EXHIBIT 4.3
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SECOND SUPPLEMENTAL INDENTURE
__________
XXXXX THEATRES, INC.,
as Issuer,
LOEWS CINEPLEX ENTERTAINMENT CORPORATION,
as Guarantor,
and
THE BANK OF NEW YORK,
as Trustee
Dated as of June ___, 1998
__________
Supplement to the Indenture dated as of June 23, 1994, relating to
10 7/8% Senior Subordinated Notes due June 15, 2004, among Xxxxx Theatres,
Inc., as Issuer, Cineplex Odeon Corporation, as Guarantor, and The Bank of New
York, as Trustee, as amended by the Supplemental Indenture dated as of May 14,
1998 among Xxxxx Theatres, Inc., as Issuer, Loews Cineplex Entertainment
Corporation, as Guarantor, and The Bank of New York, as Trustee.
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SECOND SUPPLEMENTAL INDENTURE dated as of June ___, 1998, between XXXXX
THEATRES, INC., a Delaware corporation ("Xxxxx" or the "Company"), LOEWS
CINEPLEX ENTERTAINMENT CORPORATION, a Delaware corporation ("Loews Cineplex" or
the "Guarantor"), and THE BANK OF NEW YORK, as Trustee (the "Trustee").
WHEREAS, the Company is party to an Indenture dated as of June 23, 1994, as
amended by the Supplemental Indenture dated as of May 14, 1998 (as amended, the
"Indenture"), providing for the creation of 10 7/8% Senior Subordinated
Notes, due June 15, 2004 (the "Securities"); and
WHEREAS, there have been issued and are now outstanding under the
Indenture, Securities in the aggregate principal amount of $200,000,000; and
WHEREAS, Section 9.02 of the Indenture provides that the Indenture may be
amended, and the Company, the Guarantor and the Trustee may waive compliance
with any provision of the Indenture with the written consent of the Holders of
not less than the majority in aggregate principal amount of the outstanding
Securities;
WHEREAS, the Company and the Guarantor desire to amend certain provisions
of the Indenture, as set forth in Article I hereof;
WHEREAS, the Holders of at least a majority in aggregate principal amount
of the outstanding Securities have consented to the waivers and amendments
affected by this Second Supplement Indenture; and
WHEREAS, all conditions and requirements necessary to make this Second
Supplemental Indenture a valid and binding instrument in accordance with its
terms have been performed and fulfilled and the execution and delivery hereof
have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the above premises, each party agrees,
for the benefit of the others and for the equal and ratable benefit of the
Holders of the Securities as follows:
ARTICLE 1
AMENDMENTS TO INDENTURE
SECTION 1.01. Waiver of and Amendments to Articles Four, Five and Six.
(a) The application of the provisions of Sections 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19,
5.01(iii), 5.01(iv), 5.01(v), 6.01(d), 6.01(e) and 6.01(h) of the Indenture are
hereby waived to the extent that such provisions might otherwise interfere with
the ability of the Company to consummate the Offer and Consent Solicitation as
set forth in the Offer to Purchase and Consent Solicitation Statement and
accompanying Letter of Transmittal and Consent dated as of June 15, 1998 and any
amendments, modifications or supplements thereto (the "Offer and Consent
Solicitation").
(b) Effective upon the date the Company accepts Securities for
purchase and payment pursuant to the Offer and Consent Solicitation (the
"Acceptance Date"), unless, prior to that time, the Company, by written notice
to the Trustee, has terminated this Second Supplemental Indenture, Section
5.01(v) is hereby amended by eliminating the following language therefrom:
"(attaching the arithmetic computations to demonstrate compliance with clauses
(iii) and (iv))."
