1
EXHIBIT 10.5
COBB THEATRES, L.L.C.
COBB FINANCE CORP.
RC COBB, INC.
COBB THEATRES, II, INC.
REGAL CINEMAS, INC.
10 5/8% SENIOR SECURED NOTES DUE 2003
and
10 5/8% NEW SENIOR SECURED NOTES DUE 2003
THIRD SUPPLEMENTAL INDENTURE
Dated as of July 31, 1997
Supplementing Indenture dated as of March 6, 1996
IBJ SCHRODER BANK & TRUST COMPANY
Trustee
2
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS
SECTION 101. DEFINITION OF TERMS....................................... 3
ARTICLE TWO
ASSUMPTION OF OBLIGATIONS
SECTION 201. ASSUMPTION BY REGAL OF OBLIGATIONS OF THE
COMPANY UNDER THE NOTES AND THE INDENTURE................. 5
SECTION 202. SUBSTITUTION OF REGAL AS ISSUER........................... 5
SECTION 203. REAFFIRMATION BY FINANCE CORP. OF
OBLIGATIONS UNDER THE NOTES AND THE INDENTURE............. 6
SECTION 204. REAFFIRMATION BY GUARANTORS OF OBLIGATIONS OF
THE GUARANTORS UNDER THE INDENTURE........................ 6
SECTION 205. COUNTERPART ORIGINALS..................................... 6
SECTION 206. GOVERNING LAW............................................. 6
SECTION 207. EFFECTIVENESS............................................. 6
SECTION 208. NOTICES................................................... 6
SECTION 209. REAFFIRMATION OF INDENTURE................................ 7
i
3
THIRD SUPPLEMENTAL INDENTURE, dated as of July 31, 1997 (the "Third
Supplemental Indenture"), among COBB THEATRES, L.L.C., an Alabama limited
liability company (the "Company"), COBB FINANCE CORP., an Alabama corporation
("Finance Corp," and together with the Company, the "Issuers"), R. C. COBB,
INC., an Alabama corporation ("R. C. Cobb"), COBB THEATRES II, INC. ("Cobb
Theatres II," and together with R. C. Cobb, the "Guarantors"), REGAL CINEMAS,
INC., a Tennessee corporation ("Regal"), and IBJ SCHRODER BANK & TRUST COMPANY,
a New York banking corporation, as trustee (the "Trustee").
WHEREAS, the Issuers and the Guarantors have executed and delivered to
the Trustee that certain Indenture dated as of March 6, 1996 among the Issuers,
the Guarantors and the Trustee (the "Original Indenture"), as amended by that
certain First Supplemental Indenture dated August 30, 1996 (the "First
Supplemental Indenture") and by that certain Second Supplemental Indenture dated
July 30, 1997 (the "Second Supplemental Indenture") (the Original Indenture as
amended by the First Supplemental Indenture, the Second Supplemental Indenture
and this Third Supplemental Indenture being herein referred to as the
"Indenture"); and
WHEREAS, there have been issued and are now outstanding under the
Indenture $85,000,000 principal amount of 10 5/8% New Senior Secured Notes due
2003 (the "Notes"); and
WHEREAS, the Company owns all of the issued and outstanding shares of
stock of Finance Corp, R. C. Cobb and Cobb Theatres II (collectively, the
"Subsidiaries"); and
WHEREAS, the Company has executed and delivered to IBJ Schroder Bank &
Trust Company as Collateral Agent (the "Collateral Agent") that certain Pledge
Agreement dated as of March 6, 1996, pursuant to which the Company has pledged
and delivered to the Collateral Agent its stock of Finance Corp and the
Guarantors (the "Pledged Shares") and certain intercompany notes in the
aggregate principal amount of approximately $85,000,000 owing from the
Guarantors to the Company (the "Pledged Notes") to secure the obligations of the
Company under the Notes and the Indenture; and
WHEREAS, pursuant to Article 11 of the Original Indenture each of the
Guarantors has guaranteed payment of principal of and interest and premium, if
any, on the Notes (the "Guaranty"); and
WHEREAS, each of the Company, Finance Corp and the Guarantors has
executed and delivered to the Collateral Agent that certain Security Agreement
dated as of March 6, 1996, pursuant to which each of the Company, Finance Corp
and the Guarantors has granted to the Collateral Agent a security interest in
all of its personal property assets to secure the obligations of the Company,
Finance Corp and the Guarantors under the Notes and the Indenture; and
1
4
WHEREAS, Regal, a wholly-owned subsidiary of Regal Cinemas, Inc., owns
all of the issued and outstanding shares of stock of Regal Acquisitions
Corporation, an Alabama corporation ("Regal I"), RAC Corporation, an Alabama
corporation ("Regal II"), and RAC Finance Corp., an Alabama corporation ("Regal
Finance," and together with Regal, Regal I and Regal II, the "Regal Entities");
and
WHEREAS, the Regal Entities, the Company and the Subsidiaries have
