		Form of Supplemental Indenture to Add Guarantors

 

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INDENTURE dated as of July 15, 2009, among REGAL CINEMAS CORPORATION, a Delaware corporation (the “ Company ”), the Guarantors party hereto from time to time and U.S. Bank National Association, as Trustee (the “ Trustee ”).  Certain capitalized terms used herein have the respective meanings set forth in Article I hereof.

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of (i) the Company’s 8.625% Senior Notes due 2019, issued on the date hereof and the guarantees thereof by the Parent Guarantor and certain of the Company’s subsidiaries (the “ Initial Securities ”), (ii) if and when issued, an unlimited principal amount of additional 8.625% Senior Notes due 2019 that may be offered from time to time in one or more series subsequent to the Issue Date as provided for in this Indenture and the guarantees thereof by certain of the Company’s subsidiaries (the “ Additional Securities ”) and (iii) if and when issued, the Company’s 8.625% Senior Notes due 2019 and the guarantees thereof by certain of the Company’s subsidiaries, that may be issued from time to time in exchange for Initial Securities or for Additional Securities each in offers registered under the Securities Act as provided in a Registration Rights Agreement (as hereinafter defined) (the “ Exchange Securities ”) or if and when issued pursuant to a private exchange of Initial Securities or Additional Securities (the “ Private Exchange Securities ,” and together with the Exchange Securities, the Initial Securities and Additional Securities, the “ Securities ”):

 

ARTICLE I

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01           Definitions .

 

“ 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.

 

“ Additional Interest ” means the additional interest, if any, to be paid on the Initial Securities or any Additional Securities pursuant to any Registration Rights Agreement as described in Exhibit A .  All references in this Indenture to “interest” shall include any Additional Interest.

 

“ 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

 

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such specified Person; or (ii) any other Person that owns, directly or indirectly, 10% or more of such Person’s Capital Stock or any officer or director of any such Person or other Person or with respect to any natural Person, any person having a relationship with such Person by blood, marriage or adoption not more remote than first cousin.  For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“ Applicable Premium ” means, with respect to any Securities on any redemption date, the greater of: (1) 1.0% of the principal amount of the Security; or (2) the excess, if any, of (a) the present value at such redemption date of (i) the redemption price of the Security at July 15, 2014 (such redemption price being set forth in the paragraph 5(c) of the Securities set forth in Exhibit A ), plus (ii) all required interest payments due on such Security through July 15, 2014 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the principal amount of such Security.

 

“ 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.

 

“ 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.

 

“ Board of Directors ” means the Board of Directors of the Company or any committee of such Board of Directors duly authorized to act under this Indenture.

 

“ Board Resolution ” means a copy of a resolution, certified by the Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

“ Business Day ” means any day other than a Saturday or Sunday or other day on which banks in New York, New York, or the city in which the Corporate Trust Office is located, or, if no Security is outstanding, the city in which the principal corporate trust office of the Trustee is located, are authorized or required to be closed.

 

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“ Capital Lease Obligations ” of any Person means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP.

 

“ Capital Stock ” of any Person means any and all shares, interests, participations or other equivalents (however designated) of such Person’s capital stock, including preferred 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 this 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 $500.0 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) above 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; (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; and (vii) investments in money market funds which invest at least 95% of their assets in securities of the types described in clauses (i) through (vi) of this definition.

 

“ Change of Control ” means the occurrence of, after the date of this Indenture, any of the following events: (i) any “person” or “group” as such terms are used in Sections 13(d) and 14(d) of the Exchange Act other than one or more Permitted Holders is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, by way of merger, consolidation or other business combination or purchase of 50% or more of the total voting power of the Voting Stock of the Company; (ii) the adoption of a plan relating to the liquidation or dissolution of the Company; (iii) the sale, lease, transfer or other conveyance, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one or more Permitted Holders; (iv) the first day on which a majority of the members of the REG board of directors are not Continuing Directors; or (v) a change of control under any of the indentures relating to the Existing Notes.

 

“ 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 Sections 310 through

 

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317 of the TIA as they are applicable to the Company, the term “Company” shall include any other obligor with respect to the Securities for the purposes of complying with such provisions.

 

“ Consolidated EBITDA ” means, with respect to any Person for any period, the Consolidated Net Income (Loss) of such Person for such period increased (to the extent deducted in determining Consolidated Net Income (Loss)) by the sum of:

 

(i)         deferred lease expenses;

 

(ii)        all income taxes of such Person and its Subsidiaries paid or accrued in accordance with GAAP for such period (other than income taxes attributable to extraordinary, unusual or non-recurring gains or losses);

 

(iii)       Consolidated Interest Expense of such Person and its Subsidiaries for such period;

 

(iv)       depreciation expense of such Person and its Subsidiaries for such period;

 

(v)        amortization expense of such Person and its Subsidiaries for such period including amortization of capitalized debt issuance costs;

 

(vi)       any other non-cash charges of such Person and its Subsidiaries for such period (including non-cash expenses recognized in accordance with Financial Accounting Standard Number 106), all determined on a consolidated basis in accordance with GAAP; and

 

(vii)      any fees, expenses, charges or premiums relating to any issuance of Capital Stock or issuance, repayment, refinancing, amendment or modification of Indebtedness (in each case, whether or not successful), including, without limitation any fees, expenses or charges related to the offering of the Securities;

 

provided, further , that, solely with respect to calculations of the Consolidated EBITDA Ratio:

 

(i)         Consolidated EBITDA shall include the effects of incremental contributions the Company reasonably believes in good faith could have been achieved during the relevant period as a result of a Theatre Completion had such Theatre Completion occurred as of the beginning of the relevant period; provided ,

 

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however , that such incremental contributions were identified and quantified in good faith in an Officers’ Certificate delivered to the Trustee at the time of any calculation of the Consolidated EBITDA Ratio;

 

(ii)        Consolidated EBITDA shall be calculated on a pro forma basis after giving effect to any motion picture theatre or screen that was permanently or indefinitely closed for business, at any time on or subsequent to the first day of such period as if such theatre or screen was closed for the entire period; and

 

(iii)       All preopening expense and theatre closure expense which reduced (increased) Consolidated Net Income (Loss) during any applicable period shall be added to (subtracted from) Consolidated EBITDA.

 

“ Consolidated EBITDA Ratio ” of any Person means, for any period, the ratio of Consolidated EBITDA to Consolidated Interest Expense for such period (other than any non-cash Consolidated Interest Expense attributable to any amortization or write-off of deferred financing costs); provided that, in making such computation:

 

(i)         if the Company or any Subsidiary:

 

(a)        has Incurred any Indebtedness subsequent to the commencement of the period for which the Consolidated EBITDA Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Consolidated EBITDA Ratio is made, then the Consolidated EBITDA Ratio will be calculated giving pro forma effect to such Incurrence of Indebtedness and the use of the proceeds therefrom as if the same had occurred at the beginning of the applicable four-quarter reference period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation will be deemed to be:

 

(1)       the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding; or

 

(2)       if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation); and

 

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the discharge of any other Indebtedness repaid, repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period; or

 

(b)        has repaid, repurchased, defeased or otherwise discharged any Indebtedness since the beginning of the period that is no longer outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated EBITDA Ratio involves a discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and the related commitment terminated), Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such discharge had occurred on the first day of such period.