(c) Effective upon the date the Company accepts Securities for
purchase and payment pursuant to the Offer and Consent Solicitation (the
"Acceptance Date"), unless, prior to that time, the Company, by written notice
to the Trustee, has terminated this Second Supplemental Indenture, the first
sentence of Section 6.02 is hereby amended by eliminating all references, direct
or indirect, therein to clause (h) of Section 6.01, including,
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without limitation, the phrase "or an Event of Default specified in clause (h)
of Section 6.01 hereof shall occur and be continuing and the Company or the
Guarantor shall fail to make an offer to purchase the Securities or to purchase
the Securities properly tendered into the offer to purchase at the times and in
the manner specified in Section 4.19 of this Indenture."
(d) Effective upon the Acceptance Date, unless, prior to that time,
the Company, by written notice to the Trustee, has terminated this Second
Supplemental Indenture, Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 5.01(iii), 5.01(iv), 6.01(d),
6.01(e) and 6.01(h) of the Indenture are hereby amended by deleting all such
sections and all references thereto in their entirety, including without
limitation, all references, direct or indirect, thereto in Section 6.01 ("Events
of Default") and Section 6.02 ("Acceleration").
(d) Effective upon the Acceptance Date, unless prior to that time, the
Company or the Guarantor, by written notice to the Trustee, has terminated this
Second Supplemental Indenture, the Indenture is hereby amended by deleting those
definitions from the Indenture when references to such definitions would be
eliminated as a result of the provisions of this Section 1.01.
ARTICLE 2
TRUSTEE DISCLAIMER
SECTION 2.01. Trustee Disclaimer. The Trustee has accepted the amendment
of the Indenture effected by this Second Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby amended, but only upon the
terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, and without limiting the generality of the foregoing, the Trustee shall
not be responsible in any manner whatsoever for or with respect to any of the
recitals or statements contained herein, all of which recitals or statements are
made solely by the Company and the Guarantor, or for or with respect to (a) the
validity or sufficiency of this Second Supplemental Indenture or any of the
terms or provisions hereof, (b) the proper authorization hereof by the Company
and the Guarantor by corporate action or otherwise, (c) the due execution hereof
by the Company and the Guarantor, and (d) the consequences (direct or indirect
and whether deliberate or inadvertent) of any amendment herein provided for, and
the Trustee makes no representation with respect to any such matters.
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.01. Terms Defined. For all purposes of this Second Supplemental
Indenture, except as otherwise defined or unless the context otherwise requires,
terms used in capitalized form in this Second Supplemental Indenture and defined
in the Indenture have the meanings specified in the Indenture.
SECTION 3.02. Indenture. Except as amended hereby, the Indenture and the
Securities are in all respects ratified and confirmed and all terms thereof
shall remain in full force and effect. This Second Supplemental Indenture is an
indenture supplemental to and in implementation of the Indenture, and said
Indenture and this Second Supplemental Indenture shall henceforth be read
together.
SECTION 3.03. Governing Law. This Second Supplemental Indenture shall be
governed by and construed in accordance with the internal laws of the State of
New York, without regard to the conflicts of laws rules thereof.
SECTION 3.04. Successors. All agreements of the Company, the Guarantor
and the Trustee in this Second Supplemental Indenture shall bind their
respective successors.
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SECTION 3.05. Effective Date. This Second Supplemental Indenture shall
become a legally effective and binding instrument upon the execution and
delivery hereof by all parties hereto; provided that the amendments to the
Indenture set forth in Section 1.01 of this Second Supplemental Indenture shall
become operative as specified in Section 1.01 hereof. Prior to the Acceptance
Date, the Company or the Guarantor may terminate this Second Supplemental
Indenture upon written notice to the Trustee (it being understood that the
Company and the Guarantor may, subsequent thereto, enter into a substitute
second supplemental indenture).
SECTION 3.06. Counterparts. This Second Supplemental Indenture may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
XXXXX THEATRES, INC.
as issuer
By:_____________________________
Title:
LOEWS CINEPLEX
ENTERTAINMENT CORPORATION
as Guarantor
By:_____________________________
Title:
THE BANK OF NEW YORK
as Trustee
By:_____________________________
Title:
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