entered into an Agreement and Plan of Merger pursuant to which, among other
things, (a) Regal I will merge into R. C. Cobb, Regal II will merge into Cobb
Theatres II, and Regal Finance will merge into Finance Corp, with the
Subsidiaries being the surviving entities, (b) the Company will transfer to
Regal all of its assets, which consist solely of the Pledged Shares the Pledged
Notes, and (c) Regal will transfer to the Company shares of stock of Regal; and
WHEREAS, as a condition to the consummation of the transactions
contemplated by the Agreement and Plan of Merger, the Company shall cause all of
the issued and outstanding shares of the Subsidiaries to be reissued in the name
of Regal (the "Reissued Pledged Shares"); and
WHEREAS, a condition to the consummation of the transactions
contemplated by the Agreement and Plan of Merger is Regal's assumption of all of
the indebtedness of the Company in connection with the Notes and Regal's
substitution for the Company as an "Issuer" under the Notes and the Indenture;
and
WHEREAS, Section 5.01(a) of the Indenture provides that the Company may
not sell or otherwise transfer all or substantially all of its properties or
assets to another person unless, among other things, immediately after such
transaction no Default or Event of Default exists and the transferee (i) assumes
all of the obligations of the Company under the Notes and the Indenture pursuant
to a supplemental indenture reasonably satisfactory to the Trustee and (ii)
satisfies certain other criteria enumerated therein; and
WHEREAS, Section 5.01(b) of the Indenture provides that Finance Corp
may not merge with another corporation or person unless, among other things,
Finance Corp is the surviving entity and immediately after such transaction no
Default or Event of Default exists; and
WHEREAS, Section 5.02 of the Indenture provides in pertinent part that
upon any sale or disposition of all or substantially all of the assets of an
Issuer in accordance with Section 5.01 thereof, the successor corporation to
which such sale or disposition is made shall succeed to and be substituted for
(so that from and after the date of such sale or other disposition the
provisions of the Indenture referring to such "Issuer" shall refer instead to
the successor corporation and not to the Issuer), and that the predecessor
Issuer shall be relieved from its obligations with respect to the Notes in the
case of a transaction that satisfies the requirements of Section 5.01 of the
Indenture; and
2
5
WHEREAS, Section 11.03(b) of the Indenture permits the Guarantors to
merge with unrelated entities if, among other things, immediately after such
transaction no Default or Event of Default exists and the surviving entity
satisfies certain other criteria enumerated therein; and
WHEREAS, the criteria enumerated in Sections 5.01, 5.02 and 11.03 of
the Indenture have been satisfied to the satisfaction of the Trustee; and
WHEREAS, Section 9.01 of the Indenture provides, in relevant part, that
the Issuers, the Guarantors and the Trustee may enter into indentures
supplemental to the Indenture without the consent of any holder of a Note to,
among other things, evidence the succession of another Person or Persons to any
Issuer or Guarantor, the assumption by any such successor of the obligations and
covenants of such Issuer or Guarantor contained in the Indenture and the Notes,
and the substitution of any such successor for any Issuer or Guarantor under the
Indenture and the Notes, to the extent such succession, assumption and
substitution is authorized pursuant to Article V or Article XI of the Indenture;
and
WHEREAS, Regal has executed and delivered to the Trustee a Pledge
Agreement (the "Substitute Pledge Agreement") pursuant to which Regal has
pledged to the Trustee for the benefit of the Noteholders all of its right,
title and interest in the Reissued Shares and the Pledged Notes; and
WHEREAS, each of Regal and the Surviving Entities has executed and
delivered to the Trustee a Security Agreement (the "Substitute Security
Agreement") pursuant to which each of Regal and the Surviving Entities has
granted to the Trustee for the benefit of the Noteholders certain assets; and
WHEREAS, all things necessary to make this Third Supplemental Indenture
a valid and binding supplemental indenture and agreement according to its terms
have been done;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, Finance Corp, the Guarantors, Regal and the Trustee
covenant and agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 101. DEFINITION OF TERMS.