 

(ii)           the Consolidated Interest Expense attributable to interest on any Indebtedness computed on a pro forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the date of computation had been the applicable rate for the entire period; and

 

(iii)          with respect to any Indebtedness which bears, at the option of such Person, a fixed or floating rate of interest, such Person shall apply, at its option, either the fixed or floating rate.

 

“ Consolidated Interest Expense ” of any Person means, without duplication, for any period, as applied to any Person: (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 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  (other than any contingent rent paid on Capital Lease Obligations that is deemed to be interest for purposes of GAAP or any interest expense attributable to Deemed Capitalized Leases), 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 (Loss) ” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP, provided, however , in the case of the Company and its Subsidiaries, (i) Consolidated Net Income shall not include management fees from Unrestricted Subsidiaries except to the extent actually received by the Company and its Subsidiaries, (ii) accrued but unpaid compensation expenses related to any stock appreciation, restricted stock or stock option plans shall not be deducted until such time as such expenses

 

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result in a cash expenditure and (iii) compensation expenses related to tax payment plans implemented by the Company from time to time in connection with the exercise and/or repurchase of restricted stock or stock options shall not be deducted from Net Income to the extent of the related tax benefits arising therefrom; provided, further , that: (1) the Net Income of any Person that is not a Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends, distributions or other payments paid in cash to the specified Person or a Subsidiary of the specified Person (or, in the case of a loss, only to the extent funded with cash from the specified Person or a Subsidiary of the specified Person); and (2) any non-cash goodwill or other intangible asset impairment charges incurred subsequent to the Issue Date resulting from the application of SFAS No. 142 (or similar pronouncements) shall be excluded.

 

“ Construction Indebtedness ” means Indebtedness incurred by the Company or its Subsidiaries in connection with the construction of motion picture theatres or screens.

 

“Continuing Directors” means, as of any date of determination, any member of the board of directors of REG who: (1) was a member of REG’s board of directors on the date of this Indenture; (2) was nominated for election or elected to such board of directors with the approval of a majority of the Continuing Directors who were members of such board at the time of such nomination or election; or (3) was nominated for election pursuant to the provisions of the Stockholders Agreement as in effect on the date of this Indenture.

 

“ 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 60 Livingston Avenue, St. Paul, MN 55107-1419, Attention: Corporate Trust Administration.

 

“ Credit Agreement ” means that certain Fifth Amended and Restated Credit Agreement, dated as of October 27, 2006, among Regal Cinemas Corporation, a Delaware corporation, the lenders and issuers party thereto party thereto from time to time, Credit Suisse, Cayman Islands Branch, as administrative agent, and Credit Suisse Securities (USA) LLC, as sole lead arranger and sole book runner, and any related notes, collateral documents, letters of credit, guarantees and other documents, and any appendices, exhibits or schedules to any of the foregoing, as any or all of such agreements may be amended, restated, modified or supplemented from time to time, together with any extensions, revisions, increases, refinancings, renewals, refundings, restructurings or replacements thereof.

 

“ Credit Facilities ” means one or more (i) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, including, without limitation, the Credit Agreement, (ii) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (iii) instruments or agreements evidencing any other Indebtedness, in each case, with the same or different borrowers or issuers and, in each case, as amended, supplemented, modified, extended,

 

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restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.

 

“ Currency Hedging Obligations ” means the obligations of any Person pursuant to an arrangement designed to protect such Person against fluctuations in currency exchange rates.

 

“ Custodian ” means any receiver, interim receiver, receiver and manager, trustee, assignee, liquidator, sequestrate or similar official under any Bankruptcy Law or any other person with like powers.

 

“ DCIP ” means Digital Cinema Implementation Partners, LLC, a Delaware limited liability company, and any similar Person with a primary business purpose of facilitating the implementation of digital cinemas in theatres and agreements and arrangements with respect to the financing of digital cinema and any Person that is a direct or indirect parent thereof and has no independent operations.

 

“ Deemed Capitalized Leases ” means obligations of the Company or any Subsidiary of the Company that are classified as “capital lease obligations” under GAAP due to the application of Emerging Issues Task Force Regulation 97-10 or any subsequent pronouncement having similar effect and, except for such regulation or pronouncement, such obligation would not constitute Capital Lease Obligations.

 

“ Default ” means any event which is, or after notice or the passage of time or both, would be, an Event of Default.

 

“ Digital Projector Financing ” means any financing arrangement in respect of digital projector equipment for use in the ordinary course of business in theatres owned, leased or operated by the Company and its Subsidiaries.

 

“ DTC ” means The Depository Trust Company, a New York corporation, and its successors.

 

“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“ Equity Offering ” means a public or private sale for cash by the Company or of a direct or indirect parent of the Company (the proceeds of which have been contributed to the Company) of common stock or preferred stock (other than Redeemable Capital Stock), or options, warrants or rights with respect to such Person’s common stock or preferred stock (other

 

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than Redeemable Capital Stock), other than public offerings with respect to such Person’s common stock, preferred stock (other than Redeemable Capital Stock), or options, warrants or rights, registered on Form S-4 or S-8.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

“ Existing Notes ” means (i) the 6¼ % convertible senior notes due 2011 issued by REG and (ii) the Existing Subordinated Notes.

 

“ Existing Subordinated Notes ” means the 9 3 / 8 % senior subordinated notes due 2012 issued by the Company.

 

“ 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 as in effect on the Issue Date, consistently applied.

 

“ Government Securities ” means direct obligations (or certificates representing an ownership interest in such obligations) of, or obligations guaranteed by, the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option.

 

“ 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

 

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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.

 

“ Guarantor” means each of Parent Guarantor and Subsidiary Guarantors.

 

“ Guarantor Subordinated Obligation ” means, with respect to a Guarantor, any Indebtedness of such Guarantor (whether outstanding on the Issue Date or thereafter Incurred) which is expressly subordinate in right of payment to the obligations of such Guarantor under its Guarantee pursuant to a written agreement.

 

“ Hedging Obligation ” of any Person means any Currency Hedging Obligation 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 and any obligations of such Person pursuant to any Permitted Interest Rate Protection Agreement.

 

“ Holder ” means the Person in whose name a Security is registered on the Security register described in Section 2.04 as the registered holder of any Security.

 

“ Incur ” means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (by merger, conversion, exchange or otherwise), extend, assume, Guarantee or 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 obligation on the balance sheet of such Person (and “ Incurrence ” and “ Incurred ” shall have meanings correlative to the foregoing); provided , however , that a change in GAAP that results in an obligation (including, without limitation, preferred stock, temporary equity, mezzanine equity or similar classification) of such Person that exists at such time, and is not theretofore classified as Indebtedness, becoming Indebtedness shall not be deemed an Incurrence of such Indebtedness; provided further , however , that any Indebtedness or other obligations of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary; and provided further , however , that solely for purposes of determining compliance with Section 4.05, amortization of debt discount shall not be deemed to be the Incurrence of Indebtedness, provided that in the case of Indebtedness sold at a discount, the amount of such Indebtedness Incurred shall at all times be the aggregate principal amount at stated maturity.

 

“ 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 (x) any trade payables and other accrued current liabilities Incurred in the ordinary course of business and (y) Deemed Capitalized Leases, 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

 

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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) all indebtedness referred to in clauses (i) through (iii) 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; (v) all Guaranteed Indebtedness of such Person; (vi) all obligations under Interest Rate Protection Agreements of such Person; (vii) all Currency Hedging Obligations of such Person; (viii) all Capital Lease 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.

 

“ Interest Rate Protection Agreement ” means any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, option or future contract or other similar agreement or arrangement designed to protect the Company or any of its Subsidiaries against fluctuations in interest rates.

 

“ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

 

“ Issue Date ” means July 15, 2009.

 

“ 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.

 

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“ 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 this 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.

 

“NCM” means National CineMedia, Inc., or its subsidiary National CineMedia, LLC, and any successor entities thereto, respectively.

 

“ Net Cash Proceeds ,” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing arrangements).

 

“ Net Income ” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however, any gain or loss (net of related costs, fees, expenses and with any related provision for taxes on such gain or loss) realized in connection with: (a) any asset sale or (b) the disposition of any securities by such Person or any of its Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Subsidiaries.

 

“ Net Senior Secured Indebtedness ” of any Person means, as of any date of determination, (a) the aggregate amount of Senior Indebtedness secured by a Lien (other than Capital Lease Obligations) of the Company and its Subsidiaries as of such date, less (b) cash and Cash Equivalents of the Company and its Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP.

 

“ 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.

 

“ 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,

 

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damages, gross-up payments and other liabilities payable under the documentation governing any Indebtedness or otherwise.

 

“ Officer ” means the Chief Executive Officer, any Executive Vice President, any Senior Vice President and the Chief Financial Officer of the Company.

 

“ Officers’ Certificate ” means a certificate signed by two Officers.  Each such certificate shall include the statements provided for in TIA 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.

 

“ Parent Entity ” means any Person that is a direct or indirect parent of the Company.

 

“ Parent Guarantee ” means the Guarantee provided by the Parent Guarantor.

 

“ Parent Guarantor ” means REG that shall provide a Parent Guarantee on the date of this Indenture; provided, however, that the Parent Guarantee shall not be directly subject to the covenants under this Indenture.

 

“ Permitted Holder ” means (a) Anschutz Company and any of its Affiliates and (b) REG and wholly-owned Subsidiaries thereof.

 

“ Permitted Indebtedness ” means the following:

 

(i)         Indebtedness of the Company in respect of (x) the Initial Securities (and Indebtedness of the Guarantors in respect of the Subsidiary Guarantees), in each case issued on the Issue Date, and (y) any Exchange Securities or Private Exchange Securities (and Indebtedness of the Guarantors in respect of the Subsidiary Guarantees thereon) issued upon an exchange of such Initial Securities and Subsidiary Guarantees in any registered exchange offer;

 

(ii)        Indebtedness of the Company or any Guarantor under Credit Facilities together with the Guarantees thereunder and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face

 

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amount thereof) in an aggregate principal amount at any one time outstanding not to exceed $1,850.0 million;

 

(iii)       Indebtedness of REG or the Company and its Subsidiaries under the Existing Notes;

 

(iv)       Indebtedness of the Company or any of its Subsidiaries outstanding on the Issue Date (other than the Existing Notes or Indebtedness outstanding under the Credit Facility);

 

(v)        Indebtedness of the Company or any of its Subsidiaries consisting of Permitted Interest Rate Protection Agreements;

 

(vi)       Indebtedness of the Company or any of its Subsidiaries to any one or the other of them;

 

(vii)      Indebtedness Incurred to renew, extend, refinance or refund (each, a “refinancing”) the Existing Notes or any other Indebtedness outstanding on the Issue Date (including the Initial Securities) in an aggregate principal amount not to exceed the principal amount of the Indebtedness so refinanced plus the amount of any premium required to be paid in connection with such refinancing pursuant to the terms of the Indebtedness so refinanced or the amount of any premium reasonably determined by the Company as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase, plus the expenses of the Company incurred in connection with such refinancing;

 

(viii)     Indebtedness of the Parent Guarantor or any Subsidiary Incurred in connection with the Guarantee of any Indebtedness of the Company or the Guarantors in accordance with the provisions of this Indenture; provided that in the event such Indebtedness that is being Guaranteed is a Subordinated Obligation or Guarantor Subordinated Obligation, then the related Guarantee shall be subordinated in right of payment to the Parent Guarantee or the Subsidiary Guarantee, as the case may be;

 

(ix)       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;

 

(x)        Capital Lease Obligations of the Company or any of its Subsidiaries;

 

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(xi)       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;

 

(xii)      Indebtedness represented by property, liability and workers’ compensation insurance (which may be in the form of letters of credit);

 

(xiii)     Acquired Indebtedness; provided that such Indebtedness, if incurred by the Company, would be in compliance with Section 4.05;

 

(xiv)     Indebtedness of the Company or any of its Subsidiaries to an Unrestricted Subsidiary for money borrowed; provided that such Indebtedness is subordinated in right of payment to the Securities and the Weighted Average Life of such Indebtedness is greater than the Weighted Average Life of the Securities;

 

(xv)      Construction Indebtedness in an aggregate principal amount that does not exceed $100.0 million at any time outstanding;

 

(xvi)     Indebtedness of the Company or a Subsidiary Guarantor not otherwise permitted to be Incurred pursuant to clauses (i) through (xv) above which, together with any other Indebtedness Incurred pursuant to this clause (xvi), has an aggregate principal amount that does not exceed $500.0 million at any time outstanding; and

 

(xvii)    Indebtedness incurred by the Company or any of its Subsidiaries with respect to Digital Projector Financing in an aggregate principal amount incurred not to exceed $200.0 million.

 

“ 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.