Unless the context otherwise requires:
3
6
(a) a term defined in the Original Indenture has the same meaning when
used in this Third Supplemental Indenture unless otherwise defined herein (in
which case the definition set forth herein shall govern);
(b) a term defined anywhere in this Third Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa; and
(d) headings are for convenience of reference only and do not affect
interpretation.
"Cobb Entities" means the Company, Finance Corp and the Guarantors.
"Cobb Theatres II" means Cobb Theatres, II, Inc., an Alabama
corporation.
"Collateral Agent" means IBJ Schroder Bank & Trust Company.
"Company" means Cobb Theatres, L.L.C., an Alabama limited liability
company.
"Finance Corp" means Cobb Finance Corp., an Alabama corporation.
"First Supplemental Indenture" has the meaning set forth in the
recitals above.
"Guarantors" means R. C. Cobb and Cobb Theatres II.
"Guaranty" has the meaning set forth in the recitals above.
"Indenture" means the Original Indenture, as supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture and this Third
Supplemental Indenture, as the same may from time to time be further
supplemented or amended by one or more supplemental indentures thereto.
"Issuers" means the Company and Finance Corp.
"Original Indenture" has the meaning set forth in the recitals above.
"Pledged Notes" has the meaning set forth in the recitals above.
"Pledged Shares" has the meaning set forth in the recitals above.
"R. C. Cobb" means R.C. Cobb, Inc., an Alabama corporation.
"Regal" means Regal Cinemas, Inc., a Tennessee corporation].
"Regal I" means Regal Acquisitions Corporation, an Alabama corporation.
4
7
"Regal II" means RAC Corporation, an Alabama corporation.
"Regal Entities" means Regal, Regal I, Regal II and Regal Finance.
"Regal Finance" means RAC Finance Corp., an Alabama corporation.
"Reissued Pledged Shares" has the meaning set forth in the recitals
above.
"Second Supplemental Indenture" has the meaning set forth in the
recitals above.
"Subsidiaries" has the meaning set forth in the recitals above.
"Substitute Pledge Agreement" has the meaning set forth in the recitals
above.
"Substitute Security Agreement" has the meaning set forth in the
recitals above.
"Surviving Entities" means (i) the corporation surviving the merger of
Finance Corp and Regal Finance, which shall be Finance Corp; (ii) the
corporation surviving the merger of R. C. Cobb and Regal I, which shall be R. C.
Cobb; and (iii) the corporation surviving the merger of Cobb Theatres II and
Regal II, which shall be Cobb Theatres II.
"Third Supplemental Indenture" has the meaning set forth in the
recitals above.
"Trustee" means the Person named as "Trustee" in the first paragraph of
this Third Supplemental Indenture until a successor replaces it in accordance
with the applicable provisions of the Indenture, and thereafter "Trustee" shall
mean such successor.
ARTICLE TWO
ASSUMPTION OF OBLIGATIONS
SECTION 201. ASSUMPTION BY REGAL OF OBLIGATIONS OF THE COMPANY UNDER THE
NOTES AND THE INDENTURE.