 

“ Permitted Liens ” means, with respect to any Person:

 

(i)         Liens on the property and assets of the Company and the Guarantors securing Indebtedness and the Guarantees permitted to be Incurred under this Indenture (other than Subordinated Obligations and Guarantor Subordinated Obligations) in an aggregate principal amount not to exceed the greater of (a) the

 

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maximum principal amount of Indebtedness that, as of the date such Indebtedness was Incurred, and after giving effect to the Incurrence of such Indebtedness and the application of proceeds therefrom on such date, would not cause the Senior Secured Leverage Ratio of the Company to exceed 2.75 to 1.00 and (b) the aggregate principal amount of Indebtedness permitted to be Incurred pursuant to clause (ii) of the definition of “Permitted Indebtedness;” provided that in each case the Company may elect pursuant to an Officer’s Certificate delivered to the Trustee to treat all or any portion of the commitment under any Indebtedness as being Incurred at such time, in which case any subsequent Incurrence of Indebtedness under such commitment shall not be deemed, for purposes of this clause (i), to be an Incurrence at such subsequent time;

 

(ii)        pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case Incurred in the ordinary course of business;

 

(iii)       Liens imposed by law, including carriers’, warehousemen’s and mechanics’ Liens and other similar Liens, on the property of the Company or any Subsidiary, in each case arising in the ordinary course of business and securing payment of obligations that are not more than 60 days past due, or are being contested in good faith by appropriate proceedings if a reserve or other appropriate provisions, if any, as shall be required by GAAP shall have been made in respect thereof;

 

(iv)       Liens for taxes, assessments or other governmental charges not yet subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings provided appropriate reserves required pursuant to GAAP have been made in respect thereof;

 

(v)        Liens on the Capital Stock of Unrestricted Subsidiaries;

 

(vi)       Liens in favor of issuers of surety or performance bonds or letters of credit or bankers’ acceptances issued pursuant to the request of and for the account of such Person in the ordinary course of its business; provided , however , that such letters of credit do not constitute Indebtedness;

 

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(vii)      encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or liens incidental to the conduct of the business of such Person or to the ownership of its properties which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

 

(viii)     Liens securing Hedging Obligations so long as the related Indebtedness is, and is permitted to be under this Indenture, secured by a Lien on the same property securing such Hedging Obligation;

 

(ix)       leases, licenses, subleases and sublicenses of assets (including, without limitation, real property and intellectual property rights) which do not materially interfere with the ordinary conduct of the business of the Company and any of its Subsidiaries taken as a whole;

 

(x)        judgment Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;

 

(xi)       Liens for the purpose of securing the payment of all or a part of the purchase price of purchase money obligations or other payments Incurred to finance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business provided that:

 

(a)        the aggregate principal amount of Indebtedness (excluding Acquisition Indebtedness) secured by such Liens does not exceed the cost of the assets or property so acquired or constructed and such Indebtedness (excluding Acquisition Indebtedness) does not exceed $100.0 million in the aggregate at any one time outstanding and does not exceed the cost of assets or property so acquired or constructed ( provided , however , that Deemed Capitalized Leases shall not be subject to this clause (xi)(a)); and

 

(b)        such Liens are created within 180 days of construction or acquisition of such assets or property and do not encumber any other assets or property of the Company or any Subsidiary other than such assets or property and assets affixed or appurtenant thereto;

 

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(xii)      Liens arising solely by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution;

 

(xiii)     Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company and its Subsidiaries in the ordinary course of business;

 

(xiv)     Liens existing on the Issue Date (excluding Liens relating to obligations under the Credit Facilities and Liens of the kind referred to in clause (xi) above);

 

(xv)      Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided further , however , that any such Lien may not extend to any other property owned by the Company or any Subsidiary;

 

(xvi)     Liens on property at the time the Company or a Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Company or any Subsidiary; provided, however, that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such acquisition; provided further, however, that such Liens may not extend to any other property owned by the Company or any Subsidiary;

 

(xvii)    Liens securing Indebtedness or other obligations of a Subsidiary owing to the Company or another Subsidiary;

 

(xviii)   Liens securing the Securities, the Parent Guarantee and the Subsidiary Guarantees;

 

(xix)      Liens securing Indebtedness Incurred to refinance Indebtedness that was previously so secured (other than Liens Incurred pursuant to clauses (i), (xxii) or (xxiii)), provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced;

 

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(xx)       any interest or title of a lessor under any Capital Lease Obligation or operating lease;

 

(xxi)      Liens securing Construction Indebtedness not to exceed $100.0 million;

 

(xxii)     Liens securing letters of credit in an amount not to exceed $30.0 million in the aggregate at any one time; and

 

(xxiii)    other Liens securing Indebtedness in an amount not to exceed $50.0 million in the aggregate at any one time.

 

“ 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.

 

“ Preferred Stock ” as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.

 

“Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Securities publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company that shall be substituted for Moody’s or S&P or both, as the case may be.

 

“ 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 mandatorily redeemable at the option of the holder thereof at any time prior to such final Stated Maturity (except for any such Capital Stock that would be required to be redeemed or is redeemable at the option of the holder if the issuer thereof may redeem such Capital Stock for consideration consisting solely of Capital Stock that is not Redeemable Capital Stock), 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.

 

“ REG ” means Regal Entertainment Group, a Delaware corporation, and any successor entities thereto.

 

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“ Registration Rights Agreement ” means the registration rights agreement among the Company, the Guarantors and Credit Suisse Securities (USA) LLC, as representative of the other initial purchasers, entered into on the Issue Date regarding the Initial Securities and any similar registration rights agreements executed in connection with an offering of any Additional Securities.

 

“ Restricted Payments ” has the meaning set forth in Section 4.06.

 

“ S&P ” means Standard & Poor’s Ratings Service or any successor to the rating agency business thereof.

 

“ SEC ” means the Securities and Exchange Commission.

 

“ Securities Act ” means the Securities Act of 1933, as amended.

 

“ Senior Indebtedness ” means, whether outstanding on the Issue Date or thereafter issued, created, Incurred or assumed, all amounts payable by the Company and its Subsidiaries under or in respect of Indebtedness of the Company and its Subsidiaries, including the Securities, and premiums and accrued and unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any of its Subsidiaries at the rate specified in the documentation with respect thereto whether or not a claim for post filing interest is allowed in such proceeding) and fees relating thereto; provided , however , that Senior Indebtedness will not include:

 

(i)         any obligation of the Company to any Subsidiary or any obligation of a Subsidiary to the Company or another Subsidiary;

 

(ii)       any liability for Federal, state, foreign, local or other taxes owed or owing by the Company or any of its Subsidiaries;

 

(iii)       any accounts payable or other liability to trade creditors arising in the ordinary course of business (including Guarantees thereof or instruments evidencing such liabilities);

 

(iv)       any Indebtedness, Guarantee or obligation of the Company or any of its Subsidiaries that is expressly subordinate or junior in right of payment to any other Indebtedness, Guarantee or obligation of the Company or any of its Subsidiaries, as the case may be, including, without limitation, any Subordinated Obligations or Guarantor Subordinated Obligations; or

 

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(v)        any Capital Stock.

 

“ Senior Secured Leverage Ratio ” of any Person means, for any period, the ratio of (a) Net Senior Secured Indebtedness of such Person and its Subsidiaries as of the date of determination to (b) Consolidated EBITDA of such Person for the four fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred; provided , however , that if the Company or any Subsidiary:

 

(i)         has Incurred any Indebtedness subsequent to the commencement of the period for which the Senior Secured Leverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Senior Secured Leverage Ratio is made, then the Consolidated EBITDA for such period will be calculated after giving effect on a pro forma basis to such Incurrence of Indebtedness and the use of the proceeds therefrom as if the same had been Incurred at the beginning of the applicable four-quarter reference period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation will be deemed to be:

 

(a)        the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding; or

 

(b)        if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation); and

 

the discharge of any other Indebtedness repaid, repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period; or

 

(ii)        has repaid, repurchased, defeased or otherwise discharged any Indebtedness since the beginning of the period that is no longer outstanding on such date of determination or if the transaction giving rise to the need to calculate the Senior Secured Leverage Ratio involves a discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and the related commitment terminated), Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such discharge had occurred on the first day of such period.

 

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“ Significant Subsidiary ” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.

 

“ 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.

 

“Stockholders Agreement” means the Amended and Restated Stockholders Agreement, dated May 14, 2002, between REG and Anschutz Company.

 

“ Subordinated Obligation ” means any Indebtedness of the Company that is subordinate or junior in right of payment to the Securities pursuant to a written agreement.

 

“ Subsidiary ” of any person means: (i) any corporation of which more than 50% of the outstanding shares of Capital Stock having ordinary voting power for the election of directors is owned directly or indirectly by such Person; and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person, directly or indirectly, has more than a 50% equity interest, and, except as otherwise indicated herein, references to Subsidiaries shall refer to Subsidiaries of the Company.  Notwithstanding the foregoing, for purposes hereof, an Unrestricted Subsidiary shall not be deemed a Subsidiary of the Company other than for purposes of the definition of “Unrestricted Subsidiary” unless the Company shall have designated in writing to the Trustee an Unrestricted Subsidiary as a Subsidiary.  A designation of an Unrestricted Subsidiary as a Subsidiary may not thereafter be rescinded.

 

“ Subsidiary Guarantee ” means, individually, any Guarantee of payment of the Securities pursuant to this Indenture by a Subsidiary Guarantor and any supplemental indenture applicable thereto (including pursuant to Exhibit D ), and, collectively, all such Guarantees.  Each such Subsidiary Guarantee will be in the form prescribed in this Indenture.

 

“ Subsidiary Guarantor” means each Subsidiary of the Company that provides a Subsidiary Guarantee on the date of this Indenture and any other Subsidiary of the Company that provides a Subsidiary Guarantee in accordance with this Indenture; provided that upon the release or discharge of such Subsidiary from its Subsidiary Guarantee in accordance with this Indenture, such Subsidiary shall cease to be a Subsidiary Guarantor.

 

“ Surviving Entity ” has the meaning set forth in Section 5.01.

 

“ Theatre Completion ” means any motion picture theatre or screen which was first opened for business by the Company or a Subsidiary, including through mergers, acquisitions or consolidations, during any applicable period.

 

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“ TIA ” means the Trust Indenture Act of 1939 (15 U.S.C.77aaa-77bbbb) as in effect on the Issue Date; provided , however , that, in the event the TIA is amended after such date, “TIA” means, to the extent required by any such amendments, the Trust Indenture Act of 1939 as so amended.

 

“ Trust Officer ” means any officer within the [Corporate Trust Administration] department of the Trustee (or any successor group of the Trustee) with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

“ Trustee ” means the Person named as the “Trustee” in the first paragraph of this instrument, until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.

 

“ U.S. Dollars ,” “ United States Dollars ,” “ US$ ” and the symbol “ $ ” each mean currency of the United States of America.

 

“ Uniform Commercial Code ” means the New York Uniform Commercial Code as in effect from time to time.

 

“ Unrestricted Subsidiary ” means a Subsidiary of the Company designated in writing to the Trustee: (i) whose properties and assets, to the extent they secure Indebtedness, secure only Non-Recourse Indebtedness; and (ii) that has no Indebtedness other than Non-Recourse Indebtedness; and (iii) that has no Subsidiaries other than Unrestricted Subsidiaries.  Notwithstanding the foregoing, DCIP shall be an Unrestricted Subsidiary to the extent the Company acquires additional Equity Interests in DCIP pursuant to a merger or acquisition such that DCIP becomes a Subsidiary of the Company.

 

“ Voting Stock ” of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.

 

“ Weighted Average Life ” means, as of any date, with respect to any debt security, the quotient obtained by dividing (i) the sum of the products of the number of years from such date to the dates of each successive scheduled principal payment (including any sinking fund payment requirements) of such debt security multiplied by the amount of such principal payment, by (ii) the sum of all such principal payments.

 

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“ Wholly Owned Subsidiary ” of any Person means a Subsidiary of such Person, all of the Capital Stock (other than directors’ qualifying shares) or other ownership interests of which shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.

 

Section 1.02           Other Definitions .

 

Term		Defined in Section
“Additional Securities”		Exhibit A
“Change of Control Offer”		4.11
“Change of Control Payment Date”		4.11
“Change of Control Purchase Price”		4.11
“covenant defeasance option”		8.01
“Covenant Suspension Event”		4.17
“Default Interest Payment Date”		2.11
“Default Interest Record Date”		2.11
“Event of Default”		6.01
“Exchange Securities”		Exhibit A
“Global Security”		Exhibit A
“Guarantor Obligations”		10.01
“Initial Securities”		Exhibit A
“legal defeasance option”		8.01
“Legal Holiday”		11.08
“OID”		2.01
“Paying Agent”		2.04
“Private Exchange Securities”		Exhibit A
“QIB”		Exhibit A
“Registered Exchange Offer”		Exhibit A
“Registrar”		2.04
“Relevant Person”		11.13
“Reversion Date”		4.17
“Securities”		Exhibit A
“Securities Custodian”		Exhibit A
“Shelf Registration Statement”		Exhibit A
“Suspended Covenants”		4.17
“Suspension Date”		4.17
“Suspension Period”		4.17

 

Section 1.03           Incorporation by Reference of Trust Indenture Act .  Prior to the effectiveness of the registration statement relating to the Registered Exchange Offer or the Shelf Registration Statement, this Indenture shall incorporate and be governed by the provisions of the TIA.  After the effectiveness of either the registration statement relating to the Registered Exchange Offer or the Shelf Registration Statement, this Indenture shall be subject to the provisions of the TIA that are required to be a part of this Indenture and shall, to the extent

 

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applicable, be governed by such provisions.  The following TIA terms have the following meanings:

 

“Commission” means the SEC.

 

“Indenture securities” means the Securities.

 

“indenture Security Holder” means a Holder.

 

“indenture to be Qualified” means this Indenture.

 

“Indenture Trustee” or “institutional Trustee” means the Trustee.

 

“obligor” on the indenture securities means the Company and any other obligor on the indenture securities.

 

All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.

 

Section 1.04           Rules of Construction .  Unless the context otherwise requires:

 

(a)        a term has the meaning assigned to it;

 

(b)        an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

 

(c)        “or” is not exclusive;

 

(d)        “including” means including without limitation;

 

(e)        words in the singular include the plural and words in the plural include the singular;

 

(f)         unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; and

 

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(g)        the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP.

 

ARTICLE II

 

THE SECURITIES

 

Section 2.01           Amount of Securities; Issuable in Series .  As provided for in Exhibit A hereto, the aggregate principal amount of the Securities which may be authenticated and delivered under this Indenture is unlimited.  All Securities shall be substantially identical in all respects other than issue prices, issuance dates and denominations.  The Securities may be issued in one or more series; provided , however , that any Securities issued with original issue discount (“OID”) for Federal income tax purposes shall not be issued as part of the same series as any Securities that are issued with a different amount of OID or are not issued with OID.