Regal hereby assumes and agrees to comply with all of the obligations
of the Company under the Notes and the Indenture and hereby succeeds to and is
substituted for the Company thereunder.
SECTION 202. SUBSTITUTION OF REGAL FOR THE COMPANY.
In accordance with Section 5.02 of the Indenture, Regal hereby succeeds
to, and is substituted for, the Company under the Notes and the Indenture, and
from and after the date hereof, (a) the provisions of the Indenture and the
Notes referring to the "Issuer" or the "Issuers" shall refer instead to Regal
and Finance Corp and not to the Company, (b) Regal may exercise every right and
power of the Company under the Notes and the Indenture with the same effect as
if Regal had been named as an Issuer, pledgor or grantor
5
8
therein, and (c) the Company is hereby relieved of its obligation to pay the
principal of and interest on the Notes and its other obligations, agreements and
covenants under the Notes and the Indenture.
SECTION 203. REAFFIRMATION BY FINANCE CORP OF OBLIGATIONS UNDER THE NOTES
AND THE INDENTURE.
Finance Corp. hereby reaffirms and agrees to comply with all of its
obligations under the Notes and the Indenture.
SECTION 204. REAFFIRMATION BY GUARANTORS OF OBLIGATIONS OF THE GUARANTORS
UNDER THE INDENTURE.
Each of the Guarantors hereby assumes and reaffirms and agrees to
comply with all of its obligations under the Guaranty.
SECTION 205. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Third Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 206. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS THIRD SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE
GUARANTEES.
SECTION 207. EFFECTIVENESS.
The provisions of this Third Supplemental Indenture will take effect
immediately upon the occurrence of the last to occur of the following:
(a) execution of this Third Supplemental Indenture by all
parties hereto and delivery of a fully-executed copy thereof to the
Trustee;
(b) execution and delivery by Regal and the Trustee of the
Substitute Pledge Agreement, and delivery by Regal to the Trustee of
all of the Reissued Pledged Shares and the Pledged Notes, endorsed by
the Company to Regal; and
(c) execution and delivery by Regal, the Surviving Entities
and the Trustee of the Substitute Security Agreement.
6
9
SECTION 208. NOTICES.
In accordance with Section 12.02 of the Indenture, the address for
notice to Regal shall be as follows:
Regal Cinemas, Inc.
7132 Commercial Park Drive
--------------------------
Knoxville, Tennessee 37918
--------------------------
--------------------------
Telecopier No.: (423) 922-6085
--------------
Attention: Chief Financial Officer
-----------------------
SECTION 209. REAFFIRMATION OF INDENTURE.
Except as supplemented by this Third Supplemental Indenture, the
Original Indenture as supplemented by the First Supplemental Indenture and the
Second Supplemental Indenture is in all respects ratified and confirmed, and the
Original Indenture as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture and this Third Supplemental Indenture shall be
read, taken and construed as one and the same instrument so that all of the
rights, remedies, terms and conditions, covenants and agreements of the Original
Indenture, as amended, shall apply and remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
COBB THEATRES, L.L.C.
By:
-------------------------------------
Name:
Title:
Attest:
By:
-------------------------------------
Name:
Title:
COBB FINANCE CORP.
By:
-------------------------------------
Name:
Attest: Title:
By:
-------------------------------------
Name:
Title:
7
10
R.C. COBB, INC.
By:
-------------------------------------
Name:
Attest: Title:
By:
-------------------------------------
Name:
Title:
COBB THEATRES II, INC.
By:
-------------------------------------
Name:
Title:
Attest:
By:
-------------------------------------
Name:
Title:
REGAL CINEMAS, INC.
By:
-------------------------------------
Name:
Attest: Title:
By:
-------------------------------------
Name:
Title:
IBJ SCHRODER BANK & TRUST
COMPANY, INC., AS TRUSTEE
By:
-------------------------------------
Name:
Title:
Attest:
By:
-------------------------------------
Name:
Title:
8