 

Subject to Section 2.03, the Trustee shall authenticate Initial Securities for original issue on the Issue Date in the aggregate principal amount of $400,000,000.  With respect to any Securities issued after the Issue Date (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, Initial Securities pursuant to Section 2.07, 2.09 or 3.06 or Exhibit A ), there shall be established in or pursuant to a resolution of the Board of Directors, and subject to Section 2.03, set forth, or determined in the manner provided in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of such Securities:

 

(a)        whether such Securities shall be issued as part of a new or existing series of Securities and the title of such Securities (which shall distinguish the Securities of the series from Securities of any other series);

 

(b)        the aggregate principal amount of such Securities that may be authenticated and delivered under this Indenture (which shall be calculated without reference to any Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the same series pursuant to Section 2.07, 2.09 or 3.06 or Exhibit A or any Securities which, pursuant to Section 2.03, are deemed never to have been authenticated and delivered hereunder);

 

(c)        the issue price and issuance date of such Securities, including the date from which interest on such Securities shall accrue;

 

(d)        if applicable, that such Securities shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective depositories for such Global Securities, the form of any legend or legends that shall be borne by any such

 

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Global Security in addition to or in lieu of that set forth in Appendix I to Exhibit A and any circumstances in addition to or in lieu of those set forth in Section 2.3 of Exhibit A in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the depository for such Global Security or a nominee thereof; and

 

(e)        if applicable, that such Securities shall not be issued in the form of Initial Securities or Additional Securities, but shall be issued in the form of Private Exchange Securities or Exchange Securities.

 

If any of the terms of any series are established by action taken pursuant to a resolution of the Board of Directors, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate or the trust indenture supplemental hereto setting forth the terms of the series.

 

Section 2.02           Form and Dating .  Provisions relating to the Securities are set forth in Exhibit A , which is hereby incorporated in and expressly made part of this Indenture.   The Securities of each series and the Trustee’s certificate of authentication shall be substantially in the form of Appendix I to Exhibit A which is hereby incorporated in and expressly made a part of this Indenture. Without limiting the generality of the foregoing, Securities offered and sold to QIBs in reliance on Rule 144A shall include the form of assignment set forth in Appendix I to Exhibit A and Securities offered and sold in offshore transactions in reliance on Regulation S (other than Initial Securities offered on the Issue Date) shall include the form of certificate set forth in Exhibit B .  The Securities of each series may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Company is subject, if any, or usage; provided that any such notation, legend or endorsement is in a form reasonably acceptable to the Company.  Each Security shall be dated the date of its authentication.  The terms of the Securities of each series set forth in Appendix I to Exhibit A are part of the terms of this Indenture.

 

Section 2.03           Execution and Authentication .  Two Officers (or one Officer and the Vice President and Secretary of the Company) shall sign the Securities for the Company by manual or facsimile signature.

 

If an Officer whose signature is on a Security no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company in the form of an Officers’ Certificate for the authentication and delivery of such Securities, and the Trustee in accordance with such written order of the Company shall authenticate and deliver such Securities.

 

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A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security.  The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

 

The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities.  Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.

 

The Trustee shall not be required to authenticate such Securities if the issue thereof will adversely affect the Trustee’s own rights, duties, indemnities or immunities under the Securities and this Indenture.

 

Section 2.04           Registrar and Paying Agent .  The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where Securities may be presented for payment (the “Paying Agent”).  The Registrar shall keep a register of the Securities and of their transfer and exchange.  The Company may have one or more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any additional paying agent and “Registrar” includes any co-registrar.

 

The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture, which shall incorporate the terms of the TIA.  The agreement shall implement the provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee of the name and address of any such agent.  If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07.  The Company or any of its domestic Wholly Owned Subsidiaries may act as Paying Agent, Registrar or transfer agent.

 

The Company initially appoints the Trustee as Registrar and Paying Agent in connection with the Securities.

 

Section 2.05           Paying Agent To Hold Money in Trust .  Prior to each due date of the principal and interest (including any Additional Interest) on any Security, the Company shall deposit with the Paying Agent a sum sufficient to pay such principal and interest so becoming due.  The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Securities and shall notify the Trustee of any default by the Company or any Guarantor in making any such payment.  If the Company or a domestic Wholly Owned Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund.  The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any

 

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funds disbursed by the Paying Agent.  Upon complying with this Section, the Paying Agent (if other than the Company or a domestic Wholly Owned Subsidiary) shall have no further liability for the money delivered to the Trustee.

 

Section 2.06           Holder Lists .  The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders and shall otherwise comply with TIA Section 312(a).  If the Trustee is not the Registrar, the Company on its own behalf and on the behalf of each of the Guarantors shall furnish to the Trustee, in writing at least five Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders and the Company and the Guarantors shall otherwise comply with TIA Section 312(a).

 

Section 2.07           Replacement Securities .  If a mutilated security is surrendered to the Registrar or if the Holder of a Security claims that such Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security if the requirements of Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee.  If required by the Trustee or the Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss which any of them may suffer if a Security is replaced.  The Company and the Trustee may charge the Holder for their expenses in replacing a Security.

 

Every replacement Security is an additional obligation of Company.

 

Section 2.08           Outstanding Securities .  Securities outstanding at any time are all Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section as not outstanding.  A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.

 

If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a protected purchaser.

 

If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a redemption date or maturity date money sufficient to pay all principal and interest payable on that date with respect to the Securities (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Securities (or portions thereof) cease to be outstanding and interest, on them ceases to accrue.

 

Section 2.09           Temporary Securities .  Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities.  Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities.  Without

 

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unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities and deliver them in exchange for temporary Securities.  After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at any office or agency maintained by the Company far that purpose and such exchange shall be 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, one or more definitive Securities representing an equal principal amount of Securities.  Until so exchanged, the Holder of temporary Securities shall in all respects be entitled to the same benefits under this Indenture as a Holder of definitive Securities.

 

Section 2.10           Cancellation .  The Company at any time may deliver Securities to the Trustee for cancellation.  The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel (subject to the record retention requirements of the Exchange Act) all Securities surrendered for registration of transfer, exchange, payment or cancellation and deliver cancelled Securities to the Company upon a written direction of the Company.  Except as expressly permitted herein, the Company may not issue new Securities to replace Securities it has redeemed, paid or delivered to the Trustee for cancellation.

 

If the Company or any Guarantor acquires any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.10.  The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a registration of transfer or exchange of such Securities.

 

At such time as all beneficial interests in a Global Security have either been exchanged for definitive Securities, transferred, redeemed, repurchased or canceled, such Global Security shall be returned by DTC to the Trustee for cancellation or retained and canceled by the Trustee.  At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for definitive Securities, transferred in exchange for an interest in another Global Security, redeemed, repurchased or canceled, the principal amount of Securities represented by such Global Security shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Securities Custodian for such Global Security) with respect to such Global Security, by the Trustee or the Securities Custodian, to reflect such reduction.

 

Section 2.11           Defaulted Interest .  If the Company defaults in a payment of interest on the Securities, the Company shall pay the defaulted interest (plus interest on such defaulted interest at the rate borne by the Securities to the extent lawful) in any lawful manner.  The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Security and the date (not less than 30 days after such notice) of the proposed payment (the “Default Interest Payment Date”), 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

 

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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 clause provided.  Thereupon the Trustee shall fix a record date (the “Default Interest Record Date”) for the payment of such defaulted interest, which date shall be not more than 15 days and not less than 10 days prior to the Default Interest Payment Date 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 Default Interest Record Date, and in the name and at the expense of the Company, shall cause notice of the proposed payment of such defaulted interest and the Default Interest Record Date and Default Interest Payment Date therefor to be given in the manner provided for in Section 11.02, not less than 10 days prior to such Default Interest Record Date.  Notice of the proposed payment of such defaulted interest and the Default Interest Record Date and Default Interest Payment Date therefor having been so given, such defaulted interest shall be paid on the Default Interest Payment Date to the Persons in whose names the Securities (or their respective predecessor Securities) are registered at the close of business on such Default Interest Record Date and shall no longer be payable.

 

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 clause, such manner of payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 2.12           CUSIP Numbers, Common Codes or ISINs .  The Company in issuing the Securities may use “CUSIP” numbers, “Common Codes” or “ISINs” (if then generally in use) and, if so, the Trustee shall use “CUSIP” numbers, “Common Codes” or “ISINs” in notices of redemption as a convenience to Holders; provided , however , that neither the Company nor the Trustee shall have any responsibility for any defect in the “CUSIP” number, “Common Code” or “ISIN” that appears on any Security, check, advice of payment or redemption notice, and any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.  The Company shall promptly notify the Trustee in writing of any change in the CUSIP number, Common Code or ISIN.

 

Section 2.13           Computation of Interest .  Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.

 

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ARTICLE III

 

REDEMPTION

 

Section 3.01           Notices to Trustee .  If the Company elects to redeem Securities pursuant to paragraph 5 of the Securities, it shall notify the Trustee in writing of the redemption date, the principal amount of Securities to be redeemed, the redemption price and that such redemption is being made pursuant to paragraph 5 of the Securities.

 

The Company shall give notice to the Trustee provided for in this Section 3.01 at least 45 days but not more than 60 days before the redemption date unless the Trustee consents to a shorter period.  Such notice shall be accompanied by an Officers’ Certificate and an Opinion of Counsel from the Company to the effect that such redemption will comply with the conditions herein.

 

Section 3.02            Selection of Securities To Be Redeemed .  If fewer than all the Securities are to be redeemed at any time, not more than 60 days prior to the redemption date, the Trustee shall select the Securities to be redeemed pro rata or by lot or by a method that complies with applicable legal and securities exchange requirements, if any, and that the Trustee considers fair and appropriate and in accordance with methods generally used at the time of selection by fiduciaries in similar circumstances.  The Trustee shall make the selection from outstanding Securities not previously called for redemption.  The Trustee may select for redemption portions of the principal of Securities that have denominations larger than $2,000.  Securities and portions of them the Trustee selects shall be in amounts of $2,000 or whole multiples of $1,000 in excess thereof.  Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption.  The Trustee shall notify the Company promptly of the Securities or portions of Securities to be redeemed.

 

Section 3.03            Notice of Redemption .  At least 30 days but not more than 60 days before a date for redemption of Securities, the Company shall mail a notice of redemption by first-class mail to each Holder of Securities to be redeemed at its registered address.

 

The notice shall identify the Securities (or portion thereof) to be redeemed (including CUSIP numbers if any) and shall state:

 

(a)         the redemption date;

 

(b)         the redemption price;

 

(c)         the name and address of the Paying Agent;

 

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(d)         that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

(e)         if fewer than all the outstanding Securities are to be redeemed, or if a Security is to be redeemed in part only, the identification and principal amounts of the particular Securities (or portion thereof) to be redeemed;

 

(f)          that, unless the Company defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on Securities (or portion thereof) called for redemption ceases to accrue on and after the redemption date; and

 

(g)         that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities.

 

At the Company’s written request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense.  In such event, the Company shall provide the Trustee with the information required by this Section at least 45 days before the redemption date, unless the Trustee consents to a shorter period.

 

Section 3.04            Effect of Notice of Redemption .  Once notice of redemption is mailed, Securities called for redemption become due and payable on the redemption date and at the redemption price stated in the notice.  Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price stated in the notice, plus accrued interest (including any Additional Interest) to the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment date that is on or prior to the date of redemption).  Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any other Holder.

 

Section 3.05            Deposit of Redemption Price .  Prior to 10:00 a.m., New York City time, on the redemption date, the Company shall deposit with the Paying Agent (or, if the Company or a domestic Wholly Owned Subsidiary is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the redemption price of and accrued interest (including any Additional Interest) (subject to the right of Holders of record on the relevant record date to receive interest (including any Additional Interest) due on the related interest payment date that is on or prior to the date of redemption) on all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption that have been delivered by the Company to the Trustee for cancellation.

 

Section 3.06            Securities Redeemed in Part .  Upon surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall authenticate for the Holder (at the Company’s expense) a new Security equal in principal amount to the unredeemed portion of the Security surrendered.

 

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ARTICLE IV

 

COVENANTS

 

Section 4.01            Payment of Securities .  The Company shall promptly pay the principal of, premium, if any, and interest (including any Additional Interest) on the Securities, in immediately available funds, on the dates and in the manner provided in the Securities and in this Indenture.  Principal, premium, if any, and interest (including any Additional Interest) shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.

 

The Company shall pay interest on overdue principal at the rate specified therefore in the Securities, and it shall pay interest on overdue installments of interest (including any Additional Interest) at the rate borne by the Securities to the extent lawful.

 

The Company and the Guarantors will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery, enforcement or registration of the Securities, the Parent Guarantee, the Subsidiary Guarantees, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Securities, the Parent Guarantee, or the Subsidiary Guarantees, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of the United States, the jurisdiction of incorporation of any successor of the Company or any Guarantor or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Securities, the Parent Guarantee, the Subsidiary Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Securities.  The Company or the Guarantors will indemnify the Holders for any such taxes paid by such Holders.

 

Section 4.02            Corporate Existence .  Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect the corporate existence and corporate power and authority of the Company and each Subsidiary; provided , however , that the Company shall not be required to preserve any such corporate existence and corporate power and authority if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole.

 

Section 4.03            Payment of Taxes and Other Claims .  The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent,

 

(a)         all material taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary; and

 

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(b)         all material lawful claims for labor, materials and supplies, which, if unpaid, might by law become a Lien upon the property of the Company or any Subsidiary that could produce a material adverse effect on the consolidated financial condition of the Company; provided , however , that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.

 

Section 4.04            Maintenance of Properties .  The Company will cause all properties owned by the Company or any Subsidiary or used or held for use in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times, except, in every case, as and to the extent that the Company may be prevented by fire, strikes, lockouts, acts of God, inability to obtain labor or materials, governmental restrictions, enemy action, civil commotion or unavoidable casualty or similar causes beyond the control of the Company; provided , however , that nothing in this Section 4.04 shall prevent the Company from discontinuing the maintenance of any such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders.

 

Section 4.05            Limitation on Consolidated Indebtedness . (a) The Company shall not, and shall not permit any of its Subsidiaries to, Incur any Indebtedness (other than Permitted Indebtedness) unless after giving effect to such event on a pro forma basis the Company’s Consolidated EBITDA Ratio for the four full fiscal quarters immediately preceding such event for which internal financial statements are available, taken as one period, is greater than or equal to 2.00 to 1.00.

 

(b)            For purposes of determining compliance with this Section 4.05, in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Permitted Indebtedness or is entitled to be Incurred pursuant to the ratio set forth in Section 4.05(a) hereof, the Company shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 4.05.

 

Section 4.06            Limitation on Restricted Payments . (a) The Company shall not, and shall not permit its Subsidiaries to, directly or indirectly:

 

(i)     declare or pay any dividend on, or make any distribution in respect of, any shares of the Company’s or any Subsidiary’s Capital Stock (excluding dividends or distributions payable in shares of the Company’s 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

 

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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;

 

(ii)    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; or

 

(iii)   purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations or Guarantor Subordinated Obligations (other than the purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations or Guarantor Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement);

 

(such payments or any other actions described in (i), (ii) and (iii) 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): (A) no Default or Event of Default shall have occurred and be continuing; (B) the Company could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the provisions of Section 4.05; and (C) the aggregate amount of all Restricted Payments declared or made after the Issue Date (including the proposed Restricted Payment) does not exceed the sum of (excluding Restricted Payments permitted by Sections 4.06(b)(iii), 4.06(b)(iv), 4.06(b)(v), 4.06(b)(vi), 4.06(b)(vii), 4.06(b)(viii), and 4.06(b)(x)):

 

(1)        (x) Consolidated EBITDA minus (y) 1.70 times Consolidated Interest Expense, each calculated for the period (taken as one accounting period) from March 28, 2009 to the last day of the Company’s fiscal quarter preceding the date of the applicable proposed Restricted Payment; plus

 

(2)        100% of 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 $25.0 million such Fair Market Value shall be confirmed by an independent appraisal obtained by the Company), received after the Issue Date by the Company from the issuance or sale (other than to any of its Subsidiaries) of shares of Capital

 

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Stock of the Company (other than Redeemable Capital Stock) or warrants, options or rights to purchase such shares of Capital Stock; plus

 

(3)        100% of 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 $25.0 million such Fair Market Value shall be confirmed by an independent appraisal obtained by the Company), received after the Issue Date by the Company from debt securities that have been converted into or exchanged for Capital Stock of the Company or any Parent Entity (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; plus

 

(4)        100% of the principal amount of any of the Existing Subordinated Notes that are converted into Capital Stock of the Company or any Parent Entity (other than Redeemable Capital Stock) after the Issue Date; plus

 

(5)        100% of the aggregate amount of cash and the Fair Market Value of marketable securities or other property contributed to the capital of the Company following the Issue Date (other than by a Subsidiary); plus

 

(6)        to the extent not already included in Consolidated EBITDA, 100% of the aggregate amount of cash and the Fair Market Value of marketable securities or other property received by the Company or a Subsidiary following the Issue Date by means of the sale (other than to the Company or a Subsidiary) of (a) an Unrestricted Subsidiary, or (b) the property held by an Unrestricted Subsidiary, or (c) the Capital Stock of an Unrestricted Subsidiary (other than to the extent the Indebtedness in the Unrestricted Subsidiary constituted Permitted Indebtedness), or receipt of a dividend or any other distribution from an Unrestricted Subsidiary after the Issue Date; plus

 

(7)        in the case of the designation of an Unrestricted Subsidiary as a Subsidiary after the Issue Date, the Fair Market Value of the Company’s and its Subsidiaries’ aggregate interests in such Unrestricted Subsidiary (as determined by the Board of Directors, whose determination shall be conclusive, except that if the Fair Market Value of such interest exceeds $50.0 million such Fair Market Value shall be

 

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confirmed by an independent appraisal obtained by the Company) at the time of the designation of such Unrestricted Subsidiary as a Subsidiary.

 

(b)         Notwithstanding Section 4.06(a), the Company or any of its Subsidiaries may:

 

(i)                        pay dividends on its Capital Stock within 60 days of the declaration thereof if, on the declaration date, such dividends could have been paid in compliance with the foregoing limitation;

 

(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);

 

(iii)                  make any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or Guarantor Subordinated Obligations of any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent (a) sale of, Capital Stock of the Company or any Parent Entity (other than Redeemable Capital Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination), or (b) contributions to the capital of the Company or any Parent Entity (other than by a Subsidiary); provided , however , that the net proceeds from such sale of Capital Stock will be excluded from clause (c)(ii) of Section 4.06(a) hereof;

 

(iv)                 make any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or Guarantor Subordinated Obligations of any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Obligations of the Company or any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Guarantor Subordinated Obligations made by exchange for or out of the proceeds of the substantially concurrent sale of Guarantor Subordinated Obligations that, in each case, is permitted to be Incurred pursuant to Section 4.05 hereof;

 

(v)                    in the case of a Subsidiary, pay dividends (or in the case of any partnership or limited liability company, any similar distribution) to the holders of its Capital Stock on a pro rata basis;

 

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(vi)                 make any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock of the Company or any Parent Entity (A) deemed to occur upon the exercise of stock options to the extent such Capital Stock represents a portion of the exercise price of such options or (B) in connection with the terms of any restricted stock option agreement awarded to any employee, officer or director of the Company or its Subsidiaries;

 

(vii)              make interest payments in connection with, or any other payments for the retirement or redemption of, the Existing Subordinated Notes, or make distributions to the Parent Guarantor solely for the purpose of making interest payments in connection with, or any payment for the retirement or redemption of, the 6¼% convertible senior notes due 2011 issued by the Parent Guarantor;

 

(viii)           make other Restricted Payments in an aggregate amount not to exceed $400.0 million;

 

(ix)                   make any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligation at a purchase price not greater than 101% of the principal amount of such Subordinated Obligation plus accrued and unpaid interest in the event of a Change of Control in accordance with provisions similar to Section 4.11 hereof; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company has made the Change of Control Offer (as defined herein) as provided in such covenant with respect to the Securities and has completed the repurchase or redemption of all such Securities validly tendered for payment in connection with such Change of Control Offer; and

 

(x)                      the declaration and payment of any dividend or distribution by the Company to the holders of its Capital Stock on a pro rata basis (a) the Capital Stock of NCM or net proceeds from the sale or disposition of Capital Stock of NCM, or (b) in an aggregate amount not to exceed $150.0 million during any twelve month period.

 

Section 4.07            Limitation on Transactions with Affiliates .  (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, ex